Opinion letter to the Honorable Paul L. Bradshaw

February 3, 1976 OPINION LETTER NO. 25 Answer by letter-Klaffenbach Honorable Paul L. Bradshaw State Senator, District 30 c/o Senate Post Office, Capitol Building Jefferson City, Missouri 65101 Dear Senator Bradshaw: F\ LED :25 This letter is in response to your questions asking: "Section 105.470(3) of c.c.s.s.c.s.H. c.s.H.B. 20, 79, 386, 760 and 765, 78th Gen- eral Assembly, defines a 'lobbyist' as: ' ••• any person who receives any direct or indirect benefits or ex- ~nses for lobbying activities, w ether by ~ant or otherwise, from any state,e federal government or any private not for profit foun- dation or corporation ••• • (emphasis added) "1. Does this definition include a state employee who, acting merely as a pri- vate citizen and not in any official capa- city or during regular hours of employment, asks a member of the General Assembly to vote for a bill which might result in a di- rect or indirect benefit to such state em- ployee? For example, would it include a professor of a state university, who re- quests added appropriations for higher edu- cation--or to a teacher in the public schools who urges increased funding for the school foundation program--or to any state employee Honorable Paul L. Bradshaw who seeks support for an increase in bene- fits under the state retirement system? Ob- viously, these persons may expect to receive some 'direct or indirect benefits' as a re- sult of their lobbying activities, bUt-not T!Qr• the act of lobbying per ~· "2. Similarly, does this definition of a 'lobbyist' include a state employee who, acting merely as a private citizen and not in any official capacity or during reg- ular hours of employment, asks others to contact members of the General Assembly and seek their support of a measure which might result in some direct or indirect benefit to such state employee? For example, would it apply to a caseworker who asks others to con- tact the members of the Legislature in sup- port of added appropriations for the Division of Family Services? "3. Would the answers to questions '1' and'2' above, be affected by the fact that such requests by the state employee were done at the command or suggestion of a supervisor of such employee or were made as a part of a concerted plan by the agency, or officials thereof, to influence the course of legisla- tion? If so, how? "4. If, in fact, such persons are in- cluded within the definition of a 'lobbyist' under subsection (3) of the act, are they nonetheless excluded under subsection (4), which applies to 'any person who engages in the activities heretofore described in sub- division (3) on an occasional basis only and not as a reqular pattern of conduct and who expends for such purposes no more than one hundred dollars during the legislative ses- sion, other than for his own traveling and personal expenses.•. In other words, if one expects to receive personal benefits from his lobbying activities, is he nonetheless exempt from filing and reporting procedures if he lobbies only occasionally and does not spend more than one hundred dollars in the process?" -2- Honorable Paul L. Bradshaw The definition of "lobbyist" set forth in your question is only part yf the definition provided in Section 105.470, subsec- tion 1(3). The entire definition reads as follows : "'Lobbyist', any person, including per- sons employed by or representing federal or state agencies and all political subdivisions thereof, who acts in the course of his employ- ment or who engages himself for pay or for any valuable consideration for the purpose of at- tempting to influence the taking, passage, amendment, delay or defeat of any legislative action by the legislature; or ant person who receives any direct or indirectenefits or expenses for lobbyln¥ activities, whether by grant or otherwise, rom any state, the fed- eral government or any private not for profit foundation or cor~ratlon; provided that the term shall not inc ude any member of the Gen- eral Assembly or elected state officer." (Emphasis added) In answering your questions, we must consider the entire def- inition of "lobbyist" and not just the segment quoted in the opin- ion request. We further note that subsection (6) of Section 105.470 pro- vides for criminal penalties for violations of the section. There- fore, the language of the statute must be strictly construed. State v. Taylor, 133 s.w.2d 336 (Mo. 1939). In your first question you ask whether the definition of "lob- byist" includes a state employee who, acting merely as a private citizen and not in any official capacity or during regular hours of employment, asks a member of the General Assembly to vote for a bill which might result in a direct or indirect benefit to such state em- ployee. Assuming that the employee in question is not acting in the course of his employment and is not being paid for his efforts to in- fluence the bill, he would not be included within the first part of 1conference Committee Substitute for Senate Committee Substi- tute for House Committee Substitute for House Bills Nos. 20, 79, 386, 760, and 765 has been printed in Vernon's Missouri Legislative Service, supplementing Vernon's Annotated Missouri Statutes as Act 119. -3- Honorable Paul L. Bradshaw the definition of "lobbyist" in subsection 1(3) of Section 105.470. Furthermore, even if we assume that some direct or indirect benefit will accrue to the state employee personally from the bill, the sec- ond part of the definition of "lobbyist" requires that the person receive "direct or indirect benefits or expenses for lobbying ac- tivities •••• " (Emphasis supplied). We believe""tnat the word "for" has a different meaning than the word "from." Therefore, if the state employee does not receive direct or indirect benefits for his activity in attempting to influence legislation, he would not come within that part of the definition. Your second question asks whether the definition of "lobbyist" includes a state employee acting merely as a private citizen and not in any official capacity who asks others to contact members of the General Assembly and seek support of a measure which might re- sult in some direct or indirect benefit to such state employee. Applying the same reasoning used in answering your first question, and again assuming that such person is not acting in the course of any employment or receiving pay or other valuable consideration for his attempts to influence legislation, we conclude that such employ- ee is not, under these circumstances, a "lobbyist." In your third question, you inquire whether the answers to the first two questions would be different if the state employee's ef- forts to influence legislation were done at the command or sugges- tion of the employee's supervisor. You ask also whether the answers to the first two questions would be different if the state employee's lobbying activities were done as a part of a concerted plan by the agency, or the officials thereof, to influence the course of legis- lation. If a state employee attempts to influence legislation pur- suant to his supervisor's suggestion without any express or implied direction or order, we do not believe the employee would be acting in the course of his employment or for a valuable consideration. However, we recognize that the line between suggestion and command in such a situation might not be readily apparent. An employee could easily assume that a suggestion from a supervisor was, in fact, a command. Therefore, it would be necessary to analyze each situation to determine whether a supervisor made a mere suggestion or whether it was, in fact, an order or command, or could have been understood as such. If a state employee attempts to influence leg- islation on the command of a supervisor or as part of a concerted plan of action by an agency or the officials thereof to influence legislation, the state employee would be acting 8 in the course of his employment ••• " to influence legislation and would be re- ceiving a benefit for lobbying activities. Therefore, this state -4- Honorable Paul L. Bradshaw employee would be a "lobbyist" unless his lobbying is only occa- sional in which case he might be a "witness."2 If such person comes within the definition of "witness, " he must comply with the require- ments of subsection 3 of Section 105.470. We believe this also an- swers your fourth question. Yours very truly, JOHN C. DANFORTH Attorney General 2"witness" is defined in Section 105.470.1(4) as : " 'Witness', any person who engages in the activities heretofore described in sub- division (3) on an occasional basis only and not as a regular pattern of conduct and who expends for such purposes no more than one hundred dollars during the legislative ses- sion, other than for his own traveling and personal expenses." -5-