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Unofficial Opinion 95-2

Unofficial Opinion 95-2

January 19, 1995
To: 

Senator
District 46

Re: 

Persons who fall within the definition of a lobbyist in relation to county or municipal matters, as defined under O.C.G.A. § 21-5-70(6)(D), (E), (F), must comply with the registration and reporting requirements of the Public Officials Conduct and Lobbyist Disclosure Act.

You have asked my unofficial opinion as to whether certain persons must register and report as lobbyists depending upon certain actions they take in relation to county or municipal governments. It is my unofficial opinion that if such persons fall within the statutory definition of a "lobbyist," they must comply with the registration and reporting requirements of the Public Officials Conduct and Lobbyist Disclosure Act, a portion of the Ethics in Government Act.

During the 1994 session of the General Assembly, the definition of "lobbyist" was modified to include persons who undertook lobbying activities in relation to elected county officials and members of county boards of education and before elected municipal officials. 1994 Ga. Laws 277-79; O.C.G.A. § 21-5-70(6)(D), (E), (F). This amendment was approved by the Governor on March 25, 1994, and was precleared on June 13, 1994, by the U.S. Department of Justice under Section 5 of the Voting Rights Act of 1965.

As such, any natural person who, for compensation, either individually or on behalf of another promotes or opposes the passage of any county, school board, or municipal ordinance or

resolution must now register and report as a lobbyist under the Ethics in Government Act. O.C.G.A. § 21-5-70(6)(D). The same is true for any natural person who makes a total expenditure for such activities of more than $250.00 in any one calendar year, not including personal expenses of the individual for travel, food, lodging expenses or providing informational material. O.C.G.A. § 21-5-70(6)(E). Also, persons who are employees of counties, school boards or municipalities who undertake lobbying activities as defined under O.C.G.A. § 21-5-70(6)(D) must also register and report as a lobbyist. O.C.G.A. § 21-5-70(6)(F).

In order to address the specific questions you have raised regarding different categories of persons involved in actions before local governments, it is necessary to review the requirements of Georgia law regarding lobbyist registration and disclosure. Under O.C.G.A. § 21-5-71(a), the General Assembly has provided: "No person shall engage in lobbying as defined by this article unless such person is registered with the State Ethics Commission as a lobbyist. The administration of this article is vested in the State Ethics Commission."

The registration process is defined under O.C.G.A. § 21-5-71(b) thru (f). Additionally, those persons registered as lobbyists have a statutory duty to file the disclosure reports outlined under O.C.G.A. § 21-5-73.

The law also provides a number of exceptions which remove certain persons or activities from coming within the definition of a "lobbyist." O.C.G.A. § 21-5-71(i). These exceptions provide that the definition of lobbying shall not include:

(1) Any individual who expresses personal views, on that individual's own behalf, to any public officer;

(2) Any person who appears before a public agency or governmental entity committee or hearing for the purpose of giving testimony when such person is not otherwise required to comply with the registration provisions of this Code section;

(3) Any public employee of an agency appearing before a governmental entity committee or hearing at the request of the governmental entity or any person who furnishes information upon the specific request of a governmental entity;

(4) Any licensed attorney appearing on behalf of a client in any adversarial proceeding before an agency of this state;

(5) Any person employed or appointed by a lobbyist registered pursuant to this Code section whose duties and activities do not include lobbying;

(6) Elected public officers performing the official duties of their public office; and

(7) A public employee who performs services at the direction of a member of the General Assembly including, but not limited to, drafting petitions, bills, or resolutions; attending the taking of testimony; collating facts; preparing arguments and memorials and submitting them orally or in writing to a committee or member of the General Assembly; and other services of like character intended to reach the reason of the legislators.

You have asked how these provisions apply to certain types of persons who are involved with counties, school boards or municipalities. Each of those categories is addressed below.

Business Councils Initially, you have asked whether paid employees or board members of local private business councils should register as "lobbyists." You have identified such "business councils" to be:

[N]onprofit "watchdog" groups with one paid employee who monitors government actions by attending meetings and speaking privately with individual members of the county commission and staff . . . . Unpaid members of the board of directors and members [of the business council] support or oppose legislation at public meetings. No funds are expended on elected officials.

If the paid employee of the business council acts to promote or oppose ordinances or resolutions during the private meetings with county officials, then that person falls within the definition of lobbying and would be required to register and report under the Ethics in Government Act. O.C.G.A. § 21-5-70(6)(D). As for the board members who are not acting for compensation and who do not make expenditures on the public officials in excess of $250.00, they would not fall within the statutory definition cited above and would therefore not be subject to the registration and reporting requirements. Id.

Chambers of Commerce You have next asked about whether paid employees of chambers of commerce who appear before local boards and commissions to promote or oppose legislation must register and report as lobbyists. The answer to that question is "yes" as they clearly fall within the statutory definition of O.C.G.A. § 21-5-70(6)(D). However, if the paid employee is merely speaking at a public meeting to provide information upon the request of a local official, that activity would not be lobbying under the exemption provided in O.C.G.A. § 21-5-71(i)(3). Finally, as with business councils, if unpaid board members of the chamber of commerce act to promote or oppose ordinances or resolutions, because they are not acting for compensation, they would not fall within the registration and reporting requirements of the Act.

Private Developers Next you have inquired whether a developer hired by a landowner to develop the owner's property must register as a lobbyist if the developer appears before a zoning board merely to relate technical information and does not specifically request approval or denial of an ordinance. You have indicated that such appearances are sometimes requested by local government planning offices and that, "the developer has the responsibility of convincing the elected body that the [zoning] request is appropriate and falls into the guidelines set for approval of zoning matters."

The initial question is whether the members of the zoning boards in question are elected. If they are not and are appointed, then they do not fall within the range of public officers covered in the Ethics in Government Act. O.C.G.A. § 21-5-70(6)(D), (E), (F); O.C.G.A. § 21-5-3(15)(F), (G). As such, persons appearing before such an appointed board would not be "lobbyists" within the meaning of the statute.

If such boards were composed of elected county or municipal officials, then the answer to your question becomes more problematic. While a developer may not openly advocate the adoption of a rezoning request before a zoning board, it would be implicit in the request for rezoning that the developer was advocating the passage of such an ordinance or resolution. It would also appear that the developer would be doing this for compensation in that there would be a financial benefit to the developer should the rezoning be approved. As such, the developer would fall within the registration and reporting requirements of the Act.

Certainly, appearances of this type before any other local elected officials (i.e., city or county commissions) would also fall within the registration and reporting requirements of the Act. Additionally, government officials and zoning applicants still must comply with the disclosure requirements of O.C.G.A. § 36-67A-1 et seq., dealing with conflicts of interest in zoning actions.

Attorneys You have also asked whether attorneys hired by landowners or developers to provide expertise and legal opinions to local commissioners regarding zoning ordinances and other matters would be subject to the registration and reporting requirements. If these persons are promoting or opposing for compensation the passage of local resolutions or ordinances by elected officials, whether they do so as "experts" or in the form of "legal opinions," or if they make expenditures in excess of $250.00, they are covered by the Act. There is no exception for lobbying activities undertaken by members of the legal profession.

However, there are circumstances where an attorney's actions would not come within this requirement. For example, under O.C.G.A. § 21-5-71(i)(4) the General Assembly indicates an intent that attorneys acting on behalf of their clients in adversarial proceedings should not be considered "lobbyists." "Adversarial proceeding" should be given its ordinary and common meaning, so such proceedings would include evidentiary proceedings and other fact-finding, quasi-judicial proceedings. O.C.G.A. § 1-3-1(b). Additionally city, county or school board attorneys who are giving their legal advice to their clients on matters of legislation would be considered public employees appearing at the request of a governmental entity to provide information and also would not appear to be being compensated specifically for promoting or opposing legislation.

Neighborhood Associations You have inquired as to whether neighborhood associations which appear to promote or oppose zoning changes would also be considered "lobbyists." Again, the question must be asked as to whether they are appearing before elected officials and whether they are doing so for compensation. If the representatives of neighborhood associations are doing this, they must register and report. If the representatives are either not appearing before the covered elected officials or are not doing so for compensation (or expending over $250.00), they do not fall within the requirements of the Act.

Consultants You have also asked whether a consultant appearing before a local commission or individual members of a local commission would have to register and report as a lobbyist if they are paid by someone else to intervene with the elected body on behalf of their employer. While there is an exception under O.C.G.A. § 21-5-71(i)(5) for persons employed by lobbyists not to also register and report, that is only for persons who are not taking any actions to influence legislation. Otherwise such employees would also be considered "lobbyists." This would include a consultant who for compensation attempted to influence the passage or rejection of local resolutions or ordinances or who made expenditures in excess of the $250.00 limit.

Speakers at Public Hearings Finally you have inquired why the law permits people to speak at public hearings without registering as a lobbyist, while others who fall within the statutory definition are subject to the registration and reporting requirements. Specifically this refers to the exclusion from the definition of "lobbyist" of persons who express their own personal views on their own behalf to a public officer. O.C.G.A. § 21-5-71(i)(1).

This exclusion recognizes an individual's right to free speech under both the U.S. and Georgia state constitutions. U.S. Const. amend. I; Ga. Const. 1983, Art. I, Sec. I, Para. V. This fundamental right cannot be burdened absent a compelling state interest. However, when a person is acting for compensation to influence legislation, those actions are fundamentally different from the expressions of personal opinion and can be subject to reporting and registration requirements. See, e.g., Buckley v. Valeo, 424 U.S. 1 (1976); Fortson v. Weeks, 232 Ga. 472 (1974) (upholding regulation and reporting requirements for campaign contributions to candidates).

It should also be recognized that the reporting and disclosure requirements of the statute do not prevent a lobbyist from exercising his or her rights to communicate with governmental leaders. They are still free to do so. However, what the statute does require is that the people of Georgia have access to information telling them what persons are contacting their elected leaders and what, if any, financial expenditures are being made in relation to these contacts.

In conclusion, it is my unofficial opinion that persons who fall within the definition of a lobbyist in relation to county or municipal matters, as defined under O.C.G.A. § 21-5-70(6)(D), (E), (F), must comply with the registration and reporting requirements of the Public Officials Conduct and Lobbyist Disclosure Act.

Prepared by:

DENNIS R. DUNN
Senior Assistant Attorney General