MISSISSIPPI LEGISLATURE
2019 Regular Session
To: Accountability, Efficiency, Transparency
By: Senator(s) McDaniel
AN ACT TO CREATE THE STATE AGENCY LOBBYING REFORM ACT OF 2019; TO AMEND SECTION 5-8-3, MISSISSIPPI CODE OF 1972, TO REVISE DEFINITIONS; TO AMEND SECTION 5-8-7, MISSISSIPPI CODE OF 1972, TO EXPAND THE EXCLUSIONS FROM LOBBYING; TO AMEND SECTION 5-8-13, MISSISSIPPI CODE OF 1972, TO REVISE PROHIBITED ACTS; TO AMEND SECTION 5-8-17, MISSISSIPPI CODE OF 1972, TO REVISE PENALTIES; TO REQUIRE STATE AGENCY DISCLOSURES; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act may be cited as the State Agency Lobbying Reform Act of 2019.
SECTION 2. The Legislature finds that citizens are opposed to state agencies using public funds to influence the Legislature to protect themselves and their employees from meaningful reforms. Lobbying by state agencies is often conducted to increase the size, scope and cost of the state agencies, or to prevent budget cuts. Citizens should not be forced to fund the same lobbyists they may have to compete with at public hearings where state agency reductions and reforms are proposed.
SECTION 3. Section 5-8-3, Mississippi Code of 1972, is amended as follows:
5-8-3. The following words and phrases shall have the meanings ascribed herein unless the context clearly indicates otherwise:
(a) (i) "Anything of value" means:
1. A pecuniary item, including money, or a bank bill or note;
2. A promissory note, bill of exchange, order, draft, warrant, check or bond given for the payment of money;
3. A contract, agreement, promise or other obligation for an advance, conveyance, forgiveness of indebtedness, deposit, distribution, loan, payment, gift, pledge or transfer of money;
4. A stock, bond, note or other investment interest in an entity;
5. A receipt given for the payment of money or other property;
6. A right in action;
7. A gift, tangible good, chattel or an interest in a gift, tangible good or chattel;
8. A loan or forgiveness of indebtedness;
9. A work of art, antique or collectible;
10. An automobile or other means of personal transportation;
11. Real property or an interest in real property, including title to realty, a fee simple or partial interest, present or future, contingent or vested within realty, a leasehold interest, or other beneficial interest in realty;
12. An honorarium or compensation for services;
13. A rebate or discount in the price of anything of value, unless the rebate or discount is made in the ordinary course of business to a member of the public without regard to that person's status as an executive, legislative or public official or public employee, or the sale or trade of something for reasonable compensation that would ordinarily not be available to a member of the public;
14. A promise or offer of employment;
15. Any other thing of value that is pecuniary or compensatory in value to a person, except as otherwise provided in subparagraph (ii) of this paragraph; or
16. A payment that directly benefits an executive, legislative or public official or public employee or a member of that person's immediate family.
(ii) "Anything of value" does not mean:
1. Informational material such as books, reports, pamphlets, calendars or periodicals informing an executive, legislative or public official or public employee of her or his official duties;
2. A certificate, plaque or other commemorative item which has little pecuniary value;
3. Food and beverages for immediate consumption provided by a lobbyist up to a value of Ten Dollars ($10.00) in the aggregate during any calendar year;
4. Campaign contributions reported in accordance with Section 23-15-801 et seq., Mississippi Code of 1972.
(b) "Commission" means the Mississippi Ethics Commission, when used in the context of Section 5-8-19.
(c) "Compensation" means:
(i) An advance, conveyance, forgiveness of indebtedness, deposit, distribution, loan, payment, gift, pledge or transfer of money or anything of value, including reimbursement of travel, food or lodging costs; or
(ii) A contract, agreement, promise or other obligation for an advance, conveyance, forgiveness of indebtedness, deposit, distribution, loan, payment, gift, pledge or transfer of money or anything of value, including reimbursement of travel, food or lodging costs, for services rendered or to be rendered.
(d) "Director" means the head of a state agency or equivalent position.
(e) "Deputy director" means the individual appointed to act on behalf of the director in the administration of the affairs of the state agency and who shall have charge and general supervision of the department in the absence or disability of the director, and who, in case a vacancy occurs in the office of director, shall continue in charge of the state agency until a director is appointed and qualified, or the Governor appoints an acting director.
( * * *f) "Executive action" means
the proposal, drafting, development, consideration, amendment, adoption,
approval, promulgation, issuance, modification, rejection or postponement by a
state or local governmental entity of a rule, regulation, order, decision,
determination or other quasi-legislative action or proceeding.
( * * *g) "Executive agency" means:
(i) An agency, board, commission, governing authority or other body in the executive branch of state or local government; or
(ii) An independent body of state or local government that is not a part of the legislative or judicial branch, but which shall include county boards of supervisors.
( * * *h) "Executive official"
means:
(i) A member or employee of a state agency, board, commission, governing authority or other body in the executive branch of state or local government; or
(ii) A public official or public employee, or any employee of such person, of state or local government who takes an executive action.
( * * *i) "Expenditure" means:
(i) A purchase, payment, distribution, loan, forgiveness of a loan or payment of a loan by a third party, advance, deposit, transfer of funds, a promise to make a payment, or a gift of money or anything of value for any purpose;
(ii) A payment to a lobbyist for salary, fee, commission, compensation for expenses, or other purpose by a person employing, retaining or contracting for the services of the lobbyist separately or jointly with other persons;
(iii) A payment in support of or assistance to a lobbyist or the lobbyist's activities, including the direct payment of expenses incurred at the request or suggestion of the lobbyist;
(iv) A payment that directly benefits an executive, legislative or public official or a member of the official's immediate family;
(v) A payment, including compensation, payment or reimbursement for the services, time or expenses of an employee for or in connection with direct communication with an executive, legislative or public official made at the direction of the employee's employer;
(vi) A payment for or in connection with soliciting or urging other persons to enter into direct communication with an executive, legislative or public official; or
(vii) A payment or reimbursement for food, beverages, travel, lodging, entertainment or sporting activities.
( * * *j) "Gift" means anything of
value to the extent that consideration of equal or greater value is not
received, including a rebate or discount in the price of anything of value
unless the rebate or discount is made in the ordinary course of business to a
member of the public without regard to that person's status as an executive,
legislative or public official.
( * * *k) "Legislative action"
means:
(i) Preparation, research, drafting, introduction, consideration, modification, amendment, approval, passage, enactment, tabling, postponement, defeat or rejection of a bill, resolution, amendment, motion, report, nomination, appointment or other matter by the Mississippi State Legislature or a member or employee of the Legislature acting or purporting to act in an official capacity;
(ii) Action by the Governor in approving or vetoing a bill or other action of the Legislature;
(iii) Action by the Legislature in:
1. Overriding or sustaining a veto by the Governor; or
2. Considering, confirming or rejecting an executive appointment of the Governor.
( * * *l) "Legislative official"
means:
(i) A member, member-elect or presiding officer of the Legislature;
(ii) A member of a commission or other entity established by and responsible to either or both houses of the Legislature;
(iii) A staff member, officer or employee to a member or member-elect of the Legislature, to a member of a commission or other entity established by and responsible to either or both houses of the Legislature, or to the Legislature or any house, committee or office thereof.
( * * *m) "Lobbying" means:
(i) Influencing or
attempting to influence legislative or executive action through oral or written
communication; * * *
(ii) Solicitation
of others to influence legislative or executive action; * * *
(iii) Paying or
promising to pay anything of value directly or indirectly related to
legislative or executive action * * *; or
(iv) Attempting to influence the passage or defeat of any legislation by the Legislature or the United States Congress, or the adoption or rejection of any rule, standard, rate or other legislative enactment of any state agency.
( * * *n) "Lobbyist" means any
person who lobbies either in his or her own or another's behalf and includes:
(i) An individual who is employed and receives payments, or who contracts for economic consideration, including reimbursement for reasonable travel and living expenses, for the purpose of lobbying;
(ii) An individual who represents a legislative or public official or public employee, or who represents a person, organization, association or other group, for the purpose of lobbying;
(iii) A sole proprietor, owner, part owner or shareholder in a business who has a pecuniary interest in legislative or executive action, who engages in lobbying activities; or
(iv) Any individual described in subparagraphs (i), (ii) or (iii) of this paragraph (l) who is employed by or has contracted with any agency, legislative or public official or public employee, or any other public entity for the purpose of providing any type of consulting or other similar service but also engages in any type of lobbying activities. Such individual shall not qualify for any exemption under Section 5-8-7.
( * * *o) "Lobbyist's client" means
the person in whose behalf the lobbyist influences or attempts to influence
legislative or executive action.
( * * *p) "Local" means all
entities of government at the county, county district, multicounty district,
municipal or school district level.
( * * *q) "Person" means an
individual, proprietorship, firm, partnership, joint venture, joint-stock
company, syndicate, business trust, estate, company, corporation, association,
club, committee, organization or group of persons acting in concert.
( * * *r) "Public employee" means
an individual appointed to a position, including a position created by statute,
whether compensated or not, in state or local government and includes any
employee of the public employee. The term includes a member of the board of
trustees, chancellor, vice chancellor or the equivalent thereof in the state
university system or the state community and junior college system, and a
president of a state college or university.
( * * *s) "Public official" means
an individual elected to a state or local office, or an individual who is
appointed to fill a vacancy in the office.
(t) "State agency" means every state office, department, division, bureau, board, commission or other state agency.
( * * *u) "Value" means the retail
cost or fair market worth of an item or items, whichever is greater.
SECTION 4. Section 5-8-7, Mississippi Code of 1972, is amended as follows:
5-8-7. Notwithstanding any other provisions of this chapter, except as otherwise provided in Section 5-8-3(l)(iv), the following person shall not be included within the definition of "lobbyist" or "lobbyist's client" under this chapter, and accordingly the registration and reporting provisions, including the payment of related fees, of this chapter do not apply to:
(a) (i) A legislative or public official acting in an official capacity who only makes recommendations or reports to the Legislature in response to a legislative request expressly requesting or directing a specific study, recommendation or report by an agency on a particular subject;
(ii) Official reports including recommendations submitted to the Legislature on a regular basis by a state agency as required by law;
(iii) Recommendations or communication between or within state agencies.
(b) An individual who:
(i) Represents or purports to represent only the individual;
(ii) Receives no compensation or anything of value for lobbying; and
(iii) Has no pecuniary interest in the legislative or executive action.
(c) An individual lobbying in his or her own interest, his or her own business interest, who pays, or promises to pay, offers to pay or causes to be paid to public officials, legislative officials or public employees any thing or things of value aggregating in value to less than Two Hundred Dollars ($200.00) in any calendar year.
(d) An individual lobbying on behalf of his or her employer's business interest where such lobbying is not a primary or regular function of his employment position if such individual pays, promises to pay, offers to pay, or causes to be paid individually or on the employer's behalf to public officials, legislative officials, or public employees any thing or things of value aggregating in value to less than Two Hundred Dollars ($200.00) in any calendar year.
(e) An individual lobbying on behalf of an association of which he or she is a member, where such lobbying is not a primary or regular function of his or her position in the association, if such individual pays, promises to pay, offers to pay, or causes to be paid individually or on the association's behalf to public officials, legislative officials or public employees any thing or things of value aggregating in value to less than Two Hundred Dollars ($200.00) in any calendar year.
(f) An individual who is a shareholder, owner or part owner of a business who lobbies on behalf of such business, where such individual is not an employee of the business, if such individual pays, promises to pay, offers to pay, or causes to be paid individually or on behalf of the business to public officials, legislative officials or public employees any thing or things of value aggregating in value to less than Two Hundred Dollars ($200.00) in any calendar year.
(g) An individual who:
(i) Limits lobbying solely to formal testimony before a public meeting of a legislative body or an executive agency, or a committee, division or department thereof; and
(ii) Registers the appearance in the records of the public body, if such records are kept.
(h) An individual who is a licensed attorney representing a client by:
(i) Drafting bills, preparing arguments thereon, and advising the client or rendering opinions as to the construction and effect of proposed or pending legislation, where such services are usual and customary professional legal services which are not otherwise connected with legislative action; or
(ii) Providing information, on behalf of the client, to an executive or public official, a public employee, or an agency, board, commission, governing authority or other body of state or local government where such services are usual and customary professional legal services including or related to a particular nonlegislative matter, case or controversy.
(i) News media and employees of the news media whose activity is limited solely to the publication or broadcast of news, editorial comments, or paid advertisements that attempt to influence legislative or executive action. For the purposes of this section, "news media" shall be construed to be bona fide radio and television stations, newspapers, journals or magazines, or bona fide news bureaus or associations which in turn furnish information solely to bona fide radio or television stations, newspapers, journals or magazines.
(j) An individual who engages in lobbying activities exclusively on behalf of a religious organization which qualifies as a tax-exempt organization under the Internal Revenue Code.
(k) An individual who is a nonattorney professional and who receives professional fees and expenses to represent clients on executive agency matters, except that if anything of value shall be paid or promised to be paid directly or indirectly on behalf of a client for the personal use or benefit of an executive or public official or public employee, then expenditures and actions of the individual are reportable under this chapter, and the individual must register as a lobbyist.
SECTION 5. Section 5-8-13, Mississippi Code of 1972, is amended as follows:
5-8-13. (1) A lobbyist shall not contract to receive or accept compensation dependent upon the success or failure of a legislative or executive action.
(2) A lobbyist or lobbyist's client shall not knowingly or willfully make or cause to be made a false statement or misrepresentation of facts to an executive, legislative or public official or public employee, or to the public in general with the intent to affect the outcome of a legislative or executive action.
(3) A lobbyist or lobbyist's client shall not cause a legislative or executive action for the purpose of obtaining employment to lobby in support of or in opposition to the legislative or executive action.
(4) An executive, legislative or public official or public employee shall not be a lobbyist, except that he may act as a lobbyist when acting in his official capacity.
(5) A lobbyist must disclose anything of value given in whole or in part to any executive, legislative or public official or public employee.
(6) (a) No elected official, appointed official, or employee of any state agency shall perform lobbying activities while representing said state agency, except in accordance with the provisions of this chapter, or as otherwise provided by law;
(b) No state agency shall expend public funds for the purpose of lobbying activities, except in accordance with the provisions of this article, or as otherwise provided by law;
(c) Only the director and deputy director of a state agency are permitted to engage in lobbying activities. The director or deputy director may be assisted by agency staff, but may not delegate lobbying activities to staff;
(d) No state agency may enter into a contract for lobbying activities;
(e) No state agency may pay dues for membership in any organization, public or private, that engages in lobbying activities.
SECTION 6. Section 5-8-17, Mississippi Code of 1972, is amended as follows:
5-8-17. (1) In addition to any other penalty permitted by law, the Secretary of State shall require any person who fails to file a report as required under Sections 5-8-1 through 5-8-19 of this chapter, or who shall file a report which fails to comply with the material particulars of Sections 5-8-1 through 5-8-19 of this chapter or any rules, regulations or procedures implemented pursuant to Sections 5-8-1 through 5-8-19 of this chapter, to be assessed a civil penalty as follows:
(a) Within five (5) calendar days after any deadline for filing a report pursuant to Sections 5-8-1 through 5-8-19 of this chapter, the Secretary of State shall compile a list of those lobbyists and lobbyists' clients who have failed to file a required report. The Secretary of State shall provide each lobbyist or lobbyist's client who has failed to file such a report notice of such failure by certified mail.
(b) Beginning with the tenth calendar day after which any report shall be due, the Secretary of State shall assess the delinquent lobbyist and delinquent lobbyist's client a civil penalty of Fifty Dollars ($50.00) per day and part of any day until a valid report is delivered to the Secretary of State, up to a maximum of ten (10) days. However, in the discretion of the Secretary of State, the assessing of such fine may be waived if the Secretary of State shall determine that unforeseeable mitigating circumstances, such as the health of the lobbyist, shall interfere with timely filing of a required report.
(c) Filing of the required report and payment of the fine within ten (10) calendar days of notice by the Secretary of State that a required statement has not been filed constitutes compliance with Sections 5-8-1 through 5-8-19 of this chapter.
(d) Payment of the fine without filing the required report does not in any way excuse or exempt any person required to file from the filing requirements of Sections 5-8-1 through 5-8-19 of this chapter.
(2) (a) Upon the sworn application of a lobbyist or lobbyist's client against whom a civil penalty has been assessed pursuant to subsection (1), the Secretary of State shall forward the application to the Mississippi Ethics Commission. The commission shall fix a time and place for a hearing and shall cause a written notice specifying the civil penalties that have been assessed against the lobbyist or lobbyist's client and notice of the time and place of the hearing to be served upon the lobbyist or lobbyist's client at least twenty (20) calendar days prior to the hearing date. Such notice may be served by mailing a copy thereof by certified mail, postage prepaid, to the last-known business address of the lobbyist or lobbyist's client.
(b) The commission is authorized to issue subpoenas for the attendance of witnesses and the production of books and papers at such hearing. Process issued by the commission shall extend to all parts of the state and shall be served by any person designated by the commission for such service.
(c) The lobbyist or lobbyist's client shall have the right to appear either personally or by counsel, or both, to produce witnesses or evidence in his behalf, to cross-examine witnesses and to have subpoenas issued by the commission.
(d) A hearing officer shall be appointed by the commission to conduct the hearing. At the hearing, the hearing officer shall administer oaths as may be necessary for the proper conduct of the hearing. All hearings shall be conducted by the commission, who shall not be bound by strict rules of procedure or by the laws of evidence in the conduct of the proceedings, but the determination shall be based upon sufficient evidence to sustain it.
(e) Where, in any proceeding before the commission, any witness fails or refuses to attend upon a subpoena issued by the commission, refuses to testify, or refuses to produce any books and papers the production of which is called for by a subpoena, the attendance of such witness, the giving of his testimony or the production of the books and papers shall be enforced by any court of competent jurisdiction of this state in the manner provided for the enforcement of attendance and testimony of witnesses in civil cases in the courts of this state.
(f) Within fifteen (15) calendar days after conclusion of the hearing, the commission shall reduce its decision to writing and forward an attested true copy thereof to the last-known business address of the lobbyist or lobbyist's client by way of United States first-class, certified mail, postage prepaid.
(3) (a) The right to appeal from the decision of the commission in an administrative hearing concerning the assessment of civil penalties authorized pursuant to this section is hereby granted. Such appeal shall be to the Circuit Court of Hinds County and shall include a verbatim transcript of the testimony at the hearing. The appeal shall be taken within thirty (30) calendar days after notice of the decision of the commission following an administrative hearing. The appeal shall be perfected upon filing notice of the appeal and by the prepayment of all costs, including the cost of the preparation of the record of the proceedings by the commission, and the filing of a bond in the sum of Two Hundred Dollars ($200.00), conditioned that if the decision of the commission be affirmed by the court, the lobbyist or lobbyist's client will pay the costs of the appeal and the action in court. If the decision is reversed by the court, the Secretary of State will pay the costs of the appeal and the action in court.
(b) If there is an appeal, such appeal shall act as a supersedeas. The court shall dispose of the appeal and enter its decision promptly. The hearing on the appeal may be tried in vacation, in the court's discretion. The scope of review of the court shall be limited to a review of the record made before the commission to determine if the action of the commission is unlawful for the reason that it was (i) not supported by substantial evidence, (ii) arbitrary or capricious, (iii) beyond the power of the commission to make, or (iv) in violation of some statutory or constitutional right of the appellant. The decision of the court may be appealed to the Supreme Court in the manner provided by law.
(4) If, after forty-five (45) calendar days of the date of the administrative hearing procedure set forth in subsection (2), the lobbyist or lobbyist's client shall not file a valid report as required by law, the commission shall notify the Attorney General of the delinquency. The Attorney General shall investigate said offense in accordance with the provisions of this chapter.
Therefore, the Legislature finds that taxpayer-funded lobbying should be restricted, and that when such lobbying does occur, citizens are given a full accounting of an agency's lobbying activities.
(5) (a) Any state agency official, officer, or employee who expends public funds in violation of this chapter may be subject to a civil penalty equivalent to the amount of funds expended.
(b) Any state agency director who fails to disclose lobbying activities as required in this chapter may be subject to a civil penalty equivalent to the amount of funds expended but not disclosed.
(c) Any state agency found in violation of this chapter may be prohibited from any and all lobbying activities for not more than two (2) years.
SECTION 7. Any state agency that lobbies shall file quarterly statements with the Secretary of State providing the following information for the quarter just completed:
(a) The name of the agency filing the statement;
(b) The name, title, job description and salary of each elected official, officer, or employee who lobbied; a general description of the nature of the lobbying; and the proportionate amount of time spent on the lobbying;
(c) An itemized list of any expenditures of public funds on lobbying activities, including but not limited to, travel, food, drinks, and publications, the purpose of which is to influence legislation;
(d) A listing of specific issues and legislation that were the subject of the public agency's lobbying activities, and a listing of specific lobbying activities undertaken related to each specific issue and legislation, as well as a listing of specific legislators, committees, or state agencies with whom these issues were discussed;
(e) The state agency director or a designee of the state agency director must prepare and file the statement;
(f) The statement must be signed by the state agency director.
SECTION 8. This act shall take effect and be in force from and after July 1, 2019.