Advisory Opinion #201

Subject: Lobbying

Requested by: Paul E. Sullivan, Council of State Governments Justice Center

Question Presented: Do the proposed activities of the Council of State Governments Justice Center subsequent to the enactment of LB 605 constitute lobbying and require registration of a lobbyist?

Conclusion: No

Facts: The Council of State Governments Justice Center (CSGJC) is a non-profit tax exempt 501(c) (3) organization which interacts with state governments for the purpose of developing analyses, strategies and policies to increase public safety.  In 2014 the Nebraska Legislature passed LB 907 which was generally intended to address issues in the criminal justice system.  Section 11 of LB 907 provides that “The Nebraska Justice Reinvestment Working Group is created under the authority of the executive, legislative, and judicial branches of state government to work with the Council of State Governments Justice Center …”. The Nebraska Justice Reinvestment Working Group (JRWG) consists of four people appointed by the Governor, four appointed by the Speaker of the Legislature, four selected by the Chief Justice of the Nebraska Supreme Court and four representatives of local government selected jointly by the Governor, the Speaker and the Chief Justice.

In accordance with LB 907, the Governor, the Executive Board of the Legislative Council and the Chief Justice of the Nebraska Supreme Court secured the services of CSGJC for the purposes of conducting a study and submitting a report addressing specified topics, including an analysis of prison population and its growth; alternatives to incarceration; the effectiveness of available offender programs and other specified topics related to the criminal justice system.

It was contemplated that the activity of CSGJC would occur in two phases.

 

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Phase I

In Phase I CSGJC staff collected data from state agencies, including the Department of Correctional Services.  In concert with JRWG, it analyzed data related to crime, arrests, courts, corrections, supervision trends and related matters.

Pursuant to LB 907, CSGJC submitted a comprehensive analysis of sentencing, probation and parole data to the JRWG.  JRWG in turn used this analysis to create a policy framework which became the basis for LB 605.  LB 605 was introduced and passed during the 2015 Legislative session.  According to the Statement of Intent of introducer Senator Health Mello, LB 605 “is designed to slow Nebraska’s prison population growth, ease prison overcrowding, contain corrections spending, and reinvest a portion of savings in strategies that can reduce recidivism and increase public safety.”  LB 605A provided funding to implement the provisions of LB 605.

During 2015 three individuals and one firm registered as lobbyists for CSGJC.  Unless sooner terminated, these registrations continue until December 31, 2015.

Phase II

With the enactment of LB 605 the goal of CSGJC is to provide technical assistance to State and local government in order to implement the provisions of LB 605 and measure its impact upon the prison system.  By way of example, CSGJC could assist with the development of a capacity building plan, train State staff in the areas of probation, parole and the like, or assist in the development of appropriate rules and regulations.

Analysis: The Nebraska Political Accountability and Disclosure Act defines the term lobbying and provides for the registration of lobbyists.

Section 49-1433 of the NPADA defines lobbying as follows:

Lobbying shall mean the practice of promoting or opposing for another person, as defined in section 49-1438 the introduction or enactment of legislation or resolutions before the Legislature or the committees or the members thereof, and shall also include the practice of promoting or opposing executive approval of legislation or resolutions.

Section 49-1434 of the NPADA defines the terms principal and lobbyist as follows:

(1) Principal means a person who authorizes a lobbyist to lobby in behalf of that principal.

 

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 (2) Lobbyist means a person who is authorized to lobby on behalf of a principal and includes an officer, agent, attorney, or employee of the principal whose regular duties include lobbying.

Lobbying as defined by §49-1433 applies to activity intended to affect matters under consideration or to be considered by the Legislature.  It also applies to activity promoting or opposing executive (gubernatorial) approval of such matters.  This definition does not include matters before agencies in the executive branch of State government.  It does not include matters under consideration by political subdivisions of the State such as cities, counties and the like.

In essence, it appears that the proposed activities of CSGJC in Phase II would be to contract with agencies in the executive or judicial branches of state government to provide consultation services in connection with the provisions of LB 605.  CSGJC may do the same for political subdivisions.  No part of the description of these proposed activities appear to relate to matters before the Nebraska Legislature.  Accordingly, CSGJC would not be functioning as the principal of a lobbyist and no lobbyist registration would be required as the result of the activities described.

This opinion presumes that subsequent to the enactment of LB 605 CSGJC would not be engaged in activity involving the Legislative process including, but not limited to, seeking funding from the Legislature for any consultation clients or seeking to have the Legislature amend the statutes enacted through LB 605.

Summary: Seeking and procuring consulting contracts with the executive branch of state government, the judicial branch of state government or with political subdivisions of the state does not constitute lobbying and does not require the registration of a lobbyist.

Title 4, Chapter 1, Rules of Practice and Procedure. As provided in Section 49-14,123(10), this advisory opinion shall be binding upon the Commission unless amended or revoked, concerning the person or public body who requested the opinion and acted in reliance thereon in good faith unless material facts were omitted or misstated by the person in the request for the opinion.

DATED this ______ day of June, 2015

NEBRASKA ACCOUNTABILITY AND DISCLOSURE COMMISSION

 

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Kevin Brostrom, Chairman