REQUESTED BY: The Honorable Stan Schellpeper, State Senator, District #18.
QUESTIONS: (1) May a state senator accept honoraria, lodging, food and travel expenses from a principal or lobbyist in exchange for speaking to a group or organization? (2) May a state senator accept honoraria, lodging, food and travel expenses from people or entities other than principals or lobbyists in exchange for speaking to a group or organization?
As to question #1 generally no, but see analysis. As to question #2 generally yes, but see analysis.
A state senator has been invited by several groups to attend their conventions and address their organizations. They have offered to pay an honorarium plus expenses. The senator wishes to know if an honorarium and expenses can be accepted in connection with a speaking engagement and, if so, if there are limitations on the amount received or other restrictions.
As a preliminary matter we note that the statute pertaining to gifts from principals and lobbyists places the same restrictions on anyone acting on behalf of a principal or lobbyist as it does on principals or lobbyists themselves. For ease of reference this opinion will refer only to principals and lobbyists. However, it is our opinion that any activity in which a principal or lobbyist is prohibited from engaging is activity in which anyone acting on behalf of either is also prohibited from engaging. In addition, the statutes pertaining to gifts or things of value given by principals or lobbyists to members of the legislature also apply to public officials in the executive branch of state government, the staff of legislative and executive branch officials, and the immediate families of legislative and executive branch officials. For the sake of simplicity this opinion will confine itself to the application of these statutes to state senators.
Response to Question #1. - The general rule is that principals and lobbyists may not give state senators and state senators may not solicit or accept from principals or lobbyists anything of value. See §49-1490(1) and §49-1490(2). Honoraria, travel expenses, food and lodging are things of value. State senators may receive things of value from principals or lobbyists only under circumstances falling within one of the statutory exceptions to this general prohibition.
Section 49-1490(3) defines a gift for the purposes of transactions between principals, lobbyists, and state senators, as meaning "a payment, subscription, advance forbearance, or honorarium or the rendering or deposit of money, services, or anything of value, the value of which exceeds $50 in any one month period, unless consideration of equal or greater value is received therefor." Thus, the definition of the term gift itself contains two of the statutory exceptions to the general prohibition.
The first exception is that things with a value of $50 or less in a one month period may be given by a principal or lobbyist to a state senator. This exception applies if there is one gift with a value of $50 within a one month period. It applies if there are several gifts within a one month period each with a value of less than $50 but with a total value that does not exceed $50.
A second exception found with the definition of the term gift is that a state senator may accept from a principal or lobbyist something within a calendar month with a value of more than $50 if the state senator gives the donor consideration of equal or greater value. This exception can be easy to apply under circumstances in which goods or services of an easily determinable value are exchanged. It can also be easy to apply if goods or services of an easily determinable value are exchanged for cash. However, this exception can be rather difficult to apply in the case of honoraria since an honorarium is typically given in connection with a speaking engagement or an appearance. Title 4, Chapter 6, Rules and Regulations for Lobbying as amended on July 26, 1991 provides some guidance. Section 002.011 of the lobbying rules provides as follows:
An honorarium means a payment for speaking at an event, participating in a panel or seminar, or engaging in any similar activity. An honorarium paid directly or indirectly to an official in the legislative or executive branch of state government or the staff of such official is a gift subject to the limitation provided in §49-1490 unless it is clear from all surrounding circumstances that the services provided by the official or staff represent equal or greater value than the payment received. The principal or lobbyist shall maintain records to substantiate that the official or staff gave consideration of equal or greater value than the honorarium.
The language of 002.011 and the fact that the "equal or greater value" provision is an exception to a general prohibition, leads us to believe that under most circumstances an honorarium of more than $50 given by a principal or lobbyist to a state senator would not be permissible. Sometimes it will not be "clear from all surrounding circumstances" that the giving of a speech has a value of more than $50. However, there are circumstances under which an organization would be able to make a showing that a speech constituted consideration with value equal to or greater than the honorarium. For example, if an organization has, for the past five years, given the keynote speaker at its annual convention an honorarium of $250, there is a basis for showing that a state senator receiving an honorarium for making the keynote address has provided consideration with a value equal to $250.
A difficulty often encountered in dealing with the concept of honoraria is that the term has different meanings to different people. Traditionally the term honorarium has had the connotation of "a gift or a gratuitous payment." See Honorarium, Black's Law Dictionary, Revised 4th Edition. The more modern definition of honorarium is a payment for services "of which custom or propriety forbids a price to be set." See Honorarium, Webster's Ninth New Collegiate Dictionary. However, the inclusion of the term honorarium in the definition of gift as set forth in §49-1490(3) provides a good basis for inferring that the term honorarium is meant in the more traditional sense.
Other exceptions to the general prohibition are found in §49-1490(3). That section provides that "gifts shall not include: (a) a campaign contribution otherwise reported as required by law; (b) a commercially reasonable loan made in the ordinary course of business; (c) a gift received from a member of the person's immediate family, a relative, or the spouse of any such relative; (d) a breakfast, luncheon, dinner, or other refreshments consisting of food and beverage provided for immediate consumption; (e) admissions to state regulated industries, facilities, or events, or (f) the occasional provision of transportation within the State of Nebraska to an officeholder."
Paragraphs (a), (b), (c) and (e) are outside the scope of the question and not addressed.
Based upon the fact that food and drink for immediate consumption is an exception to the gift definition, a principal or lobbyist may provide a state senator with food and drink in connection with a speaking engagement and the food and drink need not be considered for the purpose of determining if the $50 maximum has been reached. However, in accordance with Section 12.02A of the Rules for Lobbying, the principal or lobbyist must be on the premises at the time of consumption for the exception to apply.
The cost of transporting a senator from one point within the State of Nebraska to another point within the State of Nebraska is another exception to the gift statute. Therefore, a principal or lobbyist may reimburse a senator for reasonable travel expenses within the State of Nebraska in connection with a speaking engagement. These reasonable travel expenses do not need to be considered in determining whether the $50 per month gift limitation has been reached.
Transportation provided to a senator to a point outside of the State of Nebraska falls within the $50 gift limitation. That is, the value of transportation to a point outside of the State of Nebraska must be considered along with any other gifts during the one month period. This transportation may not be provided if the value exceeds $50 unless equal or greater consideration is given therefor. Section 012.02Ci of the Rules for Lobbying provides that "the attendance at an event out of state does not, in and of itself, constitute consideration of equal or greater value." It is our position that a senator participating in some way in an out of state event, rather than just mere attendance, provides consideration of equal value such that a principal or lobbyist may pay for the senator's travel expenses. Section 012.02Cii provides that "only transportation expenses which are reasonable and necessary under the circumstances and are not otherwise reimbursed may be paid."
Regardless of whether an event is held within the state or outside of the state, lodging expenses provided by a principal or lobbyist to a state senator are subject to the $50 gift limitation. Therefore, a principal or lobbyist may not provide lodging expenses to a state senator with a value of more than $50 within a one month period unless the state senator provides consideration of equal or greater value. See Section 012.02B of the Rules of Lobbying. As with transportation, the "attendance" at an event does not, in and of itself, constitute consideration of equal or greater value. See Section 012.02Bi. As with transportation, it is our opinion that a state senator participating in an event such as by giving a speech, as opposed to mere attendance, provides consideration of equal value to the lodging expenses he or she receives. Section 012.02Bii provides that only lodging expenses which are reasonable and necessary under the circumstances and are not otherwise reimbursed may be paid. Clearly the mere giving of a speech is not an opportunity to provide unlimited lodging expenses. Overnight lodging for a state senator in connection with a fifteen minute speech may be reasonable and necessary if the senator must travel a long distance. However, a fifteen minute speech by a state senator to an organization meeting in a resort area does not constitute consideration of equal value to one week's lodging in a penthouse suite at the resort area. Again, the operative term is "reasonable and necessary under the circumstances." What is reasonable and necessary under the circumstances must be considered on a case by case basis.
Response to Question #2. - Generally a state senator may accept gifts of any value from persons or entities that are not lobbyists or principals as defined in §49-1434 nor anyone acting on behalf of either. Thus, a state senator would be permitted to accept an honorarium, food, travel expenses, and lodging in connection with a speaking engagement from a nonlobbyist or nonprincipal. In passing, we do note that §49-14,101(2) provides generally that a public official or public employee shall not solicit or accept anything of value based upon an agreement that the vote, official action, or judgment of the public official would be influenced thereby.
Other Matters: In Advisory Opinion #34 we stated that an honorarium in excess of the gift limitation may be accepted by a public official for making a speech provided that it is not given by a lobbyist, the principal of a lobbyist or on behalf of either. In order to insure that there is no confusion, we take this opportunity to state that the statement in Advisory Opinion #34 is correct as a general statement. This opinion acknowledges, however, the existence of exceptions to the general rule. Also, it is appropriate that we repeat the position taken in Advisory Opinion #35 that it is the position of the Commission that a public official may not be given a trip by a lobbyist, principal, or anyone acting on behalf of either in consideration for the mere taking of the trip. The consideration rendered by the public official must involve a genuine element of detriment. "Entertainment trips or trips which are primarily for the benefit of the public official . . . are prohibited" if the value involved exceeds $50 in any one month period.
Finally, principals or lobbyists giving honoraria to state senators should be aware that on their monthly and interim reports they are required to disclose money loaned, promised, or paid to state senators. This disclosure should identify the recipient, the amount and the reason for the payment. See §49-1483(2) of the State Statutes and Sections 007.06, 007.06A, 008.07, and 008.07A of the Rules for Lobbying. Other transactions discussed within the body of this opinion may result in the parties having certain reporting obligations. These other reporting obligations are not addressed by this opinion.
A state senator may not accept an honorarium from a principal or a lobbyist of more than $50 unless consideration of equal or greater value is given therefor. A state senator may not accept transportation out of state or lodging with a value of more than $50 from a principal or lobbyist unless the state senator gives consideration of equal or greater value. The participation of a state senator in a program in connection with the transportation or lodging, as opposed to mere attendance, constitutes consideration of equal value. Food and drink for immediate consumption and occasional transportation around the State of Nebraska may be provided by a principal or lobbyist to a state senator. A state senator may accept honoraria, food, lodging, and travel from persons or entities which are not principals, lobbyists, or acting on behalf of either.