Bar News - December 15, 2006
What Non-Profits Need To Know about the New Lobbying Law
By: Jeanne P. Herrick
New Hampshire’s lobbying law makes no distinction between non-profit and for- profit businesses. Given the significantly expanded definition of lobbying, non-profits may need to reassess their interactions with government to determine what their duties are under the new law.
Duty To Register
The first thing that non-profits need to determine is whether the activities they engage in are considered “lobbying.” Under the new law, a person is required to register as lobbyist if he or she is “employed for consideration by any other person, except the state of New Hampshire” to “promote or oppose, directly or indirectly, any legislation pending or proposed before the general court (the legislature).” Persons are also required to register if they are employed to “promote or oppose, directly or indirectly, any action by the governor, governor and council, or any state agency . . . where such action concerns legislation or contracts pending or proposed before the general court, any pending or proposed administrative rule, or procurement of goods or services that are being or may be purchased by the state.”
There are two exceptions to registration: (1) where the person is employed to represent another before an agency in a proceeding, other than rulemaking or any process related to purchasing goods by the state, and that person files an appearance with the agency; and (2) where the person is an owner or employee of a business seeking to do business with the state.
Unless their activities fall within the two exceptions, representatives of non-profits organizations, who within the scope of their employment, interact with government, directly or indirectly, regarding pending or proposed legislation, agency rules, contracts or the procurement of goods or services that may be purchased by the state may be required to register as lobbyists.
Registration requires filing with the secretary of state and paying $50 per year per client represented. The registrations are good from December 1 through November 30 and must be renewed annually. Determining whether your activity requires registration is important because those who lobby without registering and reporting may be subject to a misdemeanor, if an ordinary citizen; or a felony, if any other person, including a representative of a corporation.
Badges, Monthly Reports
Once you have determined that you need to register, you must wear a hunter-orange badge “when lobbying in the state house or the legislative office building, or before the governor and council, or a state agency.” While you presently do not have to wear your badge when testifying before a legislative committee in an open hearing, the law has been amended so that in 2007 you will.
A lobbyist must also file monthly reports under oath regarding “fees received from any lobbying client that are related, directly or indirectly, to lobbying, such as public advocacy, government relations, or public relations services including research, monitoring legislation, and related legal work,” and all “expenditures made from lobbying fees, including by whom paid or to whom charged. Additionally, “for all expenditures for salaries, benefits, support staff, and office expenses related directly or indirectly to lobbying, a statement of the total aggregate expenses for salaries, support staff, and office expenses related directly or indirectly to lobbying shall satisfy the requirement that an itemized statement of these expenses be filed.”
Registered lobbyists are also required to report on honoraria or expense reimbursements and political contributions made on behalf of one’s client, employer or family member. This means the contributions made by a lobbyist’s spouse, children and parents are also subject to financial reporting if they are living in the same household with the lobbyist.
Segregation of Funds
The lobbying law prohibits recipients of state grants or appropriations from using the state funds for lobbying or attempting to influence legislation, participating in political activity, or contributing funds to any entity engaged in such activities. To the extent that a recipient of state funds engages in lobbying activities, it must keep the state funds physically and financially separate from any non-state funds that may be used for any lobbying purpose. At the very least, it would appear that separate bank accounts are required.
Employment, Public Service Restrictions
In an effort to ensure that volunteer service is not used, directly or indirectly, for the purpose of promoting or advancing any matter on behalf of a third party, the new lobbying law prohibits any person from serving as a public employee, appointee or volunteer for any multi-branch commission, committee, board or similar governmental entity while that person has a duty to register as a lobbyist or is employed by or has an ownership interest in any entity which employs a lobbyist. Among other things, this prohibition does not apply to service in a position subject to appointment by governor and council or service on any commission or other similar governmental entity that is subject to the public meeting and notice requirements of RSA 91-A. In light of the restriction, non-profit organizations may want to assess the extent of public service involvement by any of their staff members.
Finally, the new lobbying law prohibits giving elected officials, constitutional officers, and state employee’s gifts including: money in any amount (except when purely private and personal in nature); tangible or intangible things or services, unless valued less than $10; and tickets to various events unless they meet certain exceptions.
Among the exceptions are providing tickets to events sponsored by a charitable organization that is registered with the division of charitable trusts, department of justice or organized pursuant to section 501(c)(3) of the federal tax code; and providing meals, beverages, lodging or transportation associated with attendance at any event where the person is attending in an official capacity representing the state and/or the senate, house, or an administrative agency.
The attorney general is charged with the duty to enforce compliance with the law. Until the attorney general has determined the extent to which the new law requires registration and reporting, non-profits should carefully consider the applicable provisions of the lobbying law as they go forward with their interactions with state government.
Jeanne P. Herrick is a business litigation and employment lawyer for Gallagher, Callahan & Gartrell in Concord. She is a member of the New Hampshire and Massachusetts Bars.