Advisory Opinion No. 2001-10

Application Of The Lobbyist Code’s Contingent Fee Ban To A
Lobbying Contract Contingent On A Prior Research Contract

Pursuant to Conn. Gen. Stat. §1-97(b), "No person shall be employed as a lobbyist for compensation which is contingent upon the outcome of any administrative or legislative action." "Administrative action" includes "any action or nonaction of any executive agency or quasi-public agency…regarding a contract" Conn. Gen. Stat. §1-91(a).

The State Ethics Commission has been asked how these provisions apply to the following fact pattern. A lobbyist business organization is retained by a corporation at a fixed hourly rate to research whether the State of Connecticut is a potential source of contracts in a certain field of endeavor (e.g., whether the State utilizes equipment or technology compatible with the services offered by the corporation and whether the State is seeking such services). If the corporation, after reviewing the results of the lobbyist business organization’s research, concludes that there exists the potential for obtaining significant contracts with the State, the corporation will renegotiate its agreement with the lobbyist business organization. Under the renegotiated agreement, the lobbyist business organization will receive a substantially increased fixed rate to lobbying for the contracts in question.

In analyzing the foregoing scenario, two conclusions are readily apparent. First, if the business organization strictly limits its initial activities to research (including, for example, requests to executive agencies for information) it will not be engaged in "Lobbying" and neither the business organization members nor the corporation need register with the State Ethics Commission. See, Conn. Gen. Stat. §1-91(k): definition of "Lobbying"requires communicating directly or soliciting others to communicate with officials or staff in the executive branch for the purpose of influencing administrative action (emphasis added); and Regulations Of Conn. State Agencies §1-92-42a(e)(3): which specifically exempts from the definition of administrative lobbying contacts for informational purposes.

Secondly, if the business organization is retained to seek state contracts and goes beyond the preparation of submissions in response to an agency’s request for proposals (e.g., by meeting with the Commissioner of an agency to solicit business) it will be engaged in lobbying and both the individual members of the lobbyist business organization and the client corporation must register and report to the State Ethics Commission. See, Regulations of Conn. State Agencies §1-92-42a(e)(1): preparation of submissions in response to request for contract proposals exempt from lobbyist registration. However, communications to agency head or others outside the agency (e.g. Governor’s office) intended to influence the award of state contracts requires registration. State Ethics Commission Advisory Opinion No. 97-5, 58 CLJ 40, p. 9D (April 1, 1997); and Regulations of Conn. State Agencies §1-92-42a(b).

Finally, although the second contract is contingent upon the outcome of the research conducted under the first contract, it is not contingent "upon the outcome of any administrative…action". Therefore, the arrangement in question is not prohibited under §1-97(b) of the Lobbyist Code.

By order of the Commission,

Rosemary Giuliano
Chairperson