ADVISORY OPINION 2008-2

Interpretation of General Statutes § 1-97 (d)

INTRODUCTION

The Citizen’s Ethics Advisory Board (“Board”) issues this advisory opinion at the request of an assistant general counsel to the Office of State Ethics who was recently asked the following question by a member of the lobbying community: whether a client lobbyist that pays or reimburses a public official for “necessary expenses”[1] is required to provide a written report to the public official in accordance with the requirements of General Statutes § 1-97 (d).[2]  For the following reasons, we answer that question in the negative. 

ANALYSIS

            Enacted in 1997, § 1-97 (d), a notification provision in the Code of Ethics for Lobbyists, was intended “to inform . . . public officials of the value of itemized lobbyist expenditures made for their benefit,”[3] allowing them “to verify the accuracy of the data and . . . to reimburse the lobbyist for the benefit if the official so desired.”[4]  Under that provision, any registered lobbyist

who gives to a public official, state employee or candidate for public office, or a member of any such person’s staff or immediate family anything of value which is subject to the reporting requirements pursuant to [General Statutes § 1-96 (e)] shall, not later than ten days thereafter, give such recipient a written report stating the name of the donor, a description of the item or items given, the value of such items and the cumulative value of all items given to such recipient during that calendar year. . . .[5]

           

            Based on that language—particularly the italicized language—the question that must be answered is this: whether a client lobbyist’s payment or reimbursement of a public official’s “necessary expenses” is reportable under § 1-96 (e), which requires that each client lobbyist financial report include an itemized statement of each expenditure of ten dollars or more made for the benefit of a public official. If the answer to that question is yes—that is, if a client lobbyist’s payment or reimbursement of a public official’s “necessary expenses” is considered such an expenditure made for the benefit of a public official and is thus reportable under § 1-96 (e)—then the client lobbyist would be required to provide the public official with a written report in accordance with § 1-97 (d).  

            For two reasons, we conclude that a client lobbyist’s payment or reimbursement of a public official’s “necessary expenses” is not reportable under § 1-96 (e).  First, as noted by the former State Ethics Commission (“former Commission”) in Advisory Opinion No. 99-30, “necessary expenses” are reportable not under § 1-96 (e) but rather under General Statutes § 1-96e, which reads:

Each registrant who pays or reimburses a public official or state employee ten dollars or more for necessary expenses, as defined in section 1-79, shall, within thirty days, file a statement with the Office of State Ethics indicating the name of such individual and the amount of the expenses.

            The second reason emerges from Advisory Opinion No. 96-16, which involved a state employee who, in her private capacity, was the President-Elect of the Connecticut Pharmaceutical Association, Inc. (“Association”), a client lobbyist.  The Association asked whether, under § 1-96, it had to report its payment or reimbursement of the state employee’s expenses incurred in connection with her role as its President-Elect.[6]  The former Commission first explained that § 1-96 (e) requires an itemized statement of any expenditure of ten dollars or more made for the benefit of a public official.[7]  It then noted that, in a prior advisory opinion, it was determined that “reimbursement or payment of expenses for an officer/state employee while on association business is not considered a gift.”  The reason: “any services rendered by the individual in his role as officer for the association would be deemed consideration of equal or greater value for any related costs incurred.”[8]  Based on that prior opinion, the former Commission concluded that the Association’s payment or reimbursement of the state employee’s expenses incurred in her role as its President-Elect’s constituted “neither a gift . . . nor an expenditure for the benefit of that state employee, for purposes of . . . § 1-96 (e).”[9]   

            The same holds true with respect to a client lobbyist’s payment or reimbursement of a public official’s “necessary expenses”—which the public official may accept only in consideration for some substantive official act rendered on his or her part.  That is, under General Statutes § 1-84 (k), a public official[10] may accept payment or reimbursement of “necessary expenses” incurred in connection with one of four statutorily authorized activities performed in his or her official capacity: (1) an article, (2) an appearance, (3) a speech, or (4) participation at an event. As explained by the former Commission, “to qualify under the ‘appearance’ or ‘participation at an event’ provisions of the law, some substantive official activity, e.g., participation in a panel, presentation of an award, etc., [is] required.”[11]

            Thus, a client lobbyist’s payment or reimbursement of a public official’s “necessary expenses” is in consideration for some statutorily authorized service rendered to it by the public official.  Such payment or reimbursement is therefore—according to the rationale of Advisory Opinion No. 96-16—neither a gift nor, for purposes of § 1-96 (e), an expenditure made for the benefit of a public official.  That being the case, it is not reportable under § 1-96 (e).  And because the notification requirement in § 1-97 (d) attaches only if a client lobbyist provides a public official with something that is reportable under § 1-96 (e), we are left with the following conclusion: a client lobbyist that pays or reimburses a public official for “necessary expenses” is not required to provide a written report to the public official in accordance with the requirements of § 1-97 (d).

            This conclusion is consistent with the language and legislative history of § 1-97 (d), which suggest that this provision pertains specifically to “gifts.”  (The term “gifts” here is meant to include “gifts,” as defined in General Statutes § 1-91 (g), and items that are statutorily excluded from the definition of that term, which are set forth in § 1-91 (g) (1) through (17).)  Starting with the provision’s legislative history, Senator Gary LeBeau, then Co-Chairperson of the Government Administrations and Elections Committee, explained that § 1-97 (d) “requires certain people who give public officials or state employees a reportable item, to give them a report stating the donor’s name, the item’s description and the value, so we in the circle would receive a report when we receive a gift that is reportable.”[12]  Turning to its language, § 1-97 (d) expressly requires a written report stating, among other things, the name of the “donor.”  Because the word “donor” is not defined anywhere in the Codes of Ethics, to ascertain its meaning, “we look to the dictionary definition of the term,”[13] namely: “[o]ne who makes a gift.”[14] 

            As was made clear above, a client lobbyist’s payment or reimbursement of a public official’s “necessary expenses” is not a “gift.” 

CONCLUSION

            It is the opinion of the Citizen’s Ethics Advisory Board that a client lobbyist that pays or reimburses a public official for “necessary expenses” is not required to provide a written report to the public official in accordance with the requirements of § 1-97 (d).  However, within thirty days of paying or reimbursing a public official ten dollars or more for necessary expenses, a client lobbyist is required by § 1-96e to file a statement with the Office of State Ethics indicating the name of the public official and the amount of the expenses.

By order of the Board,

______________________________

Robert Worgaftik, Chairperson

Dated April 24, 2008