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Ian Lind • Online daily from Kaaawa, Hawaii

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Many approaches to lobbyists service on state boards and commissions

August 30th, 2011 · 6 Comments · Ethics, lobbyists, Politics

There are obviously many different approaches to the issues created by lobbyists serving on state boards and commissions. I ran across several interesting items while researching yesterday’s lengthy entry, including several states that would agree with the Hawaii State Ethics Commission’s recent advice regarding lobbying by board and commission members.

Maryland requires lobbyists serving on boards to provide detailed disclosures of their business interests and lobbyist ties (“Special Ethics Law Memo,” September 2002). In addition, Maryland’s restrictions on subsequent lobbying by board members are consistent with the advice given by Les Kondo, executive director of Hawaii State Ethics Commission, to the mortgage foreclosure task force.

In some instances, a lobbyists may serve on a State board unrelated to his or her lobbying activity, but after the board has completed its work or after the lobbyist leaves the board, the lobbyist may wish to lobby the board, or perhaps lobby on the legislative recommendations the board or commission developed while the lobbyist was a member. This activity is impacted by §15-504(d), a provision that former officials, including members of State boards and commissions, may not assist or represent anyone for compensation in any specific matter where they significantly participated in the matter as an officials or employees. Therefore, in some instances, subsequent activity by a lobbyist related to the work of the former member’s board is barred by the Public Ethics Law.

The State of Illinois simply prohibits lobbyists and members of their immediate families from serving on most state boards, commissions, or task forces, except for service on “a State advisory body that makes nonbonding recommendations to an agency of State government but does not make binding recommendations or determinations or take any other substantive action.” I haven’t gone back to the statute, but gleaned this information from an Attorney General’s opinion on conflict of interest as applied to the state Board of Elections.

In Georgia, lobbyists can’t serve on boards that take action related to the interests the lobbyist represents. This prohibition continues even after the person no longer serves as a lobbyist.

A lobbyist is not eligible for executive appointment to any board, authority, commission, or bureau created and established by the laws of Georgia which regulates the activities of a business, firm, corporation, or agency that the lobbyist represented until one year after the expiration of the lobbyist’s registration for that business, firm, corporation, or agency.

Georgia ethics reformers are pushing for a complete ban on lobbyists serving on state boards. Also see the Georgia Alliance for Ethics Reform.

A recent Texas AG opinion concerning whether a lobbyist could serve on the Board of Education reviews their conflict of interest restrictions. Lobbyists are prohibited by law from serving on certain boards and commissions, while in other cases are only face restrictions if they lobby for interests affected by the board.

But in Tennessee, a 2005 AG opinion concluded it would be unconstitutional to adopt a total ban on lobbyists serving on state boards and commissions.

This Office recently noted that the right to engage in lobbying — including paid lobbying — is guaranteed by the First Amendment. Op. Tenn. Att’y Gen. 05-054 (April 20, 2005). Courts have upheld laws regulating and monitoring the activities of lobbyists. The United States Supreme Court has recognized that “statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society.” Broadrick v. Oklahoma, 413 U.S. 601, 611-612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) (citations omitted); see also, Bemis Pentecostal Church v. State, 731 S.W.2d 897, 903 (Tenn. 1987), appeal dismissed, 485 U.S. 930, 108 S.Ct. 1102, 99 L.Ed.2d 264 (1988), rehearing denied, 485 U.S. 1029, 108 S.Ct. 1587, 99 L.Ed. 2d 902 (1988).

California has a provision, similar to Hawaii ethics law, which gives a limited exemption from conflict of interest restrictions for board or commission members who are “appointed to represent and further the interests of the specific economic interest,” but only if several conditions apply.

At the federal level, President Obama issued an order in 2009 barring lobbyists from serving on federal advisory committees, prompting calls from nonprofit groups to be exempted from the ban.

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6 Comments so far ↓

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  • kalaheo

    Ian,

    Thank you for this well researched, and in depth analysis of such a complicated issue in your last two entries.

    It is no wonder that your blog is so highly regarded.

  • Guest

    Just look at the Land Use Commission. Hawaii, we’ve got big major problems. And then, there are the re-appointments. The whole system is broken and does not meet the smell test.

  • Lopaka43

    A distinction needs to be made between boards and commissions like the Land Use Commission which take actions that are enforceable and advisory groups like task forces and focus groups whose actions are advisory and do not, by themselves, determine what action the executive or legislative agency takes.

    If the government is trying to adopt rules or pass legislation that will affect business and the community, calling the affected parties together to find out what they think and how they think the rules or legislation should be fashioned can be very productive and efficient.

    It certainly is much preferable to the standard public hearing as a way to explore an issue and try to find a workable consensus, if it is done in an open and transparent manner.

    • Ian Lind

      I couldn’t agree more.

      • Doug

        Is there any evidence that “advisory task forces” truly operate in an open and transparent manner?

        I would expect there to be as much (or more) “offline” communication between the members and their allies as we see in every other branch of government; where any public meetings are held to merely give a pro forma stamp of approval to whatever was hammered out essentially in secret.

        I think no commission, no matter how high-minded or well-intended, is likely to operate in a fully open and transparent manner. It’s just not how policy actually gets done.

  • Lopaka43

    Open and transparent may be in the eye of the beholder.
    Peter Adler and Linda Colburn, for example, have run such processes in Hawaii and elsewhere and have produced results that have felt fair and balanced to most observers and participants.

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