House Bill No. 394

Introduced By grinde, raney, beaudry, mesaros, rose, simon, ahner, knox, sliter, holland, keenan, anderson, orr, curtiss, cobb, bookout-reinicke, smith, cocchiarella, stovall, bergman, denny, bohlinger, masolo, walters, mills, bankhead, wiseman, lawson, grady, bitney, ohs, brainard, rehbein, ellis, kitzenberg, mcgee, wells, simpkins, feland, menahan, soft, quilici, dowell, heavy runner, mood, adams, schmidt, wilson

A Bill for an Act entitled: "An Act regulating lobbying by state agencies; requiring approval by the governor, BOARD OF REGENTS, OR OTHER APPROPRIATE ELECTED STATE OFFICIAL and notice to the legislative finance committee before a state agency may engage in federal lobbying; requiring notice to the legislative finance committee before WHEN a state agency may lobby LOBBIES the state legislature; PROVIDING THAT DEPARTMENT DIRECTORS, STATE EMPLOYEES, AND APPOINTED PUBLIC OFFICIALS MAY NOT ENGAGE IN LOBBYING FOR HIRE WITHOUT A LICENSE ISSUED BY THE COMMISSIONER OF POLITICAL PRACTICES; PROVIDING FOR AN ADMINISTRATIVE PENALTY AND ADMINISTRATIVE ENFORCEMENT; requiring action and reports by the legislative auditor; and amending section

5-7-102, MCA."

Be it enacted by the Legislature of the State of Montana:

NEW SECTION. Section 1.  Federal lobbying LOBBYING by state agencies -- approval of governor and notice required -- notice of state lobbying required -- RESTRICTIONS -- LICENSURE REQUIRED -- definitions. (1) Except as otherwise provided by this section, a state employee, public official, or other person may not engage in lobbying for hire of the U. S. congress or an agency of the United States on behalf of a state agency unless the lobbying has been approved in writing by the governor, BOARD OF REGENTS, OR OTHER APPROPRIATE ELECTED STATE OFFICER and written notice has been given to the legislative finance committee pursuant to subsection (2) EXCEPT AS OTHERWISE PROVIDED BY THIS SECTION, A STATE AGENCY EMPLOYING A DIRECTOR, A STATE EMPLOYEE WHO IS NOT AN ELECTED PUBLIC OFFICIAL, OR OTHER PERSON WHO IS NOT AN ELECTED PUBLIC OFFICIAL TO ENGAGE IN LOBBYING FOR HIRE ON BEHALF OF THE AGENCY SHALL, IN ADDITION TO OTHER APPLICABLE REPORTING REQUIREMENTS OF THIS CHAPTER, GIVE NOTICE TO THE LEGISLATIVE FINANCE COMMITTEE AS REQUIRED BY SUBSECTION (2). THE NOTICE MUST BE PROVIDED TO THE LEGISLATIVE FISCAL DIVISION ON THE 15TH OF EACH MONTH DURING A LEGISLATIVE SESSION TO REPORT LOBBYING EXPENDITURES BY THE AGENCY FOR THE PREVIOUS MONTH AND AT THE END OF EACH CALENDAR QUARTER IF THE LEGISLATURE IS NOT IN SESSION TO REPORT LOBBYING EXPENDITURES FOR THAT CALENDAR QUARTER. THE LEGISLATIVE FISCAL DIVISION SHALL PROVIDE COPIES OF THE REPORTS TO THE LEGISLATIVE FINANCE COMMITTEE.

(2) (A) The notice to the legislative finance committee required by subsection (1) must:

(a)(I) contain a detailed description of:

(i)(A) the purpose of the lobbying;

(ii)(B) the method by which the lobbying will be HAS BEEN carried out; and

(iii)(C) the period of time over which the lobbying will be HAS BEEN carried out;

(b)(II) identify the amount and source of funding for the lobbying;

(c)(III) estimate the number of personnel needed USED for the lobbying and the amount of time required for each individual;

(d)(IV) specify whether the personnel identified pursuant to subsection (2)(c) (2)(A)(III) are public employees, whether full or part time, temporary or permanent, or are independent contractors lobbying for hire; and

(e)(V) include a copy of the written approval of the governor required by subsection (1).

(B) THE NOTICE AND INFORMATION UNDER SUBSECTION (2)(A) MAY BE SUPPLEMENTED UPON COMPLETION OF A LOBBYING ACTIVITY.

(3) Before engaging in lobbying for hire of the legislature, through a state employee, public official, or other person, a state agency shall give written notice of the lobbying to the legislative finance committee. The notice must include those matters provided in subsection (2), except the approval of the governor provided in subsection (2)(e) (2)(A)(V), as those matters pertain to lobbying for hire of the legislature. UNLESS LICENSED PURSUANT TO 5-7-103, A DIRECTOR OR A STATE EMPLOYEE WHO IS NOT AN ELECTED PUBLIC OFFICIAL MAY NOT USE STATE TIME, EQUIPMENT, SUPPLIES, OR FACILITIES TO SUPPORT OR OPPOSE STATE OR FEDERAL LEGISLATION OR URGE OTHERS TO SUPPORT OR OPPOSE STATE OR FEDERAL LEGISLATION.

(4) Subsections (1) through (3) do not apply to:

(a) lobbying for hire when specifically required by state or federal law;

(b) lobbying as defined by 5-7-102(6)(b);

(c) A DIRECTOR OR a state employee or WHO IS NOT AN ELECTED public official who engages in lobbying on the employee's or official's own behalf while in a leave status or without receiving compensation or reimbursement of any kind;

(d) lobbying by an elected official, employee, or independent contractor of a political subdivision, school district, or special taxing or use district;

(e) a member or staff member of the legislature, OR THE JUDICIARY, or the U.S. congress; or

(f) written or oral testimony given before a committee or other body of the legislature or the U.S. congress by a DIRECTOR, A state employee WHO IS NOT AN ELECTED PUBLIC OFFICIAL, public official, or other person WHO IS NOT AN ELECTED PUBLIC OFFICIAL on behalf of a state agency.

(5) The following definitions supplement the definitions provided in 5-7-102 and apply to this section:

(a) "Agency of the United States" means a department, office, bureau, commission, board, authority, or other program of the United States "DIRECTOR" HAS THE MEANING GIVEN IN 2-15-102.

(b) "Lobbying" includes the following practices when engaged in by a DIRECTOR, A state employee WHO IS NOT AN ELECTED PUBLIC OFFICIAL, public official, or other person WHO IS NOT AN ELECTED PUBLIC OFFICIAL on behalf of a state agency:

(i) the practice of requesting, encouraging, organizing, or promoting other persons to engage in lobbying; OR

(ii) the development or design of a proposal or program intended to be implemented through legislation; or

(iii) lobbying a member or staff member of the legislature or the U.S. congress.

(c) "Lobbying for hire" includes lobbying by an individual who is reimbursed only for the individual's living and travel expenses, which together are less than $1,000 OR MORE in a calendar year.

(d) "State agency" means a department, division, office, bureau, commission, board, or other entity of state government, including the university system.

(e) "State employee" means an employee of a state agency.

NEW SECTION. Section 2.  Legislative auditor to review lobbying expenses in audits of state agencies. The legislative auditor shall, in the course of regular audits of state agencies, review reports, agency records, and other documents, including reports made by the commissioner pursuant to 5-7-207 and reports filed with the commissioner pursuant to 5-7-208, to determine compliance with [section 1]. The legislative auditor shall report the determinations to the legislative audit committee created by 5-13-201 and provide a copy of those determinations to the legislative fiscal division created by 5-12-301.

Section 3.  Section 5-7-102, MCA, is amended to read:

"5-7-102.   Definitions. The Unless the context requires otherwise and subject to [section 1], in this chapter, the following definitions apply in this chapter:

(1)  "Business" means:

(a)  a holding or interest whose fair market value is greater than $1,000, in a corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, self-employed person, holding company, joint-stock company, receivership, trust, or other entity or property held in anticipation of profit, but does not include nonprofit organizations; and

(b)  present or past employment from which benefits, including retirement allowances, are received.

(2)  "Commissioner" means the commissioner of political practices.

(3)  "Docket" means the register of lobbyists and principals maintained by the commissioner pursuant to 5-7-201.

(4)  "Elected official" means a public official holding a state office filled by a statewide vote of all the electors of Montana or a state district office, including but not limited to legislators, public service commissioners, and district court judges. The term "official-elect" also applies to the offices.

(5)  "Individual" means a human being.

(6)  "Lobbying" means:

(a)  the practice of promoting or opposing the introduction or enactment of legislation before the legislature or the members of the legislature by a person other than a member of the legislature or a public official; and

(b)  the practice of promoting or opposing official action by any public official.

(7)  "Lobbying for hire" includes activities of the officers, agents, attorneys, or employees of a principal who are paid, reimbursed, or retained by the principal and whose duties include lobbying. If an individual is reimbursed only for his personal living and travel expenses, which together are less than $1,000 per in a calendar year, that individual is not considered to be lobbying for hire.

(8)  (a) "Lobbyist" means a person who engages in the practice of lobbying for hire.

(b)  Lobbyist does not include:

(i)  an individual acting solely on his the individual's own behalf; or

(ii) an individual working for the same principal as a licensed lobbyist if the individual does not have personal contact involving lobbying with a public official on behalf of his the individual's principal.

(c)  Nothing in this This section deprives does not deprive an individual who is not lobbying for hire of the constitutional right to communicate with public officials.

(9)  "Payment" means distribution, transfer, loan, advance, deposit, gift, or other rendering made or to be made of money, property, or anything of value.

(10) "Payment to influence official action" means any of the following types of payment:

(a)  direct or indirect payment to a lobbyist by a principal, such as salary, fee, compensation, or reimbursement for expenses, excluding personal living expenses; or

(b)  payment in support of or assistance to a lobbyist or a lobbying activity, including but not limited to the direct payment of expenses incurred at the request or suggestion of the lobbyist.

(11) "Person" means an individual, corporation, association, firm, partnership, state or local government or subdivision of state or local government, or other organization or group of persons.

(12) "Principal" means a person who employs a lobbyist.

(13) "Public official" means an individual, elected or appointed, acting in his an official capacity for the state government. The term does not include those acting in a judicial or quasi-judicial capacity or performing ministerial acts.

(14) "Unprofessional conduct" means:

(a)  violating any of the provisions of this chapter;

(b)  instigating action by a public official for the purpose of obtaining employment;

(c)  attempting to influence the action of a public official on a measure pending or to be proposed by:

(i)  promising financial support; or

(ii) making public any unsubstantiated charges of improper conduct on the part of a lobbyist, a principal, or a legislator; or

(d)  attempting to knowingly deceive a public official with regard to the pertinent facts of an official matter or attempting to knowingly misrepresent pertinent facts of an official matter to a public official."

NEW SECTION. SECTION 4. ADMINISTRATIVE PENALTY AND PROCEEDING. IN ADDITION TO THE PENALTIES PROVIDED IN 5-7-305, THE COMMISSIONER MAY SEEK AN ADMINISTRATIVE PENALTY OF NOT LESS THAN $50 OR MORE THAN $1,000 FOR A VIOLATION OF [SECTION 1]. THE PENALTY MUST, UNLESS COLLECTED EARLIER BY SETTLEMENT, BE DETERMINED AND COLLECTED BY A HEARING HELD PURSUANT TO THE CONTESTED CASE PROCEDURES OF THE ADMINISTRATIVE PROCEDURE ACT. THE COMMISSIONER MAY ADOPT RULES TO IMPLEMENT THIS SECTION.

NEW SECTION. Section 5.  Codification instruction. [Sections 1 and, 2, AND 4] are intended to be codified as an integral part of Title 5, chapter 7, and the provisions of Title 5, chapter 7, apply to [sections 1 and, 2, AND 4].

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