EXPLANATION OF CONTENT OF AND CHANGES TO THE NOVEMBER 2004 PROMULGATION OF THE RULES AND REGULATIONS ADOPTED BY THE OFFICE OF THE SECRETARY OF STATE IN CONNECTION WITH EXECUTIVE BRANCH AND PUBLIC CORPORATION LOBBYING ACTIVITIES AND THE ROLE OF THE SECRETARY IN CONJUNCTION WITH AND PURSUANT TO TITLE 42 CHAPTER 138 OF THE RHODE ISLAND GENERAL LAWS OF 1956, AS AMENDED as Proposed by Matthew A. Brown Secretary of State
The Secretary of State has proposed rules and regulations relative to lobbying activity pursuant to and in accordance with the provisions of § 42-138 of the Rhode Island General Laws of 1956, as amended. These regulations are authorized under a statute enacted through the 2004 Session Public Laws Chapters 297 and 375. Said rules and regulations are established pursuant to the Administrative Procedures Act (R.I. Gen. Laws § 42-35-1 et al.) and are available for public inspection, submission or request at the Office of the Secretary of State. The following are comments as to the reasons and justifications for the changes to these regulations, organized by reference to the sections of the proposed regulation. The proposed regulations are structured to mirror the section number of the underlying statute (1 through 9.) Comments on Proposed Regulations: 1. Declaration of intent. The language in this section of the regulation is taken directly from the statute. 2. Definitions. This section provides additional definitions not found in the statute. (a.) The phrase “business entity” is defined in order to clarify its use in the definition of “expenditures” below.
(b.) The phrase “executive branch” is defined in order to clarify the scope of application of this statute. (c.) The term “expenditures” is defined in order to clarify that expenditures which indirectly benefit a member of the executive branch or a public corporation are subject to these regulations. The de minimis standard found in the state ethics code is applied within this definition in order to allow for a reasonable standard for the analysis of when an indirect benefit accrues. That standard is used not only because it is viewed as a reasonable threshold, but also to allow consistency of standards and simplify the application of this statute in conjunction with other state laws of similar intent. (d.) The term “lobbying firm” is defined in order to clarify its distinction from a natural person who may be a lobbyist. (e.) The term “lobbyist”, which is already defined in the statute, is clarified to include both lobbying firms and the employees and agents of lobbying firms who engage in lobbying activity. (f.) The term "original" is defined in order to clarify that an original document need not be a paper document. It is the intent of the Secretary to require filing through the use of on-line forms which cannot be submitted unless complete. Information in such forms may still, however, be subject to direct verification to assure that the proper type of response has been given. The statutory authority for the acceptance of electronic documents and signatures is found at R.I. Gen. Laws § 42-127.1-7. (g.) The term “person” is already defined in the statute as an “individual, firm, business, corporation, association, partnership, or other group.” Therefore, in these regulations the use of the word “person”, unless it is used in the phrase “natural person”, means both a natural person and each of those listed entities. The term “person” has been placed in quotes throughout the regulations and is followed by the defined list of entities in order to emphasize this usage. (h.) The definition of the phrase “policy making action” or “policy making decision” is based broadly on case law, which analyzes the underlying facts supporting a governmental action or decision, i.e., whether such action or decision impacts a broadly applied policy or state of affairs, as opposed to those which concern specific implementation based upon a discreet fact pattern. (a.) The term “residence” is defined in order to clarify that a residential street address need not be provided. This provision has been added to the regulations in order to address concerns relating to the privacy and safety of registered lobbyists. Although the statute requires that the residential address of a lobbyist be included in the lobbyist register, it does not specifically mandate that a street address be included in the residence address. Further, the publication of only the city and
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state of residence of each lobbyist is consistent with the spirit of this provision insofar as it allows the public to determine the geographic origins of support or opposition to a particular executive branch or public corporation action. (b.) The definition of the phrase "time and/or date stamped" is included in order to clarify that a process for registering receipt of electronic documents satisfies the statutory and regulatory submission requirements. 3. Register – Information shown – Public records. – This section has been modified to require the use of on-line filing. 4. Entry of names of lobbyists on register required. – This section has been modified to clarify that although an initial registration form may be submitted on-line, the lobbyist is also required to pay the appropriate fee in order to complete the registration process. It is also the intent of this section to recognize that many lobbyists are members of law firms, public relations firms, or other business entities, and that in such cases monies paid by the “person” (individual, firm, business, corporation, association, partnership, or other group) employing the lobbyist are paid to the lobbying firm, and not to the natural person who is conducting the lobbying activity on behalf of the firm. Reporting requirements were modified in order to allow consistency with the clarifications in the definition of “lobbyist”, to make clear that a lobbyist must provide the name and address of his or her employer if that employer is the entity receiving compensation for the lobbying activity, and to clarify that the lobbyist is required to provide the name of the party engaging the lobbyist to lobby (the party they represent) and not simply the lobbyist’s employer. Additional changes have been made to reflect the use of electronic filing as explained in section “2” above and the privacy concerns addressed in section “2” above. 5. Entries as to additional subjects of lobbying. – This section has been modified to require the use of on-line filing. 6. Financial reports. – This section is intended to insure that lobbyists properly report their compensation and expenditures. 7. Duties and powers of the Secretary of State. – This paragraph provides reference to the statutory authority for acceptance of electronic documents and signatures by the Secretary. 8. Penalty. – This section is intended to provide a mechanism for enforcement and the fair and just imposition of administrative and criminal penalties. 9. Lobbying without compliance prohibited. – This provision requires all “persons” (individuals, firms, business, corporations, associations, partnerships, or other groups) to engage in lobbying only after properly registering with the Secretary of State.
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