Lobbying Reporting Requirements for Counties
The legislative session always seems to be just around the corner, and the Interims are becoming increasingly more active. Given MACo’s members are county elected officials who take great interest in governing and Montana’s laws, we are taking this moment to review the basics of lobbying:
- An elected county official may lobby for or against the introduction or enactment of legislation/policy by legislators and/or other public agencies/officials.
- While elected officials are exempt from the normal reporting requirements of lobbyists, they still may need to register with the Commissioner of Political Practices (COPP) as a “Principal” if the county pays for lobbying activities conducted on the county’s behalf by hired or contract lobbyists and/or county employees.
What is Lobbying?
- the practice of promoting or opposing the introduction or enactment of legislation before the legislature or the members of the legislature; and
- the practice of promoting or opposing official action by any public official.
What Is Not Lobbying?
The definition of lobbying provides that actions, when performed by a legislator, public official, elected local official, elected federal official, or an elected tribal official, while acting in an official governmental capacity, is not lobbying.
Additionally, an individual is not deprived of the constitutional right to communicate with public officials. There is nothing in the laws or regulations regarding reporting requirements when an individual lobbies on his/her own behalf–not the county’s behalf.
Need More? The MCA Defines Local Government Lobbying
44.12.107 Local Government Lobbying—Definitions and Reporting
(1) A local government entity, which includes but is not limited to a county, a consolidated government, an incorporated city or town, a school district, or a special district, that engages in lobbying is a principal subject to the requirements of Title 5, chapter 7, MCA, and this chapter. A local government entity is exempt from reporting the following actions as lobbying activities:
(a) recommendations or reports to the legislature or a committee thereof, or a public official, in response to a request expressly requesting or directing a specific study, recommendation, or report by a state agency on a particular subject;
(b) any duty that is mandated by law, rule or executive order, such as the governor’s annual message to the legislature;
(c) budget preparation activities related to preparation and submittal of the governor’s executive budget as required by Article VI, section 9 of the Montana Constitution ( 5-7-211 , MCA) ;
(d) information or testimony provided in response to a request from the legislature, a legislative committee, or a public official if the information or testimony does not support or oppose the official action under consideration; and
(e) the actions of elected local officials while acting in their official capacity for a local government entity to promote or oppose the introduction or enactment of legislation before the legislature or the members of the legislature ( 5-7-102 (11) (b) , MCA) .
(2) Except as provided in (1) and unless otherwise exempted by Title 5, chapter 7, MCA, or other provisions of this chapter:
(a) the employees, agents, officers, and attorneys of a local government entity who are paid, reimbursed, or retained to lobby must register as lobbyists if they receive payments equal to or greater than the amount specified under 5-7-112 , MCA; and
(b) each local government entity must file reports under Title 5, chapter 7, MCA, and this chapter concerning the activities of their lobbyists or their individuals who lobby or support or assist a lobbying activity. Local government entities shall file consolidated lobbying reports covering the lobbying activities of all employees, officers, attorneys, and agents.
History: Sec. 5-7-111, MCA; IMP, Sec. 5-7-102, 5-7-111, 5-7-208, 5-7-211, MCA; NEW, 1982 MAR p. 1208, Eff. 6/18/82; AMD, 1994 MAR p. 2749, Eff. 10/14/94; AMD, 2002 MAR p. 2458, Eff. 9/13/02; AMD, 2004 MAR p. 1979, Eff. 8/20/04.
Montana’s Administrative Rules Are Helpful as Well
Any lobbying activity, other than those specifically enumerated in 44.12.107(1)(a-e), is subject to reporting requirements. Subsection (e) exempts local elected officials from reporting and specifically allows for the promotion or opposition of legislation by local elected officials, while acting in their official capacity.
Subjections 44.12.107(2)(a-b) presents that county employees may provide informational testimony; however supporting or opposing legislation is subject to reporting requirements.
The Thin Line
The line between providing informational testimony and advocating or opposing legislation is often a very thin, but nevertheless, a very important line.
A county employee attends a bill hearing in a legislative committee and gives well-prepared and thoughtful testimony that is entirely informational in nature. The employee is then asked a question by a committee member. The county employee’s response could–and often does–enter the arena of advocating support or opposition.
The above example is not a problem, and nothing prohibits such a response; however, it could trigger reporting requirements.
When is Reporting Required?
When payments for lobbying activities exceed $2,650*, or the county enters into a written or oral agreement for lobbying services, the reporting requirements are triggered and are retrospective. This means that all costs–irrespective of when incurred–must be reported. Reimbursement for personal living expenses do not have to be reported.
To comply with the reporting requirements, your county must be registered as a “Principal,” and a representative must be named. This would normally be the individual who will be responsible for completing and submitting the necessary reports.
Each individual who has engaged in lobbying activities must also be registered as a lobbyist, irrespective of the amount your county spent for that individual to lobby.
Soooo, Which Form Do I Fill Out?
- L-1 Form: This is the application for registration as a lobbyist.
- L-2 Form: This is the application to register as a “Principal,” which a county won’t need, as it’s for a Principle who pays an (one) individual more than $2,600 to lobby on their behalf. An L-2, must be submitted for each lobbyist who is paid at least $2,600 by the Principle.
- Form L-3: This is the application to register as a Principle who will pay individuals more than $2,650 to lobby on their behalf. This is the form the county would submit to comply with the reporting requirements. (Principals who pay a single lobbyist $2,650 or more must file a Form L-2.)
- L-5 Form: The financial reporting must be done viva the L-5 form. This is used when expenditures exceed the $2,650 threshold. A complete reporting calendar is incorporated in the L-5 report.
Where Are the Forms?
All forms are available on the COPP website at http://politicalpractices.mt.gov/forms.
What Does All of This Mean?
- Montana Law does not prohibit lobbying; it imposes reporting requirements.
- If you do not believe your county will expend more than $2,650 on lobbying activities, you should still track ALL lobbying costs, in case you exceed the threshold.
- If you think your county will probably exceed the threshold, you should register as a Principal. Then closely track all expenditures and file the necessary reports, irrespective of the amount actually spent to-date.
- If you know your county will exceed the threshold because you plan to or have contracted with an individual for lobbying services, register as a Principal. Also, make sure that person has filed an application to be a registered lobbyist and immediately begin tracking all expenditures. You should review the reporting calendar in the L-5 report and file all reports in a timely manner.
Additional Info: MACo is a Registered Principle
MACo is registered as a Principal. MACo Executive Director, Eric Bryson; Deputy Director, Jason Rittal; General Counsel, McKenzie McCarthy; Communications Director, Shantil Siaperas; and PCT Land Use Attorney, Tara DePuy are registered to lobby on behalf of MACo. If you have questions, please contact either MACo or the COPP. For more information, please visit http://politicalpractices.mt.gov.
* The threshold amount that a lobbyist can earn will increase from the 2019 amount to $2,600 to the 2021amount of $2,650, effective on January, 2021.