Lobbying Reporting Requirements for Counties
With the Legislative Session fast approaching, counties are reminded that 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 or county employees.
Lobbying is controlled by 5-7-111, MCA, and ARM, 44.12.102-211 and is defined as 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. This definition also provides that actions when performed by a legislator, a public official, an elected local official, an elected federal official, or an elected tribal official, while acting in an official governmental capacity, is not lobbying. Additionally, there is nothing in the laws or regulations for lobbying subjects an individual, lobbying on his own behalf (not the county’s behalf), to any reporting requirements nor deprives an individual of the constitutional right to communicate with public officials.
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.
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. County employees may provide informational testimony; not supporting or opposing legislation also is not subject to reporting requirements.
The line between providing informational testimony and advocating or opposing legislation is often a very thin, but nonetheless, a very important line. A county employee may attend a legislative committee hearing with well prepared and thought out testimony that is totally informational in nature, but is asked a question by a member of the committee. A response to that question could, and very often does, go into the arena of advocating support or opposition. This unto itself is not a problem and nothing prohibits such a response; however it could trigger reporting requirements.
At any time, when payments for lobbying activities exceeds $2,600* (reimbursement for personal living expenses do not have to be reported), or your county enters into a written or oral agreement for lobbying services, the reporting requirements are triggered and are retrospective, meaning that all costs irrespective of when incurred, must be reported. To comply with the reporting requirements, your county must be registered, using an L-3 form, 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. The application for registration as a lobbyist is completed on an L-1 form. The financial reporting must be done on an L-5 form, and must be done at any time expenditures exceed the $2,600 threshold. A complete reporting calendar is incorporated in the L-5 report. All forms are available on the COPP website at http://politicalpractices.mt.gov/forms.
What does all of this mean?
- If you do not believe your county will expend more than $2,600 on lobbying activities, you should still track ALL lobbying costs, in case you should 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 of lobbying services, register as a Principal and 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.
- Montana Law does not prohibit lobbying; it imposes reporting requirements.
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.