72 The Alabama Lawyer 126 (2011). The 2010 Changes to Alabama's ETHICS LAW.

• Author: By Edward A. Hosp

Alabama Lawyer

2011.

72 The Alabama Lawyer 126 (2011).

The 2010 Changes to Alabama's ETHICS LAW

The 2010 Changes to Alabama's ETHICS LAWBy Edward A. HospIn early December 2010, the Alabama Legislature was called into special session by outgoing Governor Bob Riley. The stated purpose of the session and the legislation introduced during that session was to increase accountabiUty and transparency in government at the state, county and local levels. More specifically, one of the primary focuses of the session was to limit the perceived infiuence that "lobbyists" and those who hire "lobbyists" have on the poUtical process. Thus, two of these bills, Senate Bill 14 ("SB14"), by Senator Bryan Taylor, and House Bill 11 ("HBll"), by Representative Paul DeMarco, made extensive changes to the definitions of "lobbying," "lobbyists" and the items and hospitality that "lobbyists" and "principals"-those who hire "lobbyists"-can provide to "public officials" and "public employees ."(fn1) In fact, these bills so transformed the law that at the first mandated ethics training session in Montgomery on January 24,2011, Ethics Commission Executive Director Jim Sumner declared that "life, as we have known it in the past, no longer exists."

To say that there is significant confusion and disagreement over what the new laws actually did would be an understatement. See Montgomery Advertiser, 2/3/2011. The changes are stiU being analyzed, and many of the new provisions will require interpretation through advisory opinions issued by the Ethics Commission before their full impact is understood.(fn2) Additionally, the legislature may have addressed some of the issues that have arisen through technical amendments when the 2011 Regular Session began March 1, although early indications are that they are reluctant to do so.

This article analyzes SB 14 and HBll in an attempt to provide as clear a picture as possible of the new restrictions on "public officials," "lobbyists" and those who employ "lobbyists"-as well as to whom those restrictions apply.

What Is Lobbying?

Under prior law, and pursuant to language re-passed in SB 14, the definition of "lobbying" includes any attempt to influence legislation, including the veto or amendment of legislation.(fn3) The definition of "lobbying" also includes any attempt to influence the adoption and modification of regulations instituted by any regulatory body. Therefore, if the purpose of contact with the government is to influence the content of legislation or regulation, an attorney would likely fall under the definition of a "lobbyist."

Consistent with prior interpretation of the law, and based on the language in the definition of "lobbying" as well as the "attorney exception" to the definition of "lobbyist" (see Ala. Code 36-25-1(20)(b)(2)), it does not appear that "lobbying" includes attempting to influence the application of regulations to a particular situation-for example, an attempt to obtain a license or to convince a government entity that a party is not in violation of an existing rule or regulation. Additionally, "professional services" involving drafting legislation or regulations, or assisting clients in interpreting the impact of particular measures does not render a person a "lobbyist." AZa. Code § 36-25-1(20(b)(2).

The purpose of HB11, however, was to add a new code section that expanded the definition of "lobbying" to include any attempt to influence the award of any contract or grant by any department of the executive, legislative or judicial branch of state government. Ala. Code § 36-25-1.5. While this is a significant change to the law, note that HBll applies only to those seeking contracts and grants with the state. Therefore, those seeking contracts and grants with county or city governments, or their departments and agencies, would not fall under the definition of "lobbying" and should not be considered "lobbyists."

As discussed more fully below, there appears to be a conflict between the new definition of "lobbying" contained in HB11, and one of the exceptions to the definition of "lobbyist" contained in the existing Code and re-enacted as part of SB 14. Thus, there exists some confusion as to the circumstances under which a person seeking to obtain a contract for goods and services with the executive or legislative branches of state government will be considered a "lobbyist."(fn4)

Who Is a Lobbyist?

Generally

Under SB 14, "the term lobbyist includes any of the following:" 1. A person who receives compensation to lobby. That is, anyone paid to influence legislation, regulations or the award of contracts of grants by the state; 2. A person who lobbies as a "regular or usual part of employment;" 3. A consultant to any government entity who is employed to influence legislation or regulations regardless of the funds firom which that person is paid; 4. Any employee or consultant of a lobbyist who regularly conmiuni-cates with members of a legislative body.Ala. Code § 36-25-1(20)(a).(fn5)

As noted above, the definition of "lobbyist" ia Ala. Code § 36-25-1(20) as adopted by SB 14 begins with the phrase "the term lobbyist includes any of the following" (emphasis added). Therefore, the examples given and listed above may not be exclusive. This creates the possibility that the Ethics Commission could interpret other activities by an individual as rendering that person a "lobbyist."

What is perhaps more instructive than the definition of who is a "lobbyist" is that the Code also specifies who is not a "lobbyist." A "lobbyist" does not include:

1. Elected officials acting on matters which involve that person's official duties; 2. A person or attomey drafting bills or advising clients or rendering opinions regarding the construction or effect of pending legislation, executive action or rules or regulations; 3. Reporters and members of the press; 4. Citizens who do not expend funds to lobby...