Local governmental lobbying

During day-to-day operations in State affairs, government lawyers often come into contact with both attorneys and non-attorneys serving as lobbyists. Within the confines of the Lobbyist Registration Act (Act), 25 ILCS 170, lobbyists and lobbying entities (organizations that hire lobbyists) have several primary obligations to fulfill to make transparent to the public their efforts at influencing State officials.

Principally, the Act mandates that lobbyist registration, including client information, must be recorded within two days of hiring and before any actual lobbying is conducted (25 ILCS 170/6). Interestingly, if a lobbyist’s “client” happens to be another registered lobbyist, then this dual-stepped relationship also must be listed in the registration. Additionally, registrants must report bimonthly their lobbying expenditures - whether or not they made any and retain the underlying receipts for at least two years (25 ILCS 170/6). The Act also uniquely requires that at the exact time a lobbyist makes an expense on a State official, the official must be notified in writing that the expenditure will appear on the lobbyist’s official report; subject, of course, to appeal by the official (25 ILCS 170/6.5).

Perhaps not as well known within the Act are a few blanket prohibitions for registered lobbyists. For example, lobbyists (and immediate family-members in their residences) cannot be appointed to a State board or related body unless: (i) the tenure is an elective position; or (ii) the entity is only advisory and cannot make binding or substantive determinations (25 ILCS 170/3.1). Further, a lobbyist is prevented from entering into a contingency agreement for pay based on the success of his, her or its lobbying efforts. In addition, the Act prohibits State Civil Administrative Code agencies from hiring private contractual lobbyists. 25 ILCS 170/11.3. Lobbyists also are prohibited from engaging in lobbying unless they fulfill the requirements of the annual, online ethics training within 30 days after each year’s registration (25 ILCS 170/4.5).

Lobbyists have several obligations codified in laws outside of the statutory registration provisions. There are the obvious restrictions under the State Officials and Employees Ethics Act (Ethics Act), 5 ILCS 430, which ban campaign solicitations or contributions by lobbyists, among others, on State property. Of particular note, this specific ban does not include that part of State property owned or leased as a residence (5 ILCS 430/5-35).

Lobbyists, among others, making ex parte communications that are substantive and material to government action (procurement, rule-making, legislative, executive, etc.) and that are received by a State governmental entity, officer or employee are subject to these contacts becoming part of the formal record to be immediately reported to the applicable government ethics officer and the Executive Ethics Commission (5 ILCS 430/5-50). This type of one-sided communication reasonably does not include procedural statements, public forums or intra-office communications.

Although separate and apart from lobbyist expenditure reporting, the Gift Ban Article within the Ethics Act, 5 ILCS 430/Art. 10 (Article), still restricts a lobbyist, as a prohibited source, from giving a non-exempt gift to a State official, State employee or General Assembly member, including their immediate family members living in the same residence. Bear in mind, that even gifts exempt from the ban may still require independent reporting under the Lobbyist Registration Act. For example, the Article provides that food and drink for one day given to an official that is valued under $76 are exempt from the gift ban - if consumed on the premises. The Act, however, would still mandate that this allowed ‘gift’ expenditure be reported in the bi-monthly expense report completed by the lobbyist.

The not-so-obvious limitations provided within the Ethics Act, 5 ILCS 430, include that, for instance, a registered lobbyist (or registered within the preceding 12 months) may not serve as a Commissioner on the Executive Ethics Commission or on the Legislative Ethics Commission. In addition, under both the Ethics Act and the Illinois Procurement Code, 30 ILCS 500, designated State employees and certain of their immediate family members are limited in future employment and compensation opportunities by revolving-door prohibitions for one or two-years after leaving State employment. These individuals are not allowed to work during the succeeding year after leaving State employment as lobbyists, among other employment opportunities, with a private company over which the employee, during the immediately preceding year, was: (i) materially involved in contracts of a qualifying threshold amount of $25,000 or more; (ii) substantially involved in regulatory/licensing matters; or (iii) in a high-level position inherently deemed connected to procurement and regulatory matters, 5 ILCS 430/5-45. In addition, the Illinois Procurement Code invokes a two-year revolving-door prohibition against a former employee with regard to the employee’s former State agency, if the employee served for at least six months as a procurement/purchasing officer, or acquisition monitor as well as against certain Executive officers subject to Senate consent (30 ILCS 500/50-30).

Also within the Illinois Procurement Code, a financial disclosure of conflicts of interest is required for lobbyists involved in bids or offers on State procurements of more than $50,000 (30 ILCS 500/50-35). Along with other required information, the disclosure must list each lobbyist who would communicate with any State officer or employee during the procurement process. The disclosure for those who would contact State government on behalf of the bidder would also stretch to include anyone: (i) employed currently or in the previous three years as a lobbyist registered with the State; or (ii) who is or was a registered State lobbyist during the last two years to include that lobbyist’s spouse, father, mother, son or daughter.

Further, registered lobbyists who are hired by a person bidding on a State contract should know that all of their compensation and reimbursements regarding the acquisitions process will be disclosed as part of the record (30 ILCS 500/50-38). As part of these statutory requirements, the lobbyist is prohibited from billing the State for any of these re-numerations as part of the procurement and must actually certify in writing that none of these lobbyist fees were surreptitiously billed to the government. Similar to the restriction under the Lobbyist Registration Act, a lobbyist also may not enter into an agreement in which payment is based upon a contingency agreement for the success or failure of obtaining a particular procurement award.

Supplementing the reporting required for ex parte communications under the Ethics Act, the Illinois Procurement Code requires reporting protocols be followed for certain substantive communications by lobbyists (30 ILCS 500/50-39). For example, if a State employee receives from a lobbyist, among others, material that is substantive information for an active procurement matter, then this contact must be reported to the Procurement Policy Board. More specifically, if the State employee is on the receiving end of an oral communication made by a lobbyist, then each person who takes part in the conversation must reduce the material conversation to writing for reporting to the Board by the State employee.

If as a government lawyer you are advising public officials on the restrictions placed on lobbyist activities, please review any other local government limitations placed upon this profession as well. Any legal research or counsel with respect to persons registered to lobby State officials also must begin with a comprehensive review of the full text and judicial interpretations of all the controlling laws and rules including, but not limited to, the regulations on Lobbyist Registration and Reports, 2 IL Adm. Code 560. 