During the December 2005 Special Session, the Florida Legislature enacted new requirements for all lobbyists and lobbying firms and their principals – including some that could well affect environmental and land use lawyers.  The measure became effective on January 1, 2005.[1]

 

The new law received considerable attention in the popular press because it generally bans gifts or other expenditures to legislators and many other government employees by any lobbyist or principal.  However, the new law includes a number of disclosure and reporting requirements.  Most significantly, the new law requires lobbying firms to periodically disclose the compensation paid by the principal to the lobbying firm for lobbying.

 

Here is a brief summary of some of the key provisions:

 

Registration: The new law does not make any major change in who must register before lobbying the legislative or executive branch.[2]  Generally speaking, you must first register with the legislative branch if you receive compensation for influencing or attempting to influence legislative action or inaction through oral or written communications or for attempting to obtain the goodwill of a member or employee of the Legislature.  Likewise, you must first register with the Commission on Ethics if you receive compensation for seeking – on behalf of another person – to influence an agency decision in the area of policy or procurement or for attempting to obtain the goodwill of an agency official.[3]

 

The new law adds two provisions that affect registration.  First, each principal must now identify its "main business."  This is to be done by use of the North American Industry Classification System (NAICS), a six-digit numerical code.  Second, the new law prohibits the registration of a person convicted of a felony after January 1, 2006.

 

            Compensation Reporting.  For the first time, lobbying firms are required to report compensation received for lobbying.  This applies to those lobbying the executive branch, as well as to those who lobby the Legislature.  Each firm is required to file a compensation report for each quarter.  The reports must disclose the amount of compensation provided or to be provided by each principal and the total by all principals.  The reports are due 45 days after the end of each quarter.  The first reports are due May 15, 2006.

 

Recordkeeping/Audits.  The new law also requires lobbying firms to maintain all records, papers and other documents to substantiate the compensation paid for lobbying.  These documents may be subpoenaed for audit by either house of the Legislature or the Commission on Ethics, and the subpoena may be enforced in circuit court.  In addition, the new law provides for audits of three percent (3%) of lobbying firms by independent auditors to determine compliance with the new compensation disclosure requirement.

 

Ethical Implications of Disclosure Requirements.  The new reporting provisions require those lobbyists who are lawyers to disclose confidential information about the client which implicates the Rules of Professional Conduct.  The Florida Bar has provided guidance on these matters.[4]  Among other things, the Bar notes that lawyers who are lobbyists must obtain the consent of each client for whom the lawyer provides lobbying services in order to comply with the statute's disclosure requirements.  The Bar also recommends that lawyers consider segregating the information that relates to lobbying activities from all other representation of the client.  In addition, the Bar suggests that the lawyer disclose information to an auditor only in response to a subpoena and that the lawyer seek a judicial determination before disclosing any information the lawyer believes is privileged.

 

            Ban on Expenditures.  The new law prohibits any expenditure by a lobbyist or principal to any employee or member of the Legislature (except floral arrangements displayed in the chamber on opening day of the regular session).  It also prohibits any expenditure by a lobbyist to agency officials, members and employees of certain executive branch agencies.[5]  The term "expenditure" is defined broadly to include a payment, distribution, loan, reimbursement, deposit or anything of value made by a lobbyist or principal for the purpose of "lobbying."

 

          Unanswered Questions.  The new law was adopted somewhat hastily during a special legislative session that was called to deal with other issues.  As such, it is no surprise that there appear to be a number of as yet unanswered questions.

 

One of the principal questions concerns whether the lobbying firm is required to report only that compensation received for those activities that fall within the definition of "lobbying" or, whether the firm also must report all compensation paid by the principal to the firm that is in any way related to or supportive of the firm's lobbying on behalf of the principal.  For example, consider a lawyer who represents a principal for compensation seeking to influence a pending DEP rulemaking.  The lawyer is not required to register to appear at a public workshop or public hearing.[6]  However, the effective lawyer often submits written comments or meets with key agency officials outside of these public proceedings, and registration is required for these latter activities.  When the lawyer's firm files its quarterly compensation report, does the firm disclose only the compensation paid by the principal for those activities that constitute "lobbying" (i.e., those activities outside of the public workshop or public hearing) or, must the firm disclose all compensation received for all of activities in any way related to or supporting the efforts to influence the rulemaking (including appearances at a public workshop or hearing)?

 

Guidance.  As of this writing, the only guidance that the Legislature has provided for those who lobby the Legislative branch, are interim guidelines that deal primarily with the ban on expenditures.[7]  The Florida Commission on Ethics has published emergency rules to implement the provisions that concern lobbyists who lobby executive branch agencies.[8]  The Commission also has announced that it will be amending its current rules, Chapters 34-7 and 34-12, Florida Administrative Code, to conform to the new law.[9]

 

            Legal Challenge. The new law is the subject of a legal challenge filed on February 16, 2006.  The plaintiffs allege that the new law is invalid and should be stricken because it: (1) was not validly enacted; (2) invades the exclusive jurisdiction of the Florida Supreme Court to regulate lawyers, violates the right to freedom of speech and association, to petition government and to equal protection by prohibiting expenditures for lobbying, and by prohibiting contributions to candidates and committees; (3) violates the right to freedom of speech and association, to petition government and to equal protection by imposing vague or standardless regulations, and by imposing special burdens on lobbyists; (4) violates the right of privacy by compelling disclosure of private information; (5) violates the right to due process and jury trial; and (6) violates the separation of powers doctrine.  Florida Association of Professional Lobbyists, Inc., et al. v. Division of Legislative Information Services of the Florida Office of Legislative Services, et al., Case No. 2006 CA 488 (2d Cir.).

 

Stay tuned.

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Lawrence E. Sellers, Jr., larry.sellers@hklaw.com, received his J.D. from the University of Florida College of Law in 1979.  He is a partner in the Tallahassee office of Holland + Knight LLP.