H. B. 3327
(By Delegate Fleischauer)
[Introduced March 23, 2009; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §6B-3-1 and §6B-3-4 of the Code of West
Virginia, 1931, as amended, all relating to requiring the
reporting and publication of all compensation, including
contingent compensation, paid to lobbyists for all lobbying
activities; and providing a definition of "contingent
compensation."
Be it enacted by the Legislature of West Virginia:
That §6B-3-1 and §6B-3-4 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 3. LOBBYISTS.
§
6B-3-1. Definitions.
As used in this article, unless the context in which used
clearly indicates otherwise:
(1) "Compensation" means money or any other thing of value
received or to be received by a lobbyist from an employer for services rendered.
(2) "Contingent compensation" means money or any other thing
of value received or to be received by a lobbyist from an employer
for successful lobbying activity.
(2) (3) "Employer" or "lobbyist's employer" means any person
who employs or retains a lobbyist.
(3) (4) "Expenditure" means payment, distribution, loan,
advance deposit, reimbursement, or gift of money, real or personal
property or any other thing of value; or a contract, promise or
agreement, whether or not legally enforceable.
(4) (5) "Government officer or employee" means a member of the
Legislature, a legislative employee, the Governor and other members
of the board of Public Works, heads of executive departments and
any other public officer or public employee under the legislative
or executive branch of state government who is empowered or
authorized to make policy and perform nonministerial functions. In
the case of elected offices included herein, the term "government
officer or employee" includes candidates who have been elected but
who have not yet assumed office.
(5) (6) "Legislation" means bills, resolutions, motions,
amendments, nominations and other matters pending or proposed in
either house of the Legislature and includes any other matters that
may be the subject of action by either house or any committee of
the Legislature and all bills or resolutions that, having passed both houses, are pending approval or veto by the Governor.
(6) (7) "Lobbying" or "lobbying activity" means the act of
communicating with a government officer or employee to promote,
advocate or oppose or otherwise attempt to influence:
(i) The passage or defeat or the executive approval or veto of
any legislation which may be considered by the Legislature of this
state; or
(ii) The adoption or rejection of any rule, regulation,
legislative rule, standard, rate, fee or other delegated
legislative or quasi-legislative action to be taken or withheld by
any executive department.
(7) (8) "Lobbying firm" means any business entity, including
an individual contract lobbyist, which meets either of the
following criteria:
(A) The business entity receives or becomes entitled to
receive any compensation, other than reimbursement for reasonable
travel expenses, for the purpose of lobbying on behalf of any other
person, and any partner, owner, officer or employee of the business
entity.
(B) The business entity receives or becomes entitled to
receive any compensation, other than reimbursement for reasonable
travel expenses, to communicate directly with any elected state
official, agency official or legislative official for the purpose
of lobbying on behalf of any other person.
(8) (9)(A) "Lobbyist" means any individual employed by a
lobbying firm or who is otherwise employed or contracts for
economic consideration, other than reimbursement for reasonable
travel expenses, to communicate directly or through his or her
agents with any elective state official, agency official or
legislative official for the purpose of promoting, advocating,
opposing or otherwise attempting to influence:
(i) The passage or defeat or the executive approval or veto of
any legislation which may be considered by the Legislature of this
state; or
(ii) The adoption or rejection of any rule, legislative rule,
standard, rate, fee or other delegated legislative or quasi-
legislative action to be taken or withheld by any executive
department.
(B) The term "lobbyist" does not include the following
persons, who are exempt from the registration and reporting
requirements set forth in this article, unless they engage in
activities which would otherwise subject them to the registration
and reporting requirements:
(i) Persons who limit their lobbying activities to appearing
before public sessions of committees of the Legislature, or public
hearings of state agencies, are exempt.
(ii) Persons who limit their lobbying activities to attending
receptions, dinners, parties or other group functions and make no expenditure in connection with such lobbying are exempt.
(iii) Persons who engage in news or feature reporting
activities and editorial comment as working members of the press,
radio or television and persons who publish or disseminate such
news, features or editorial comment through a newspaper, book,
regularly published periodical, radio station or television station
are exempt.
(iv) Persons who lobby without compensation or other
consideration, other than reimbursement for reasonable travel
expenses, for acting as lobbyists, who are not employed by a
lobbying firm or lobbyist employer, and whose total expenditures in
connection with lobbying activities do not exceed $150 during any
calendar year, are exempt. The exemptions contained in this
subparagraph and in subparagraph (ii) are intended to permit and
encourage citizens of this state to exercise their Constitutional
rights to assemble in a peaceable manner, consult for the common
good, instruct their representatives, and apply for a redress of
grievances. Accordingly, such persons may lobby without incurring
any registration or reporting obligation under this article. Any
person exempt under this subparagraph or subparagraph (ii) may at
his or her option register and report under this article.
(v) Persons who lobby on behalf of a nonprofit organization
with regard to legislation, without compensation, and who restrict
their lobbying activities to no more than twenty days or parts thereof during any regular session of the Legislature, are exempt.
The commission may promulgate a legislative rule to require
registration and reporting by persons who would otherwise be exempt
under this subparagraph, if it determines that such rule is
necessary to prevent frustration of the purposes of this article.
Any person exempt under this subparagraph may, at his or her
option, register and report under this article.
(vi) The Governor, members of the Governor's staff, members of
the board of Public Works, officers and employees of the executive
branch who communicate with a member of the Legislature on the
request of that member, or who communicate with the Legislature,
through the proper official channels, requests for legislative
action or appropriations which are deemed necessary for the
efficient conduct of the public business or which are made in the
proper performance of their official duties, are exempt.
(vii) Members of the Legislature are exempt.
(viii) Persons employed by the Legislature for the purpose of
aiding in the preparation or enactment of legislation or the
performance of legislative duties are exempt.
(ix) Persons rendering professional services in drafting
proposed legislation or in advising or rendering opinions to
clients as to the construction and effect of proposed or pending
legislation are exempt.
(9) (10) "Person" means any individual, partnership, trust, estate, business trust, association or corporation; any department,
commission, board, publicly supported college or university,
division, institution, bureau or any other instrumentality of the
state; or any county, municipal corporation, school district or any
other political subdivision of the state.
§6B-3-4. Reporting by lobbyists.
(a) A registered lobbyist shall file with the commission
reports of his or her lobbying activities
and compensation, signed
by the lobbyist. The reports shall be filed three times a year as
follows:
(1) On or before May 15, a lobbyist shall report all lobbying
activities in which he or she engaged from January 1 through April
30.
The report shall include all compensation, including
contingent compensation, paid to the lobbyist for all lobbying
activities engaged in during this period. The report shall be
published on the West Virginia Secretary of State web site.
(2) On or before September 15, a lobbyist shall report all
lobbying activities in which he or she engaged from May 1 through
August 31.
The report shall include all compensation, including
contingent compensation, paid to the lobbyist for all lobbying
activities engaged in during this period. The report shall be
published on the West Virginia Secretary of State web site.
(3) On or before January 15, a lobbyist shall report all
lobbying activities in which he or she engaged from September 1 through December 31.
The report shall include compensation,
including contingent compensation, paid to the lobbyist for all
lobbying activities engaged in during this period. The report
shall be published on the West Virginia Secretary of State web
site.
(b) If the date on which a lobbyist expenditure report is due
falls on a Saturday, Sunday or legal holiday, the report will be
considered timely filed if it is postmarked not later than the next
business day. If a registered lobbyist files a late report, the
lobbyist shall pay the commission a fee of $10 for each late day,
not to exceed a total of $250. If a registered lobbyist fails to
file a report or to pay the required fee for filing an untimely
report, the commission may, after written notice sent by certified
mail, return receipt requested, suspend the lobbyist's privileges
as a registered lobbyist until the lobbyist has satisfactorily
complied with all reporting requirements and paid the required fee.
(c)(1) Except as otherwise provided in this section, each
report filed by a lobbyist shall show the total amount of all
expenditures for lobbying activities made or incurred by on behalf
of the lobbyist during the period covered by the report. The
report shall also show subtotals segregated according to financial
category, including meals and beverages; living accommodations;
advertising; travel; contributions; gifts to public officials or
employees or to members of the immediate family of a public official or employee; and other expenses or services.
(2) Lobbyists are not required to report the following:
(A) Unreimbursed personal living and travel expenses not
incurred directly for lobbying;
(B) Any expenses incurred for the lobbyist's own living
accommodations;
(C) Any expenses incurred for the lobbyist's own travel to and
from public meetings or hearings of the legislative and executive
branches; or
(D) Any expenses incurred for telephone and any office
expenses, including rent and salaries and wages paid for staff and
secretarial assistance.
(d) If a lobbyist is employed by more than one employer, the
report shall show the proportionate amount of the expenditures in
each category incurred on behalf of each of his or her employers.
(e) The report shall describe the subject matter of the
lobbying activities in which the lobbyist has been engaged during
the reporting period.
(f) If, during the period covered by the report, the lobbyist
made expenditures or expenditures were made or incurred on behalf
of the lobbyist in the reporting categories of meals and beverages,
living accommodations, travel, gifts or other expenditures, other
than for those expenditures governed by subsection (g) of this
section, the lobbyist shall report the name of the public official or employee to whom or on whose behalf the expenditures were made,
the total amount of the expenditures, and the subject matter of the
lobbying activity, if any:
Provided, That a registered lobbyist
who entertains more than one public official or public employee at
a time with meals and beverages complies with the provisions of
this section if he or she reports the names of the public officials
or public employees entertained and the total amount expended for
meals and beverages for all of the public officials or public
employees entertained:
Provided, however, That where several
lobbyists join in entertaining one or more public officials or
public employees at a time with meals and beverages, each lobbyist
complies with the provisions of this section by reporting the names
of the public officials or public employees entertained and his or
her proportionate share of the total amount expended for meals and
beverages for all of the public officials or public employees
entertained. Under this subsection, no portion of the amount of an
expenditure for a dinner, party or other function sponsored by a
lobbyist's employer need be attributed to a particular public
official or employee who attends the function if the sponsor has
invited to the function all the members of: (1) The Legislature;
(2) either house of the Legislature; (3) a standing or select
committee of either house; or (4) a joint committee of the two
houses of the Legislature. However, the amount spent for the
function shall be added to other expenditures for the purpose of determining the total amount of expenditures reported under
subdivision (1), subsection (c) of this section:
Provided further,
That if the expenditure is for a function to which the entire
membership of the Legislature has been invited, the lobbyist need
only report that fact, the total amount of the expenditure and the
subject matter of the lobbying activity.
(g) If, during the period covered by the report, the lobbyist
made expenditures in the reporting categories of meals and
beverages, lodging, travel, gifts and scheduled entertainment for
or on behalf of a particular public official or public employee in
return for the participation of the public official or employee in
a panel or speaking engagement at a meeting, the lobbyist shall
report the name of the public official or employee to whom or on
whose behalf the expenditures were made and the total amount of the
expenditures.
NOTE: The purpose of this bill is to require the reporting and
publication of all compensation, including contingent compensation,
paid to lobbyists for all lobbying activities.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.