HOUSE DOCKET, NO. 93853 FILED ON: 7/22/2009
HOUSE . . . . . . . . . . . . . . . No. 3853
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The Commonwealth of Massachusetts
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In the Year Two Thousand Nine
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An Act improving the laws relating to ethics and lobbying..
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
SECTION 1. Section 39 of said chapter 3 of the General Laws, as appearing in the 2006 Official Edition, is hereby amended by striking out the definition of “Client” and inserting in place thereof the following definition:-
“Client”, any person, corporation, partnership, association, or other entity that contracts with another person, corporation, partnership, association, or other entity to receive lobbying services.
SECTION 2. Said section 39 of said chapter 3 of the General Laws, as so appearing, is hereby further amended by striking out the definition of “Executive agent” and inserting in place thereof the following definitions:-
“Executive agent”, a person who for compensation or reward engages in executive lobbying, which includes at least one communication with a government employee. The term “executive agent” shall include a person who, as part of his regular and usual business or professional activities and not simply incidental thereto, engages in executive lobbying, whether or not any compensation in addition to the salary for such activities is received for such services. For the purposes of this definition a person shall be presumed to be engaged in executive lobbying that is simply incidental to his regular and usual business or professional activities if he: (i) engages in executive lobbying for not more than 10 hours during any reporting period; or (ii) receives less than $2,500 during any reporting period for executive lobbying.
“Executive lobbying,” any act to influence or to attempt to influence the decision of any officer or employee of the executive branch or an authority, including but not limited to, statewide constitutional officers and employees thereof, where such decision concerns legislation or the adoption, defeat or postponement of a standard, rate, rule or regulation promulgrated pursuant to any general or special law, or any act to communicate directly with a covered executive official to influence a decision concerning policy or procurement; provided further, that executive lobbying shall include acts to influence or attempt to influence the decision of any officer or employee of a city or town when those acts are intended to carry out a common purpose with executive lobbying at the state level; and provided further, that executive lobbying shall include strategizing, planning, research, and other background work if performed in connection with, or for use in, an actual communication with a government employee.
SECTION 3. Said section 39 of said chapter 3 of the General Laws, as so appearing, is hereby further amended by striking out the definition of “Legislative agent” and inserting in place thereof the following definitions:-
“Legislative agent”, a person who for compensation or reward engages in legislative lobbying, which includes at least one communication with a government employee. The term “legislative agent” shall include a person who, as part of his regular and usual business or professional activities and not simply incidental thereto, engages in legislative lobbying, whether or not any compensation in addition to the salary for such activities is received for such services. For purposes of this definition a person shall be presumed to be engaged legislative lobbying that is simply incidental to his regular and usual business or professional activities if he: (i) engages in legislative lobbying for not more than 10 hours during any reporting period; or (ii) receives less than $2,500 during any reporting period for legislative lobbying.
“Legislative lobbying,” any act to monitor, promote, oppose or influence legislation, or to monitor, promote, oppose or influence the governor’s approval or veto thereof including, without limitation, any action to influence the introduction, sponsorship, consideration, action or nonaction with respect to any legislation; provided further, that legislative lobbying shall include acts to influence or attempt to influence the decision of any officer or employee of a city or town when those acts are intended to carry out a common purpose with legislative lobbying at the state level; and provided further, that legislative lobbying shall include strategizing, planning, research, and other background work if performed in connection with or for use in an actual communication with a government employee.
SECTION 4. Section 41 of said chapter 3 of the General Laws, as so appearing, is hereby amended by inserting after the first paragraph the following paragraph:-
The state secretary shall offer educational seminars on the requirements of sections 39 to 50, inclusive, for all legislative agents and executive agents. The seminars shall be conducted in-person or offered online through the state secretary’s website. All legislative and executive agents shall: (i) before registering with the state secretary and annually thereafter, complete an in-person or online seminar offered by the state secretary; and (ii) complete an in-person or online seminar offered by the state secretary upon any material change to sections 39 to 50, inclusive, or any regulations promulgated pursuant thereto. The superintendent of the bureau of state office buildings shall, upon request of the state secretary, provide at no cost to the state secretary suitable facilities for such seminars. The state secretary shall adopt regulations for the administration and enforcement of this section.
SECTION 5. Said section 41 of said chapter 3 of the General Laws, as so appearing, is hereby amended by striking out the last paragraph and inserting in place thereof the following 3 paragraphs:-
Upon registration, the state secretary shall issue to each legislative agent and executive agent a license which shall entitle the holder to act as a legislative agent and executive agent for a client that has filed a registration statement pursuant to this section. A nontransferable identification card shall evidence this license and shall include the agent’s name and photograph. Each license shall expire on December 31 of each year. Out-of-state legislative agents and executive agents shall submit 3 passport-sized photographs to the state secretary upon registration.
The state secretary shall promulgate regulations pursuant to chapter 30A for administration and enforcement of sections 39 to 50, inclusive.
The state secretary shall, upon written request from a person who is or may be subject to sections 39 to 50, inclusive, render advisory opinions on the requirements of those sections. An opinion rendered by the state secretary, unless amended or revoked, shall be a defense in a criminal action brought pursuant to sections 39 to 50, inclusive, and shall be binding on the state secretary, the attorney general or the district attorney in any subsequent proceedings concerning the person who requested the opinion and who acted in good faith, unless material facts were omitted or misstated by the person in the request for an opinion. Such requests shall be confidential; provided, however, that the state secretary may publish such opinions if the name of the requesting person and any other identifying information is not included in such publication unless the requesting person consents to such inclusion.
SECTION 6. Section 43 of said chapter 3 of the General Laws, as so appearing, is hereby amended by striking out, in line 4, the words “appearing on the docket”
SECTION 7. Said section 43 of said chapter 3 of the General Laws, as so appearing, is hereby further amended by striking out the third paragraph and inserting in place thereof the following paragraph:-
Every legislative agent and executive agent shall include in the statement required by this section for the relevant reporting period: (1) the identification of each client for whom the legislative or executive agent provided lobbying services; (2) a list of all bill numbers and names of legislation and other governmental action that the executive or legislative agent acted to monitor, promote, oppose or influence; (3) a list of all line-item numbers in nay appropriation bill that the executive or legislative agent acted to monitor, promote, oppose or influence; (4) a statement of the executive or legislative agent’s position, if any, on each such bill, line item or other governmental action; (5) the identification of the client or clients on whose behalf the executive or legislative agent was acting with respect to each such bill, line item or governmental action; (6) the amount of compensation received for executive or legislative lobbying from each client with respect to such lobbying services; and (7) all direct business associations with public officials.The disclosure shall be required regardless of whether the legislative agent or executive agent specifically referenced the bill number or name, line item number or other governmental action while acting to promote, oppose or influence legislation, and shall be as complete as practicable.
SECTION 8. The fourth paragraph of said section 43 of said chapter 3 of the General Laws, as so appearing, is hereby further amended by striking out the second sentence and inserting in place thereof the following sentence:- Said penalty shall be in the amount of $50 per day up to the twentieth day and an additional $100 per day for every day after the twentieth day until the statement is filed. The state secretary may waive the above penalties for good cause.
SECTION 9. Said chapter 3 of the General Laws is hereby further amended by striking out section 45 and inserting in place thereof the following section:-
Section 45. (a) Upon receipt of a sworn complaint signed under pains and penalties of perjury, or upon receipt of evidence which is deemed sufficient by the state secretary, the state secretary shall initiate a preliminary inquiry into any alleged violation of sections 39 to 50, inclusive. At the commencement of a preliminary inquiry into any such alleged violation, the state secretary shall notify the attorney general. All proceedings and records relating to a preliminary inquiry or initial staff review used to determine whether to initiate an inquiry shall be confidential, except that the state secretary may provide to: (1) the attorney general, the United States Attorney or a district attorney of competent jurisdiction evidence which may be used in a criminal proceeding; (2) the inspector general information concerning fraud, waste, or abuse in the expenditure of public funds; (3) the state ethics commission concerning violations of chapters 268A and 268B; and (4) the director of the office of campaign and political finance information concerning violations of chapter 55. Any information provided by the state secretary pursuant to this section shall be confidential pursuant to this section and section 4 of chapter 268B, except that such information may be used by the officer or agency to whom it was provided in any investigation or subsequent proceedings. The state secretary shall notify any person who is the subject of the preliminary inquiry of the existence of such inquiry and the general nature of the alleged violation within 30 days of the commencement of the inquiry.
(b) If a preliminary inquiry fails to indicate reasonable cause for belief that there has been a violation of sections 39 to 50, inclusive, the state secretary shall immediately terminate the inquiry and shall within 10 days so notify, in writing, the complainant, if any, and the person who had been the subject of the inquiry.
(c) If a preliminary inquiry indicates reasonable cause for belief that there has been a violation of sections 39 to 50, inclusive, the state secretary may initiate an adjudicatory proceeding to determine whether there has been such a violation.
(d) The state secretary may require by summons the attendance and testimony of witnesses and the production of books, papers and other records relating to any matter being investigated pursuant to sections 39 to 50, inclusive. Such summons may be issued by the state secretary and shall be served in the same manner as summonses for witnesses in criminal cases, issued on behalf of the commonwealth and all the provisions of law relative to summonses issued in such cases shall apply to summonses issued under this section so far as applicable. Any justice of the supreme judicial court or the superior court may upon application by the state secretary compel the attendance of witnesses summoned as aforesaid and the giving of testimony under oath before said director in furtherance of any investigation in the same manner and to the same extent as before said courts.
(e) The state secretary, or his designee, may administer oaths and may hear testimony or receive other evidence in any proceeding.
(f) All testimony in an adjudicatory proceeding shall be under oath. All parties shall have the right to call and examine witnesses, to introduce exhibits, to cross-examine witnesses who testify, to submit evidence, and to be represented by counsel. Before testifying, all witnesses shall be given a copy of the regulations governing adjudicatory proceedings.
(g) Any person whose name is mentioned during an adjudicatory proceeding of the state secretary and who may be adversely affected thereby may appear personally before the state secretary on his own behalf, with or without counsel, to give a statement in opposition to such adverse mention or file a written statement of such opposition for incorporation into the record of the proceeding.
(h) All adjudicatory proceedings of the state secretary pursuant to this section shall be public and shall be subject to chapter 30A.
(i) Within 30 days after completion of deliberations, the state secretary shall publish a written report of his findings and conclusions.
(j) Upon a finding pursuant to an adjudicatory proceeding that there has been a violation, the state secretary may issue an order: (1) requiring the violator to cease and desist such violation; (2) requiring the violator to file any report, statement or other information as required by sections 39 to 50, inclusive; (3) suspending for a specified period or revoking the license and registration of the violator; or (4) requiring the violator to pay a civil penalty of not more than $10,000 for each violation.
The state secretary may file a civil action in superior court to enforce this order.
(k) Final action by the state secretary under this section shall be subject to review in superior court upon petition of any party in interest filed within 30 days after the action for which review is sought. The court shall enter a judgment enforcing, modifying, or setting aside the order of the state secretary, or it may remand the proceedings to the state secretary for such further action as the court may direct. If the court modifies or sets aside the state secretary’s order or remands the proceedings to the state secretary, the court shall determine whether such modification, set aside, or remand is substantial. If the court does find such modification, set aside, or remand to be substantial, the petitioner shall be entitled to be reimbursed from the treasury of the commonwealth for reasonable attorneys' fees and all court costs incurred by him in the defense of the charges contained in the proceedings. The amount of such reimbursement shall be awarded by the court but shall not exceed $20,000 per person, per case.
(l) Any person who violates the confidentiality of an inquiry under this section shall be punished by a fine of not more than $1,000 or by imprisonment for not more than 1 year, or both.
SECTION 10. Section 47 of said chapter 3 of the General Laws, as so appearing, is hereby further amended by striking out, in lines 4 and 5, inclusive, the words “whose name appears upon the docket”
SECTION 11. The second paragraph of said section 47 of said chapter 3 of the General Laws, as so appearing, is hereby further amended by striking out the second sentence and inserting in place thereof the following sentence:- This penalty shall be in the amount of $50 per day up to the twentieth day and an additional $100 per day for every day after the twentieth day until the statement is filed. The state secretary may waive these penalties for good cause.
SECTION 12. Section 48 of chapter 3 of the General Laws, as so appearing, is hereby amended by striking out, in line 3, the words “five thousand dollars” and inserting in place thereof the following words:- $10,000, or by imprisonment in the state prison for not more than 5 years, or in a jail or house of correction for not more than 2 1/2 years, or both
SECTION 13. Section 49 of said chapter 3 of the General Laws, as so appearing, is hereby amended by inserting after the first sentence the following 2 sentences:- The supreme judicial court or superior court may, upon application of the attorney general, grant equitable or mandamus relief to enforce sections 41 through 43, inclusive, prohibiting the offering or giving of or paying for gifts, meals, beverages, or other items. Relief under this section may include (a) an order to pay to the commonwealth an amount equal to the value of any compensation or thing paid or received in violation of section 42, or the value of any gift, meal, beverage, or other item given or received in violation of section 43; and (b) a civil penalty of up to $10,000 for each violation of sections 41 through 47, inclusive.
SECTION 14. Section 9 of chapter 53 of the General Laws, as so appearing, is hereby amended by striking out, in lines 21 through 22, inclusive, and 25, the words “fifty-five A” and inserting in place thereof, in each instance, the following figure:- 55C
SECTION 15. Said section 1 of said chapter 55 is hereby further amended by striking out, in line 55, the words “and (6)” and inserting in place thereof the following words:- (6) any donations received or payments made by a legal defense, inaugural or recount fund established pursuant to section 18E; and (7)
SECTION 16. The eighth paragraph of section 3 of said chapter 55 of the General Laws, as so appearing, is hereby amended by adding the following two sentences:- The name of a candidate who fails to file any statement or report after receiving notice under this section of such failure and who continues to fail to file such statement or report after the institution of civil proceedings under this section to compel such filing shall not appear on a state ballot after the initiation of such civil proceedings, until such time as the statement or report is filed, and the director shall inform the state secretary of such failure prior to the deadline for filing nomination papers with the state secretary for such candidate pursuant to chapter 53. Any candidate who files such statement or report with the director after the deadline for filing nomination papers with the secretary shall not be allowed on the state ballot.
SECTION 17. Said section 3 of chapter 55 of the General Laws, as so appearing, is hereby further amended by inserting, after the word “requested,”, in line 111, the following words:- by personal delivery, by leaving a copy of the notice at the person’s last and usual place of residence or by delivering a copy of the notice to an attorney who has appeared on behalf of the alleged violator,
SECTION 18. The eleventh paragraph of said section 3 of chapter 55, as so appearing, is hereby further amended by striking the last sentence and inserting in place thereof the following three sentences:- For a candidate who is holding elective office whose term of office is 3 or more years, for the treasurer of the political committee organized on behalf of such candidate, or for any person or entity supporting or opposing such candidate, evidence of any violation of this chapter, if submitted to the attorney general prior to the next election for the office held by the candidate that occurs after the violation, shall be submitted no later than 2 years prior to such election, and if submitted after the election, such evidence may not be submitted more than 3 years after said election. For all other persons or entities under investigation for violations relating to an identifiable election, evidence of any violation of this chapter shall be presented by the director to the attorney general only after the next relevant election, but within 3 years after said election. If the evidence does not relate to an identifiable election, referral shall take place within 3 years of the violation.
SECTION 19. The twelfth paragraph of said section 3 of said chapter 55 of the General Laws, as so appearing, is hereby further amended by striking out the second sentence and inserting in place thereof the following sentence:- Said civil penalty shall be in the amount of $25 per day; provided, however, that the maximum penalty the director may assess shall be no greater than $5,000 for any one report, statement or affidavit which is filed later than the prescribed date.
SECTION 20. Section 8 of said chapter 55 of the General Laws, as so appearing, is hereby amended by inserting after the word “business”, in line 7, the following words:- or professional
SECTION 21. Section 18 of said chapter 55 of the General Laws, as so appearing, is hereby amended by striking out the first paragraph, and inserting in place thereof the following paragraph:-