NEW YORK
TEMPORARY STATE COMMISSION
ON REGULATION OF LOBBYING

OPINION NO. 23 (79-3)

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FACTS

The Committee on Public Utility Law of the New York State Bar Association posed the following as the third of three questions:

"Does an appearance, as referenced in Section 12(a) 4 of the Act, include all matters which are part of the public record of a public hearing or open meeting?"

The Committee believes the exceptions under Section 12(a) of the Act include not only the witness and all matters which become part of the record of a public hearing or open meeting, but also anyone assisting in the preparation therefor--in effect, a carte blanche coverage of all individuals and materials related thereto. Further, the Committee claims the right to present briefs and arguments at such hearings under the Section 12(a)(4) exception. Since Section 166 of the Executive Law requires regulatory agencies to keep complete records of appearances of those representing another for a fee, registering and filing such information with the Lobbying Commission, it is assumed, would be duplicative. This latter conclusion is based on the assumption that the meaning of the word "appears" in Section 166 of the Executive Law was adopted in the Lobbying Act.

ISSUE

Does the exception from the Act for those who "merely appear" at public hearings and open meetings apply to all matters made a part of the hearing and all personnel involved? Are hearings before regulatory agencies held as the basis for decision-making by the agency the same as public hearings and open meetings contemplated in Section 12(a)4 of the Act, relative to the meaning of "appearance"? Does the requirement that regulatory agencies maintain complete records of those appearing at hearings for a fee make registering and reporting under the Lobbying Act duplicative and superfluous under the law?

DISCUSSION

The term "merely appears" as used in Section 12(a)(4) of the State Lobbying Act and in an analogous provision of the Federal lobbying act must be interpreted in its strictest sense. Webster's Dictionary defines "merely" as meaning "no more than; and nothing else; only." There is no definition in the law, so that this very restrictive sense must hold, that is, "no more than appears", "appears and nothing else", or "only appears." If the Committee's interpretation of the term "appears" was correct, there would be no need for the word "merely". Rather than "merely appears" meaning "appears and nothing else", the Committee would seem to suggest the meaning "appears and everything else."

Under U.S. vs. Slaughter, 89 F. Suppl.. 205 (cited by the Committee), the exception is applied not only to the witness who actually appears in support of, or in opposition to, legislation but to any person who helps to prepare the witness through research, preparation of a statement, or in any other way. The opinion suggests, however, that if alleged direct lobbying activity were proven, such would be within the purview of the Federal Act.

Section 12(a)(1) of the State Lobbying Act lists under exceptions: "Persons engaged in drafting of legislation, rules, regulations, or rates, advising clients, and rendering opinions on proposed legislation, rules, regulations, or rates, where such professional services are not otherwise connected with legislative or executive action on such legislation, or administrative action on such rules, regulations, or rates;". (Emphasis added).

In its Guidelines adopted in August 1978, the Commission, at Section VIII, 4., interpreted Section 12(a)(4) of the Act to exclude:

Persons who appear and present oral or written testimony before an open meeting or public hearing of a standing or select committee of the legislature or a State agency and who otherwise engage in no lobbying on the subject for which they appeared. (Emphasis added).

Open meetings of and hearings before committees of the Legislature and State agencies vary considerably as to the manner of presentation of testimony and in other ways. Indeed, hearings before regulatory and rate-making agencies often are in the nature of quasi-judicial proceedings while legislative hearings usually involve more generalized presentation of testimony and possible discussions between panelists and witnesses. Nevertheless, the Act does not differentiate in its reporting requirements when the activity otherwise qualifies under the Act as "lobbying."

The fact that Section 166 of the Executive Law requires regulatory agencies to keep detailed records of appearances does not satisfy the requirement, under the Lobbying Act, that certain fiscal and other information related thereto must be reported to the Commission. Further, even if Section 166 of the Executive Law satisfied this requirement, that section lists only seven "regulatory agencies". The Public Service Commission and the Department of Environmental Conservation, two key agencies before whom public utility representatives appear, are not included under this section. The Lobbying Act covers all State agencies involved in adopting rules and regulations and/or setting rates.

At a meeting on January 11, 1979, members of the Committee clarified questions raised in their letter to suggest that despite the fact that rate-making hearings involve a quasi-judicial process at which briefs are presented and argumentation is made, appearances thereat qualify under the Section 12(a)(4) exception. Section 3(d) of the Act specifically lists under the definition of "state agency," those whose members are "authorized by law to make...final decisions in adjudicatory proceedings." The Attorney General has stated: " 'Appearance' seems clearly to refer to representation for a fee on behalf of a client who is subject to regulatory jurisdiction where such client is involved in a formal hearing or in a formal application directed to the exercise of discretion under a law of a regulatory nature, but it would not necessarily apply to a casual or informal conference." (1955, Op.Atty.Gen.223).

Clearly, the appearance in such proceedings constitutes, by the nature of the proceedings, "attempts to influence" envisioned under the Act. To attempt to influence the decision of the rate-making agency outside of the established hearing procedures would be, as in any judicial proceeding, improper and unethical.

OPINION

Preparation of testimony and supplying other supportive services to one who "merely appears" at public hearings or open meetings of the Legislature or a State agency do not come under the purview of the State Regulation of Lobbying Act. However, if the individual testifying otherwise qualifies under the Act as a lobbyist, the activity related to the subject of the appearance could be merged with qualifying lobbying activities and reporting on same could be required.

The fact that the nature of public hearings and open meetings of the Legislature and of State agencies vary considerably relative to manner of presentation of testimony and other factors, and the fact that Section 166 of the Executive Law requires "regulatory agencies" to keep certain records, do not relieve persons who appear thereat from registering and reporting if they otherwise qualify as "lobbyists" under the Act.

An appearance in a rate-making proceeding falls within Sections 1, 3(a), and 3(b) of the Act.


APPROVED BY COMMISSION: APRIL 25, 1979

CONCURRING: CHAIRMAN MARGARET C. ANDRONACO, VICE CHAIRMAN D. CLINTON DOMINICK, FRANCES FOX, GAIL HELLENBRAND, and S. STANLEY KREUTZER.

/S/
________________________________________

MARGARET C. ANDRONACO
Chairman


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