PART 2. TEXAS ETHICS COMMISSION
CHAPTER 34. REGULATION OF LOBBYISTS
The Texas Ethics Commission (the commission) proposes an amendment to §34.1 and §34.5, and new §§34.46, 34.73, and 34.75, relating to the regulation of lobbyists under Chapter 305 of the Government Code.
Section 34.1(5) defines the term "independent contractor" to clarify to whom the new reporting requirements created by House Bill (HB) 3445, 81st Legislature, Regular Session, apply.
Section 34.5, which contains exceptions from the requirement to register as a lobbyist, is amended by deleting paragraphs (5) and (11) to reflect the change in HB 3445, 81st Legislature, Regular Session.
Section 34.46 clarifies to whom the new reporting requirements and the new $50 lobby registration fee created by HB 3445, 81st Legislature, Regular Session, apply.
Section 34.73 sets out the information that is required to be reported under §305.022 of the Government Code, as amended by HB 3445, 81st Legislature, Regular Session, by an independent contractor who is required to register as a lobbyist.
Section 34.75 sets out the information that is required to be reported under §305.022 of the Government Code, as amended by HB 3445, 81st Legislature, Regular Session, by a registered lobbyist who is paid a sales commission or such fee by a state agency.
David A. Reisman, Executive Director, has determined that for each year of the first five years that the rules are in effect there will be no fiscal implication for the state and no fiscal implication for local government as a result of enforcing or administering the rules as proposed. Mr. Reisman has also determined that the rules will have no local employment impact.
Mr. Reisman has also determined that for each year of the first five years the rules are in effect, the anticipated public benefit will be clarity in what is required by the law.
Mr. Reisman has also determined that there may be a direct adverse effect on small businesses or micro-businesses that communicate with state agencies in the executive branch of state government with the intent to influence a purchasing decision or negotiations regarding such decisions because they may now be required to register as a lobbyist as a result of the amendments made to the lobby law (Chapter 305 of the Government Code) by HB 3445, 81st Legislature, Regular Session.
Mr. Reisman has further determined that there may be an economic cost to persons that communicate with state agencies in the executive branch of state government with the intent to influence a purchasing decision or negotiations regarding such decisions because they may now be required to register as a lobbyist as a result of the amendments made to the lobby law (Chapter 305 of the Government Code) by HB 3445, 81st Legislature, Regular Session.
The Texas Ethics Commission invites comments on the proposed rules from any member of the public. A written statement should be mailed or delivered to Natalia Luna Ashley, Texas Ethics Commission, P.O. Box 12070, Austin, Texas 78711-2070, or by facsimile (FAX) to (512) 463-5777. A person who wants to offer spoken comments to the commission concerning the proposed rules may do so at any commission meeting during the public comment period or at a commission meeting when the commission considers final adoption of the proposed rules. Information concerning the date, time, and location of commission meetings is available by telephoning (512) 463-5800 or, toll free, (800) 325-8506.
SUBCHAPTER A. GENERAL PROVISIONS
The amendments to §34.1 and §34.5 are proposed under Government Code, Chapter 571, §571.062, which authorizes the commission to adopt rules concerning the laws administered and enforced by the commission.
The amendments to §34.1 and §34.5 affect Chapter 305 of the Government Code.
§34.1.Definitions.
The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.
(1) - (4) (No change.)
(5) Independent contractor--In §305.022 of the Government Code and this chapter, means a person, including a consultant, who communicates with a member of the executive branch concerning state agency purchasing decisions involving a product, service, or service provider or negotiations regarding such decisions. The term does not include an employee, as defined by §305.022(e) of the Government Code, of a vendor.
§34.5.Certain Compensation Excluded.
Compensation received for the following activities is not included for purposes of calculating the registration threshold under Government Code, §305.003(a)(2), and this chapter and is not required to be reported on a lobby activity report filed under Government Code, Chapter 305, and this chapter:
(1) - (4) (No change.)
[(5) communicating in the capacity
of one's service on an advisory committee or task force appointed
by a member;]
(5) [(6)] responding to a specific
request for information from a member of the legislative or executive
branch, when the request was not solicited by or on behalf of the
person providing the information;
(6) [(7)] communicating to an
agency's legal counsel, an administrative law judge, or a hearings
examiner concerning litigation or adjudicative proceedings to which
the agency is a party, or concerning adjudicative proceedings of that
agency;
(7) [(8)] providing testimony,
making an appearance, or any other type of communication documented
as part of a public record in a proceeding of an adjudicative nature
of the type authorized by or subject to the Administrative Procedure
Act, Government Code, Chapter 2001, whether or not that proceeding
is subject to the Open Meetings Law;
(8) [(9)] providing oral or written
comments, making an appearance, or any other type of communication,
if documented as part of a public record in an agency's
rulemaking [rule-making
] proceeding under the Administrative Procedure Act,
Government Code, Chapter 2001, or in public records kept in connection
with a legislative hearing; or
(9) [(10)] providing only clerical
assistance to another in connection with the other person's lobbying
(for example, a person who merely types or delivers another person's
letter to a member).[; or]
[(11) communicating to a member of
the executive branch concerning purchasing decisions of a state agency,
or negotiations regarding such decisions.]
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 10, 2009.
TRD-200903475
Natalia Luna Ashley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: September 20, 2009
For further information, please call: (512) 463-5800
The new §34.46 is proposed under Government Code, Chapter 571, §571.062, which authorizes the commission to adopt rules concerning the laws administered and enforced by the commission.
The new §34.46 affects Chapter 305 of the Government Code.
§34.46.Registration under §305.0041 of the Government Code.
(a) For purposes of the $50 registration fee set by §305.005(c)(2) of the Government Code, a person is required to register under §305.0041 of the Government Code if:
(1) the person is an independent contractor;
(2) the person's only direct communication with a member of the executive branch is as an independent contractor;
(3) the compensation for the communication is totally or partially contingent on the outcome of a purchasing decision or negotiations regarding such decisions and the amount of the purchasing decision does not exceed $10 million; and
(4) the person is also required to register under the compensation or reimbursement threshold in §305.003(a)(2) of the Government Code but does not exceed the expenditure threshold set by §305.003(a)(1) of the Government Code.
(b) A person required to register under §305.0041 of the Government Code is considered a registrant for purposes of this chapter and Chapter 305 of the Government Code.
(c) An independent contractor who is required to register as a lobbyist under Chapter 305 of the Government Code but who does not meet all the criteria in subsection (a) of this section is subject to the $500 registration fee set by §305.005(c)(3) of the Government Code.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 10, 2009.
TRD-200903476
Natalia Luna Ashley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: September 20, 2009
For further information, please call: (512) 463-5800
The new §34.73 and §34.75 are proposed under Government Code, Chapter 571, §571.062, which authorizes the commission to adopt rules concerning the laws administered and enforced by the commission.
The new §34.73 and §34.75 affect Chapter 305 of the Government Code.
§34.73.Reporting by Independent Contractor.
(a) In addition to the contents required by §305.005 of the Government Code and this chapter, a registration filed by an independent contractor whose compensation for the communication is totally or partially contingent on the outcome of a purchasing decision or negotiations regarding such decisions must:
(1) disclose the vendor as a client;
(2) indicate that the client is a vendor of a product or service on whose behalf the independent contractor communicates concerning state agency purchasing decisions or negotiations regarding such decisions;
(3) disclose the amount of the sales commission or such fee;
(4) disclose the amount of the purchasing decision;
(5) if the amount of the sales commission or such fee is based on a percentage of the sale, disclose the amount of the percentage; and
(6) describe the product or service that is the subject of the communication.
(b) If the amount of the sales commission or such fee is not known at the time of the reporting, the registration described by subsection (a) of this section must disclose a reasonable estimate of the maximum amount of the sales commission or such fee and the method under which that amount will be computed.
(c) If the amount of the purchasing decision is not known at the time of the reporting, the registration described by subsection (a) of this section must disclose a reasonable estimate of the maximum amount of the purchasing decision and the method under which that amount will be computed.
§34.75.Reporting of Commission or Fee Paid by State Agency.
(a) In addition to the contents required by §305.005 of the Government Code and this chapter, a registration filed by a person who is paid a sales commission or such fee by a state agency must:
(1) disclose the state agency as a client;
(2) indicate that the client is a state agency;
(3) provide a description of the subject matter for which the person is paid a sales commission or such fee; and
(4) disclose the amount of the sales commission or such fee.
(b) If the amount of the sales commission or such fee is not known at the time of the reporting, the registration must disclose a reasonable estimate of the maximum amount of the sales commission or such fee and the method under which that amount will be computed.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 10, 2009.
TRD-200903477
Natalia Luna Ashley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: September 20, 2009
For further information, please call: (512) 463-5800