STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6231

June 15, 1984

LOBBYISTS AND LOBBYING:

Registration, reporting and record keeping by state executive department employee appearing by request of legislative committee for the purpose of furnishing information

A state executive department employee, who appears before a legislative committee or subcommittee at the request of the committee or subcommittee in order to furnish information or to answer questions asked by its members, is not influencing and lobbying the committee or subcommittee, as provided in 1978 PA 472, Sec. 5, so that registration as a lobbyist, the filing of reports, and the keeping of records substantiating the reports is not required.

Honorable Richard A. Young

State Representative

State Capitol

Lansing, Michigan

You have requested my opinion whether a state executive department employee who appears before a legislative committee or subcommittee at its request in order to provide information or answer questions is required by 1978 PA 472; MCLA 4.411 et seq; MSA 4.1704(1) et seq, to be registered and file reports.

1978 PA 472, supra, regulates lobbyists, lobbyist agents, and lobbying activities by requiring registration, the filing of reports, and the keeping of records. The constitutionality of 1978 PA 472, supra, has been upheld, with the exception of 1978 PA 472, supra, Sec. 7(1)(c), and Sec. 7(2)(d), ^(a1) neither of which are at issue here, in Pletz v Secretary of State, 125 Mich App 335; 336 NW2d 789, lv den, 417 Mich 1100.20 (1983).

The specific situation addressed in your letter is with respect to an executive branch employee summoned to appear before a legislative appropriations committee or subcommittee to respond to questions raised by committee members regarding appropriations bills. You have indicated you believe the same concern would exist with respect to appearances before other legislative committees as well.

'Lobbying' is defined in Sec. 5(2) of 1978 PA 472, supra, as:

Section 5(2) does, however, provide the following exception:

The term 'influencing' is defined in 1978 PA 472, Sec. 5(3), supra:

Section 6(1) of 1978 PA 472, supra, expressly provides that a state agency is included within the definition of 'person' and, accordingly, may qualify as a lobbyist. Section 5(7) of 1978 PA 472, provides, in pertinent part:

The legislative history of a bill may be reviewed to help determine the legislative intent. In re School District No. 6, Paris & Wyoming Twps, Kent County, 284 Mich 132, 143-144; 278 NW 792 (1938). Our review of the legislative history of 1978 PA 472, supra, confirms that the Legislature did, indeed, intend that state executive department employees to fall within the definition of 'lobbyist' if their actions are 'lobbying.'

1978 PA 472, supra, was originally introduced as SB 674. The original Sec. 6(5)(a) of SB 674 provided that the terms 'lobbyist or lobbying agent' would not include a 'public official or employee of a branch of state government . . . who is acting in the course or scope of the office or public employment.' The Senate substitute to SB 674, concurred in by the Senate and placed on third reading, provided in section 5(7)(d)(iii) for employees of state executive departments to be exempted only from the term 'representative of the lobbyist.' 2 SJ 1334-1335, 1341 (1978). The Senate enacted SB 674 without further significant change to Sec. 5(7)(d)(iii). 2 SJ 1410 (1978).

The House considered a substitute to SB 674 that provided no exemption for employees of state executive departments from the term 'lobbyist or lobbyist agent,' such as the exemption that is granted to elected or appointed state officials. 5 HJ 6144-6145 (1978). This substitute was adopted and passed by the House, 3 HJ 3128, 3136 (1978). After several amendments to SB 674, which are not significant to your question, the Senate concurred in the House substitute as amended.

Thus, the intent of the Legislature to include state executive branch employees within the purview of the Act is apparent from the language used in the Act and from its legislative history.

In order to determine whether a state employee is a 'lobbyist' for the purposes of the Act, the actions of the state employee must be examined in light of the definition in the Act. A person employed by a state executive department does not, solely because of such employment, become ipso facto, a lobbyist or lobbyist agent. Only if that person communicates with officials in the executive or legislative branch 'for the purpose of influencing legislation' is he or she engaged in 'lobbying' and thus subject to the requirements of the Act.

While the terms 'lobbying' and 'influencing' are defined in the Act, a review of those definitions makes it clear that both are susceptible to varying interpretations, depending upon the emphasis to be given to particular words in each definitional section.

On the one hand, 1978 PA 472, Sec. 5(2) and (3), supra, can be read literally and the conclusion reached that a state employee who appears before a legislative committee at its request for the specific purpose of furnishing information to committee members is concomitantly influencing and, therefore, lobbying the committee to take action upon a particular bill. Following this approach would mean that the act of providing information however technical in nature and empirically verifiable to a legislative committee, nonetheless would be considered 'lobbying' by the state executive department employee since it is unlikely that the person providing such information would be a 'recognized expert' so as to fall within the exemption contemplated in 1978 PA 472 Sec. 5(2), supra.

Under this interpretation, a state executive department employee, who appeared before an appropriations or other legislative committee or subcommittee, upon its request, to furnish information or respond to questions asked by the committee, would be required to register as a lobbyist under section 7 of 1978 PA 472, file the periodic reports required by section 8, and keep records substantiating the reports for five years as required by section 9 of the Act. Failure to register as a lobbyist, to keep records and file reports as required by 1978 PA 472, Secs. 7, 8 and 9, supra, would render such person subject to the misdemeanor provisions contained therein.

If the state executive department employee declined to appear before the committee or subcommittee for the reason that the employee's classified civil service position did not include a duty and responsibility to act as a lobbyist necessitating registration, pursuant to Const 1963, art 11, Sec. 5 and appropriate Civil Service Commission regulations, the legislative committee could nonetheless compel the appearance of such state employee by subpoena. Failure to appear in response to a legislative subpoena would subject the employee to punishment for contempt. 1931 PA 118; MCLA 4.101; MSA 2.181. OAG, 1947-1948, No 759, p 670 (April 23, 1948). It would be difficult to seriously argue that a state executive department employee providing information to a legislative committee in response to a subpoena would be considered to be there for the purpose of influencing the committee, as that term is defined in 1978 PA 472, Sec. 5(3), supra. Pletz v Secretary of State, supra, 125 Mich App 335, 362. The fact that such an employee appears before a legislative committee at its request to provide information, without being compelled by a subpoena, is insufficient to change the character of the employee's acts to the extent that the employee is considered to be a 'lobbyist.'

In order for the Legislature to properly exercise its constitutional authority to appropriate funds, it must receive certain information from state executive departments. Nothing in 1978 PA 472, supra, suggests that the Legislature intended to require registration of state executive department employees in order to secure information necessary to the enactment of appropriations bills.

It is readily apparent that such a literal construction of the statute, when applied to the circumstances you have described, would lead to absurd and unjust results and would prejudice the public interest. An absurd and unjust result justifies a departure from the literal construction of a statute. Salas v Clements, 399 Mich 103; 247 NW2d 889 (1976), Gardner-White Co. v State Bd of Tax Administration, 296 Mich 225; 295 NW 624 (1941), Franges v General Motors Corp, 404 Mich 590; 274 NW2d 392 (1979).

The alternative construction of 1978 PA 472, Sec. 5(2) and (3), supra, is to read it in such manner that, where a state executive department employee appears before a legislative committee upon its request to furnish information or answer questions, such actions are not considered lobbying, since the state employee is only responding to the needs of the committee and is not promoting and supporting the bill. Although the information provided by the state employee may indirectly influence the committee, nonetheless, because the committee requested the information of the employee, the employee's actions are not 'made to influence' the committee to take a particular action on a proposed bill. Pletz v Secretary of State, supra, 125 Mich App, 335, 362.

A state executive department employee appearing voluntarily at a meeting of a legislative committee, at its request, for the sole purpose of furnishing information requested by the committee or to answer questions, would be doing no more than what would be done by an employee in response to a subpoena to appear before the committee or subcommittee to provide the information needed. A state employee does not take on the character of a lobbyist, requiring registration, periodic reporting and record keeping, subject to criminal penalty, simply because the employee is cooperative, rather than requiring service of a legislative subpoena.

Because the state executive department employee is responsible to the head of an executive department consisting of appointed state officer members, all of whom are exempt from the term 'lobbyist or lobbyist agent' under section 5(7) of 1978 PA 472, supra, the state employee patently can not be acting as an agent, or a representative of a lobbyist under the Act. Thus, an appearance by such a state employee before a legislative committee to provide information requested by the committee is not 'lobbying' under the intent of the Act.

Where a statute is susceptible of two constructions, one leading to absurdity, and the other consistent with justice, good sense and sound policy, the former should be rejected and the latter adopted. Kennard v Rosenberg, 127 CA 2d 340; 273 P2d 839, hrg den (1954).

I would note, however, that this Opinion is limited to the situation where a legislative committee has requested the appearance of a state executive department employee. Whenever a state executive department employee appears before a legislative committee, not at the request of the committee, for the purpose of providing information in order to promote, support, modify, oppose or delay an appropriations bill, the state employee is 'lobbying' under 1978 PA 472, Sec. 5(2) and (3), supra. Such acts require registration as a lobbyist, 1978 PA 472, Sec. 7, supra, filing of periodic reports, 1978 PA 472, Sec. 8, supra, and keeping records substantiating the reports, 1978 PA 472, Sec. 9, supra.

It is my opinion, therefore, that a state executive department employee, who appears before a legislative committee at the committee's request in order to furnish information or to answer questions is not influencing and thereby lobbying members of the committee under the provisions of 1978 PA 472, Sec. 5(3), supra. It is my further opinion that such a state employee is not required to be registered as a lobbyist, to file reports, or to keep records substantiating reports.

Frank J. Kelley