Securities and Investments

You ask a similar question concerning the disclosure of securities or other investments under § 7(1)(i) of the PFDA, which, unless an exception applies, requires that a public officer disclose,

 a list of any stocks, bonds, or other forms of securities held by the public officer or held jointly with the public officer’s spouse during the reporting period, if the security has a total aggregate fair market value of $1,000.00 or more. . . .  [MCL 15.707(1)(i) (emphasis added).] 

Looking to article 4, § 10 of the Constitution, that section does not specifically refer to the disclosure of “stocks, bonds, or other forms of securities.”  But it does require a “[d]escription of assets[.]”  Const 1963, art 4, § 10(2)(a).  Neither the Constitution nor the PFDA defines the term “assets.”  Turning again to a dictionary definition, the term “assets,” in this context, may be understood to mean “the entire property of a person . . . applicable or subject to the payment of debts,” and/or “an item of value owned.”[11]  These are very broad definitions, which plainly include “stocks, bonds, or other forms of securities[.]” MCL 15.707(1)(i).  So, in requiring the disclosure of “stocks, bonds, or other forms of securities” of a certain value, § 7(1)(i) of the PFDA is requiring the disclosure of a particular form of “assets” as contemplated by article 4, § 10(2)(a) of the Constitution. 

In making such a disclosure, the Constitution requires a “description” of the asset.  Const 1963, art 4, § 10(2)(a).  The PFDA, however, provides that a public officer need disclose only a “list” of the assets; i.e., “stocks, bonds, or other forms of securities[.]”  MCL 15.707(1)(i).  Again, consulting dictionary definitions, the word “description” can best be understood in this context as meaning “a statement or account giving the characteristics of someone or something.”[12]  On the other hand, the word “list” can best be understood as meaning “a simple series of words or numerals (such as the names or persons or objects).”[13]  These definitions reveal that the term “list” generally has a more limited meaning than the word “description.”[14] 

Applying these definitions, the Constitution requires more than simply a list of assets; it requires a description of assets.  The Legislature cannot “limit” or “restrict” the requirements in the Constitution.  Const 1963, art 4, § 10(4) (“Legislation implementing this section must not limit or restrict the application of subsections (2) and (3)”).  Therefore, to preserve the constitutionality of the statutory language, the term “list” as used in § 7(1)(i) of the PFDA must be construed as requiring a list of assets that includes a description of each asset reported; otherwise, the statute is unconstitutional.  See Taylor v Gate Pharm, 468 Mich 1, 6 (2003) (“Statutes are presumed to be constitutional, and courts have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent.”).[15]

The “description” of an asset may include an address for, or the location of, the asset as a characteristic of that asset.  Thus, the Secretary’s reporting form that requires including the address or location of the stocks, bonds, or other securities held by a public officer is consistent with § 7(1)(i) of the PFDA and article 4, § 10(2)(a) of the Constitution.  Cf. Blank, 462 Mich at 126.

It is my opinion, therefore, that the Secretary of State may require public officers to provide descriptive information such as an address, location, or other identifying information when reporting “stocks, bonds, or other forms of securities” of a certain value as required by § 7(1)(i) of the PFDA.

Reporting Gifts, Travel Payments, and Charitable Donations From Lobbyists and Lobbyist Agents

Turning to your second question, you ask whether the PFDA can be construed to require a public officer to report all gifts received, all travel payments received, and all payments made by a lobbyist or lobbyist agent to a charity in lieu of honoraria, or rather, only those items that have been actually reported by a lobbyist or lobbyist agent.  You further ask whether § 7(1)(l) and (m) of the PFDA, can be construed to require a public officer to report the name of the lobbyist or lobbyist agent from whom the officer received a gift or travel payment and the date on which the gift or payment was received.

The Constitution requires that a public officer report:

(f) Gifts received and required to be reported by a lobbyist or lobbyist agent, as prescribed by state law.

(g) Travel payments and reimbursements received and required to be reported by a lobbyist or lobbyist agent, as prescribed by state law.  [Const 1963, art 4, § 10(2)(f)–(g) (emphases added).]

Sections 7(1)(l) and (m) of the PFDA provide that a public officer must report the following:

(l) A list of all gifts^[[16]^] received and reported by a lobbyist or lobbyist agent under state law.

(m) A list of all travel payments^[[17]^] received and reported by a lobbyist or lobbyist agent under state law. [MCL 15.707(1)(l)–(m) (emphases added).]

Gifts and Travel Payments and Reimbursements

In addressing your first question about whether the PFDA can be construed to require a public officer to report all gifts received from, and travel payments and reimbursements made by, a lobbyist or lobbyist agent, or rather, only those items that have been actually reported by a lobbyist or lobbyist agent, it should be noted that the PFDA and the Constitution use different language.  The Constitution requires public officers to disclose gifts and travel payments and reimbursements “required to be reported” by a lobbyist or lobbyist agent.  Const 1963, art 4, § 10(2)(f), (g).  By contrast, the PFDA requires the disclosure of gifts and travel payments “reported by” a lobbyist or lobbyist agent.  MCL 15.707(1)(l), (m).[18]

As an initial matter, the Constitution does not specify what “state law” it is referring to in § 10(2)(f) and (g).  But a “lobbyist” and “lobbyist agent” are persons defined in the Lobby Act, 1978 PA 472, MCL 4.411 et seq., and thus are subject to that act’s reporting requirements.  See MCL 4.415(4), (5).  There are no other state laws that require a lobbyist or lobbyist agent, acting in those capacities, to report gifts,[19] travel payments, or travel reimbursements made to lobbyable public officers, who include the officers required to disclose under the Constitution and the PFDA.  See Const 1963, art 4, § 10(2), MCL 15.703(k), MCL 4.415(9), (10).  The PFDA, in fact, incorporates the definitions of “lobbyist” and “lobbyist agent” from the Lobby Act.  MCL 15.703(h), (i).

Constitutional language must be given the “sense most obvious to the common understanding and one that reasonable minds, the great mass of the people themselves, would give it.”  Adair, 486 Mich at 477.  A natural or ordinary reading of the constitutional language is that if the gift, travel payment, or travel reimbursement is, in fact, “required to be reported” under state law, then the public officer must disclose it regardless of whether the lobbyist or lobbyist agent actually reports the gift or payment.  This interpretation accords with the purpose of the amendment.  If a lobbyist or lobbyist agent fails to report gifts or payments that are required to be reported, whether unintentionally or otherwise, a public officer should not be relieved of making their own disclosure.  The gifts, travel payments, or travel reimbursements were still made, and it is these financial transactions that the People, by adopting the amendment, agreed must be disclosed by adopting the amendment. 

The statutes, however, use the term “reported by.”  MCL 15.707(1)(l), (m).  This language suggests that the public officer need only disclose a gift, travel payment, or travel reimbursement if the lobbyist or lobbyist agent actually reports it.  But again, the Legislature cannot “limit” or “restrict” the requirements in the Constitution.  Const 1963, art 4, § 10(4).  The statutes must be construed to avoid such limitation or restriction, Taylor, 468 Mich at 6, meaning that public officers are not excused from disclosing reportable gifts, travel payments, or travel reimbursements that a lobbyist or lobbyist agent fails to properly disclose.[20]

It is my opinion, therefore, that article 4, § 10(2)(f) and (g) of the Constitution and § 7(1)(m) and (n) of the PFDA, require public officers to disclose any gifts, travel payments, and travel reimbursements received from a lobbyist or lobbyist agent that are required to be reported under state law — regardless of whether the lobbyist or lobbyist agent actually reported the gift, travel payment, or travel reimbursement. 

Payments to Charity in Lieu of Honoraria

You likewise ask whether a public officer is required to report all payments made by a lobbyist or lobbyist agent to a charity in lieu of honoraria, or only those payments that are reported by the lobbyist or lobbyist agent.

The Constitution requires that a public officer report “[p]ayments made by a lobbyist or lobbyist agent to a charity in lieu of honoraria.”  Const 1963, art 4, § 10(2)(h).  Section 7(1)(n) of the PFDA provides that a public officer must report “[a] list of each payment made by a lobbyist or lobbyist agent to a charity in lieu of honoraria.”  MCL 15.707(1)(n).[21] 

Unlike the prior discussion of gifts, travel payments, and travel reimbursements, the language of neither the Constitution nor the PFDA ties the disclosure of payments to charities in lieu of honoraria to payments that are required to be reported by a lobbyist or lobbyist agent.  Accordingly, a public officer’s duty to disclose such payments under the Constitution and the PFDA is not limited to payments that a lobbyist or lobbyist agent reports.[22] 

Furthermore, the PFDA requires a public officer to disclose “each payment” made to a charity.  MCL 15.707(1)(n).  When used as an adjective, the term “each” can be understood to mean “being one of two or more distinct individuals having a similar relation and often constituting an aggregate.”  (Emphases added).[23]  In other words, “each payment” as used in the PFDA means every payment made by a lobbyist or lobbyist agent to a charity in lieu of honoraria.  See, e.g., Twp of Casco v Secretary of State, 472 Mich 566, 594–595 (2005) (Young, J., concurring in part and dissenting in part) (discussing meaning of the word “each” and concluding that it meant “all” and “every”).  And here, the statute is consistent with the Constitution.  The Constitution simply uses the plural “payments,” which plainly contemplates reporting more than one payment.  Const 1963, art 4, § 10(2)(h).  Thus, the Legislature’s requirement that “each” payment be reported appropriately implements the Constitution.  Const 1963, art 4, § 10(4) (“The legislature shall further implement this section by appropriate legislation.”)

Relatedly, you ask whether all payments of any value made by a lobbyist or lobbyist agent to a charity in lieu of honoraria must be reported.  Neither the Constitution nor the PFDA defines the term “payment,” or otherwise includes a monetary threshold for reporting a payment.  In the absence of limiting language, it follows that both the Constitution and the PFDA require reporting all payments of any value made to a charity in lieu of honoraria.   

It is my opinion, therefore, that article 4, § 10(2)(h) of the Constitution and § 7(1)(n) of the PFDA, require public officers to disclose all payments of any value made by a lobbyist or lobbyist agent to a charity in lieu of honoraria, regardless of whether the lobbyist or lobbyist agent actually reported the payment.

Requiring Lobbyist or Lobbyist Agent Names or Identifying Information

Another part of your question is whether public officers can be required to include the date and “name/ID” of the lobbyist when reporting gifts or payments made by lobbyists or lobbyist agents under article 4, § 10(2)(f)–(h) of the Constitution, and under § 7(1)(l)–(n), of the PFDA.  You note that this would be consistent with how information is reported under the Lobby Registration Act, MCL 4.411 et seq., and the Michigan Campaign Finance Act, MCL 169.201 et seq.

Looking to the Constitution, unlike the other subsections that require a “description” of assets and liabilities and the “sources” of earned and unearned income, art 4, § 10(2)(f)–(h) do not include similar language for gifts or payments made by lobbyists or lobbyist agents.  But these sections are subject to the general language that “a report required to be filed under [§ 10(2)] must include information regarding” the items to be reported.  Const 1963, art 4, § 10(2) (emphasis added).  Again, the word “information” as used here can be understood to refer to “facts” or “data.”[24]  Therefore, under the Constitution, a report must include facts or data regarding gifts, travel payments, or travel reimbursements made by lobbyists or lobbyist agents.

The PFDA requires that a report include a “list” of gifts, travel payments (which include travel reimbursements), and payments to charities in lieu of honoraria.  MCL 15.707(1)(l)–(n).  As discussed above, the term “list” has a limited meaning, i.e., “a simple series of words or numerals (such as the names or persons or objects).”[25]  Here, again, the Constitution requires more than just disclosing a “list” of gifts and payments — it requires the disclosure of “information,” meaning “facts” and “data,” regarding the gifts or payments made by lobbyists or lobbyist agents.  Therefore, to accord with the Constitution, the term “list” as used in § 7(1)(l)–(n) of the PFDA must be interpreted to require the public officer to disclose facts or data related to a gift or payment.  With respect to your question, requiring public officers to disclose factual information such as the “date” of a gift or payment and the “name/ID” of the lobbyist is consistent with this interpretation of § 7(1)(l)–(n).

It is my opinion, therefore, that under article 4, § 10(2)(f)–(h) of the Constitution and § 7(1)(1)–(n) of the PFDA, the Secretary of State may require public officers to provide factual information such as the date of a gift, travel payment, travel reimbursement, or payment to charity in lieu of honoraria made by a lobbyist or lobbyist agent, along with the name and identification number of the lobbyist from whom the gift or payment was received.