North Carolina Department of Justice
North Carolina Department of Justice
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Reply to: SUE Y. LITTLE INSURANCE SECTION

(919) 716-6610 FAX: (919) 716-6757

January 14, 2002

Sheila Stafford Pope General Counsel State of North Carolina Department of Secretary of State Post Office Box 29622 Raleigh, North Carolina 27626-0622

Re: Advisory Opinion; North Carolina Session Law 2001-424;

G.S. §§ 120-47.1 and 47.12; Designation of Legislative Liaisons

Dear Ms. Pope:

By letter dated November 16, 2001, you asked for our advice about the effect of SL 2001424 on the responsibility of the Secretary of State to accept the designation of state employees as legislative liaisons pursuant to the provisions of Article 9A of Chapter 120 of the General Statutes. Specifically, you have asked for guidance about how the Secretary of State should treat recent filings by the State Board of Elections and the Office of the State Controller in light of SL 2001-424.

G.S. § 120-47.2 generally requires all “lobbyists” as defined by G.S. § 120-47.1(6) to register with the Secretary of State. The term “lobbyist” specifically does not include an officer or employee of the State “when appearing [in the legislature] solely in connection with matters pertaining to his office and public duties.” G.S. § 120-47.8 (3)a. See also G.S. § 120-47.2(6)b. This exemption from the lobbyist registration requirements, however, is itself limited by G.S. § 120-47.8(3)b., which provides:

Notwithstanding the persons exempted in this Article, the Governor, Council of State, and all appointed heads of State departments, agencies and institutions, shall designate all authorized official legislative liaison personnel and shall file and maintain current lists of designated legislative liaison personnel with the Secretary of State . . ..

(Emphasis added.)

Sheila Stafford Pope January 14, 2002 Page 2

SL 2001-424 added two components to this statutory framework. First, it amended G.S. § 120-47.1 by adding subsection (4a) to define the term “legislative liaison personnel” to mean “any State officer and employee whose principal duties in practice or as set forth in that person’s job description involve lobbying the General Assembly.” (Emphasis added). Second, it prohibited the Secretary of State from registering, or accepting the designation of, more than two persons from each State department and institution as lobbyists or legislative liaisons. G.S. § 120-47.12(b), as added by SL 2001-424, provides:

No more than two persons in each principal State department and constituent institution of The University of North Carolina may be registered to lobby the General Assembly or designated as legislative liaisons pursuant to this Article.

The most significant of these changes is the adoption of the definition of “legislative liaison personnel.” That change in effect created two classes of State officers and employees:

(1) those whose principal duties involve lobbying and who thus fall within the definition of “legislative liaison personnel” and (2) those whose principal duties do not involve lobbying and who thus do not fall within the definition of “legislative liaison personnel.” The creation of this classification, when combined with the limitation on the number of legislative liaisons, has the following impact:

  1. It limits to two the number of officers or employees in any State department or agency who are assigned lobbying the General Assembly as their principal duty, and it similarly limits to two the number of officers and employees from each State department or institution who may be designated as legislative liaisons with the Secretary of State pursuant to G.S. § 120-47.8(3)b.

  2. It means that all officers and employees of State departments or institutions for whom lobbying is not a principal duty are fully exempt from the designation requirements of G.S. § 120-47.8(3)b.

In its filing with the Secretary of State, the State Board of Elections has designated four persons as “authorized official legislative liaison personnel.” According to the Board’s Executive Director, however, none of these four persons has as his principal duty, in practice or by job description, lobbying the General Assembly. In its filings with the Secretary of State, the Office of the State Controller has stated that it does not have a person whose principal duties involve lobbying the General Assembly and, accordingly, has not requested the Secretary of State to accept the designation of any of these persons. The State Controller has, however, submitted the names of five individuals “who are authorized to represent the views of the [Office] before the General Assembly.”

In light of the provisions of SL 2001-424, it is our opinion that none of these officers and employees of the State Board of Elections and Office of the State Controller may be designated Sheila Stafford Pope January 14, 2002 Page 3

as legislative liaisons under G.S. § 120-47.8(3)b. and that they are in fact fully exempt from the designation requirements. Absent lobbying as a principal duty, none meets the new definition of “legislative liaison personnel.”

You note that the legislative framework existing prior to SL 2001-424 -- which did not limit the number of agency lobbyists and which did not classify agency lobbyists based on their primary duties -- was beneficial to the legislature and agencies alike in that it identified all agency officers and employees authorized to represent and make commitments on behalf of agency heads. You ask if the Secretary of State has authority to implement the lobbyist registration statutes in a manner that would maintain this benefit. In this regard you suggest that the Secretary of State could maintain two lists of agency lobbyists: one comprised of those officers and employees of State departments and institutions for whom lobbying is a primary duty and the other comprised of those officers and employees for whom lobbying is not a primary duty but who are authorized by the agency or institution head to speak on behalf of the agency or institution.

In our opinion, the Secretary of State has legal authority to implement this proposal. The first list would, of course, constitute fulfillment of the obligation of the Secretary of State under SL 2001-424; the second list would constitute an exercise of the power of the Secretary of State under G.S. § 120-47.11 to make “rules, orders, forms, and definitions as are necessary to carry out the provisions of this Article.”

Very truly yours,

Reginald L. Watkins Senior Deputy Attorney General

Sue Y. Little Assistant Attorney General

SYL/gw

c: Edwin M. Speas, Jr. Chief Deputy Attorney General