HBA-MPA H.B. 102 76(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 102
By: Alvarado
State Affairs
2/8/1999
Introduced



BACKGROUND AND PURPOSE 

Currently, state law does not address the practice of lobbying at the
municipal level.  Any regulation of lobbying within municipalities occurs
through ordinance on a city-by-city basis.  H.B.102 extends parallel
standards governing the practice of lobbying at the state level to cities
having a population of not less than 700,000 nor greater than 1,000,000.  

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Subtitle B, Title 2, Local Government, by adding Chapter
27, as follows: 

CHAPTER 27. LOBBYING RESTRICTIONS IN
CERTAIN HOME-RULE MUNICIPALITIES
SUBCHAPTER A. REGISTRATION

Sec 27.001. APPLICATION.  Provides that this chapter applies only to a
municipality between 700,000 and 1,000,000 in population. 

Sec. 27.002.  DEFINITIONS.  Defines the terms "administrative action,"
"commission," "communicates directly with," "compensation," "expenditure,"
"governing body of a municipality," "immediate family," "legislation,"
"member of the governing body," "person," and "registrant." 

Sec. 27.003.  MUNICIPAL ETHICS COMMISSION.  Requires a municipality to
either establish an ethics commission or contract with the Texas Ethics
Commission to perform the duties specified in this bill. Requires the
composition of a municipal ethics commission to be established by
ordinance. Requires the commission to adopt rules as necessary to enforce
this chapter, and authorizes it to adopt a code of conduct for registrants. 

Sec. 27.004.  PERSONS REQUIRED TO REGISTER. (a) Provides that a person must
register with the municipal ethics commission (commission) if that person
spends  more than the amount determined by commission rule, but not less
than $200, on one or more governing body members during a calendar quarter,
to influence legislation or administrative action, or if the person
receives compensation or reimbursement for such activities in an amount
greater than the amount set by commission rule in a calendar quarter. 

(b)  Provides that a person must register with the commission if the person
communicates directly with a member of a municipal governing body in order
to influence legislation or administrative action as a part of the person's
regular employment.  Members and employees of governmental entities are not
required to register under this chapter. 

(c)  Provides that a person who communicates directly with members of a
municipal governing body for purposes of influencing administrative action
need not register with  the commission if the person is an attorney of
record or pro se, the person enters an appearance in a public record of a
docketed matter before the governing body and that communication is the
only activity that would otherwise require the person to register.. 

Sec. 27.005.  EXCEPTIONS.  Exempts  the following persons from the
provisions of this chapter:  (1) a person who owns, publishes, or is
employed by a newspaper, or other regularly published periodical, a radio
or television station, a wire service, or other bona fide news medium, if
the person does not otherwise engage in additional activities requiring
registration under this chapter; 

(2) a person whose only direct communication with a member of a municipal
governing body in order to influence legislation or administrative action
is an appearance or testimony at a public hearing for which that person
receives no compensation, other than actual expenses incurred in attending
the hearing; 

(3) a person employed or retained by an entity whose only activity is to
encourage other persons employed or otherwise associated with the entity to
communicate directly with a municipal governing body to influence
legislation or administrative action; 

(4) a person whose only activity to influence legislation or administrative
action is to compensate a registrant to act in that person's behalf; 

(5) a person whose only activity to influence legislation or administrative
action is to attend an event attended by a member of a municipal governing
body, if the cost of the event is paid by a business, union, or
association; 

(6) a person whose only compensation consists of reimbursement of wages not
earned, or travel, admission, and food and beverage expenses incurred from
attendance at a meeting or entertainment event where members of a municipal
governing body are present, including travel expenses and food and
beverages consumed, if the cost of the event is paid by a business, union,
or association; and 

(7) a person who communicates directly with a member of a municipal
governing body on behalf of a political party to influence legislation or
administrative action and whose pertinent expenditures and compensation do
not exceed $5,000 in one calendar year. 

Sec. 27.006.  REGISTRATION.  (a)  Requires a person required to register
under this chapter to file a registration form prescribed by the commission
and pay a fee. 

(b) Provides that the registration fee expires at midnight on December 31
of each year unless the person submits a registration renewal form and fee.
Authorizes the registrant to file the renewal form and fee any time during
December of the year in which the registration expires. 

(c) Requires the commission to set the fee for registration and
registration renewal to be not less than $100 for a registrant employed by
a tax exempt organizations, or $300 for all others. 

(d) Requires that revenues from fees be deposited in the municipal treasury
and spent in a manner determined by the commission. 

(e) Requires that a person must register not later than the fifth day after
the date on which the person or the person's employee makes first contact
with a member of a municipal governing body. 

(f) Provides that the written and verified registration must contain: 

 (1) the registrant's full name and address; 

(2) the registrant's normal business, business phone number and address; 

(3) the full name and address of each person who employs the registrant or
on whose behalf the registrant communicates directly with members of the
municipal governing body to influence legislation or administrative action; 

(4) the subject matter and administrative designation of the legislation or
administrative action that is the subject of the registrant's direct
communication with a municipal governing body; 

(5) the name, address and occupation of any person employed by the
registrant to assist in direct communication with a member of a municipal
governing body to influence legislation or administrative action, and the
subject and administrative designation of the legislation or administrative
action that is the subject of the person's direct communication with that
body; 

(6) the amount of compensation or reimbursement paid to the registrant by
each person who retains that registrant; 

(g) Sets forth required monetary categories under which compensation must
be reported. 

(h) Provides that, if the registrant's activities are on behalf of a
business, trade or consumer interest association, the registration form
must list the number of the organization's members, the names of members
who determine the group's policy relating to influencing legislation or
administrative action, a description of how such policy decisions are made,
and a list of persons making annual grants or contributions to the
organization in excess of $50. 

(i) Provides that, if the registrant's activities are on behalf of a
corporation that is not publically traded, the registration form must list
the number of shareholders, the name and address of each officer or board
member, and the name of each person owning 10 percent or more of the shares
of the corporation. 

(j) Requires the registrant to list each client for whom the registrant
communicates directly with municipal governing body, if the person who
retains the registrant is a business entity engaged in representing clients
to influence legislation or administrative action. 

(k) Requires the registrant, if there is a change in the information
concerning entities represented by the registrant, to file an amended
statement of the changes not later than the next reporting date. 

Sec. 27.007.  LISTING OF MUNICIPAL OFFICERS AND EMPLOYEES.  Authorizes the
commission by rule to compel officers or employees of other governmental
entities, except for members of the legislative branch, to file with the
commission their name, the entity represented, and the subject of the
communication, and other information the commission considers relevant. 

Sec. 27.008.  ACTIVITIES REPORT. (a) Requires each registrant to file with
the commission a written, verified report on a form prescribed by the
commission. 

(b) Provides that the report must contain a listing of the expenditures
made by the registrant or on his behalf and with his consent to communicate
directly with a member of a municipal governing body or the member's
immediate family, including transportation and lodging, food and beverages,
entertainment, gifts, awards and  mementos, and expenditures made for the
member's attendance at fund-raisers or charity events. 

(c) Provides that the report must contain a listing of the expenditures
made by the registrant or on his behalf and with his consent for
advertising, direct mailings, and other mass media communications, if those
communications are directed to someone other than a member, employee, or
stockholder of the entity retaining the registrant, and which supports or
opposes legislation or administrative action. 

(d) Provides that the report must contain a listing of the subject matter
on which the registrant or the registrant's representative directly
communicated with a municipal governing body. 

(e) Prohibits the registrant from reporting an expenditure in more than one
expenditure classification. 

(f) Provides that the registrant must be present at the event for
expenditures involving transportation and lodging, food and beverages, and
attendance at fund-raising and charitable events. 

Sec. 27.009.  DETAILED REPORT.  (a) Requires the registrant to file with
the commission a report stating any expenditure of over $50 in one day for
transportation and lodging, including the name of the member of the
municipal governing body on whose behalf the expenditure was made, and the
place, date and purpose of the transportation or lodging. 

(b) Provides that the report must contain a listing of any expenditure of
over $50 in one day for food or beverage for the member of the municipal
governing body, or immediate family of a member, including the name of the
member, the place, date, and amount of the expenditure. 

(c) Provides that the report must contain a listing of any gift presented
to a member of a municipal governing body valued at more than $50,
including the name of the member, a description of the gift, and the amount
of the expenditure to secure the gift.  

(d) Provides that the report must contain a listing of expenditures for
attendance by members of a municipal governing body at political
fund-raisers or charity events, including the name of the member, the name
of the charity or candidate holding the event, and the date of the event. 

(e) Requires that an expenditure for a gift presented in conjunction with a
member's attendance at a charity event or political fund-raiser be reported
under Subsection (c) rather than Subsection (d). 

(f) Authorizes a registrant to apportion cost based on the number of people
in attendance at an event, if the amount of expenditure on transportation
and lodging, food and beverages, or entertainment cannot reasonably be
attributed to one member of a municipal governing body. 

Sec. 27.010.  EXPENDITURES ATTRIBUTABLE TO GROUPS.  Provides that
expenditures attributable to members of a municipal governing body be
stated as having accrued to elected members, members of a board,
commission, or other administrative body appointed by the municipal
governing body, employees of the governing body, the immediate family of a
member or employee of the governing body, or through events to which all
elected members are invited.  Provides that an expenditure is attributable
to the person who consumes the food or beverage, receives a gift, or for
whom admission, transportation or lodging expenses are paid.  Requires that
expenditures benefitting members of the immediate family of a member or
employee of a governing body be aggregated and reported in the events
category.  Requires that, if it is impossible to determine the portion of
an expenditure directly attributable to a member of a governing body, it
may be apportioned on the basis of  the total number of persons in
attendance.  Requires that, if all elected members of a governing body are
in attendance, the registrant report the expenditure separately under the
provisions of Subsection 27.010(a)(5). 

Sec. 27.011.  MODIFIED REPORTING. Authorizes a person who does not intend
to make expenditures of more than $1,000 during a calendar year excluding
the person's food, travel, lodging expenses, and membership dues, to file a
registration form or registration renewal with a written declaration of
intent.  Requires a registrant filing under this section to file annually
not later than January 10, covering activities during the previous calendar
year. Requires a registrant who exceeds $1,000 in one year to file monthly
reports, with the first report covering the period beginning January 1
through the date on which the next reporting period ends.   

Sec. 27.012.  FILING DATES FOR SUPPLEMENTAL REPORTS.  Provides that a
registrant must file required reports between the first and 10th of each
month covering activities for the previous month.  Requires persons making
expenditures on the registrant's behalf to provide an account of those
expenditures to the registrant not later than seven days before the date on
which the registrant's report is due. 

Sec. 27.013.  TERMINATION NOTICE.  Requires a registrant who ceases actions
requiring registration to file a statement acknowledging termination of
those activities, which becomes effective upon filing, but does not relieve
the person of responsibility for filing reports required for activities
during the period when the person was registered. 

Sec. 27.014.  MAINTENANCE OF REPORTS.  Requires all reports filed under
this chapter to be made available to the public for inspection during
regular business hours.  Requires the commission to provide appropriate
forms, maintain them in alphabetical files, remove them from the files
after five years, and to maintain a deputy to receive registrations and
reports, and make them available to the public.  Requires the commission to
retain reports filed under this chapter for at least four years from the
time the report is filed, and that registrants retain records necessary for
those reports for the same period. 

Sec. 27.015.  TIMELINESS OF FILING REGISTRATIONS AND REPORTS. Provides that
a registration or report is timely if it is filed by U.S. mail, a common or
contract carrier, and bears the proper address, postage, or carrying
charges, and a cancellation or receipt mark indicating a time within the
filing period before the deadline, or satisfactory proof thereof.  

Sec. 27.016.  LIST OF REGISTRANTS AND EMPLOYERS.  Requires the commission
to prepare a list by February 1st each year of registrants indicating those
who employ that registrant, and a list of each person or concern employing
a registrant and each registrant employed by them.  Requires that the above
list be sent to each elected member of the governing body of the
municipality. 

SUBCHAPTER B. PROHIBITED ACTIVITIES.

Sec. 27.101.  FALSE COMMUNICATIONS.  Prohibits a person from knowingly and
willfully making a false statement, or presenting a document containing a
false statement, without presenting a written statement of the truth, to a
member of a municipal governing body for the purpose of influencing
legislation or administrative action. 

Sec. 27.102.  CONTINGENT FEES.  Prohibits a person from hiring another
person to influence legislation or administrative action for an amount
contingent on the passage, repeal, or defeat of legislation, or the outcome
of administrative action, and prohibits any person from accepting such a
contingent fee.  Provides that sales commissions, other expressly
authorized payments, or fees for legal representation in adversarial
proceedings before administrative bodies are not prohibited. 

Sec. 27.103.  RESTRICTIONS ON EXPENDITURES.  Prohibits a registrant or a
registrant's representative from presenting to a member of a municipal
governing body a loan,  a gift of  cash or a negotiable instrument, an
expenditure for transportation and lodging, an expenditure for
entertainment over $500 in one calendar year, an expenditure for gifts over
$500 in one calendar year, an expenditure for awards or mementos over $500,
an expenditure for transportation or lodging, food or beverages,
entertainment, or attendance at a fund-raiser or charitable event at which
the registrant is not present.  Prohibits a member of a governing body from
soliciting, accepting, or agreeing to accept any of the above from a
registrant or the registrant's representative. 

Sec. 27.104.  EXCEPTIONS.  Provides that the following are not prohibited:
a loan made in the normal course of business from an entity that has been
legally engaged in lending money for at least one previous year;  a loan,
loan guarantee, or gift from a person within the second degree of affinity
or consanguinity to a member of a municipal governing body; necessary
expenditures for transportation or lodging for travel directly related to
the duties of a member of a governing body, or a conference, seminar, or
similar event requiring the member's services; incidental transportation as
determined by commission rules; or political contributions. 

SUBCHAPTER C. SANCTIONS.

Sec. 27.201.  CRIMINAL PENALTIES.  Provides that a person who intentionally
and knowingly violates the prohibition on contingent fees (Section 27.102)
commits a felony in the third degree, and a person who violates any other
provision of this chapter commits a Class A misdemeanor.  Provides that
this chapter does not affect criminal responsibility under state perjury
laws, nor does it prevent the commission from imposing a civil penalty. 

Sec. 27.202.  CIVIL PENALTY FOR FAILURE TO REGISTER.  Requires that a
person who receives compensation or reimbursement or makes expenditure to
influence legislation or administrative action and fails to file a
registration form or a required activity report pay a civil fine determined
by commission rule not in excess of three times the compensation,
reimbursement, or expenditure. 

Sec. 27.203.  CIVIL PENALTY FOR LATE FILING.  Requires the commission to
determine if a required filing is late. Provides that a registration filed
without the required fee is considered late.  Requires the commission to
mail to the person responsible for the filing, the commission, and the
appropriate attorney for the municipality an immediate notice of the
determination of lateness.  Provides that for a filing determined to be
late, the person responsible for the filing is liable for a civil penalty,
not to exceed $100 a day for each day the report or registration is late.
Requires the commission to issue by registered mail a warning of liability
to the person responsible for the filing if it is determined to be more
than 30 days late, and provides that if payment is not made within 10 days
after the warning, the person is liable for a fine determined by commission
rule, not to exceed $10,000.  Requires that penalties paid voluntarily be
deposited in the municipal treasury and credited to the commission.
Provides that this section is in addition to other available sanctions. 

Sec. 27.204.  FAILURE TO FILE ALL REQUIRED FORMS.  Requires the commission
to determine whether all registered persons have filed all required forms,
and if a person has not filed, the commission must send by certified mail a
notice of its determination.  Requires the commission to file a sworn
complaint with the appropriate prosecuting attorney if the person has not
filed the required form, statement, or report within 21 days of the date
the notice is sent. 

Sec. 27.205.  ENFORCEMENT. Authorizes the commission, the attorney general,
or any municipal attorney to enforce this chapter.  Authorizes a district
court in the county where the municipality is located, at the request of a
citizen of the state, to issue an injunction to enforce this chapter.
Authorizes a person to file with the prosecuting attorney or the commission
a statement alleging violations of this chapter. 

Sec. 27.206.  VENUE.  Provides that an offense under this chapter may be
prosecuted in Travis County or any other county permitted under the Code of
Criminal Procedure. 
 
SECTION 2.  Amends Section 36.10(a), Penal Code, by including a member of a
municipal governing body among those persons not required to report a gift,
award, or memento under the provisions of Sections 36.08 (Gifts to Public
Servant) and 36.09(Offering Gift to Public Servant), Penal Code. 

SECTION 3.   Effective date:  January 1, 2000. 
Requires that the governing body of a municipality establish a municipal
ethics commission not later than September 1, 1999, and that the commission
adopt rules and forms to implement the provisions of this chapter not later
than October 1, 1999.  Requires that if the municipality fails to establish
a municipal ethics commission by September 1, 1999, the Texas Ethics
Commission shall act as a municipal ethics commission, and if the
commission fails to adopt rules or forms by October 1, 1999, the Texas
Ethics Commission shall adopt rules or forms before November 1, 1999, and
that both actions by the Texas Ethics Commission shall remain in effect
until January 1, 2001, or the first anniversary of the establishment of the
commission and its adoption of rules or forms, whichever date is later. 

SECTION 4.  Emergency clause.