THE JOINT LEGISLATIVE ETHICS COMMITTEE

Advisory Opinion 97-001

January 15, 1997

Syllabus by the Committee:

Pursuant to sections 101.34 and 102.08 of the Revised Code that direct the Joint Legislative Ethics Committee to act as an advisory body to the members and employees of the General Assembly on questions relating to ethics, conflicts of interest, and financial disclosure, the Joint Legislative Ethics Committee advises the members of the General Assembly on the following questions: (1) May a former member or employee of the General Assembly represent a person before an executive agency and (2) May a former member or employee of the General Assembly represent a state university or college on a matter pending before the General Assembly, a committee of the General Assembly, or the Controlling Board?

R.C. 102.03(A)(4), the revolving door statute, provides:

This Committee, in two prior opinions discussed R.C. 102.03(A)(4), the revolving door statute. In Advisory Op. 95-018, the Committee was asked to consider what constituted a person's "conclusion of service or employment" and the state agency exception. In Advisory Op. 96-003, the Committee discussed, among other matters, what was included within the meaning of "representation." In generally discussing the statute, the Committee held at pages 2 and 3 of Advisory Op. 95-018:

Representation Before Executive Agencies

The member has asked whether a former member or employee of the General Assembly may represent a person before an executive agency¹ within the twelve month period following their separation from the General Assembly. The answer to this question is dependent upon the subject matter of the representation. R.C. 102.03(A)(4) prohibits a member or employee from representing, or acting in a representative capacity for, any person on any matter before the General Assembly, any committee of the General Assembly, or the Controlling Board for twelve months after separating from the General Assembly. For purposes of R.C. 102.03(A)(4), "matter" includes the proposal, consideration, or enactment of statutes, resolutions, or constitutional amendments.

Therefore, a former member or employee is prohibited from representing a person where the subject matter of the representation is the proposal, consideration, or enactment of statutes, resolutions, or constitutional amendments for twelve months after their separation from the General Assembly. Since this prohibition is based on the subject matter of the representation, and not on the public official sought to be influenced, this prohibition extends equally to an attempt to influence an executive agency, as well as a member of the General Assembly. For example, a former member would be prohibited from representing a person before the Governor where the subject matter was pending legislation. Although the contact would be with an executive official, the member would nonetheless be representing a person on a matter before the General Assembly, any committee of the General Assembly, or the Controlling Board.

This interpretation is in accord with the statutory provisions of R.C. 101.70 et seq., the laws governing legislative agents and their employers. The activity sought to be prohibited with the enactment of R.C. 102.03(A)(4) is activity that would require a person to register under R.C. 101.70 et seq. Under R.C. 101.70 et seq., an individual is required to register as a legislative agent if they are engaged by an employer and are attempting to influence legislation² by direct communication with any member of the General Assembly, any member of the Controlling Board, the governor, the director of any department listed in section 121.02 of the Revised Code, or any member of the staff of any public officer or employee listed in this division. R.C. 101.70(E). Therefore, R.C. 101.70 et seq. contemplates contact with officials and employees of the executive branch on matters relating to the General Assembly.

Where the subject matter of the representation is an executive agency decision³, and is not a matter that is before the General Assembly, any committee of the General Assembly, or the Controlling Board, the former member or employee is not prohibited from representing a person on the executive agency matter before an executive agency. This interpretation is in accord with R.C. 121.60 et seq., the laws governing executive agency lobbyists and their employers. Under R.C. 121.60 et seq., an individual is required to register as an executive agency lobbyist if they are engaged by an employer and are attempting to influence executive agency decisions by direct communication with an elected executive official, the director of any department listed in section 121.02 of the Revised Code, any executive agency official, or a member of the staff of any public officer or employee listed in this division.

Therefore, a former member or employee is not prohibited, during the first twelve months after separating from the General Assembly, from representing, or acting in a representative capacity for, a person before an executive agency where the subject matter of the representation is not a matter that is before the General Assembly, any committee of the General Assembly, or the Controlling Board. The Committee would also note that where a former member or employee is representing a person on an executive agency decision, the member or employee is required to register in accordance with R.C. 121.62.

Therefore, a former member or employee of the General Assembly, for twelve months following their separation from the General Assembly, is prohibited from representing, or acting in a representative capacity for, a person before an executive agency on a matter that is before the General Assembly, any committee of the General Assembly, or the Controlling Board.

An exception to the prohibition set forth in R.C. 102.03(A)(4) is representation on a matter before the General Assembly on behalf of a state agency or a political subdivision. In Advisory Op. 95-018, the Committee held at paragraph 3 of the Syllabus:

The member has asked whether state universities and colleges are included within the term "state agency" or "political subdivision" as those terms are used in R.C. 102.03(A)(4).

The term political subdivision is not defined for purposes of Chapter 102.; therefore, we must look to R.C. 1.42 which provides:

As the phrase is commonly used throughout the Revised Code, the term political subdivision generally means a municipal corporation, county, township, city, village, or school district. (See, e.g., R.C. 3501.01(T) and R.C. 2744.01(F)). It would appear from this definition, a state institution of higher education is not generally included within the meaning of "political subdivision."

Therefore, it must be determined whether the term "state agency" encompasses state institutions of higher education. The term state agency is not specifically defined either for purposes of Chapter 102.; therefore, we must look to R.C. 1.60 which states:

Arguably, state institutions of higher education could fall within this definition; however, the Committee feels a better view is to examine the term as is it used within the confines of R.C. 101.70 et seq. since, as noted above, R.C. 102.03(A)(4) is inextricably related to R.C. 101.70 et seq. State institutions of higher education are specifically excluded from the definition of state agency as that term is used in certain provisions of R.C. 101.70 et seq. R.C. 101.72(E) states:

Therefore, a state institution of higher education is required to comply with all of the same requirements as any other employer of a legislative agent that is not a state agency. First, educational institutions are required to pay a registration fee, unlike all other state agencies. Secondly, and more importantly, educational institutions are accountable for all expenditures made to, or on behalf of, all public officials and employees falling within the purview of R.C. 101.70 et seq. The inclusion of state institutions of higher education in required reporting is a clear indication that, for purposes of lobbying, educational institutions are not considered to be on the same level as the more typical state agencies.

Therefore, the Committee finds that a state institution of higher education, as defined in R.C. 3345.011, is not a state agency as that term is used in R.C. 102.03(A)(4). Consequently, a former member or employee of the General Assembly may not, within the first twelve months after separating from the General Assembly, represent, or act in a representative capacity for, a state institution of higher education on any matter before the General Assembly, any committee of the General Assembly, or the Controlling Board.

This advisory opinion is based on the facts presented. It is limited to questions arising under Chapter 102. and Sections 2921.42 and 2921.43 of the Revised Code and does not purport to interpret other laws or rules.

Accordingly, the Committee finds and the members and employees of the General Assembly are so advised: (1) A former member or employee of the General Assembly, for twelve months following their separation from the General Assembly, is prohibited from representing, or acting in a representative capacity for, a person before an executive agency on a matter that is before the General Assembly, any committee of the General Assembly, or the Controlling Board; (2) A former member or employee is not prohibited, during the first twelve months after separating from the General Assembly, from representing, or acting in a representative capacity for, a person before an executive agency where the subject matter of the representation is not a matter that is before the General Assembly, any committee of the General Assembly, or the Controlling Board; (3) A state institution of higher education, as defined in R.C. 3345.011, is not a state agency as that term is used in R.C. 102.03(A)(4); and (4) A former member or employee of the General Assembly may not, within the first twelve months after separating from the General Assembly, represent, or act in a representative capacity for, a state institution of higher education on any matter before the General Assembly, any committee of the General Assembly, or the Controlling Board.

¹ "Executive agency" means the office of an elected executive official, a department created under section 121.02 of the Revised Code, or any other state agency, department, board, or commission controlled or directed by an elected executive official or otherwise subject to his authority. "Executive agency" does not include any court, the general assembly, or the controlling board. R.C. 121.60(F).

² As used in R.C. 101.70 et seq., "legislation" means bills, resolutions, amendments, nominations, and any other matter pending before the general assembly, any matter pending before the controlling board, or the executive approval or veto of any bill acted upon by the general assembly. R.C. 101.70(B).

Richard H. Finan, Chairman

Joint Legislative Ethics Committee