Article

What The Heck Is a Government Affairs Agent?
by Len F. Collett

The following article discusses the scope of the lobbying law and several exemptions from the lobbying law that may apply to a business’ interaction with State officials. These rules define what is and what is not lobbying activity for purposes of lobbyist disclosures to State regulatory bodies.

Scope Of The Lobbying Law

New Jersey’s lobbying act (the “Act”) and regulations, govern the practice of lobbying in New Jersey. The independent, bipartisan Election Law Enforcement Commission (ELEC) is responsible for the regulation of lobbying activity. The law requires anyone who is “employed, retained or engages himself as a governmental affairs agent” to register with ELEC prior to any communication with, or the making of any expenditures providing a benefit to, a member of the Legislature, legislative staff, the Governor, the Governor's staff, or an officer or staff member of the Executive Branch. Such individuals and their employers and clients must also file quarterly activity reports, as well as annual financial disclosures by February 15, for the preceding calendar year.

Governmental Affairs Agents

The Act governs the designation and regulation of “governmental affairs agents” formerly known as “legislative agents” and commonly called “lobbyists.” Note however that in New Jersey’s regulatory scheme, “lobbyist” is itself a defined term that refers to the employer or client of a governmental affairs agent; thus a business may fall into the definition of a lobbyist and the individuals it employs or retains to influence legislation, regulation or government process might be governmental affairs agents under this statutory scheme. For purposes of this article, the term “lobbying” is used to denote the activities of a governmental affairs agent, (hereafter “agent” or “GAA”), while the term “lobbyist” will refer only to a client or employer of a GAA.

ELEC defines an agent or GAA as a person who is compensated directly or indirectly, or reimbursed more than $100 in any three-month period, to influence legislation, regulations, or governmental processes by communi- cating with (for more than 20 hours in a calendar year), or providing a benefit to a State official covered by the Act. Time expended by a GAA to prepare for such communications is included in determining whether the 20-hour threshold has been reached by any particular individual.

Activities Exempt from Lobbying Act The regulations governing these obligations also lists certain activities that are not governed by the lobbying registration and reporting requirements. First are categorical exemptions for particular sorts of entities and organizations. The Act does not apply to:

• Government and its Agents: This includes the acts of the government of the United States or of the State of New Jersey or of any other State or political subdivision;
• Media: This includes certain publication and dissemination of news items, advertising which does not constitute communication with the general public and similarly published information;
• Educational Forums: This includes the acts of a recognized school or institution of higher education, public or private, in conducting classes and similar activities in the normal course of its business;
• Religious Groups: This includes the acts of bona fide religious groups acting solely for the purpose of protecting the public right to practice the doctrine of such religious group;
• Political Parties: This includes the acts of a duly organized national, State or local committee of a political party;
• Uncompensated Non-Profit Testimony: This includes the acts of a person in testifying before a legislative committee or commission or similar public hearing; and
• Personal Expression: This includes the acts of a person in communicating with or providing benefits to a member of the Legislature, legislative staff, the Governor, the Governor's staff, or an officer or staff member of the Executive Branch under certain circumstances.

Each of these exceptions is itself limited by a specific type of activity or communication which is protected from the Lobbying disclosure requirements.

Additional Exemptions (Routine Communications)

The Act and ELEC’s regulations also provide activity-oriented exemptions available to any person or entity. These exemptions are for any communication that is for a “routine, ministerial matter,” and for participation in a task force, advisory board, or working group.

Communications of a routine or ministerial matter include communications to: 

• Schedule a meeting date, time, and place;
• Request the status of an administrative matter;
• Request procedures or forms;
• Request information concerning requirements to comply with existing laws or regulations; 
• Apply for a permit or license as required by law;
• Participate in an inspection required by law;
• Respond to an audit conducted pursuant to law;
• Make a contact as a salesperson for the sole purpose of selling goods or services;
• Inquire about the delivery of services or materials pursuant to an existing contract;
• Provide advice or perform services pursuant to an existing contract;
• Prepare documents and materials in response to a request for proposal or to participate at a bid conference after bid specifications have been established;
• Respond to a subpoena;
• Respond to a public emergency or condition involving public health or safety; or
• Provide a response to a detailed request for specific information.

While this is a complete listing from ELEC’s regulations, it is not all- inclusive. That is, ELEC will consider whether a particular communication is “routine and ministerial” on a case- by-case basis if it is not included in this list.

Conclusion

These exemptions, while explicitly set forth in the statute and the regulations, have yet to be fully fleshed out and reliance and the full scope of these stated exemptions is unknown until some regulatory precedent is developed through ELEC or further guidance from the courts is provided. Thus, it is recommended that individuals or corporations consult their legal counsel if their activities with the State or local governments might be impacted by these restrictions and reporting obligations.

 Hill Wallack LLP’s attorneys can provide assistance to businesses of all types that have frequent interaction with State and local governments in complying with these and other registration, reporting and compliance requirements.