The purpose of the proposed new rules (34-12.125, 34-12.165, and 34-12-175) is to make the standard for lobbyists in rulemaking proceedings consistent with the standard applied in other types of administrative proceedings, to clarify that the ...

 

COMMISSION ON ETHICS

RULE NOS.:RULE TITLES:

34-12.120Exclusions for Administrative Proceedings

34-12.125Exclusions for Administrative Proceedings

34-12.160Examples of Lobbying Activities

34-12.165Examples of Lobbying Activities.

34-12.170Examples of Activities Not Constituting Lobbying

34-12.175Examples of Activities Not Constituting Lobbying.

PURPOSE AND EFFECT: The purpose of the proposed new Rules 34-12.125, 34-12.165, and 34-12-175, F.A.C., is to make the standard for lobbyists in rulemaking proceedings consistent with the standard applied in other types of administrative proceedings, to clarify that the definition of lobbyist excludes attorneys or others representing clients in a rulemaking proceeding, to add to examples of lobbying activities compensated communications in behalf of a client prior to certain rulemaking actions, and to provide examples of activities not constituting lobbying related to rulemaking.

The purpose of the proposed rule title amendments for Rules 34-12.120, 34-12.160, and 34-12.170, F.A.C., is to reflect that lobbyists before water management districts are subject to those rules because of legislative changes in Chapter 2014-183, Section 6, L.O.F.

SUMMARY: The proposed changes add new Rules 34-12.125, 34-12.165, and 34-12.175, F.A.C., as to lobbying related to rulemaking proceedings and also amend the titles to existing Rules 34-12.120, 34-12.160, and 34-12.170, F.A.C., to reflect that those rules apply only to lobbyists as to water management districts.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION: The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The proposed new and existing rules apply to registration and reporting requirements for lobbyists in administrative proceedings. Based on past experience with rules of this nature, the adverse impact or regulatory cost, if any, do not exceed and would not be expected to exceed any one of the economic analysis criteria set forth in Section 120.541(2)(a), F.S.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 112.3215, 112.322(9) FS.

LAW IMPLEMENTED: Chapter 2014-183, Section 6, LOF, 112.3215, 112.3261 FS.

A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:

DATE AND TIME: September 12, 2014, 8:30 a.m.

PLACE: Senate Office Building, Room 37S, 404 South Monroe Street, Tallahassee, FL

Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 3 days before the workshop/meeting by contacting: Lindsey Smith, Executive Secretary, Commission on Ethics. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Betsy Daley, Senior Attorney, Commission on Ethics

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

34-12.120 Exclusions for Administrative Proceedings as to Lobbying Activities Involving Water Management Districts.

“Lobbyist” does not include an attorney or other person who represents a client in a formal administrative proceeding conducted pursuant to Chapter 120, F.S., or in any other formal hearing before an agency.

(1) through (3) No change.

Rulemaking Authority 112.3215, 112.322(9) FS. Law Implemented Chapter 2014-183, Section 6, LOF, 112.3215, 112.3261 FS. History–New 10-12-89.

 

34-12.125 Exclusions for Administrative Proceedings.

[Notice: This rule replaces rule 34-12.120 except with respect to lobbying activities involving water management districts. Chapter 2014-183, Section 6, Laws of Florida, created Section 112.3261, F.S., “Lobbying before water management districts; registration.” That section provides that “lobbies” means seeking, on behalf of another person, to influence a water management district with respect to a decision of the district in an area of policy or procurement or an attempt to obtain the goodwill of a district official or employee. The term “lobbies” shall be interpreted and applied consistently with the rules of the commission implementing Section 112.3215, F.S. As rule 34-12.125 was not in existence when the Legislature enacted Section 112.3261 on May 2, 2014, the rule is not incorporated by reference into Section 112.3261, F.S.]

“Lobbyist” does not include an attorney or other person who represents a client in a formal administrative proceeding conducted pursuant to Chapter 120, F.S., or in any other formal hearing before an agency.

(1) Formal administrative proceedings conducted pursuant to Chapter 120, F.S., and other formal hearings before an agency include:

(a) Formal and informal proceedings under Sections 120.569 and 120.57, F.S., after the filing of a petition or request for hearing which initiates the proceeding;

(b) Rule challenge proceedings under Section 120.56, F.S., after the filing of the petition or request with the Division of Administrative Hearings;

(c) Declaratory statement proceedings under Section 120.565, F.S., after the filing of the petition for a declaratory statement;

(d) Bid protest proceedings under Section 120.57(3), F.S., after the filing of a formal written protest;

(e) Rulemaking proceedings under Section 120.54. F.S., after the publication of the notice of rule development pursuant to Section 120.54(2), F.S., or the filing of a petition to initiate rulemaking pursuant to Section 120.54(7), F.S., and

(f) All other hearings of an agency of a similar nature to a hearing governed by a provision of Chapter 120, F.S., after the filing of the petition, complaint, or request which initiates the proceeding.

(g) An attorney or other person representing a client who lobbies an agency regarding matters which in the future may result in an administrative proceeding described in paragraphs (a) through (f) above may be a “lobbyist” for purposes of this rule if he or she is seeking to influence the agency with respect to a decision of the agency in the area of “policy,” as defined in subsection 34-12.040(6), F.A.C.

(2) Representation of a client in one of the types of administrative proceedings and formal hearings described in subsection (1) includes all oral and written communications with an agency or any of its representatives which relate to the proceeding or hearing.

Rulemaking Authority 112.3215, 112.322(9) FS. Law Implemented Chapter 2014-183, Section 6, LOF, 112.3215, 112.3261 FS. History–New__________.

 

34-12.160 Examples of Lobbying Activities Involving Water Management Districts.

As used in this rule Chapter, “lobbying” activities include, for example:

(1) through (5) No change.

Rulemaking Authority 112.3215, 112.322(9), FS. Law Implemented Chapter 2014-183, Section 6, LOF, 112.3215, 112.3261 FS. History–New 10-12-89, Amended 1-4-94.

 

34-12.165 Examples of Lobbying Activities.

[Notice: This rule replaces Rule 34-12.160, F.A.C., except with respect to lobbying activities involving water management districts. Chapter 2014-183, Section 6, Laws of Florida, created Section 112.3261, F.S., “Lobbying before water management districts; registration.” That section provides that “lobbies” means seeking, on behalf of another person, to influence a water management district with respect to a decision of the district in an area of policy or procurement or an attempt to obtain the goodwill of a district official or employee. The term “lobbies” shall be interpreted and applied consistently with the rules of the commission implementing Section 112.3215, F.S. As Rule 34-12.165, F.A.C., was not in existence when the Legislature enacted Section 112.3261 on May 2, 2014, it is not incorporated by reference into Section 112.3261.]

As used in this rule, “lobbying” activities include, for example:

(1) The representation of a client in communications with the Office of the Governor with respect to legislative matters.

(2) Seeking to influence the content of an agency’s request for proposals or specifications for the purchase of goods or services on behalf of another person or governmental entity, unless in regard to the category of purchases described in Rule 34-12.150, F.A.C.

(3) Seeking to influence the priority given by an agency to the purchase of land or to a construction project on behalf of another person or governmental entity.

(4) Seeking to influence an agency’s decision regarding a proposed rule in behalf of a client through communications with agency personnel prior to the publication of a notice of rule development pursuant to Section 120.54(2), F.S., or the filing of a petition to initiate rulemaking pursuant to Section 120.54(7), F.S.,

(5) Seeking to influence an agency in behalf of a person or governmental entity with respect to policies of the agency.

Rulemaking Authority 112.3215, 112.322(9) FS. Law Implemented Chapter 2014-183, Section 6, LOF, 112.3215, 112.3261 FS. History–New________.

 

34-12.170 Examples of Activities Not Constituting Lobbying Involving Water Management Districts.

(1) through (9) No change.

Rulemaking Authority 112.3215, 112.322(9), FS. Law Implemented Chapter 2014-183, Section 6, LOF, 112.3215, 112.3261 FS. History–New 10-12-89.

 

34-12.175 Examples of Activities Not Constituting Lobbying.

[Notice: This rule replaces Rule 34-12.170, F.A.C., except with respect to lobbying activities involving water management districts. Chapter 2014-183, Section 6, Laws of Florida, created Section 112.3261, F.S., “Lobbying before water management districts; registration.” That section provides that “lobbies” means seeking, on behalf of another person, to influence a water management district with respect to a decision of the district in an area of policy or procurement or an attempt to obtain the goodwill of a district official or employee. The term “lobbies” shall be interpreted and applied consistently with the rules of the commission implementing Section 112.3215, F.S. As this rule section was not in existence when Section 112.3261, F.S., was passed by the Legislature on May 2, 2014, it is not incorporated by reference into Section 112.3261.]

(1) Participation at a bid conference held by an agency after bid specifications have been set and announced by the agency.

(2) The mere submission of a bid or proposal in response to an agency’s solicitation of bids or request for proposals.

(3) A request for information about an agency’s procedures, forms, budget, budget proposal, programs, or other requirements in behalf of another.

(4) Appearances before an agency and communications with an agency which are initiated by the agency’s request, such as a response to an agency’s request for information, a response to an agency’s request for or invitation to submit comments on a draft or proposed rule, an appearance in response to an agency subpoena, or a quotation of prices or description of materials or services available in response to an agency’s inquiry.

(5) Advice or services communicated to an agency which arise out of an existing contractual obligation to the agency to render the advice or services provided.

(6) Representation of a client before an agency where the agency’s decision relates to the grant or denial of a permit, license, or certification, or may result in an order imposing or recommending the imposition of disciplinary action against the client.

(7) Representation of a client in a rulemaking following the publication of a notice of rule development pursuant to Section 120.54(2), F.S., or the filing of a petition to initiate rulemaking pursuant to Section 120.54(7), F.S., including but not limited to representation at a publicly noticed hearing or workshop conducted by an agency regarding a proposed agency rule.

(8) Representation of a person before an agency where the person provides only reimbursement for actual travel, lodging, and meal expenses, rather than compensation, remuneration, or a commission for the representation.

(9) Communications with an agency by an expert consultant retained by a person to gather, analyze, or disseminate information required by the agency, when made in connection with the person's application for a permit, license, or certification.

Rulemaking Authority 112.3215, 112.322(9) FS. Law Implemented Chapter 2014-183, Section 6, LOF, 112.3215, 112.3261 FS. History–New_________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Virlindia Doss, Executive Director, Commission on Ethics

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Virlindia Doss, Executive Director, Commission on Ethics

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: August 12, 2014

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: August 13, 2014