2007-374B
Created By: Sylvia Scott on 03/30/2009 at 02:01 PM
Category: Lobbyist Rulings
Caption:
Dismissed Document:


LOUISIANA BOARD OF ETHICS

DATE: March 25, 2009 OPINION NO: 2007-374B
RE: In the matter of Jason El Koubi

The Board of Ethics (the “Board”) pursuant to the authority contained in La. R.S. 42:1141, conducted a private investigation concerning information that Mr. Jason El Koubi may have violated the Legislative Lobbyist Disclosure Act (La. R.S. 24:50 et seq.) as well as the Executive Branch Lobbyist Disclosure Act (La. R.S. 49:70 et seq.) by failing to register as a Legislative Lobbyist and an Executive Branch Lobbyist within the time periods required by law.
On the basis of the information obtained during the course of the investigation and with the consent of Jason El Koubi, the Board now makes the following essential:
I.
FINDINGS OF FACT
1.
Jason El Koubi was an employee of the Baton Rouge Area Chamber of Commerce (BRAC) from August 29, 2005 to March 1, 2008. Mr. El Koubi served as research manager, and policy director for BRAC during his time of employment with BRAC.
2.
As the Policy Director of BRAC, Mr. El Koubi was responsible for publishing papers describing the agency’s position on issues; presenting findings and making recommendations to the agency in addition to other duties.
3.
During the time frame covered in this document, BRAC had a full-time staff member who served as Senior Vice President for Governmental Affairs (hereafter referred to as BRAC’s SVP of GA). The primary job responsibility of BRAC’s SVP of GA was to lead governmental affairs and lobbying activities for BRAC. She was a registered lobbyist for both the executive and legislative branches of government during the entire time frame in question, and she made all of BRAC’s reported lobbying expenditures during this time.
4.
In January of 2007, another BRAC staff member spoke with a Staff Attorney of the Louisiana Ethics Administration Program over the telephone to request informal advice on lobbying registration requirements. According to an email generated by the BRAC staff member to BRAC’s SVP of GA dated January 30, 2007, the BRAC staff member’s understanding of the advice given from the Staff Attorney of the Louisiana Ethics Administration Program was that “if the employee is not hired as a lobbyist but is a professional with multiple responsibilities and does not spend money on an executive branch official or legislator, the employee would not have to register [as a lobbyist].”
5.
If called to testify, Mr. El Koubi would indicate that he did not register as an executive or legislative branch lobbyist based on the understanding of the BRAC staff member’s conversation with the Staff Attorney of the Ethics Administration Program, his review of educational materials on the website of the Ethics Administration Program which indicated that he would not need to register as a lobbyist, and the Advisory Opinion in Ethics Board Docket No. 2006-1095 which indicated that the CEO of Louisiana Association of Health Plans did not need to register as an executive branch lobbyist as long as the CEO did not make an expenditure in connection with his communications with executive branch officials.
6.
At the time Mr. El Koubi reviewed the educational materials contained on the website of the Ethics Administration Program, the educational materials had not been updated and contained a summary which did not reflect current law. The summary contained on the website of the Ethics Administration Program at the time indicated that Mr. El Koubi would not need to register as a lobbyist.
7.
In February of 2007, Mr. El Koubi, on behalf of BRAC, engaged in a conversation with an executive branch official at the Louisiana Attorney General’s office regarding technical issues concerning the creation of an administrative appeals process for public records requests and to determine whether the Louisiana Attorney General would support the passage of an ethics reform package for the State of Louisiana.
8.
On April 30, 2007, Mr. El Koubi, on behalf of the BRAC, engaged in conversations and discussions with legislators at the BRAC “Second Home” reception regarding the need for the passage of an ethics reform package for the State of Louisiana.
9.
Mr. El Koubi registered as both a Legislative and Executive Branch lobbyist on May 4, 2007.
10.
If called to testify, Mr. El Koubi would indicate that he registered out of an abundance of caution based on remarks he, and other members of the BRAC staff, received from legislators suggesting that his understanding of the initial guidance sought from the Ethics Administration Program may have been incorrect.
II.
APPLICABLE LAW
The Legislative Lobbyist Disclosure Act requires a person to register as a lobbyist within 5 days of the first act requiring registration as a lobbyist. The Legislative Lobbyist Disclosure Act provides in pertinent part as follows:
53. Registration of lobbyists with the board; compilation of information
A. Each lobbyist shall register with the board within five days of employment as a lobbyist or within five days after the first action requiring his registration as a lobbyist.
* * *
The following are defined in Section 51 of the Legislative Lobbyist Disclosure Act and are relevant when analyzing the above sections:
(2) "Expenditure" means the gift or payment of money or anything of value when the amount of value exceeds ten dollars for the purchase of food, drink, or refreshment for a legislator and any gift or payment as permitted by R.S. 42:1123(13) and (16) when the value exceeds ten dollars for the purpose of lobbying when the lobbyist or principal accounts or would be expected to account for the expenditure as an ordinary and necessary expense directly related to the active conduct of the lobbyist's, his employer's, or the principal's trade or business.
* * *

(4) "Lobbying" or "to lobby" means any direct act or communication with a legislator, the purpose of which is to aid in influencing the passage or defeat of any legislation.

(5) "Lobbyist" means:

(a) Any person who is employed or engaged for compensation to act in a representative capacity for the purpose of lobbying if lobbying constitutes one of the duties of such employment or engagement.

(b) Any person who receives compensation of any kind, including reimbursement of expenditures, to act in a representative capacity when one of the functions for which compensation is paid is lobbying and makes expenditures as herein defined of five hundred dollars or more in a calendar year for the purpose of lobbying.
* * *
58. Enforcement
* * *

D. In addition to any other applicable penalties:

(1) Any person required to register and who fails to timely register and any person who fails to timely file any report required by this Part shall be assessed, pursuant to R.S. 42:1157, a late fee of fifty dollars per day.

(2) Any person whose registration or report is filed eleven or more days after the day on which it was due shall be assessed, in addition to any late fees pursuant to this Section, after a hearing by the board, a civil penalty not to exceed ten thousand dollars.
The Executive Branch Lobbyist Disclosure Act requires a person to register as a lobbyist within 5 days of the first act requiring registration as a lobbyist. The Executive Branch Lobbyist Disclosure Act provides in pertinent part as follows:
74. Registration of lobbyists with the ethics board; compilation of information
A. Each lobbyist shall register with the ethics board within five days of employment as a lobbyist or within five days after the first action requiring his registration as a lobbyist.
* * *

The following are defined in Section 51 of the Executive Branch Lobbyist Disclosure Act and are relevant when analyzing the above sections:

(2) (a) "Executive branch action" means any act by an executive branch agency or official to effectuate the public powers, functions, and duties of an executive branch official or an executive branch agency, including but not limited to any act in the nature of policymaking, rulemaking, adjudication, licensing, regulation, or enforcement; relative to contracts, requests for proposals, development of specifications, or engaging another person to perform a governmental function; to formulate, adopt, amend, or repeal any rule, as that term is defined in R.S. 49:951; to adopt, repeal, increase, or decrease any fee imposed on the affairs, actions, or persons regulated by an executive branch agency; or to affect the passage, defeat, or implementation of any legislation.
* * *

(3) "Executive branch agency" or "agency" means the state, and any state office, department, board, commission, institution, or any quasi-public entity created in the executive branch of state government by or pursuant to law or by or pursuant to the constitution, specifically including but not limited to the Public Service Commission. The terms "executive branch agency" or "agency" shall not include any unit of the legislative or judicial branch of state government, local government, or any political subdivision of the state or any agency thereof; however, the terms "executive branch agency" or "agency" shall include any board or commission to which the governor appoints at least a majority of the membership of the board or commission.
(4) "Executive branch official" or "official" means an elected official, an appointed official, or an employee in an executive branch agency.

(5) "Expenditure" means the gift or payment of money or anything of value when the amount of value exceeds ten dollars for the purchase of food, drink, or refreshment for an executive branch official and any gift or payment permitted by R.S. 42:1123(13) when the value exceeds ten dollars for the purpose of lobbying when the lobbyist or principal accounts, or would be expected to account, for the expenditure as an ordinary and necessary expense directly related to the active conduct of the lobbyist's, his employer's, or the principal's trade or business.

(6) "Lobbying" or "to lobby" means any direct act or communication with an executive branch official, the purpose of which is to aid in influencing an executive branch action.

(7) "Lobbyist" means:

(a) Any person who is employed or engaged for compensation to act in a representative capacity for the purpose of lobbying if lobbying constitutes one of the duties of such employment or engagement; however, any person who is engaged or employed to provide a professional service to a person and incidental to such professional service such person communicates with an executive branch agency or official or makes an appearance or assists in an appearance with an executive branch agency or official shall not be a lobbyist unless such person or the person who engaged the professional services of or employed such person makes an expenditure as defined in this Section.

(b) Any person who receives compensation of any kind, including reimbursement of expenditures, to act in a representative capacity when one of the functions for which compensation is paid is lobbying and makes expenditures as herein defined of five hundred dollars or more in a calendar year for the purpose of lobbying.
* * *

78. Enforcement
* * *

D. In addition to any other applicable penalties:

(1) Any person required to register and who fails to timely register and any person who fails to timely file any report required by this Part shall be assessed, pursuant to R.S. 42:1157, a late fee of fifty dollars per day.

(2) Any person whose registration or report is filed eleven or more days after the day on which it was due shall be assessed, in addition to any late fees pursuant to this Section, after a hearing by the ethics board, a civil penalty not to exceed ten thousand dollars.
III.

OPINION

It is the opinion of the Board that Mr. Jason El Koubi did not violate Section 53 of the Legislative Lobbyist Disclosure Act as Mr. El Koubi registered as a Legislative Lobbyist within 5 days of the BRAC “Second Home” reception.
It is the further opinion of the Board that Mr. Jason El Koubi violated Section 74 of the Executive Branch Lobbyist Disclosure Act by failing to register as a lobbyist after his initial conversations with executive branch officials of the Staff of the Office of the Attorney General in February of 2007. Because Mr. El Koubi was a compensated employee of BRAC and represented the BRAC while making direct communications to an executive branch official, the purpose of which was to aid in influencing an executive branch action, Mr. El Koubi was “lobbying” as the term is defined in the Executive Branch Lobbyist Disclosure Act. As such, Mr. El Koubi was required to register with the Board as a lobbyist within 5 days of his first act requiring registration. Mr. El Koubi’s first act requiring registration took place in February of 2007, therefore, Mr. El Koubi should have registered as an Executive Branch Lobbyist in February of 2007, 5 days after he made a direct act or communication with an executive branch official in an attempt to influence an executive branch action.
The Louisiana Board of Ethics is authorized to impose a penalty of up to $10,000 for each violation of the Executive Branch Lobbyist Disclosure Act. In this particular situation, due to the unique circumstances, it is the conclusion of the Board that the interest of the public would be served by the imposition of a $1,000.00 fine, of which the entire amount is to be suspended, based upon the facts outlined above and Mr. El Koubi’s future compliance with the Executive Branch Lobbyist Disclosure Act.
IV.

DECREE AND ORDER

IT IS DECREED that Mr. Jason El Koubi did not violate Section 53 of the Legislative Lobbyist Disclosure Act.
IT IS FURTHER DECREED that Mr. Jason El Koubi violated Section 74 of the Executive Branch Lobbyist Disclosure Act by failing to register as a lobbyist after his initial conversations with executive branch officials of the Staff of the Office of the Attorney General in February of 2007.
IT IS ORDERED that a fine of $1,000.00 is hereby imposed upon Mr. El Koubi for violating the Executive Branch Lobbyist Disclosure Act.
IT IS FURTHER ORDERED that the fine of $1,000 imposed upon Mr. El Koubi for violating the Executive Branch Lobbyist Disclosure Act is hereby suspended, based upon the facts outlined above and Mr. El Koubi’s future compliance with the Executive Branch Lobbyist Disclosure Act.
By Order of the Board this 25th day of March 2009.



s/Frank P. Simoneaux s/Scott E. Frazier
Frank P. Simoneaux, Chairman Scott E. Frazier, Vice-Chairman

s/Robert P. Bareikis s/Gail E. Bowman (Rev.)
Dr. Robert P. Bareikis Rev. Gail E. Bowman



s/James G. Boyer s/Gary G. Hymel
James G. Boyer Gary G. Hymel



s/Jean M. Ingrassia s/C. W. Lowrey, M. D.
Jean M. Ingrassia Dr. Cedric W. Lowrey



s/M. Blake Monrose s/Scott D. Schneider
M. Blake Monrose Scott D. Schneider



Absent and did not participate.
David Grove Stafford, Jr.

CONSENT

The undersigned (a) stipulates to the facts found by the Board; (b) waives the procedural requirements contained in Section 1141 of the Code; (c) admits that the conduct, as described above, violated Section 74 of the Executive Branch Lobbyist Disclosure Act; (d) acknowledges the publication of this opinion; (e) agrees to comply with the conditions and orders set forth in this opinion; and, (f) agrees not to seek judicial review of the findings and actions taken in this opinion.


s/Jason El Koubi Mr. Jason El Koubi


3/13/09 Date
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