2007-374A
Created By: Sylvia Scott on 12/01/2008 at 11:35 AM
Category: Lobbyist Rulings
Caption:
Dismissed Document:


LOUISIANA BOARD OF ETHICS

DATE: November 13, 2008 OPINION NO: 2007-374A
RE: In the matter of Stephen Moret

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. Stephen Moret 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 Stephen Moret, the Board now makes the following essential:
I.
FINDINGS OF FACT
1.
Stephen Moret served as the President and Chief Executive Officer for the Baton Rouge Area Chamber (BRAC) from November of 2004 to January 14, 2008.
2.
As the President and Chief Executive Officer of BRAC, Mr. Moret was a compensated employee who was tasked with the overall management of the agency which included such duties as: managing staff, serving as it spokesperson and communicating with the BRAC Board and investors.
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.
4.
In December of 2006, Mr. Moret, and the BRAC SVP of GA, met with and had conversations with members of the Staff of the Office of the Governor the purpose of which was to discuss potential ethics reform legislation, to seek advice on how to approach such an effort and to determine the level of interest the Governor’s Office may have in participating in ethics reform legislation.
5.
In approximately December of 2006, Mr. Moret and BRAC’s SVP of GA met with Jay Dardenne to seek his advice on a potential ethics reform package.
6.

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].”
7.
If called to testify, Mr. Moret 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.
8.
At the time Mr. Moret 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. Moret would not need to register as a lobbyist.
9.
In January of 2007, Mr. Moret and BRAC’s SVP of GA, on behalf of BRAC, engaged in conversations and discussions with legislators regarding the need for the passage of an ethics reform package for the State of Louisiana.
10.
Mr. Moret registered as both a Legislative and Executive Branch lobbyist on May 4, 2007.
11.
If called to testify, Mr. Moret would indicate that he registered out of an abundance of caution based on remarks he and members of his staff received from legislators suggesting that his understanding of the initial guidance sought from the Ethics Administration Program may have been incorrect.
12.
All of the meetings in which Mr. Moret attended involving legislators or executive branch officials were scheduled by BRAC’s SVP of GA and all of the reportable lobbying expenditures were made by BRAC’s SVP of GA.
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. Stephen Moret violated Section 74 of the Executive Branch Lobbyist Disclosure Act by failing to register as a lobbyist after his initial conversations with executive branch official, Jay Dardenne, and members of the Staff of the Office of the Governor in December of 2006. Because Mr. Moret 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. Moret was “lobbying” as the term is defined in the Executive Branch Lobbyist Disclosure Act. As such, Mr. Moret was required to register with the Board as a lobbyist within 5 days of his first act requiring registration. Mr. Moret’s first act requiring registration took place in December of 2006, therefore, Mr. Moret should have registered as an Executive Branch Lobbyist in December of 2006, 5 days after he made a direct act or communication with an executive branch official in an attempt to influence an executive branch action.
Additionally, it is the opinion of the Board that Mr. Stephen Moret violated Section 53 of the Legislative Lobbyist Disclosure Act by failing to register as a lobbyist after his initial conversations with legislators in January of 2007. Because Mr. Moret was a compensated employee of BRAC and represented the BRAC while making direct communications to a legislator, the purpose of which was to aid in influencing the passage or defeat of legislation, Mr. Moret was “lobbying” as the term is defined in the Legislative Lobbyist Discloure Act. As such, Mr. Moret was required to register with the Board as a lobbyist within 5 days of his first act requiring registration. Mr. Moret’s first act requiring registration took place in January of 2007, therefore, Mr. Moret should have registered as an Legislative Lobbyist in January of 2007, 5 days after he made a direct act or communication with a legislator in an attempt to influence the passage or defeat of legislation.
The Louisiana Board of Ethics is authorized to impose a penalty of up to $10,000 for each violation of the Lobbyist Disclosure Act. In this particular situation, given the facts outlined above, it is the conclusion of the Board that the interest of the public would be served by the imposition of a $1,200.00 fine.
IV.

DECREE AND ORDER

IT IS DECREED that Mr. Stephen Moret violated Section 74 of the Executive Branch Lobbyist Disclosure Act by failing to register as a lobbyist after his initial conversations with executive branch official Jay Dardenne, and members of the Staff of the Office of the Governor in December of 2006.
IT IS FURTHER DECREED that Mr. Stephen Moret violated Section 53 of the Legislative Lobbyist Disclosure Act by failing to register as a lobbyist after his initial conversations with legislators in January of 2007.
IT IS ORDERED that a fine of $1,200.00, payable to the Treasurer of the State of Louisiana, is hereby imposed upon Mr. Stephen Moret for violating the Legislative Lobbyist Disclosure Act and the Executive Branch Lobbyist Disclosure Act.
By Order of the Board this 13th day of November 2008.



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.







[signature information continued on the following page]


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 its conduct, as described above, violated Section 74 of the Executive Branch Lobbyist Disclosure Act as well as Section 53 of the Legislative Lobbyist Disclosure Act; (d) consents to 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/Stephen Moret Mr. Stephen Moret

9/28/08 Date
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