This one wasn’t from Barry but it had special counsel Ralph’s fingerprints all over it. And while I must admit pointing out the special counsel’s errors is more fun than commenting on Barry’s if for no other reason than I know Ralph far better than I ever would want to know Barry. There is value to the lobbying community in my informing them of yet another instance where the PIC has overstepped its jurisdiction.
This time it’s non-lobbying expenses and do you need to maintain and show the PIC your non-lobbying employee’s salary and payroll records.
PIC auditor’s routinely request that lobbyists verify their non-lobbying support staffs compensation. Putting aside for the moment that you are under no legal compulsion to cooperate with an audit (discussed previously at length in this blog) if you voluntarily decide to cooperate with an audit you do NOT have to show the auditor your payroll records.
The lobby Act section 1(h) requires bimonthly reports to include “(5)(i) the compensation paid or owed to the lobbyist, and any expenses expended, received or incurred by the lobbyist for the purpose of lobbying.”
Salaries or expenses for employees or consultants that are not part of the lobbying effort are not reportable as they are not for the purpose of lobbying. Put simply your secretary or administrative assistant or driver or chef (when business is good) or lawyer or accountant is not an expense for the purpose of lobbying.
To make matters worse the PIC bimonthly forms require you to list in the aggregate the salaries of non-lobbying employees. This comes from section 1(h) as well where it states “(iv) expenses paid or incurred for salaries other than that of the lobbyist shall be listed in the aggregate.” BUT THIS IS ONLY IF THOSE SALARIES WHERE INCURRED FOR THE PURPOSE OF LOBBYING BY EMPLOYEES WHO ARE NOT LISTED AS LOBBYISTS.
And I can hear the special counsel already “if you are a lobbying firm all your employees are for the purpose of lobbying” Really Ralph? How many times do you need to be told your job is to be special counsel not to tell lobbyists how to run their business? If a lobbyist wants to employ someone who has nothing to do with the lobbying that may take place they have a right to do so and no obligation to report it under section 1(h).
Don’t believe me Ralph go read some old opinions you will find this language “we conclude that the inclusion of general office overhead of non-lobbying employees is superfluous, and provides no meaningful information to the public or to our Commission concerning lobbying activities. Such figures are practically impossible to state with complete accuracy. To require such reporting creates a burdensome and complex problem. The alternative, which the Commission permitted, of providing a "reasonable estimate" where such figures could not be ascertained with certainty, supplies information that clearly serves no public purpose and is of no value to the Commission in evaluating lobbying activities.” I couldn’t have said it better myself.
If they don’t have to report it you have no right to ask for the records substantiating it in an audit. Don’t believe me try to get a judge to uphold a subpoena for those records.
Hope you found that helpful at the end of the day it will not matter because PIC’s days are numbered. What will I do without PIC to kick around anymore? Its Albany I’m sure something else will tickle my outrage.