No. 08-I-14 State Ethics Commission Official Advisory Opinion September 2008
The Indiana State Ethics Commission (“Commission”) issues the following advisory opinion concerning the State Code of Ethics pursuant to IC 4-2-6-4(b)(1).
Summary
42 IAC 1-5-14 Postemployment restrictions (IC 4-2-6-11)
The former Director of the Medical Licensing Board took a position with the Indiana State Medical Association in which his primary duty was to lobby the legislative branch. SEC found the 365-day restriction against accepting compensation as a lobbyist would apply to the former state employee if he was required to register as an executive branch lobbyist—and not a legislative branch lobbyist—as mandated by the administrative rules adopted by the Department of Administration.
Background
A former state employee serves as the Director of Government Relations for the Indiana State Medical Association (“ISMA”). The former state employee was previously employed by the State of Indiana as the Director of the Medical Licensing Board with the Indiana Professional Licensing Agency (“IPLA”) until May 30, 2008.
The ISMA is a private, nonprofit membership association for physicians. As the Director of Government Relations for the ISMA, the former state employee’s primary duty is to lobby the legislative branch. Accordingly, he has registered as a legislative lobbyist. In addition, ISMA’s members are also affected by rules promulgated by various IPLA boards, including the Medical Licensing Board. As a result, the former state employee will also interact with various IPLA boards and committees to advocate for the ISMA’s physician members.
The former state employee explains that his interactions with the IPLA boards would generally consist of communications at meetings conducted under the Open Door Law or public or private communication solicited by the boards. He is neither currently registered as an executive branch lobbyist, nor has engaged in any activities that would require him to register as such. According to the former state employee, he and the ISMA have instituted internal controls to ensure that he does not engage in any activities which would constitute executive branch lobbying before the expiration of the 1-year post-employment period.
Issue
Can the former state employee interact with executive branch agencies before the expiration of the 365-day post-employment restriction, if such interaction does not subject the former state employee to register as an executive branch lobbyist?
Relevant Law
IC 4-2-6-11, One year restriction on certain employment or representation; advisory opinion; exceptions
IC 4-2-6-1
Definitions
IC 4-2-7-1
Definitions
Analysis
The post-employment rule imposes various restrictions on the type of post-employment activity that a former state employee may engage in. In this case, IC 4-2-6-11(b)(1) would prohibit the former state employee from accepting employment or receiving compensation as a lobbyist until the expiration of 365-days from his final day of state employment. The term lobbyist is defined in IC 4-2-7-1(5). See IC 4-2-6-1(b). For purposes of the post-employment rule, a lobbyist is an individual who both, seeks to influence decision making of an agency and is registered as an executive branch lobbyist under the rules adopted by the Indiana Department of Administration (IDOA). IC 4-2-7-1(5).
In this case, while it is arguable that the former state employee would be seeking to influence the decision making of an agency when interacting with it, the one-year prohibition against lobbying the executive branch would only apply if his interaction/activities with the executive agencies would require him to register as an executive branch lobbyist pursuant to the rules adopted IDOA. If he is not required to register as an executive branch lobbyist, the former state employee would not be considered a “lobbyist” for purposes of the 365 day post-employment restriction.
Conclusion
The Commission finds that the 365-day post-employment restriction against accepting compensation as a lobbyist would not apply to the former state employee only if he is not required to register as an executive branch lobbyist as mandated by the administrative rules adopted by IDOA. The former state employee remains subject to all of the restrictions applicable to a former state employee.