Does an Idaho state employee who gives gifts or meals to a legislator have to register as a lobbyist?

Plain-English summary

Idaho Secretary of State Lawerence Denney asked Attorney General Lawrence Wasden for a clarification under the Sunshine Law: does a state employee have to register as a lobbyist if they give gifts or other benefits to legislators or executive officials? The answer was yes, with limited exceptions.

The opinion walked through Idaho Code § 67-6602(j), which defines lobbying in two ways. Subdivision [I] reaches contacts with legislators or executive officials made either to influence legislation or "to develop or maintain relationships with, promote goodwill with, or entertain" them. Subdivision [II] reaches communications with executive officials to influence rulemaking, ratemaking, procurement, contracts, bids, financial agreements, or bond issues.

Subsection (j) then carves out seven exceptions. The one that mattered here is subdivision [VII]: communications "by state employees while acting in their official capacity or within the course and scope of their employment." Wasden read that carve-out narrowly. It covers state employees communicating positions on legislation or rules, but it doesn't cover the goodwill-and-entertainment branch in subdivision [I][C][ii]. Proffering gifts is not "communicating"; it's a separate kind of lobbying activity. So a state employee who gives a meal, ticket, or other gift to a legislator falls outside the carve-out and falls inside the lobbyist definition.

That made the employee a "lobbyist" under § 67-6602(k) and the employee's agency a "lobbyist's employer" under § 67-6602(l), triggering registration with the Secretary of State under § 67-6617 and reporting under § 67-6619, unless one of the narrow § 67-6618 exemptions applied (notably for persons receiving no compensation for lobbying who limit their lobbying activity).

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Idaho's Sunshine Law sits at the intersection of two competing policies. State agencies need to advocate for their budgets and program priorities at the legislature, so the law carves out a path for state employees to do that without the registration burden of a private-sector lobbyist. But the law also wants gift-giving to legislators to be transparent regardless of who the giver is. The opinion's parsing of subsection (j) tried to honor both: official-capacity speech is exempt, but official-capacity entertaining is not.

The statute Wasden parsed had grown through accretion, with two definitional clauses, seven exceptions, and no internal headings. The opinion produced an annotated reformatting of subsection (j) (visible in the original opinion text below) that broke each part into who-is-contacted, how-they-are-contacted, and why-they-are-contacted. That reformatting became the analytical map.

Common questions

Q: What counted as "gifts" or "benefits" for this purpose?
A: The opinion didn't define them. The Sunshine Law's reporting requirements treat anything of value as reportable, with a few thresholds and exceptions. Common examples would be meals, drinks, event tickets, travel, lodging, and other items provided to a legislator or executive official.

Q: Did this require registration for state employees who only sent informational emails to legislators?
A: No, those communications fell within the official-capacity carve-out in subdivision [VII], because they involved communicating about state agency programs in the scope of employment.

Q: What if a legislator paid for their own meal at an event the state employee organized?
A: The opinion didn't address this fact pattern directly, but the Sunshine Law's gift definition turns on what a legislator received without paying fair value. Self-paid attendance generally is not a gift.

Q: Could a state employee who gave a single small gift avoid registration under § 67-6618?
A: Possibly. Section 67-6618 exempts persons who do not receive compensation for lobbying and whose lobbying activity is below specified thresholds. The opinion noted the exemption was narrow and fact-dependent.

Q: Did agencies have to register too?
A: Yes, the opinion concluded that the agency or constitutional office employing a state-employee lobbyist became the "lobbyist's employer" under § 67-6602(l), triggering separate filing duties.

Citations and references

Statutes:
- Idaho Sunshine Law: Idaho Code §§ 67-6601 through 67-6630
- Idaho Code § 67-6602(j) (definitions of lobby and lobbying)
- Idaho Code § 67-6617 (registration)
- Idaho Code § 67-6618 (registration exemptions)
- Idaho Code § 67-6619 (reporting)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/Opinion15-1.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN

ATTORNEY GENERAL OPINION NO. 15-1

To:

The Honorable Lawerence Denney
Idaho Secretary of State
Statehouse
VIA HAND DELIVERY
Per Request for Attorney General's Opinion
You asked this office for a clarification of the following question under the Sunshine

Law:

QUESTION PRESENTED
Should a state employee lobbyist who proffers gifts and/or benefits to legislators and/or
executive officials register and disclose his or her conduct as a lobbyist?

CONCLUSION
This answer is "yes" with limited exceptions explained below.

ANALYSIS
Regulation of lobbying in Idaho is statutory and is controlled by Idaho ' s Sunshine Law,
Idaho Code §§ 67-6601 through 67-6630. "Lobby" and "lobbying" are defined in Idaho Code
§ 67-6602U). This subsection is long and not explicitly broken into pa11s. It contains two
independent definitions of lobbying (labeled as pai1s [I] and [II] below) and five " carve outs"
from the definition of lobbying (labeled pai1s [III] through [VII] below).
In order to make this subsection more understandable, it is reformatted and broken up
into two or three subparts for each of its seven parts. Those subparts are: (1) the kinds of
contacts or communications covered by each part (labeled "[A]"); (2) the persons who are
contacted (labeled " [B]"), and (3) the purposes of the contact (labeled " [C]"). Subsection (j) is
set out in full below with an explicit structure imposed over the top of it:
[I]

" Lobby" and "lobbying" each means:

P.O. Box 83720, Boise, Idaho 83720-0010
Telephone: (208) 334-2400, FAX: (208) 854-8071
Located at 700 W. Jefferson Street, Suite 21 O

The Honorable Lawerence Denney
Page - 2
[A] attempting through contacts with, or causing others to make contact
with
[BJ members of the legislature or legislative committees or an executive
official
[CJ [i] to influence the approval, modification or rejection of any
legislation by the legislature of the state of Idaho or any committee
thereof or by the governor; or
[ii] to develop or maintain relationships with, promote goodwill with,
or entertain members of the legislature or executive officials
[II]

"Lobby" and "lobbying" shall also mean:
[A] communicating
[BJ with an executive official
[CJ for the purpose of influencing
[i] the consideration, amendment, adoption or rejection of any rule or
rulemaking as defined in section 67-5201, Idaho Code; or
[ii] any ratemaking decision, procurement, contract, bid or bid process,
financial services agreement, or bond issue

[III]

Neither "lobby" nor "lobbying" includes:
[A] an association's or other organization's act of communicating
[B] with the members of that association or organization; and

[IV]

provided that neither "lobby" nor "lobbying" includes:
[A] communicating
[BJ with an executive official
[CJ for the purpose of carrying out ongoing negotiations following the
award of a bid or a contract

[V]

[A]
[BJ

[CJ

communications
conducted by and with attorneys for executive agencies
involving ongoing legal work and negotiations

[VI]

[A]
[BJ

interactions
between parties in litigation or other contested matters; or

[VII]

[A]
[BJ

communications
[i] among and between members of the legislature and executive
officials and their employees; or
[ii] by state employees
while acting in their official capacity or within the course and scope of
their employment.

[CJ

Idaho Code § 67-6602(j) (bracketed subdivisions added; subsection reformatted).
Thus, a state executive officer or employee who contacts a legislator or who testifies
before a legislative committee "to influence the approval, modification or rejection of any

The Honorable Lawerence Denney
Page - 3
legislation" would be within subdivision [I][C][i]'s definition of lobbying unless that activity is
"carved out" later in subsection (j). The same would apply to a state employee who
communicates with an executive officer to influence rulemaking, contracting, etc.; the employee
would be lobbying within the meaning of subdivision [II] [C] [i] or [ii] unless there is a "carve
out."
However, subdivision [VII][C] is just such a carve out: State officers and employees
may communicate with legislators or decision-making executive officers while acting in their
official capacities or within the course and scope of their employment. This "carve out" for
official capacity expression of the officer's or agency's position or views on legislation,
rulemaking, procurement, etc. (these are activities otherwise covered by subdivisions [I][C][i]
and [II][C] [i] and [ii]) is not a "carve out" from all lobbying activities defined in subsection (j).
In particular, there is no "carve out" from subdivision [I][C][ii]: contacts with legislative or
executive officers "to develop or maintain relationships with, promote goodwill with, or entertain
members of the legislature or executive officials."
To take a first step toward answering your specific question on whether state employees
who proffer gifts and/or benefits to legislators and/or executive officials must register and rep01i
as lobbyists, the preceding analysis shows that a state employee who proffers such gifts or
benefits is lobbying under § 67-6602(j). That makes the employee a "lobbyist" within the
meaning of § 67-6602(k) and the employee's agency or constitutional office a "lobbyist's
employer" within the meaning of§ 67-6602(1).
That leads to the next question: Are there any "carve outs" from the general rules for
registering and reporting by lobbyists that would apply to a state employee "who proffers gifts
and/or benefits to legislators and/or executive officials?" As explained below, there are some
nan-ow "carve outs."
Idaho Code § 67-6617 requires lobbyists to register with the Secretary of State. Idaho
Code § 67-6618 provides a number of exemptions from registration and rep01iing, two of which
may be applicable to state officers or employees "who proffer gifts and/or benefits to legislators
and/or executive officers." The applicable part of§ 67-6618 provides:

67-6618. Exemption from registration. - The following persons and
activities shall be exempt from registration and reporting under sections 67-6617
and 67-6619, Idaho Code:

(c) Persons who do not receive any compensation for lobbying and
persons whose compensation for lobbying does not exceed two hundred fifty
dollars ($250) in the aggregate during any calendar quarter, including persons
who lobby on behalf of their employer or employers, and the lobbying activity
represents less than the equivalent of two hundred fifty dollars ($250) of the
employee's time per calendar year quarter, based on an hourly proration of said
employee's compensation.

The Honorable Lawerence Denney
Page - 4
(d) Elected state officers and state executive officers appointed by the
governor subject to confirmation by the senate; elected officials of political
subdivisions of the state of Idaho, acting in their official capacity.

Subsection (c)'s exception is highly dependent upon the hourly rate of the employee
involved. For example, a lower-paid staffer who is tasked with providing coffee and doughnuts
to a legislative delegation visiting an agency might well be acting on behalf of the agency "to develop or maintain relationships with, promote goodwill with, or entertain members of the legislature or executive officials," but there is an exemption from registering and reporting as a lobbyist under subsection (c) so long as the staffer was not paid more than $250 while performing
those duties. On the other hand, a highly-paid employee who took a legislator to a tailgate pmiy,
a football game, and out for dinner afterward could easily exceed the $250 limit in an afternoon
and evening. Subsection (c)'s exception is strictly dependent upon the hourly compensation of
the employee.
Subsection (d)'s exception is narrow: Among state officers and employees it applies only
to elected officers and executive officers appointed by the governor and confirmed by the senate.
Thus, to take an example, a department director appointed by the governor and confirmed by the
senate as provided in Idaho Code § 67-2404 would be exempt from registering and reporting as a
lobbyist for gifts "to develop or maintain relationships with, promote goodwill with, or entertain
members of the legislature or executive officials," but a deputy director appointed by the director
pursuant to § 67-2403 would not.
Idaho Code § 67-6619 also contains an implicit exception from reporting of lobbying
activities. It is set out below:

67-6619. Reporting by lobbyists. -

...

(2) Each annual, semiannual and monthly periodic report shall contain:
(a) The total of all expenditures made or incurred on behalf of such
lobbyist by the lobbyist's employer or employers, not including payments
made directly to the lobbyist, during the period covered by the report. ...
(b) The name of any legislator or executive official to whom or for whose
benefit on any one (1) occasion, an expenditure . . . in excess of one
hundred dollars ($100) per person on and after January 1, 2011, for the
purpose of lobbying, is made or incurred and the date, name of payee,
purpose and amount of such expenditure. Expenditures for the benefit of
the members of the household of a legislator or executive official shall
also be itemized if such expenditure exceeds the amount listed in this
subsection.

(e) The itemization threshold in subsection (2)(b) of this section shall be

The Honorable Lawerence Denney
Page - 5
adjusted biennially by directive of the secretary of state, using consumer
price index data compiled by the United States department of labor. 1

Thus, under subsections (2)(b) and (e), state officers or employees who are not otherwise
exempt from registering and reporting as lobbyists and who "proffer gifts and/or benefits to
legislators and/or executive officials" (or members of their households) but who do not spend
more than $105 per legislator or executive officer (together with members of their households)
in doing so must report their aggregate expenditures under subsection (2)(a), but need not break
down their expenditures by the individual person lobbied.
In summary, with the exception of elected state officials and state officers appointed by
the governor and approved by the senate, a state officer or employee who "proffers gifts and/or
benefits to legislators and/or executive officials" is generally required to register and repmi as a
lobbyist. There are two exceptions: for employees whose compensation for time spent lobbying
does not exceed $250 (who need not register or report) and for lobbying expenditures that do not
exceed $105 per person (who need not report upon whose behalf the expenditures were made).
Dated this 16 111 _ day of March, 2015.

LAWRENCE G. WASDEN
Attorney General
Analysis by:
MICHAEL S. GILMORE
Deputy Attorney General

1

The current lobbying reporting forms on the Secretary of State's website show that the $100 figure found in
subsection (2)(b) has been increased to $105 pursuant to subsection (2)(e) to take into account changes in the
Consumer Price Index.