Could Louisiana's state long-term care ombudsman comment on legislation despite the ban on state employees lobbying?

Plain-English summary

Louisiana's Office of Elderly Affairs asked whether its state long-term care ombudsman could meet with legislators and take positions on proposed legislation despite the state law prohibiting lobbying by state employees in their official capacity. In 2005, the Attorney General concluded that the lobbying restriction did not apply to the ombudsman's official duties as defined by federal and state law.

The opinion pointed to the Older Americans Act's duties to analyze and comment on laws affecting long-term care residents and recommend changes. It also quoted a Louisiana provision shielding ombudsman representatives from state-law liability for good-faith performance of official duties defined by state and federal rules. The AG noted a possible conflict between the federal duties and the state employee lobbying ban, but expressly said it did not need to resolve that conflict to answer the request.

Currency note

This opinion was issued in 2005. 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.

Common questions

Could the state ombudsman speak to legislators about long-term care bills?

The AG concluded that the state employee lobbying restriction was inapplicable when the ombudsman carried out the official functions defined in the cited federal and Louisiana laws, including analyzing legislation and recommending changes concerning long-term care residents.

Did the AG strike down Louisiana's state employee lobbying ban?

No. The opinion identified an apparent federal-state conflict but said it did not need to evaluate it. Its answer rested on the Louisiana protection for good-faith performance of the ombudsman's official duties alongside the federally defined functions.

Was the opinion a general exemption for every state employee?

No. The reasoning concerned the duties of the state long-term care ombudsman and the statute specifically addressing representatives of that office. The opinion did not extend its conclusion to unrelated state positions.

Background and statutory framework

The request came from Godfrey P. White, executive director of the Governor's Office of Elderly Affairs. LSA-R.S. 24:56(E) prohibited official-capacity lobbying by state employees, while the Older Americans Act provision cited as 42 USC §3058g directed the ombudsman to monitor laws and recommend changes affecting long-term care residents. LSA-R.S. 40:2010.4(D) protected representatives of the state long-term care ombudsman office from liability under state law for good-faith performance of official duties. The AG used those provisions to find the lobbying ban inapplicable to the duties described.

Citations

• LSA-R.S. 24:56(E) (state employee lobbying restriction).
• 42 USC §3058g (ombudsman functions cited in the opinion).
• LSA-R.S. 40:2010.4(D) (good-faith official-duty protection).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/05-0086

Original opinion text

April 26, 2005
OPINION NUMBER 05-0086

61 – Laws – General

To effectively carry out the functions of a state ombudsman
Mr. Godfrey P. White
as mandated by Congress, and intended by the state
Executive Director
legislature, LSA-R.S. 24:56 is made inapplicable to the state
Governor’s Office of Elderly Affairs ombudsman, as the official functions of the office are clearly defined under the Older Americans Act (42 USC 3058g) and
P. O. Box 80374
LSA-R.S. 40:2010.4(D).
Baton Rouge, LA 70898-0374

Dear Mr. White:

We are in receipt of your request for an opinion of the Attorney General regarding a conflict in state and federal law with respect to the function of the Office of the State Ombudsman. As I understand your question, you want to know whether the incumbent to the Office, as a state employee is subject to the prohibition on lobbying as set forth in LSA-R.S. 24:56(E). You take the position that meeting with legislators and being asked to testify in order to take a position on a particular piece of legislation are activities consistent with provisions of the Older Americans Act (42 USC §3058g) and should be carried out despite the prohibition of such in state law.

The prohibition is found at Louisiana Revised Statute 24:56(E) and provides in pertinent part that:

(E) No state employee in his official capacity or on behalf of his employer shall lobby for or against any matter intended to have the effect of law pending before the legislature or any committee thereof. (Emphasis Added). Nothing herein shall prohibit the dissemination of factual information relative to any such matter or the use of public meeting rooms or meeting facilities available to all citizens to lobby for or against any such matter.

The Older Americans Act (42 USC 3011 et. seq.), provides for the specific functions of a state ombudsman. According to the Act, it is a state ombudsman’s responsibility to recommend changes in the law as the office deems appropriate. (See 42 USC 3058g(3)(G)(iii)). The specific functions outlined under, 42 USC 3058g provide in pertinent part that the state ombudsman shall, either personally or through a representative:

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Opinion No. 05-0086
Mr. Godfrey P. White, Executive Director
Governor’s Office of Elderly Affairs
Page 2

(3)(G)(i) analyze, comment on, and monitor the development and implementation of Federal, State, and local laws, regulations, and other governmental policies and actions, that pertain to the health, safety, welfare, and rights of the residents, with respect to the adequacy of long-term care facilities and services in the State;

(ii) recommend any changes in such law, regulations, policies, and actions as the Office determines to be appropriate; and

(iii) facilitate public comment on the laws, regulations, policies, and actions:

The functions under 42 USC 3058g as outlined above constitute activities associated with lobbying under Louisiana law. The Louisiana Legislature defines “lobbying” as any direct act or communication with a legislator for the purpose of influencing the passage or defeat of any legislation. (See, LSA-R.S. 24:51). Under the Supremacy Clause of the United States Constitution, any state law that conflicts with a federal law is rendered unenforceable. Article VI, Clause 2.

However, we need not evaluate the apparent conflict that exists between the federal and state statutes because, notwithstanding the prohibition against lobbying by state employees, the Louisiana Legislature under LSA-R.S. 40:2010.4(D) provides that “[n]o representative of the office of the state long term care ombudsman will be liable under state law for the good faith performance of official duties as defined by state and federal laws and regulations.”

To effectively carry out the functions of a state ombudsman as mandated by Congress, and intended by the state legislature, it is the opinion of this office that 24:56 is made inapplicable to the state ombudsman, as the official functions of the office are clearly defined under 42 USC 3058g and LSA-R.S. 40:2010.4(D).

We hope this opinion has sufficiently addressed your concerns. If our office may be of further assistance, please do not hesitate to contact us.

Yours very truly,

CHARLES C. FOTI, JR.
ATTORNEY GENERAL

BY: ________
CHARLENE PATTERSON
Assistant Attorney General

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Opinion No. 05-0086
Mr. Godfrey P. White, Executive Director
Governor’s Office of Elderly Affairs
Page 3

SYLLABUS

OPINION 05-0086

61 – Laws – General

To effectively carry out the functions of a state ombudsman as mandated by Congress, and intended by the state legislature, LSA-R.S. 24:56 is made inapplicable to the state ombudsman, as the official functions of the office are clearly defined under the Older Americans Act (42 USC 3058g) and LSA-R.S. 40:2010.4(D).

Godfrey P. White
Executive Director
Governor’s Office of Elderly Affairs
P. O. Box 80374
Baton Rouge, Louisiana 70898-0374

Date Received:

Date Released: April 26, 2005

Charlene Patterson
Assistant Attorney General