Can the Missouri Ethics Commission receive complaints and issue advisory opinions about violations of Amendment 1's two-year lobbying waiting-period and five-dollar gift-limitation provisions?

Plain-English summary

In November 2018, Missouri voters approved Amendment 1 ("Clean Missouri"), which added two relevant provisions to Article III of the Missouri Constitution. The waiting-period provision (Mo. Const. art. III, § 2(a)) bars any member of the General Assembly, or any General Assembly employee, from acting as a paid lobbyist for two calendar years after the conclusion of the session in which they last served. The gift-limitation provision (Mo. Const. art. III, § 2(b)) bars the same officials and employees from accepting any tangible or intangible gift, service, or thing of value worth more than five dollars per occurrence from a paid lobbyist or lobbyist principal.

In January 2019, MEC Executive Director Elizabeth Ziegler asked AG Eric Schmitt whether the MEC could receive complaints alleging violations of those two provisions and whether it could issue advisory opinions about them. The MEC's enabling statute, § 105.957.1, RSMo, lists six categories of complaints the MEC can receive. Five are specific statutory schemes (lobbyist registration, financial disclosure, campaign finance disclosure, agency codes of conduct, conflict-of-interest laws). The sixth, § 105.957.1(6), is broader: "[t]he provisions of the constitution or state statute or order, ordinance or resolution of any political subdivision relating to the official conduct of officials or employees of the state and political subdivisions."

The AG concluded that both Amendment 1 provisions fall within § 105.957.1(6). The phrase "relating to" is consistently read expansively (citing Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992), among others). The waiting-period provision regulates whom former legislators and staff can lobby and when, which by definition concerns the influence of public officials and so "relates to" the official conduct of state officials. The gift-limitation provision regulates what gifts those same officials can accept, which is a classic mechanism for trying to influence official conduct. Courts have long recognized that lobbyist gifts raise the possibility of improper influence (United States v. Sawyer, 85 F.3d 713, 728 (1st Cir. 1996)).

The structural analysis reinforced the result. Section 105.957.1's other enumerated categories include several rules that closely parallel Amendment 1, including six-month and one-year cooling-off periods for departing officials under § 105.454.1(5), § 105.455, and § 105.462.1(3), RSMo. The MEC was already authorized to police those statutory analogs under § 105.957.1(5). The amendment's two-year waiting-period and gift-limitation provisions are a constitutional version of the same kind of rule, so reading § 105.957.1(6) to cover them fit the statutory context.

Because the MEC can receive complaints under both provisions, § 105.955.16, RSMo, also authorizes it to issue advisory opinions on the same subjects.

The AG was careful to flag what the opinion did not address: it took no position on the policy wisdom of Amendment 1, whether the amendment would in practice achieve its goals, or whether the amendment violates any portion of the U.S. Constitution (including the First and Fourteenth Amendments).

Currency note

This opinion was issued in 2019. 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

What is Amendment 1's two-year waiting period?

After serving in or being employed by the Missouri General Assembly, you cannot work as a paid lobbyist, register as a paid lobbyist, or solicit prospective lobbying clients for two calendar years after the close of the session in which you last served. The provision is in Mo. Const. art. III, § 2(a).

What is Amendment 1's gift limit?

Members and employees of the General Assembly cannot accept, directly or indirectly, a gift of any tangible or intangible item, service, or thing of value from any paid lobbyist or lobbyist principal in excess of five dollars per occurrence. Mo. Const. art. III, § 2(b).

What can the MEC do about violations?

The MEC can receive complaints from members of the public and other officials. The MEC can investigate, and once it finds probable cause, it can refer cases for enforcement or impose available sanctions under its enabling statute.

Can the MEC give pre-violation advice?

Yes. § 105.955.16, RSMo authorizes the MEC to issue advisory opinions on any subject for which it can receive complaints. A legislator or lobbyist who is unsure whether a particular gift or post-service activity is permitted can ask the MEC for guidance in advance.

Why does this matter beyond Missouri's borders?

This opinion is a good illustration of the analytical move involved when a constitutional amendment creates a new conduct restriction but does not separately create an enforcement mechanism. The AG's solution was to read the existing ethics enforcement statute broadly enough to reach the new constitutional rules. State ethics regulators in other states sometimes face similar interpretive questions.

Did this opinion address constitutional challenges to Amendment 1?

No. The AG explicitly disclaimed any view on whether Amendment 1's policies are advisable, whether they will work in practice, or whether they comply with the First Amendment or Fourteenth Amendment. Those questions were left for separate litigation.

Background and statutory framework

Mo. Const. art. III, § 2(a) (Amendment 1's waiting-period provision):

No person serving as a member of or employed by the general assembly shall act or serve as a paid lobbyist, register as a paid lobbyist, or solicit prospective employers or clients to represent as a paid lobbyist during the time of such service until the expiration of two calendar years after the conclusion of the session of the general assembly in which the member or employee last served.

Mo. Const. art. III, § 2(b) (Amendment 1's gift-limitation provision):

[N]o person serving as a member of or employed by the general assembly shall accept directly or indirectly a gift of any tangible or intangible item, service, or thing of value from any paid lobbyist or lobbyist principal in excess of five dollars per occurrence.

Section 105.957.1, RSMo, gives the MEC complaint-receiving jurisdiction over six categories. Categories (1) through (5) are specific statutory schemes; category (6) is broader: "[t]he provisions of the constitution or state statute or order, ordinance or resolution of any political subdivision relating to the official conduct of officials or employees of the state and political subdivisions."

Section 105.955.16, RSMo, authorizes the MEC to issue advisory opinions on any issue it can receive complaints about under § 105.957.

The closest statutory analogs to Amendment 1 are § 105.454.1(5), RSMo (one-year cooling-off period for Executive Branch elected and appointed officials with influence-related restrictions), § 105.455, RSMo (six-month lobbying cooling-off period for many state officials including legislators), and § 105.462.1(3), RSMo (one-year cooling-off period for certain rulemaking officials).

Citations

• Mo. Const. art. III, § 2(a) (Amendment 1 waiting-period provision)
• Mo. Const. art. III, § 2(b) (Amendment 1 gift-limitation provision)
• § 105.957.1, RSMo (MEC complaint-receiving jurisdiction)
• § 105.957.1(6), RSMo (catch-all for constitutional or statutory provisions relating to official conduct)
• § 105.955.16, RSMo (MEC authority to issue advisory opinions)
• § 105.470(1), (3), (4), (5), RSMo (definition of "lobbyist")
• § 105.454.1(5), RSMo (one-year Executive Branch cooling-off)
• § 105.455.1, .2, RSMo (six-month cooling-off period covering legislators)
• § 105.462.1(3), RSMo (one-year rulemaking-official cooling-off)
• Peters v. Wady Indus., Inc., 489 S.W.3d 784 (Mo. banc 2016) (statutory interpretation)
• Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992) ("relating to" read expansively)
• Mizrahi v. Gonzales, 492 F.3d 156 (2d Cir. 2007) ("relating to" signals expansive legislative intent)
• Brown v. Carnahan, 370 S.W.3d 637 (Mo. banc 2012) (Missouri courts' broad reading of "related")
• State v. Myers, 248 S.W.3d 19 (Mo. App. E.D. 2008) (dictionary definition of "relate")
• In re Finnegan, 327 S.W.3d 524 (Mo. banc 2010) (plain and ordinary meaning in constitutional interpretation)
• Union Elec. Co. v. Dir. of Revenue, 425 S.W.3d 118 (Mo. banc 2014) (statutory context informs meaning)
• United States v. Sawyer, 85 F.3d 713 (1st Cir. 1996) (lobbyist gifts and influence)
• Ritter v. Ashcroft, 561 S.W.3d 74 (Mo. App. W.D. 2018) (compare regarding gift-influence concerns)

Source

• Landing page: https://ago.mo.gov/other-resources/ag-opinions/
• Original PDF: https://ago.mo.gov/wp-content/uploads/attachments/35-2019.pdf?sfvrsn=2

Original opinion text

ATTORNEY GENERAL OF MISSOURI

Eric Schmitt
Attorney General
JEFFERSON CITY
P.O. Box 899
65102
(573) 751-3321

OPINION LETTER NO. 35-2019
February 1, 2019

Elizabeth Ziegler
Executive Director
Missouri Ethics Commission
P.O. Box 1370
Jefferson City, Missouri 65102

Dear Director Ziegler:

I write in response to the Missouri Ethics Commission's ("MEC's") January 15, 2019 request for an opinion of the Attorney General. By way of background, in the November 2018 general election, the voters of Missouri approved Amendment 1, which amended certain portions of Article III of the Missouri Constitution. Amendment 1 included two provisions relevant to this opinion. First, under Amendment 1's "waiting-period" provision:

no person serving as a member of or employed by the general assembly shall act or serve as a paid lobbyist, register as a paid lobbyist, or solicit prospective employers or clients to represent as a paid lobbyist during the time of such service until the expiration of two calendar years after the conclusion of the session of the general assembly in which the member or employee last served.

Mo. Const. Art. III, § 2(a). Second, under Amendment 1's "gift-limitation" provision:

[n]o person serving as a member of or employed by the general assembly shall accept directly or indirectly a gift of any tangible or intangible item, service, or thing of value from any paid lobbyist or lobbyist principal in excess of five dollars per occurrence.

Mo. Const. Art. III, § 2(b).

The MEC has requested the Attorney General's opinion on whether § 105.957.1(6), RSMo, authorizes the MEC to receive complaints of violations of Amendment 1's waiting-period and gift-limitation provisions. The MEC has also requested the Attorney General's opinion on whether the MEC has authority to issue advisory opinions regarding the waiting-period and gift-limitation provisions.

Section 105.957.1 provides that the MEC:

shall receive any complaints alleging violation of the provisions of:
(1) The requirements imposed on lobbyists by sections 105.470 to 105.478;
(2) The financial interest disclosure requirements contained in sections 105.483 to 105.492;
(3) The campaign finance disclosure requirements contained in chapter 130;
(4) Any code of conduct promulgated by any department, division or agency of state government, or by state institutions of higher education, or by executive order;
(5) The conflict of interest laws contained in sections 105.450 to 105.468 and section 171.181; and
(6) The provisions of the constitution or state statute or order, ordinance or resolution of any political subdivision relating to the official conduct of officials or employees of the state and political subdivisions.

§ 105.957.1, RSMo. The MEC may issue advisory opinions, upon written request from affected parties, "regarding any issue that the commission can receive a complaint on pursuant to section 105.957." § 105.955.16, RSMo.

For the reasons stated below, we conclude that § 105.957.1(6) authorizes the MEC to receive complaints of violations of Amendment 1's waiting-period and gift-limitation provisions, and to issue advisory opinions regarding those provisions.

ANALYSIS

The "primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute at issue." Peters v. Wady Indus., Inc., 489 S.W.3d 784, 789 (Mo. banc 2016) (quotation omitted). Section 105.957 provides that the MEC may "receive any complaints alleging violation of ... [t]he provisions of the constitution ... relating to the official conduct of officials or employees of the state." § 105.957.1(6), RSMo. Thus, whether the MEC may receive complaints of violations of Amendment 1's gift-limitation and waiting-period provisions depends on whether those constitutional provisions "relate[] to the official conduct of officials or employees of the state." Id.

Courts have consistently characterized the plain and ordinary meaning of the phrase "relating to" as expansive. "The ordinary meaning of [the phrase 'relating to'] is a broad one 'to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with.'" Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992) (quoting BLACK'S LAW DICTIONARY (5th ed. 1979)); see also, e.g., Mizrahi v. Gonzales, 492 F.3d 156, 159 (2d Cir. 2007) (explaining that the "use of the phrase 'relating to' in [statutes] generally signals [an] expansive [legislative] intent"). Missouri courts have similarly interpreted the words "relate" and "related" broadly to mean the existence of some relationship or connection. See Brown v. Carnahan, 370 S.W.3d 637, 652 (Mo. banc 2012) ("'Related' is defined as 'having a relationship; connected by reason of an established or discoverable relation.'" (quoting WEBSTER'S THIRD NEW INT'L DICTIONARY, UNABRIDGED 1916 (2002))); State v. Myers, 248 S.W.3d 19, 26 (Mo. App. E.D. 2008) ("According to the dictionary, 'relate' means 'to have relationship or connection.'"). Thus, a constitutional provision falls within the scope of § 105.957.1(6) if the provision has some relationship or connection to the "official conduct of officials or employees of the state." For the reasons stated below, we find that both the waiting-period and the gift-limitation provisions have such a relationship and connection and thus fall within the scope of § 105.957.1(6).

I. The Waiting-Period Provision (Mo. Const. Art. III, § 2(a)) Relates to the Official Conduct of State Officials and Employees.

Amendment 1's waiting-period provision has a direct relationship with and connection to the official conduct of state officials and employees, and thus that provision falls within the scope of § 105.957.1(6). Amendment 1 prohibits any member or employee of the General Assembly from serving, registering, or soliciting business as a "paid lobbyist" during the two years following the end of the last legislative session in which the member or employee served. Mo. Const. Art. III, § 2(a). "When interpreting a constitutional provision, [courts] consider the words used in their plain and ordinary meaning." In re Finnegan, 327 S.W.3d 524, 526 (Mo. banc 2010). "If a word used is not defined, [courts apply] the plain and ordinary meaning of the word as found in the dictionary." A "lobbyist" is "one who lobbies" or "a person employed and compensated for lobbying." WEBSTER'S THIRD NEW INT'L DICTIONARY, UNABRIDGED 1326 (2002). To "lobby," in turn, means "to conduct activities ... with the objective of influencing public officials," and "to advance or otherwise secure favorable treatment of [an initiative] by influencing public officials." Id. Thus, the plain and ordinary meaning of Amendment 1's text demonstrates that the waiting-period provision applies only to one who seeks to influence public officials. Id. Moreover, under existing Missouri statutes, the term "lobbyist" applies only to those who seek to influence official action of the Executive, Legislative, or Judicial Branches of government. See § 105.470(1), (3), (4), (5). By definition, then, a paid lobbyist seeks to influence the official conduct of government actors. As a result, regulation of paid lobbyists necessarily has a direct relationship to and connection with the "official conduct of officials or employees of the state." § 105.957.1(6), RSMo. Thus, Amendment 1's waiting-period provision falls within the scope of § 105.957.1(6).

This opinion takes no position on the advisability of Amendment 1's underlying policies, nor does it take any position on whether Amendment 1 will in practice advance those policies. This opinion also does not address whether Amendment 1 violates any portion of the United States Constitution, such as the First Amendment or Fourteenth Amendment. Instead, this opinion addresses only the narrow question of whether the MEC may receive complaints and issue advisory opinions regarding the waiting-period and gift-limitation provisions of Amendment 1.

The relevant statutory context confirms this conclusion. "In determining the meaning of a word in a statute, [courts] will not look at any one portion of the statute in isolation. Rather, [they] will look at the word's usage in the context of the entire statute ...." Union Elec. Co. v. Dir. of Revenue, 425 S.W.3d 118, 122 (Mo. banc 2014). Statutory language "is known by the company it keeps." Id. In addition to the catch-all "official conduct" category set forth in § 105.957.1(6), § 105.957.1 provides that the MEC can receive complaints of violations of several expressly enumerated statutory provisions. See § 105.957.1(1)-(5), RSMo. These other categories of violations provide guidance on the meaning of § 105.957.1(6)'s "official conduct" provision. See Union Elec., 425 S.W.3d at 122.

Several of the statutory prohibitions expressly enumerated in § 105.957.1(1)-(5) closely resemble Amendment 1's waiting-period provision. Perhaps most notably, § 105.455 prohibits many state officials, including members of the General Assembly, from engaging in lobbying during the six months following their departure from office. § 105.455.1, .2, RSMo. Similarly, § 105.454 prohibits an Executive Branch elected or appointed official from "[p]erform[ing] any services for consideration, during one year after termination of his or her office or employment, by which performance he or she attempts to influence a decision of any agency of the state." § 105.454.1(5), RSMo. And § 105.462 prohibits certain state officials with rulemaking authority from "[p]erform[ing] for one year after termination of his or her employment any service for compensation for any person, firm or corporation to influence the decision or action of the agency with which he or she served as a member." § 105.462.1(3), RSMo. Each of these provisions closely resembles Amendment 1's waiting-period provision. See Mo. Const. Art. III, § 2(a). And § 105.957.1 expressly authorizes the MEC to receive complaints of violations of each of those statutory provisions. See § 105.957.1(5), RSMo. This statutory context strongly supports the conclusion that Amendment 1's waiting-period provision falls within the scope of § 105.957.1(6). See Union Elec., 425 S.W.3d at 122. Thus, we conclude that the MEC may receive complaints of violations of Amendment 1's waiting-period provision. And because it can receive complaints of violations of that provision, the MEC also has authority to issue advisory opinions relating to that provision. § 105.955.16, RSMo.

II. The Gift-Limitation Provision (Mo. Const. Art. III, § 2(b)) Relates to the Official Conduct of State Officials and Employees.

Amendment 1's gift-limitation provision also has a clear relationship with and connection to the official conduct of state officials and employees, because it seeks to limit the possibility that lobbyist gifts could influence a government actor's official conduct. Courts have consistently recognized that gifts from lobbyists raise the possibility that those gifts might influence how legislators or staffers exercise their official powers. See, e.g., United States v. Sawyer, 85 F.3d 713, 728 (1st Cir. 1996); cf. Ritter v. Ashcroft, 561 S.W.3d 74, 86 (Mo. App. W.D. 2018). Because the gift-limitation provision seeks to regulate the influence of lobbyist gifts on the official conduct of legislators and their staff, the provision has a clear relationship with and connection to the official conduct of state officials and employees. Thus, the gift-limitation provision falls within the scope of § 105.957.1(6), RSMo. And because it can receive complaints of violations of that provision, the MEC also has authority to issue advisory opinions relating to that provision. § 105.955.16, RSMo.

CONCLUSION

For the reasons stated above, we conclude that the MEC has authority to receive complaints of alleged violations of Amendment 1's waiting-period and gift-limitation provisions, and to issue advisory opinions relating to those provisions.

Sincerely,

MICHAEL MARTINICH-SAUTER
Deputy Attorney General