How many state employees can a North Carolina agency designate as legislative liaisons after the 2001 lobbying reform law?
Plain-English summary
The Secretary of State's General Counsel, Sheila Stafford Pope, asked the AG to interpret Session Law 2001-424, which had just rewritten the rules on who can be designated as a "legislative liaison" for a North Carolina state agency. Two specific filings prompted the question: the State Board of Elections had submitted four names for legislative liaison designation, and the Office of the State Controller had submitted five names. With a new statutory cap of two per agency, the Secretary needed direction.
Senior Deputy AG Reginald Watkins and Assistant AG Sue Little walked through the new framework.
Before 2001, Article 9A of Chapter 120 required all "lobbyists" to register with the Secretary of State, but state officers and employees were exempt when they appeared at the General Assembly on matters pertaining to their office and public duties. A separate rule in § 120-47.8(3)b required the Governor, Council of State, and appointed agency heads to file lists of "authorized official legislative liaison personnel" with the Secretary of State. There was no statutory cap on the number of liaisons and no definition of the term.
Session Law 2001-424 added two pieces. First, a new definition in § 120-47.1(4a) said "legislative liaison personnel" means "any State officer and employee whose principal duties in practice or as set forth in that person's job description involve lobbying the General Assembly." Second, a new § 120-47.12(b) capped at two the number of persons each principal state department and each UNC constituent institution could register as lobbyists or designate as legislative liaisons.
Read together, the AG explained, the changes created two classes of state employees: (1) those whose principal duties involve lobbying (now the only people eligible to be designated as legislative liaisons, with a cap of two per department), and (2) those whose principal duties do not involve lobbying (fully exempt from designation requirements).
Applying that framework to the two filings: the State Board of Elections had named four people as legislative liaisons, but the Executive Director acknowledged that none of them had lobbying as their principal duty. Under the new law, none of those four could be designated. The State Controller had not designated anyone as a legislative liaison (no principal-duty lobbyists in the office) but had submitted five names of staff "authorized to represent the views of the office before the General Assembly." Those people also could not be designated under the new statute, because none had lobbying as principal duty.
Pope noted that the pre-2001 framework had been helpful to legislators because it identified everyone in an agency authorized to make commitments on behalf of the agency head. She asked whether the Secretary of State could keep that benefit going. The AG said yes, through rulemaking authority: under § 120-47.11, the Secretary may "make rules, orders, forms, and definitions as are necessary to carry out the provisions of this Article." The Secretary could keep two lists: an official list of legislative liaison personnel (those whose principal duties are lobbying, capped at two per agency) and an informational list of other agency staff authorized to speak for the agency. The first list is the statutory list; the second is administrative help.
The practical effect was a sharp narrowing of who counted as a legislative liaison. State agencies that had used the designation casually (as a way to identify all senior staff who might testify or meet with legislators) had to either trim their lists to actual principal-duty lobbyists or move the rest to the new informational list.
Currency note
This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. North Carolina's lobbying law was substantially restructured in 2006 (S.L. 2006-201, the State Government Ethics Act) and the underlying definitions, registration requirements, and reporting framework have been revised multiple times since. Anyone evaluating current lobbying-registration obligations for state agencies should consult the current text of Chapter 120C and current Secretary of State guidance, not this 2002 opinion.
Background and statutory framework
The pre-2001 framework. Article 9A of Chapter 120 set up a registration system for lobbyists at the General Assembly. State officers and employees were exempt from the general lobbyist-registration requirement when they appeared at the legislature on matters pertaining to their public duties (§ 120-47.8(3)a). But agency heads still had to file lists of "authorized official legislative liaison personnel" with the Secretary of State (§ 120-47.8(3)b). The term was not defined, and there was no cap. Some agencies used the designation broadly, naming many senior staff who could speak with legislators on agency business.
Why the General Assembly tightened it. SL 2001-424 came out of a sense that some agencies were over-designating people as legislative liaisons. The cap of two per agency was designed to limit the number of state employees whose principal job was lobbying their own legislature, and the "principal duties" definition was designed to prevent agencies from sidestepping the cap by giving extra staff a liaison title without changing their actual responsibilities.
The "principal duties" test. The new § 120-47.1(4a) used a substantive test, not a label test. The question is whether lobbying the General Assembly is the person's principal duty, either as a matter of practice or as set out in the official job description. A staff attorney whose principal job is litigation but who occasionally testifies on agency-related bills is not a legislative liaison. A government affairs director whose principal job is to advance the agency's legislative agenda is.
The two-per-agency cap. Section 120-47.12(b) put a hard ceiling on how many legislative liaisons could be designated per principal state department and per UNC constituent institution. Two. The cap applies regardless of agency size; the State Board of Elections and a multi-thousand-employee department both get the same two slots. The cap also applies regardless of how many regional or division-level offices an agency has.
Why most state employees were unaffected. Most state employees do not have lobbying as a principal duty. The AG made clear that those employees remain "fully exempt from the designation requirements." They can still meet with legislators on agency business, testify when called, and provide technical assistance, all without registering or being designated. The statute targets the small number of state employees whose job is to lobby.
The Secretary's rulemaking authority. Section 120-47.11 gives the Secretary of State broad authority to make rules necessary to carry out the article. The AG used that authority as the legal basis for the Secretary's proposed informational-list mechanism. The informational list is administrative; it has no statutory consequence, but it gives legislators a roster of agency staff authorized to speak for the agency.
The State Board of Elections example. The Board had designated four people. The Executive Director acknowledged that none had lobbying as principal duty. The AG concluded that none could be designated under the new law. The Board could keep four people on the informational list, but none would be a legislative liaison.
The State Controller example. The Controller had taken a slightly different approach: it submitted no liaison designations (because no one in the office had lobbying as principal duty) and instead submitted five names as authorized to represent agency views. The AG treated that filing the same way: not a designation, but suitable for the informational list.
Common questions
Q: Can a small state board with only one or two employees skip the registration entirely?
A: Yes, if no one in the board has lobbying as a principal duty. The principal-duty test, not agency size, drives the obligation. A small board whose only contact with the General Assembly is occasional testimony does not need to designate anyone.
Q: What if an agency wants three legislative liaisons because two is not enough?
A: The cap is firm. SL 2001-424 set the number at two, and that is the limit. An agency could ask the General Assembly to amend the cap, but it cannot unilaterally designate a third.
Q: Does this restrict UNC constituent institutions separately?
A: Yes. Each principal state department and each UNC constituent institution gets two slots. So UNC-Chapel Hill, NC State, and other constituent institutions each have their own two-liaison cap.
Q: What happens if an agency-designated liaison stops doing lobbying as principal duty?
A: The agency should remove the designation. The AG did not spell out a removal procedure, but the principle is clear: the designation tracks principal duty, so if the person no longer has lobbying as principal duty, the person no longer qualifies.
Citations from the opinion
- N.C. Gen. Stat. § 120-47.1(4a) (added by SL 2001-424)
- N.C. Gen. Stat. § 120-47.1(6)
- N.C. Gen. Stat. § 120-47.2
- N.C. Gen. Stat. § 120-47.2(6)b
- N.C. Gen. Stat. § 120-47.8(3)a
- N.C. Gen. Stat. § 120-47.8(3)b
- N.C. Gen. Stat. § 120-47.11
- N.C. Gen. Stat. § 120-47.12(b) (added by SL 2001-424)
- 2001 N.C. Sess. Laws 424
Source
Original opinion text
Reply to: SUE Y. LITTLE INSURANCE SECTION
(919) 716-6610 FAX: (919) 716-6757
January 14, 2002
Sheila Stafford Pope General Counsel State of North Carolina Department of Secretary of State Post Office Box 29622 Raleigh, North Carolina 27626-0622
Re: Advisory Opinion; North Carolina Session Law 2001-424; G.S. §§ 120-47.1 and 47.12; Designation of Legislative Liaisons
Dear Ms. Pope:
By letter dated November 16, 2001, you asked for our advice about the effect of SL 2001-424 on the responsibility of the Secretary of State to accept the designation of state employees as legislative liaisons pursuant to the provisions of Article 9A of Chapter 120 of the General Statutes. Specifically, you have asked for guidance about how the Secretary of State should treat recent filings by the State Board of Elections and the Office of the State Controller in light of SL 2001-424.
G.S. § 120-47.2 generally requires all "lobbyists" as defined by G.S. § 120-47.1(6) to register with the Secretary of State. The term "lobbyist" specifically does not include an officer or employee of the State "when appearing [in the legislature] solely in connection with matters pertaining to his office and public duties." G.S. § 120-47.8(3)a. See also G.S. § 120-47.2(6)b. This exemption from the lobbyist registration requirements, however, is itself limited by G.S. § 120-47.8(3)b, which provides:
Notwithstanding the persons exempted in this Article, the Governor, Council of State, and all appointed heads of State departments, agencies and institutions, shall designate all authorized official legislative liaison personnel and shall file and maintain current lists of designated legislative liaison personnel with the Secretary of State . . ..
(Emphasis added.)
SL 2001-424 added two components to this statutory framework. First, it amended G.S. § 120-47.1 by adding subsection (4a) to define the term "legislative liaison personnel" to mean "any State officer and employee whose principal duties in practice or as set forth in that person's job description involve lobbying the General Assembly." (Emphasis added). Second, it prohibited the Secretary of State from registering, or accepting the designation of, more than two persons from each State department and institution as lobbyists or legislative liaisons. G.S. § 120-47.12(b), as added by SL 2001-424, provides:
No more than two persons in each principal State department and constituent institution of The University of North Carolina may be registered to lobby the General Assembly or designated as legislative liaisons pursuant to this Article.
The most significant of these changes is the adoption of the definition of "legislative liaison personnel." That change in effect created two classes of State officers and employees: (1) those whose principal duties involve lobbying and who thus fall within the definition of "legislative liaison personnel" and (2) those whose principal duties do not involve lobbying and who thus do not fall within the definition of "legislative liaison personnel." The creation of this classification, when combined with the limitation on the number of legislative liaisons, has the following impact:
- It limits to two the number of officers or employees in any State department or agency who are assigned lobbying the General Assembly as their principal duty, and it similarly limits to two the number of officers and employees from each State department or institution who may be designated as legislative liaisons with the Secretary of State pursuant to G.S. § 120-47.8(3)b.
- It means that all officers and employees of State departments or institutions for whom lobbying is not a principal duty are fully exempt from the designation requirements of G.S. § 120-47.8(3)b.
In its filing with the Secretary of State, the State Board of Elections has designated four persons as "authorized official legislative liaison personnel." According to the Board's Executive Director, however, none of these four persons has as his principal duty, in practice or by job description, lobbying the General Assembly. In its filings with the Secretary of State, the Office of the State Controller has stated that it does not have a person whose principal duties involve lobbying the General Assembly and, accordingly, has not requested the Secretary of State to accept the designation of any of these persons. The State Controller has, however, submitted the names of five individuals "who are authorized to represent the views of the [Office] before the General Assembly."
In light of the provisions of SL 2001-424, it is our opinion that none of these officers and employees of the State Board of Elections and Office of the State Controller may be designated as legislative liaisons under G.S. § 120-47.8(3)b. and that they are in fact fully exempt from the designation requirements. Absent lobbying as a principal duty, none meets the new definition of "legislative liaison personnel."
You note that the legislative framework existing prior to SL 2001-424, which did not limit the number of agency lobbyists and which did not classify agency lobbyists based on their primary duties, was beneficial to the legislature and agencies alike in that it identified all agency officers and employees authorized to represent and make commitments on behalf of agency heads. You ask if the Secretary of State has authority to implement the lobbyist registration statutes in a manner that would maintain this benefit. In this regard you suggest that the Secretary of State could maintain two lists of agency lobbyists: one comprised of those officers and employees of State departments and institutions for whom lobbying is a primary duty and the other comprised of those officers and employees for whom lobbying is not a primary duty but who are authorized by the agency or institution head to speak on behalf of the agency or institution.
In our opinion, the Secretary of State has legal authority to implement this proposal. The first list would, of course, constitute fulfillment of the obligation of the Secretary of State under SL 2001-424; the second list would constitute an exercise of the power of the Secretary of State under G.S. § 120-47.11 to make "rules, orders, forms, and definitions as are necessary to carry out the provisions of this Article."
Very truly yours,
Reginald L. Watkins Senior Deputy Attorney General
Sue Y. Little Assistant Attorney General
c: Edwin M. Speas, Jr. Chief Deputy Attorney General