(1) Where an
expenditure is made to a person other than the agency official or employee by a
lobbyist or principal, where the expenditure or the benefit of the expenditure
ultimately is received by the agency official or employee, and where the
expenditure is provided with the intent to benefit the agency official or
employee, such expenditure will be considered a prohibited indirect expenditure
to the agency official or employee.
(2) Where an expenditure or the benefit of an
expenditure is made to an agency official or employee by someone other than a
lobbyist or principal, but the expenditure has been provided by or paid for by
a lobbyist or principal who intends thereby to benefit the agency official or
employee, such expenditure will be considered a prohibited indirect expenditure
to the agency official or employee.
(3) Factors which the Commission will
consider in determining whether a prohibited indirect expenditure has been made
include but are not limited to:
(a) The
existence or nonexistence of communications by the lobbyist or principal, or by
the intervening third person, indicating the lobbyist's or principal's intent
to make or convey the expenditure to the agency official or employee rather
than to the intervening third person;
(b) The existence or nonexistence of any
relationship between the lobbyist or principal and the third person,
independent of the relationship between the lobbyist or principal and the
agency official or employee, that would motivate an expenditure to the third
person;
(c) The existence or
nonexistence of any relationship between the third person and the agency
official or employee that would motivate the expenditure;
(d) Whether the same or similar expenditures
have been or are being provided to other persons having the same relationship
to the lobbyist or principal as the third person;
(e) Whether, under the circumstances, the
third person had full and independent decision-making authority to determine
whether the agency official or employee, or another, would receive the benefit
of the expenditure;
(f) Whether the
third person was acting with the knowledge or consent of, or under the
direction of, the lobbyist or principal;
(g) Whether there were or were intended any
payments or bookkeeping transactions between the third person and the lobbyist
or principal reimbursing the third person for the expenditure; and
(h) The degree of ownership or control the
lobbyist or principal has over the third person.
(4) The provisions of this rule may be
illustrated by the following examples:
Example 1: A law firm which lobbies the agency of Agency
Employee A ("A") invites all of its attorneys to attend a weekend retreat. The
attorneys are encouraged to bring their spouses or significant others at the
firm's expense. A is married to an attorney in the firm and has been asked by
her spouse to attend the retreat. The lodging, meals, and entertainment
provided to A for the weekend retreat would not be considered a prohibited
indirect expenditure to A because the firm's invitation was to A's spouse
through his employment with the firm.
Example 2: Agency Official B ("B") hosts a turkey shoot
attended by other agency officials and employees. Lobbyists who lobby the
agency of B give money to a third person, who is not an agency official or
employee, to pay for the food and beverages which will be served at the turkey
shoot. B orders and prepares the food and beverages. The money provided to the
third person by the lobbyists would be a prohibited indirect expenditure to B,
because it was given with the intent of benefiting B and his guests at the
turkey shoot.
Example 3: Agency Official C ("C") and C's spouse have
arranged to take a trip to New York City. A lobbyist who lobbies C's agency
meets with the spouse and offers her theater tickets. The lobbyist and C's
spouse know each other only through the lobbyist's involvement with C. The
theater tickets would be a prohibited indirect expenditure to
C.
