2011-08-16 - WRITTEN OPINIONS

2011-08-16. WRITTEN OPINIONS

GARY O. BARTLETT

Executive Director

MAILING ADDRESS:

P.O. BOX 27255

RALEIGH, NC 27611-7255

August 16, 2011

Mr. Marlowe Foster

1908 Garden City Ct.

Raleigh, NC 27604

Re: Request for Advisory Opinion

Dear Mr. Foster:

I write in response to your request for an advisory opinion pursuant to N.C. Gen. Stat. § 163278.23. By email on July 1, 2011, and in subsequent communications you requested guidance on several matters related to your intent to seek public office while being a registered lobbyist. More specifically, you pose three questions. I will address each question separately below.

1. Jason Schrader has indicated that once I file a candidate committee, I am allowed to raise money. However, until I file a formal candidacy, I am not allowed to contribute to my own committee. Is that correct?

Answer: Yes. Based on your Statement of Organization received in our office on July 13, 2011, you are seeking the statewide office of Commissioner of Labor. Pursuant to N.C.G.S. § 163-278.13C, a lobbyist is prohibited from making a contribution to a candidate or candidate campaign committee if that candidate is seeking a legislative office or seeking to be a member of the Council of State. Additionally, a lobbyist may not collect contributions from multiple contributors and transfer those contributions to a candidate or candidate campaign committee when the candidate is a legislator or candidate for a legislative seat or member of the Council of State or candidate seeking to be a member of the Council of State.

N.C.G.S. § 163-278.13C(c) provides that the prohibition against the lobbyist making a contribution does not apply to his/her own candidate campaign committee if the lobbyist has filed a notice of candidacy for office under N.C.G.S. § 163-106 or Article 11 of Chapter 163 of the General Statutes or has been nominated under N.C.G.S. § 163-114 or N.C.G.S § 163-98. Since you have only organized your candidate committee and not met the other requirements of N.C.G.S. § 163-278.13C(c), then you may not make any contribution, including in-kind contributions, to your candidate campaign committee.

2. As a registered lobbyist and a member of the State Banking Commission, are there any limitations on my ability to solicit contributions during legislative session? If so, what are they specifically? In addition, is there any difference between normally scheduled legislative sessions or special sessions that are being scheduled (i.e. the special session that begins on September 13, 2011)?

Answer: This response only addresses your questions as they relate to campaign finance issues. You will need to contact the State Ethics Commission to receive guidance on any limitations resulting from your position on the State Banking Commission and any additional lobbyist restrictions under their jurisdiction. You may also wish to consult with the Secretary of State's Office with respect to any lobbyist restrictions they may administer.

Pursuant to N.C.G.S. § 163-278.13B, a registered lobbyist is considered a "limited contributor." A "limited contributee" is by statutory definition a member or candidate for the General Assembly or a member of or candidate for the Council of State. Since you are a candidate for the Council of State and a registered lobbyist, you meet both statutory definitions.1 Therefore, during regular sessions of the General Assembly, as a "limited contributee" you would be prohibited from soliciting contributions from any "limited contributors" and soliciting any third parties to solicit contributions from "limited contributors." In more general terms this means that as a lobbyist you are prohibited during regular sessions of the General Assembly from not only making contributions to candidates and members of the General Assembly and Council of State, including your own committee, but also soliciting contributions from any individual or political committee on behalf of your committee or any other candidate or member of the General Assembly or Council of State. As a candidate for the Council of State, during regular legislative sessions, you are further prohibited from soliciting a contribution from a PAC that employs a lobbyist or soliciting a third party to make that solicitation on your behalf.

You also request guidance on the differences between regular and special sessions of the General Assembly. As defined in N.C.G.S. § 163-278.13B(a)(3), "The General Assembly is in 'regular session' from the date set by law or resolution that the General Assembly convenes until the General Assembly either adjourns since die or recesses or adjourns for more than 10 days." Other than a lobbyist making or bundling contributions to candidates or members of the General Assembly or Council of State, the other prohibitions discussed above only apply during regular sessions of the General Assembly.

1 "The term 'candidate' means any individual who, with respect to a public office listed in G.S. 163-278.6(18), has taken positive action for the purpose of bringing about that individual's nomination or election to public office. Examples of positive action include:

a. Filing a notice of candidacy or a petition requesting to be a candidate,

b. Being certified as a nominee of a political party for a vacancy,

c. Otherwise qualifying as a candidate in a manner authorized by law,

d. Making a public announcement of a definite intent to run for public office in a particular election, or

e. Receiving funds or making payments or giving the consent for anyone else to receive funds or transfer anything of value for the purpose of bringing about that individual's nomination or election to office. Transferring anything of value includes incurring an obligation to transfer anything of value." N.C.G.S. § 163-278.6(4)

I have included a copy of an advisory opinion that I provided to Jason Kay, General Counsel to Speaker Thorn Tillis, regarding fundraising after the General Assembly has recessed until a date certain to convene the regular session.

3. My employment includes a company car which can be usedfor both work and personal. What limitations are there on the use of the vehicle from a State Board of Elections perspective and what must I do to ensure compliance with all campaign finance laws?

Answer: As you are aware, business contributions to candidate committees are prohibited. This prohibition includes in-kind business contributions. In order to determine if the use of your company car for campaign purposes would be considered a business contribution, your company's policy regarding personal vehicle use was reviewed. According to the policy and your email responses, as part of your compensation package you are permitted to utilize the company vehicle for personal purposes. You are required to pay $115 per month for this use and are required to report personal mileage "through an on-line system for tax purposes." You further state that "The gas, maintenance and insurance is included with employment and is covered by the employer through Wheels which manages the fleet." The policy does not address and you have advised that the company does not have a personal mileage cap but the costs for excessive personal mileage are deducted from employees pay checks in November or December. Therefore, since the use of the vehicle is part of your personal compensation and because personal mileage outside of that personal compensation would be deducted from your compensation, I do not believe the use of the vehicle constitutes an impermissible corporate contribution.

However, as provided in question one of this opinion, until you file a notice of candidacy for Commissioner of Labor you are prohibited from making contributions to your Committee. This prohibition includes making in-kind contributions. Therefore, during this time period, campaign travel cannot be paid through your compensation or by you personally. Use of the company vehicle for campaign purposes would need to be paid for by the Committee. As we discussed, the Committee may wish to rent a vehicle or a contributor could provide an in-kind contribution of the use of a vehicle as long as the fair market value of the vehicle, gas, etc. did not exceed the contributor's contribution limitation. Your spouse, parents and siblings can make unlimited contributions to your Committee.

At a meeting in this office on August 10th, you asked about any issues regarding your work schedule and campaigning. You stated that you do not have a set work schedule and therefore could be campaigning during the normal business day. I advised you at that time to keep a log of the hours you campaign during the work week so that you can ensure your campaign work does not overlap with time you are being paid by Pfizer. Additionally, you asked about the permissibility of utilizing email addresses you have obtained through your professional work. These email addresses were not provided by Pfizer but you personally have maintained a list of your contacts. The use of these email addresses is not a violation of any campaign finance statute.

This opinion is based upon the information provided in your July 1, 2011, request for advisory opinion, additional emails and the meeting on August 10, 2011. If any information in that request should change, you should consult with our office to ensure that this opinion would still be binding. Finally, this opinion will be filed with the Codifier of Rules to be published unedited in the North Carolina Register and the North Carolina Administrative Code.

If you have any further questions, please contact me or Kim Strach, Deputy Director-Campaign Finance.

Sincerely,

@#23#@

Gary O. Bartlett

Executive Director

cc: Julian Mann, Codifier of Rules

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