I. INTRODUCTION AND BACKGOUND
The purpose of this memo is to provide background and a compliance primer on North Dakota’s lobbyist-public official gift rules.
The North Dakota Ethics Commission (hereinafter, the “Commission”) was created by passage of initiated measure 1 in 2018, which created Article XIV of the North Dakota Constitution. In 2019, the North Dakota Legislature passed House Bill 1521, creating a new statute that implements the article.1 In October 2020, the Commission adopted lobbyist-public official gift rules, and the Commission amended the gift rules in July 2021. Here is the most recent version of the gift rules.
II. COMPLIANCE PRIMER
In short, a lobbyist may not give a gift to a public official if given in conjunction with lobbying the public official unless it meets one of eight exceptions.
A. General Rule: Gifts Between Lobbyists and Public Officials Prohibited
The general rule prohibiting lobbyists from giving gifts to public officials provides:
A lobbyist may not knowingly give, offer, solicit, initiate, or facilitate a gift to a public
official in conjunction with any effort by the lobbyist to lobby the public official. A public official may not knowingly accept a gift from a lobbyist offered in conjunction with the lobbyist efforts to lobby the public official.2
The rule is a limitation on lobbyists—not on other individuals or organizations. So it’s critical to understand what a “lobbyist” is. For purposes of gifting, there are four types of activities that determine if you are a lobbyist (not merely whether you are registered or not):
a. Attempt to secure the passage, amendment, or defeat of any legislation by the
legislative assembly or the approval or veto of any legislation by the governor
of the state.
b. Attempt to influence decisions made by the legislative management or by an
interim committee of the legislative management.
c. Attempt to secure passage, amendment, or defeat of any administrative rule or
regulation by any department, agency of the state’s executive branch.
d. Attempt to otherwise influence public official action or decision.3
If you do any of these four activities, you are a “lobbyist” and subject to the gifting rules—regardless of whether or not you register yourself as a lobbyist.
Under the rules, a lobbyist is prohibited from giving a gift to a public official when the gift is given “in conjunction with any effort by the lobbyist to lobby the public official.” Presumably then, a lobbyist may give a gift to a public official, if the gift is not given “in conjunction with any effort by the lobbyist to lobby the public official.” Therefore, you must determine if you are performing any activity within (a) through (d) above. If you are performing one of these activities at a certain time, you may not give, offer, solicit, initiate, or facilitate any gift to a public official at that time. We advise to err on the side of caution as there have been no enforcement actions or advisory opinions providing
guidance on this question.
The rules are also a limitation on public officials, which is not simply anyone who works for the state or a political subdivision. Rather a public official is an “elected or appointed official of the state’s executive or legislative branch, including members of ethics commission, members of the governor’s cabinet, and employees of the legislative branch.”4 This definition includes executive branch boards and commissions. The definition does not, however, capture employees of the governor’s office who
are not cabinet officials, nor does the definition include executive branch employees—e.g. civil servants—who are not appointed, but rather hired in a normal course of public employment.
All in all, as you have read, there are many elements to determine if you are a lobbyist in the course of lobbying. Here are the questions you need to ask yourself when considering giving something of value to a public official:
Are you a lobbyist?
Is the gift going to be given in conjunction with the effort to lobby or not?
Is the recipient of the gift a public official?
Once you have answers to these questions, then you will be able to determine if the gifting rules apply to your situation or not.
B. Eight Exceptions to the General Rule
The Commission has adopted eight exceptions to the lobbyist-public official gift prohibition.5 The following list provides what types of activities are allowed:
A gift by a lobbyist who is a member of the public official’s immediate family.6
Any item given where the public official is paying fair market value for the item.7
Purely informational material.8
A campaign contribution that is given in accordance with all applicable state laws, rules, and regulations governing campaign contributions.9
Reimbursement or payment for transportation, lodging costs, and meal costs not to exceed rates as authorized under North Dakota century code section 44-08-04 and office of management and budget Fiscal Policy #505 to facilitate attendance to a public or private educational and social event10 within the state, if the public official meaningfully participates in the event as a speaker or panel participant, presenter, or ceremonial event appropriate to the position, or if attendance is appropriate to the performance of official duties.11
Gifts or other things of value shared as a cultural or social norm as part of a public or private social and educational event.12
Food and beverage served for immediate consumption at any private or public social and educational event.13
To qualify as a private social and educational event, the event must (a) be by invitation to North Dakota residents, (b) be held within North Dakota, (c) include an educational component and not be limited to a social event, and (d) include at least one state resident in addition to the lobbyist and public officials. This key exception to the lobbyist gift rules allows lobbyists to invite and host public officials at events where food and beverages are served. For example, under this exception, a lobbyist may take public officials out to dinner or host public officials at a client’s banquet or reception. There is no dollar cap on these food and beverage expenditures.
A public social and educational event differs from a private social and educational event in only one way–the public event is open to any state residents.
Prior to a private or public social and educational event, the lobbyist or event sponsor must file a notice with the Commission detailing the event.14 The notice form is available here.
8. Food or beverage with a value of ten dollars or less, excluding gratuity, purchased for a public official in conjunction with an informal social and educational event15. The purchased food and beverage must be consumed during the event. A state resident must be present but is not required to be the purchaser of the food or beverage.16
III. CONCLUSION
To determine whether the gift rules apply, simply ask yourself the following questions:
Are you a lobbyist?
Is the gift going to be given in conjunction with the effort to lobby or not?
Is the recipient of the gift a public official?
Do one of the eight exceptions apply?
Once you have answered these questions, you will know what activities are allowed and what activities are prohibited. That said, any analysis under these rules is very fact specific, and we recommend you consult with GA Group if you have even a small question about your compliance with the rules.
Cites
1 N.D.C.C. ch. 54-66 (“State Government Ethics”).
2 N.D. Admin. Code § 115-03-01-02(1) (italics added).
3 N.D. Admin. Code § 115-03-01-01(4).
4 N.D. Admin. Code § 115-03-01-01(8).
5 See N.D. Admin. Code § 115-03-01-03.
6 N.D. Admin. Code § 115-03-01-03(1) (“Immediate family” means a parent; sibling; child by blood, adoption, or marriage; spouse; grandparent; or child. N.D. Admin. Code § 115-03-01-01(1)).
7 N.D. Admin. Code § 115-03-01-03(2).
8 N.D. Admin. Code § 115-03-01-03(3).
9 N.D. Admin. Code § 115-03-01-03(4).
10 “Private social and educational event” is any social and educational event that is held within the state and attendance is by invitation to state residents and others who are members, employees, or affiliated with a sponsoring public or private
organization, entity, or association. The event must include an educational component and not be limited to a social event. The lobbyist required to register under North Dakota century code chapter 54-05.1, and the public officials may not be the only state residents in attendance. N.D. Admin. Code § 115-03-01 01(7).
“Public social and educational event” is any social and educational event that is held within the state and attendance is open to any state residents and others. The event must include an educational component and not be limited to a social
event. The lobbyist required to register under North Dakota century code chapter 54-05.1, and the public officials may not be the only state residents in attendance. N.D. Admin. Code § 115-03-01-01(8).
11 N.D. Admin. Code § 115-03-01-03(5).
12 N.D. Admin. Code § 115-03-01-03(6).
13 N.D. Admin. Code § 115-03-01-03(7).
14 N.D. Admin. Code § 115-03-01-04(1).
15 “Informal social and educational event” is any meeting, session, or interaction occurring within the state between a public official and a state resident, including but not limited to a registered lobbyist who is a state resident, for the purpose
of educating the public official on a matter or interest of concern.
16 N.D. Admin. Code § 115-03-01-03(8).
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