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December 1, 2013
Lobbyists: Get your paperwork in order

By Jan Pudlow
Senior Editor

With a clear mandate from the Senate president and House speaker, the Joint Legislative Auditing Committee hurriedly passed guidelines November 4 on how lobbying firm compensation reports should be filed and audited.

In a September 26 letter, Senate President Don Gaetz and House Speaker Will Weatherford noted the Legislature’s “failure to audit lobbyist compensation reports as required by Florida law.”

“We commend this committee for its willingness to take on this matter and your leadership in elevating this topic as part of the Legislature’s continuing commitment to ethics reform,” said the letter that went on to outline actions that should begin “immediately.”

Lobbyists will have another year to make sure their paperwork is in order before the random audits begin in 2015 to check whether they are reporting accurately the lobbying done for both legislative and executive branches.

Though the lobbying disclosure law (Chapter 2005-359) was passed in 2005 as part of ethics reform to bring transparency to influence-peddling in state government, and the auditing provisions became effective February 15, 2007, the required audits never occurred.

Florida Bar Ethics Counsel Elizabeth Tarbert said the new guidelines do not change her bottom-line advice for lawyer-lobbyists that can be found on the Bar’s website at www.floridabar.org.

“Lawyers should be careful about how they keep their lobbying records,” Tarbert said. “The audit guidelines allow lawyers to redact information. Many lawyers have very detailed time records, sometimes noting even the lawyers’ thought processes and the client’s objectives.

“That information is not what the Legislature is looking for. The Legislature is looking for a record of the agreement between the lobbyist and the client, who is referred to as the principal. It could be a fixed, flat fee. It could be based on an hourly charge. If it’s a flat fee, the auditors don’t need anything more than receipts. And if the lobbyist got reimbursed for costs, such as plane fare, they would need those receipts.”

As detailed under “Questions and Answers on Ethical Implications of the New Lobbyist Disclosure Statute,” on the Bar’s website, lawyers who are lobbyists “must obtain the consent of each client for whom the lawyer performs lobbying services as defined in the statute in order to comply with the statute’s disclosure requirements.”

“It is wise, though not required, for a lawyer to put that in the contract,” Tarbert said.

Currently, there are 430 legislative branch lobbying firms and 348 executive branch lobbying firms, said Joint Legislative Auditing Committee Chair Joseph Abruzzo. He said “all firms are filing compensation forms. Some may file late, but there is 100 percent compliance.”

He went on to explain that the law requires that a random sample of 3 percent of legislative branch lobbying firms and 3 percent of executive branch lobbying firms be selected for audits, and that would total 24 audits per year.

Auditor General David Martin explained the use of random number generators, and his staff members demonstrated how that would work in selecting lobbyists for audits.

“This is one area that some have addressed concerns,” Abruzzo said at the October 7 meeting, “that we as legislators or the leadership, if they get upset with one lobbyist could use it and say, ‘Aha! We’re going to come in and audit you.’ I stand firm that we should do it in a way that is completely fair for all lobbying firms.”

But it was clear that not everyone on the committee is a fan of the reporting and auditing requirements estimated to cost $1.2 million each year.

Sen. Jeremy Ring, D-Margate, an entrepreneur, said: “I understand we are just trying to implement the statute, but it just seems quite odd to me that we are getting into the business of auditing a private business.”

Abruzzo, a Democratic businessman from Wellington, replied: “I say this sincerely; someone could always file a repealer bill,” noting that the joint auditing committee cannot file bills.

Sen. Alan Hays, R-Umatilla, a retired dentist who is now a certified circuit court civil mediator, asked: “What are we accomplishing? . . . Are we spending $1 million for a good purpose or are we just blowing the money?”

Hays directed that question to Hubert “Bo” Bohannon, chair of the Florida Association of Professional Lobbyists.

“I think we can achieve clarity,” Bohannon answered. “In terms of executive branch lobbying versus legislative branch lobbying, there’s some clarity that needs to be established. . . . Many do a blend. Let us be sure we are reporting accurately at the front end of that process.”

Hays continued: “Do you think then the next step for the Legislature would be to reach out to — pick an industry: office supplies or some other type of business, dental practices. Do you think I am likely to be the next examination of the state for them to dig down in my business? If we have chicken farmers over there, do we need to know how many eggs he counted last night?

“What benefit are my taxpayers going to gain from having this information, and is it worth the price we are going to have to pay to get it?”

Bohannon replied: “That’s a difficult question to answer. It’s clearly in the eyes of the beholder. From our standpoint, we don’t want any negatives associated with the lobbying profession. We would do whatever the law requires and go beyond that to prove that we are doing a public service and we are compensated for that.”

[Revised: 09-15-2014]