New ethics law’s Jan. 1 start creates uncertainty for lobbyists, legislators

When the lights come up on the 2014 legislative session, lobbyists and lawmakers will remain in the dark about how to navigate new ethics rules that take effect Jan. 1 but won’t be interpreted by ethics regulators until much later.

The new ethics rules, approved by lawmakers this year, have already spawned a number of questions. Among them: Does the bill include an inadvertent exemption that allows lobbyists who are lawyers to avoid registering and disclosing their spending? Do lobbyists who are state employees have to register? Does the new $75 cap on lobbyist gifts to lawmakers apply to each individual instance or could a lobbyist, for example, spend $75 on drinks and another $75 on dinner?

Those kinds of questions are typically answered by the state ethics commission. But until Jan. 1, commission members and executives say their hands are tied.

“We can take a look at it, but I don’t think we can have a hearing to publicly discuss it or post comments until we have rule-making authority,” Executive Director Holly LaBerge told The Atlanta Journal-Constitution on Wednesday.

One of the key elements of House Bill 142, which Gov. Nathan Deal is expected to sign next week, is that it restores the state ethics commission’s rule-making authority. This ability to write regulations and interpret the law was taken away in 2009 when the commission interpreted the law governing campaign travel in a way that angered then-House Speaker Glenn Richardson, R-Hiram.

Without this basic function that nearly every state agency has, the commission has been unable to create rules that would make the law easier to follow and to enforce.

HB 142 gives the commission that power again, but it will remain out of reach until Jan. 1. LaBerge said she broached the subject during negotiations with lawmakers.

“This is something I raised the question of, maybe staggering the implementation,” LaBerge said.

House leaders, however, say past ethics bills took effect on the first day of the following legislative session and that Jan. 1 actually represents an earlier start. The 2014 legislative session will begin Jan. 13.

Since losing rule-making power, the commission has used advisory opinions to try to guide elected officials and lobbyists on the law’s requirements. But those opinions are often written for specific situations and are difficult to apply broadly. But even an advisory opinion is not possible in this case, LaBerge said.

“We would be asked to offer an opinion on a law that doesn’t take effect yet,” she said.

Rick Thompson, a past commission director, said the agency should not wait to get started.

“The commission should start drafting proposed rules as soon as the legislation is signed,” Thompson said.

To adopt new rules, the commission must post drafts on its website for 30 days and take public comment. The panel must then meet in public and vote to approve them. Thompson said while that official process cannot begin until 2014, the commission “can start the process and provide the public direction, which although may not be a rule yet, will be soon.”

While LaBerge said the commission can’t resolve many of the substantial questions before the law goes into effect, it will begin preparing for the new law this summer.

“There’s work we can do behind the scenes,” she said. “I don’t want people to think we’re going to sit around for eight months.”

Commission Chairman Kevin Abernethy told the AJC the agency’s first priority will be to update rules that were adopted before 2009. Several of those regulations are no longer consistent with state law, he and LaBerge said. Staff will work this summer and fall to develop draft rules that can be posted Jan. 1, but it will be February before the commission could approve them.

Either way, it will be the middle of the 2014 legislative session or beyond before HB 142’s new requirements will be addressed.

Some lobbyists, however, aren’t terribly concerned.

“They should proceed very deliberately,” Robert Highsmith, a veteran of the lobbyist corps, said. “I’m all for it, particularly on an issue that’s gotten a lot of attention.”

While there are questions about the new rules, Highsmith said lobbyists should proceed with caution and not put themselves in a position to violate the rules no matter how uncertain the footing.

“Anybody who plays those sorts of games deserves what happens to them,” Highsmith said.

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