On November 30, 1998, Common Cause Minnesota ("Common Cause"), filed a complaint with the Campaign Finance and Public Disclosure Board ("Board") alleging that a legislative dinner to be hosted by Education Minnesota on December 8, 1998, would violate Minn. Stat. 10A.071, the statute that prohibits gifts by lobbyist principals to public officials.

In an effort to avoid a potential violation of the gift prohibition, Board staff notified Education Minnesota of the complaint and advised Education Minnesota concerning the Board's position regarding meals given to officials at meetings. On December 1, 1998, staff notified Common Cause that the Board could not investigate an event which had not yet occurred. Staff also advised Common Cause of the staff conversations with Education Minnesota and notified Common Cause that it would be contacted after the date of the event to determine if Common Cause wished to proceed with the complaint.

On December 2, 1998, Common Cause submitted another letter alleging that Education Minnesota was attempting to circumvent the gift prohibition in a revised invitation letter to legislators regarding the December 8, 1998, dinner.

After the December 8 event, Common Cause advised the Board that it wanted to proceed with its complaint. On January 25, 1999, Common Cause advised the Board that additional legislative dinners, similar to the December 8 event, had been held. Common Cause expanded its complaint to include 12 additional dinners that were identified in an Education Minnesota document it had obtained.

Education Minnesota was notified of the allegations in the complaint. Harley Ogata, attorney for Education Minnesota, replied by letters dated January 11, and February 5, 1999. Education Minnesota voluntarily disclosed that additional dinners not identified in the expanded complaint had been held. The Board investigation was extended to all of Education Minnesota's Winter 1998-99 legislative dinners. At Board request, Education Minnesota provided a list of legislators attending each of the dinners. The list detailed which legislators ate the meal and whether or not each paid for the meal. Also at Board request, Education Minnesota provided copies of sample invitation letters and the agenda for each dinner.

Education Minnesota representatives testified that as a result of conversations with Board staff before the December 8 dinner, each legislator who attended any dinner was advised that they were attending to speak and answer questions before the group as part of the program.

After Education Minnesota received notice of the Board investigation, it advised each legislator who attended one of the dinners of the alleged violation of Minnesota Statutes 10A.071. Each legislator was also informed that they could pay for the meal thus removing it from the definition of a gift. This statement was made as the result of communication with Board staff.

It is the Board's position that consideration for an item or benefit must be contemporaneous with the giving of the item or benefit in order to remove it from the definition of a gift. However, this position is stated in advisory opinions and has not been promulgated as an administrative rule. The statute itself provides that payment of consideration removes in item from the definition of a gift, but is silent on when that consideration must be paid.

Although the complaint was against Education Minnesota only, the Board expanded its investigation to include those legislators who attended a dinner, ate the meal, and did not pay for it. Those legislators, numbering 15, were asked to provide information regarding their participation. Responses concerning their participation were received from six legislators. Two other legislators responded by stating that Common Cause had presented no evidence regarding its allegations and that, as a result, the Board had no basis for a finding of probable cause that a violation had occurred even without a response from the attendees.

The matter was considered by the Board in executive session on February 26, 1999, at which time representatives appeared on behalf of Common Cause and Education Minnesota to present testimony. The matter was further considered by the Board at each of its meetings through the August 24, 1999, meeting. The record on which the Board reaches its determination consists of the compliant and amendments thereto, the responses from Education Minnesota and legislators, documents provided by both parties, and testimony presented.

1. Education Minnesota is a lobbyist principal as defined in Minn. Stat. 10A.01, subd. 28.

 

2. During the Winter of 1998-1999 Education Minnesota hosted 16 legislative dinners throughout the state. Each of Minnesota's 201 legislators were invited to one of the dinners. Of the invitees, 76 legislators attended a dinner, 63 of those ate the meal and 48 paid for the meal.
3. Fifteen legislators attended a dinner, ate the meal, and did not pay. This group of participants involved eight different dinners, held in Willmar, Hibbing, St. Cloud, Brainerd, Anoka, Proctor, Thief River Falls, and Bloomington.
4. Invitation to each of the dinners was by means of a letter to the legislators in the districts included in the geographical area for which the dinner was held. In most cases a printed agenda for the dinner program was available.
6. Information concerning the text of the invitation letters and agendas for the eight subject dinners is as follows:

1. Education Minnesota representatives testified that after Board staff notified them of concerns with the meetings, they contacted anticipated attendees and advised them that each was expected to participate in the program by speaking to the group and being prepared to answer questions.

 

2. Representatives for Education Minnesota who were present at the dinners provided affidavits stating that each attending legislator made a speech and participated in the question and answer segment of the program.

 

3. Each legislator who responded to the Board's request for information stated that he or she made a speech and participated in a question and answer segment as part of the program. The level of participation of the responding legislators varied, but in each case the legislator's statement included details suggesting that the participation was significant and meaningful.

 

4. In support of its allegations, Common Cause Minnesota provided copies of two letters of invitation and a printed publication of Education Minnesota listing the dates and locations of certain legislative dinners.

1. It is the Board's position that the exception to the gift prohibition applicable to meals provided to an official who "appears to make a speech or answer questions as part of a program" is intended to be limited to the one or two keynote or principal speakers or to members of a formal panel at an event, not to multiple speakers who are invited en masse to dinners and accept the invitation by showing up and speaking or answering questions.

 

2. The Board's position has been expressed in increasingly clear terms in advisory opinions. However, the Board has not yet promulgated this position in the form of an administrative rule.

 

3. The Legislature, aware of the Board's series of opinions on the subject, has not clarified the statute either in the direction of the Board's opinions or in the direction of a more liberal interpretation. However, the Board notes that efforts at clarification began in the 1999 legislative session and may be taken up again.

 

4. The exception presented in Minn. Stat. 10A.01, subd. 3(a)(7), could reasonably and appropriately be interpreted to apply only to keynote or principal speakers or members of a formal panel as the Board has suggested. However, it could also be interpreted to require a less formal participation by a greater number of participants.
5. The written materials about the eight meetings which are the subjects of this investigation vary in how Education Minnesota's expectation about the events was conveyed to the invited legislators. However, agendas for five of the eight include a specific time for guest speakers or remarks and list the expected speakers by name. In one of the remaining meetings, the letter was clear that the legislator was to address the group and answer questions.
6. Regardless of the written materials, it appears from the record that each attendee was verbally advised that part of the reason for the legislator's participation was to make formal remarks and answer questions. All of the legislators who responded regarding their participation confirmed that they did, in fact, make a speech as part of the program. Finally, representatives of Education Minnesota who attended each of the meetings stated under oath that each attending legislator spoke and answered questions.
7. The provision of complementary meals under the conditions described in this matter does not meet the standard the Board has interpreted the statute as requiring, for application of the exception provided in Minn. Stat. 10A.071, subd. 3(a)(7). Nevertheless, the Board is aware that principals of law or policy expressed in advisory opinions may not be given general application without enactment of an administrative rule. In light of that fact, and taking all of the circumstances as a whole, the Board concludes that the events minimally meet the stated statutory requirements for application of the exception.

 

8. The Board notes that the complaint itself was submitted with no facts or evidence to support it. Its factual contentions consisted solely of the complainant's assumptions based on two sample invitation letters. Its legal contentions were based on a series of Board advisory opinions.

 

9. There is no statutory or administrative rule that provides a sufficient basis to find probable cause that Education Minnesota or a legislator attending an Education Minnesota legislative dinner that is a subject of this complaint, violated Minn. Stat. 10A.071 in connection with the giving and accepting of the meal. Thus, a finding of no probable cause is made.

Dated: August 24, 1999

Sidney Pauly, chair

Campaign Finance and Public Disclosure Board