Representing Others Before Government

May, 2004

Many states restrict legislators from representing others before state government in certain cases. Most restrictions only apply when compensation is involved. Restrictions include bans on: appearing on behalf of a client before specified state agencies, representing others before the legislature, and exercising improper influence in representing another before the state. Some states require disclosure of these activities in addition to, or instead of, restricting them. Below is a summary of state policies.

General Restrictions: At least 18 states restrict legislators from representing others before state agencies in some cases. In Illinois, New Jersey and Washington, the restrictions pertain to both volunteer representations and those for which a fee is given. The remaining 15 states only restrict representation for compensation. These states are: Arkansas, Connecticut, Florida, Hawaii, Kansas, Kentucky, Maine, Maryland, Massachusetts, New Mexico, South Carolina, Texas, Wisconsin, Hawaii and Missouri. Kansas only restricts legislators from receiving contingent compensation for this practice.

No state has a blanket ban. Several states forbid legislators from representing a person before some, but not all, agencies. Ministerial matters, those involving constituents, judicial proceedings, and workers’ compensation cases are often exempt. “Ministerial” matters typically do not involve the discretion of the state agency, and could include filing corporation charters, reports, tax returns or applications to participate in programs.

Four states that restrict representing others for compensation before state agencies exempt lawyers and other professionals whose livelihood depends on the practice. These states are Maine, Maryland, New Mexico and Texas. Maine and New Mexico forbid legislators who must appear before a state agency for their career from mentioning that they are legislators. New Mexico further bans the use of the threat or promise of official action to influence a state agency decision.

Representing Before Employing Agency or Body: Seven states forbid public officials or state employees from representing another before the agency or body for which he is employed, and two more states specifically prohibit legislators from lobbying the legislature for compensation during their term. These amount to similar provisions as far as legislators are concerned. Arizona, Louisiana, Mississippi, Nevada, Ohio, Oklahoma and Rhode Island are the seven. The additional two states are Arkansas and Hawaii.

Improper Influence: Illinois and Kansas have provisions in place to prevent legislators or their associates from accepting a representation case if there is reason to believe it is being offered to him or her in order to improperly influence the state agency’s decision. Compensation doesn’t matter in these provisions, although in Kansas, the legislator also has to believe the case is “obviously without merit.” Illinois goes further to suggest that associates of legislators follow the same rule. “No person with whom a legislator maintains a close economic association should accept a representation case where there is substantial reason for him to believe that it is being offered with intent to obtain improper influence over a state agency,” the statute says.

Disclosure: Sixteen states require disclosure of information about cases in which a legislator - or, in one case, a legislator’s business partner - represented another before a state agency. These states are Alabama, Alaska, Indiana, Hawaii, Kansas, Kentucky, Maine, Maryland, Minnesota, Mississippi, Nevada, New Mexico, Oklahoma, South Carolina, Texas and Virginia. In Kentucky, legislators are banned from this practice in most cases, but if their business partners appear before a state agency on behalf of another person, the legislator must disclose related information. Generally, these states require disclosure of the name of the person represented, the agency before which the legislator or his business associate appeared and the subject matter of the case.

Eight states that restrict representing others before government also require disclosure. These states are: Hawaii, Kansas, Kentucky, Maine, Maryland, New Mexico, South Carolina and Texas.

Appearing as an Expert Witness: At least two states ban legislators from appearing as expert witnesses before a state agency. Kentucky bans this outright. Rhode Island forbids public officials and state employees from appearing as a witness before their employing agency if the official or employee would be hurt or helped by the outcome of the decision. Rhode Island only allows business associates of the official or employer to appear as a witness if he discloses his connection to the official or employee and if the official or employee agrees to recuse himself from voting on the matter.

Guidance: Kentucky and Illinois statutes include guidelines for legislators. In Kentucky, the law says legislators shall consider:

Whether the matter is being brought to him in attempt to obtain improper influence over the state agency;
Whether there is a reasonable possibility that the action of the state agency will be unduly influenced because of his participation; and
The effect of his participation on public confidence in the integrity of the Legislature.

In Illinois, for example, no legislator should accept a representation case unless he believes there is merit to the position he is asked to represent. And a legislator shall, wherever feasible, arrange for other persons to make appearances before the state agency.

For more information, contact the Center for Ethics in Government at (303) 364-7700.

Center for Ethics in Government