Moratorium called for in dealing with Ethics Commission

Lobbyists association asks members to cease asking Ethics Commission for written advisory opinions

04-29-2008 3:49 PM —

The Tennessee Lobbyist Association (TLA) has called upon its members to refrain from seeking advisory opinions from the Tennessee Ethics Commission for the foreseeable future.

In an e-mail sent to members of the TLA by their chairperson Anne Carr, she states, "After consultation with our capable lobbyist, Mark Greene, and several other TLA members who have been paying close attention to TEC member and staff activity, I respectfully suggest that our membership refrain from seeking advisory opinions from the Commission for the foreseeable future.'

When asked about reason for the moratorium, Carr said "There is a growing concern among TLA members that the TEC staff are drifting away from interpreting the law and towards making policy."

Carr stated that while the staff of the commission has been exceptionally helpful with answering questions on the phone, it is the written advisory opinions that have people concerned and the lack of input sought by the staff.

It has been the practice of the staff of the TEC to post advisory opinions on their website that have not been voted on or approved by the members of the ethics commission. Several lobbyists have also told NashvillePost.com that when one lobbyist asks for an opinion that affects others, the TEC staff, led by Bruce Androphy, operates in a vacuum.

One lobbyist told NashvillePost.com, "They work on a question for a month or more without speaking with anyone other than the one person who sought an opinion, doing so without taking into consideration that others are affected. The first we hear on some of their explanations behind their opinions is at a monthly meeting that we have no reasonable way to prepare. Some of the reasons that are put forward, well they are just from left field."

The source then cited a letter sent by Androphy last year to the governor's office asking whom he had met with on health care issues to see if they were registered lobbyists, and if not, if they had violated the ethics laws. The group was actually there to express their concerns about the shortage of nurses in Tennessee.

The moratorium called for by the TLA carries no consequences, and states, "Obviously, you have every right to do so as you see fit. However, we are in a period of some uncertainty with regard to a number of major issues, and it seems advisable to try to delay or at least coordinate such requests to the extent that it's possible to do so. You should absolutely continue to reach out to TEC staff for assistance with reports or with any questions that may arise about how to ensure compliance with the statute."

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rebecca.bradley@state.tn.us States:

Posted on 5/1/2008 9:04 am

As the Executive Director of the Tennessee Ethics Commission, I would like to respond to your recent article about TLA Chairperson Carr calling upon her members to refrain from seeking advisory opinions from the Commission for the foreseeable future.

First, Ms. Carr recognizes the exceptionally helpful Commission staff. The staff handles numerous and complex inquiries from lobbyists, employers and public officials on a new and difficult law. Both Chair Don Hall and I are extremely proud of the work of the staff in assisting the regulated communities in navigating the Ethics Law and its many mandates.

Throughout the first year and a half of its existence, the Commission staff has worked closely with the TLA in such areas as random lobbyist audits, lobbyist training, and recommending changes to the law. I, personally, made myself available to conduct mandatory lobbyist training at the TLA's annual retreat at Montgomery Bell State Park. And in response to the lobbyist complaints about the cost of the mandatory training class, the Commission lowered the training fee for 2008 as well as making lobbying training more available by video-conference. While we have agreed to disagree at times, the level of communication and cooperation between the Commission staff and the TLA has been exemplary.

The Commission staff is not authorized under the law to issue formal advisory opinions which must be voted upon by the Commission members at its public meetings. In the spirit of openness, the Commission makes draft advisory opinions available on its website prior to Commission meetings although it is not legally obligated to do so. The Commission has liberally permitted TLA members to address the Commission, again in the spirit of openness, although the Commission is not legally bound to do so.

The Commission would certainly subject itself to criticism and it would run counter to the Reform Act's mandate that the Commission be an independent body if it permitted the TLA to vet opinions before they are issued. A more vexing problem is that it would be hard to determine if the TLA was speaking for all lobbyists, only for lobbyists with many clients, or contract lobbyists, for in-house lobbyists, or some combination of these groups. The majority of registered lobbyists may not even be members of the TLA. On many issues facing the Commission, such as whether lobbyists may sign campaign contribution checks for PACs or whether indirect lobbying requires one to register, I have heard different opinions from members of the lobbying community.

Finally, Ms. Carr says that the staff's legal analyses are "drifting away from interpreting the law and towards making policy," yet there is no specific criticism of the methods used in those analyses. This criticism has been leveled for years against courts and agencies at all levels including the United States Supreme Court. Such criticism can be valid or invalid depending on the specific analysis in question. However, when the blanket statement is made without identifying any fundamental flaws in the legal analysis, the criticism is not worthy of serious consideration.

The draft opinions use canons of statutory interpretation which are accepted by the courts of Tennessee. Regardless of the results reached, I am proud that a number of opinions issued by the Commission have cited case law and made use of these canons as appropriate.

Bruce A. Androphy
Executive Director
Tennessee Ethics Commission
201 4th Avenue North, Suite 1820
Nashville, TN 37243
Bruce.Androphy@state.tn.us
(615) 253-2666 office
(615) 613-2347 cell

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