Volume 43 - Issue 36 - September 5, 2024

State of Kansas

Governmental Ethics Commission

Opinion No. 2024-02

Written August 28, 2024 to John Cozine, Esq., State and Federal Communications, Inc., 222 S. Main St., Suite 300, Akron, OH 44308.

Synopsis: A person must register as a lobbyist in Kansas if they expend more than $1,000.00 for lobbying on behalf of a client, regardless of whether the legislature is in session. The process for a nonprofit organization to register a lobbyist is no different than the process for any other person under K.S.A. 46-265. EdChoice does not fall within the narrow K.S.A. 46-237(h) exception for entities established to serve, inform, educate, and strengthen legislatures in all states.

Cited herein: K.S.A. 46-222, K.S.A. 46-223, K.S.A. 46-225, K.S.A. 46-228, K.S.A. 46-237, K.S.A. 46-265.

Dear Mr. Cozine,

In response to your May 7, 2024, email request, this opinion is provided by the Kansas Governmental Ethics Commission (“Commission”), concerning application of the state governmental ethics law, K.S.A. 46-214a et seq. The Commission’s jurisdiction is limited to applicability of this law. This opinion, provided pursuant to K.S.A. 46-254, does not address whether some other statutory system, common law theory, agency rule, or regulation applies to your inquiry.

Factual Statement

EdChoice is a 501(c)(3) nonprofit organization that promotes state programs to expand school choice policies. EdChoice offers an “annual educational program” to which all Kansas legislators may be invited to. Legislators may participate in the program by offering their opinions on educational choice policies and how such policies have impacted Kansas. EdChoice would like to pay for the invited Kansas legislators to attend its annual program. This would include covering travel, lodging, food, and beverage for the legislators.

Questions

1. If EdChoice exceeds the $1,000.00 registration threshold within K.S.A. 46-222(a)(3), is EdChoice required to register a lobbyist even if the legislature is no longer in session when the expenditures are made?
2. If EdChoice is required to register a lobbyist, do any additional steps need to be taken to register a nonprofit organization as opposed to registering any other person?
3. Would EdChoice be permitted to pay for Kansas legislators’ travel, lodging, food, and beverage under the K.S.A. 46-237(h) exception?

Analysis and Opinion

1. If EdChoice exceeds the $1,000.00 registration threshold within K.S.A. 46-222(a)(3), is EdChoice required to register a lobbyist even if the legislature is no longer in session when the expenditures are made?

K.S.A. 46-222(a) lists four actions that could render a person a “lobbyist” under Kansas law. Relevant here, K.S.A. 46-222(a)(3) states that a lobbyist includes “any person who makes expenditures in an aggregate amount of $1,000 or more, exclusive of personal travel and subsistence expenses, in any calendar year for lobbying[.]” K.S.A. 46-223 defines “person” to mean “an individual, proprietorship, partnership, limited partnership, association, trust, estate, business trust, group, or corporation, whether or not operated for profit, or a governmental agency unit, or subdivision.” Finally, K.S.A. 46-265 requires every lobbyist in Kansas to register with the Secretary of State.

EdChoice, as a nonprofit organization, is a “person” under K.S.A. 46-223. The first question posed is whether EdChoice expending over $1,000.00 on lobbying outside of the duration of the regular session changes whether it must register a lobbyist.

The test of K.S.A. 46-222(a)(3) is indifferent to whether the Legislature is in session or not. The only deciding factor is whether the $1,000.00 expense threshold for lobbying is exceeded. The question, as posed, indicates that $1,000.00 would be expended for lobbying. Consequently, if EdChoice exceeds the $1,000.00 registration threshold within K.S.A. 46-222(a)(3), then it must register as a lobbyist with the Kansas Secretary of State.

2. If EdChoice is required to register a lobbyist, do any additional steps need to be taken to register a nonprofit organization as opposed to registering any other person?

Additionally, a nonprofit organization does not register any differently than any other person under Kansas law. EdChoice must select an individual representative to register as a lobbyist in Kansas and that representative would list EdChoice as the “person compensating the lobbyist for lobbying” pursuant to K.S.A. 46-265(a).

3. Would EdChoice be permitted to pay for Kansas legislators’ travel, lodging, food, and beverage under the K.S.A. 46-237(h) exception?

Based on the additional information submitted by EdChoice, it does not appear that EdChoice was established to serve, inform, educate, and strengthen legislatures in all states. Instead, EdChoice was established to advocate for certain education policies. “Serving, informing, educating and strengthening” is specific and narrow language and a national, nonprofit, nonpartisan organization seeking the K.S.A. 46-237(h) exception must have been established for all four reasons.

For the foregoing reasons, the Commission finds that EdChoice does not meet the K.S.A. 46-237(h) exception. So, Kansas legislators may not be offered, nor may they accept the payment of their travel and lodging to the EdChoice annual program.

Sincerely,

Nick Hale, Chairman
By Direction of the Commission

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