This rule has been repealed.

(1) The 2002 rule revisions were the first substantive revision of the Montana Lobbyist Disclosure Act rules in 20 years. The 2002 revisions address inconsistencies and conflicts between the Act and previous rules, most of which were adopted in 1982. The commissioner of political practices determined that the 2002 rule changes only would be applied to legislative lobbying promoting or opposing the introduction or enactment of legislation before the legislature or legislators. Although rule language may appear to apply to non-legislative lobbying and legislative lobbying involving official action other than the introduction or enactment of legislation, the commissioner of political practices has determined that it is not possible to apply existing and new lobbying rules to these lobbying activities under the Montana supreme court decision in State Bar of Montana v. Krivec, 193 Mont. 477, 632 P.2d 707 (1981) . In Krivec, the court cited its 1903 decision in Bair v. Struck, 29 Mont. 45, 50, 74 P.69, 71, and applied the following definition of quasi-judicial functions:

"Quasi-judicial functions are those which lie midway between the judicial and ministerial ones. The line separating them...[is] necessarily indistinct; but, in general terms, when the law, in words or by implication, commits to any officer the duty of looking into facts, and acting upon them, not in a way which it specifically directs, but after a discretion in its nature judicial, the function is termed quasi-judicial...."

"Where a power rests in judgment or discretion, so that it is of a judicial nature or character, but does not involve the exercise of the functions of a judge, or is conferred upon an officer other than a judicial officer, the expression used is generally "quasi-judicial.... The officer may not in strictness be a judge; still, if his powers are discretionary, to be exerted or withheld according to his own view of what is necessary and proper, they are in their nature judicial. Id., at page 483."

The Krivec court declared that "when an attorney seeks to influence a public official exercising a quasi-judicial function who is acting in a matter or field in which the public official has discretion, such an attorney is not engaged in lobbying under the terms of the Initiative" (Id., at p. 484) . The court went on to recognize that legislators are public officials under 5-7-102 (13) , MCA, but the quasi-judicial function exemption does not prevent the reporting of lobbying expenditures to support or oppose the introduction or enactment of legislation under 5-7-102 (6) (a) , MCA, (Id.) . Based on Krivec, it is difficult if not impossible to discern what actions fall "midway between the judicial and ministerial ones" and do not involve some exercise of discretion. It appears that most lobbying activities, except for the practice of promoting or opposing the introduction or enactment of legislation before the legislature or legislators, are exempt from reporting under Krivec.

(2) Based on the preceding, the commissioner has attempted to clarify legislative lobbying issues relating to promoting or opposing the introduction or enactment of legislation in 2002 rulemaking. It likely will be necessary to seek clarification of non-legislative lobbying issues in a future legislative session. Until the quasi-judicial function exemption and other non-legislative lobbying provisions of the Act are revised, either legislatively or via court decision, the rules will not be applied to non-legislative lobbying activities.

(1) "Compensation" includes:

(a) all direct or indirect payments of salaries, fees, wages, and benefits by a principal to a lobbyist or an individual engaged in lobbying activities to lobby or to support or assist a lobbying activity. The term includes, but is not limited to, all payments made to a lobbyist or an individual engaged in lobbying activities to lobby or to support or assist a lobbying activity for overtime, compensatory time, retirement, health insurance, membership fees for social, civic and professional organizations, life insurance, professional liability insurance, unemployment, worker's compensation, personal use of a vehicle, rental car payments, disability insurance, and other benefits; and

(b) the term "compensation" does not include personal living expenses of a lobbyist or an individual engaged in lobbying activities that are reimbursed by a principal.

(2) "Direct communication" includes face-to-face meetings, telephone conversations, and written or electronic correspondence or communication with a public official.

(3) "Lobbying" shall have the definition set forth in 5-7-102 (11) (a) , MCA. Unless otherwise exempted from the definition of "lobbying" by Title 5, chapter 7, MCA, or this chapter, lobbying shall include:

(a) any direct communication by a lobbyist or an individual engaged in lobbying activities with a public official to promote or oppose official action;

(b) all time spent by a lobbyist or an individual engaged in lobbying activities to present oral or written testimony to one or more public officials promoting or opposing official action by any public official or group of public officials, including the legislature or a committee of the legislature; or

(c) signing a sign-in sheet as an opponent or proponent of official action at a legislative hearing.

(4) "Lobbying activity" or "lobbying activities" mean actions or efforts by a lobbyist or an individual to lobby or to support or assist lobbying, including preparation and planning activities after a decision has been made to support or oppose official action, and research and other background work that is intended, at the time it is performed, for use in lobbying or to support or assist lobbying activities. The terms "lobbying activity" or "lobbying activities" do not include:

(a) information or testimony submitted to the legislature or a legislative committee in response to a subpoena issued under 5-5-101 through 5-5-105 , MCA;

(b) actions of public officials in performing judicial, quasi-judicial, or ministerial acts; or the actions of any person to influence the actions of public officials in performing judicial, quasi-judicial, or ministerial acts ( 5-7-102 (16) , MCA) ;

(c) activities of an employee or representative of a radio, newspaper, magazine, television, cable television, or other medium of mass communication in gathering and disseminating news and information to the general public;

(d) activities involving a bona fide news story, commentary, or editorial distributed through the facilities of any radio, television, broadcasting station, newspaper, magazine; or other periodical publication of general circulation;

(e) activities involving communications by a membership organization or corporation to its members, shareholders, or employees;

(f) information or testimony compelled by statute, rule, executive order, or other action of the legislature, the governor, or a state agency, including information or testimony compelled by a state contract, grant, loan, permit, or license; or

(g) information or testimony provided in response to an oral or written request from a legislative committee, the legislature, or a public official made during a public hearing or other public proceeding if the information or testimony solicited during the public hearing or public proceeding does not support or oppose the official action under consideration.

(5) "Lobbyist" shall have the definition set forth in 5-7-102 (12) , MCA. The term "lobbyist" does not include:

(a) an individual lobbying or acting on his/her own behalf ( 5-7-102 (12) (b) (i) , MCA) ;

(b) a public official (including a legislator) , an elected local official, an elected federal official, or an elected tribal official who promotes or opposes the introduction or enactment of legislation before the legislature or the members of the legislature ( 5-7-102 (11) (b) , MCA) ;

(c) an individual working for the same principal as a licensed lobbyist if the individual does not have direct communication with a public official to support or oppose official action on behalf of the principal ( 5-7-102 (12) (b) (ii) , MCA) ; or

(d) an individual who receives payments from one or more persons that total less than the amount specified in 5-7-112 , MCA, in a calendar year ( 5-7-102 (12) (b) (iii) , MCA) .

(6) "Major effort to support, oppose, or modify official action" in 5-7-208 (5) (d) , MCA, means any official action on which a principal's lobbyist, employee, officer, agent, attorney, or representative engages in direct communication with any public official on two or more occasions to support, oppose, or modify the official action.

(7) "Official action" means a vote, decision, recommendation, approval, disapproval, or other action, including inaction, that involves the use of discretionary authority by the legislature or a member of the legislature concerning the introduction or enactment of legislation.

(8) "Payment" shall have the definitions set forth in 5-7-102 (13) , MCA. The term includes salary, fees, compensation, or anything of value to be paid to a lobbyist or an individual engaged in lobbying activities, pursuant to a contract, including payments to be made in the future, after services are rendered by the lobbyist or the individual engaged in lobbying activities. The term does not include payments or reimbursements for personal and necessary living expenses, but includes travel expenses if a principal is required to report payments pursuant to 5-7-208 , MCA.

(9) "Personal and necessary living expenses" means payments or reimbursement by a principal to a lobbyist or an individual engaged in lobbying activities for meals, food, lodging, or residential utilities.

(10) "Principal" shall have the definition set forth in 5-7-102 (15) , MCA.

(11) "Public official" shall have the definition set forth in 5-7-102 (16) , MCA, and as specifically designated in ARM 44.12.106 and 44.12.106A.

(12) "Travel expenses" means payments or reimbursement for transportation costs, including rental car payments.

(2) Except as provided in (3) , the records submitted to a principal by a lobbyist or an individual who is paid to lobby or who is paid to support or assist a lobbying activity must, for each reporting period specified in 5-7-208 , MCA:

(a) identify each calendar day on which the lobbyist or the individual was paid to lobby or to support or assist a lobbying activity;

(b) indicate the reportable time spent by a lobbyist or an individual lobbying or assisting or supporting a lobbying activity for each calendar day identified in (2) (a) ; and

(c) identify each official action on which the lobbyist or the individual lobbied or supported or assisted a lobbying activity during the reporting period. The official action identified under this subsection must include sufficient detail to enable a principal to file a report required by 5-7-208 (5) (d) , MCA, and ARM 44.12.202. The following are examples of official action descriptions that satisfy the requirements of this subsection:

(i) identification of proposed or introduced legislation by bill draft request number or bill or resolution numbers (e.g., opposed HB 62 or supported SB 381, with amendments) ; or

(ii) using descriptive phrases that adequately describe the official action supported, opposed, or modified (e.g., senate resolution 6, supported confirmation of Gayle Smith to be director of department of administration) .

(3) The daily itemization requirements of (2) (a) and (b) do not apply to a lobbyist or an individual engaged in lobbying activities if all compensation and reimbursement paid by a principal will be reported as provided in ARM 44.12.203(1) (a) , 44.12.205(1) and (2) , 44.12.207(2) (a) , or 44.12.211(1) (a) .

(2) All personal living expenses claimed by a lobbyist or an individual engaged in lobbying activities and reimbursed by a principal must be supported by a written receipt from the third party payee, except that a lobbyist or an individual engaged in lobbying activities may be reimbursed by a principal in an amount not to exceed $10 per day for incidental personal living expenses without a receipt from third party payees.

(3) If a lobbyist or an individual engaged in lobbying activities received payments for personal living expenses from more than one principal, the total payments made to the lobbyist or the individual engaged in lobbying activities for personal living expenses may not exceed 100% of the actual and necessary personal living expenses incurred by the lobbyist or the individual engaged in lobbying activities.

(4) Each principal making payments for the personal living expenses of a lobbyist or an individual engaged in lobbying activities may only withhold from reporting the principal's proportional share of the personal living expenses paid by the principal to the lobbyist or the individual engaged in lobbying activities.

(5) A lobbyist or an individual engaged in lobbying activities receiving payments for personal living expenses from more than one principal is responsible for reporting to each principal the total personal living expenses incurred by the lobbyist or the individual engaged in lobbying activities in each reporting period and the proportional amount of personal living expenses that each principal is obligated to pay. For example, Lobbyist J incurs $6,000 of personal living expenses in a legislative year. Lobbyist J is reimbursed for personal living expenses by four different principals and the four principals are responsible for paying the following proportional amounts:  Principal T (50%) ; Principal X (20%) ; Principal Y (20%) ; and Principal Z (10%) . The four principals are exempt from reporting the following payments to Lobbyist J for personal living expenses:

(a)      Principal T       (50%) ,       $3,000;

(b)      Principal X       (20%) ,       $1,200;

(c)      Principal Y        (20%) ,       $1,200; and

(d)      Principal Z        (10%) ,        $600.

(a) recommendations or reports to the legislature or a committee thereof, or a public official, in response to a request expressly requesting or directing a specific study, recommendation, or report by an agency on a particular subject;

(b) any duty that is mandated by law, rule, or executive order, such as the governor's annual message to the legislature;

(c) budget preparation activities related to preparation and submittal of the governor's executive budget as required by Article VI, section 9 of the Montana Constitution ( 5-7-211 , MCA) ;

(d) the actions of elected and appointed public officials designated in ARM 44.12.106 and 44.12.106A while acting in their official capacity for state government to promote or oppose the introduction or enactment of legislation before the legislature or the members of the legislature ( 5-7-102 (11) (b) , MCA) ; and

(e) information or testimony provided in response to a request from the legislature, a legislative committee, or a public official if the information or testimony does not support or oppose the official action under consideration.

(2)Except as provided in (1) and unless otherwise exempted by Title 5, chapter 7, MCA, or other provisions of this chapter:

(a) the employees, agents, officers, and attorneys of a public official designated in ARM 44.12.106 and 44.12.106A and a state agency defined in 2-15-102 (2) , MCA, who are paid, reimbursed, or retained to lobby must register as lobbyists if they receive payments equal to or greater than the amount specified under 5-7-112 , MCA; and

(b) each agency of state government and each office of a public official must file reports under Title 5, chapter 7, MCA, and these rules concerning the activities of their lobbyists or individuals who lobby or support or assist a lobbying activity. State agencies and the offices of elected or appointed public officials shall file consolidated lobbying reports covering the lobbying activities of all lobbyists or individuals engaged in lobbying activities as follows:

(i) The offices of an elected or appointed public official shall file a consolidated lobbying report covering the lobbying activities of all lobbyists or individuals who lobby or assist or support a lobbying activity. If an elected public official is a member of a multi-member tribunal (e.g., the Montana supreme court) or a board or commission (e.g., the Montana public service commission) , the tribunal, board, or commission shall file a consolidated report including the lobbying activities of the lobbyists or the individuals engaged in lobbying activities for each elected public official who is a member of the tribunal, board, or commission.

(ii) A state agency shall file a consolidated lobbying report covering the lobbying activities of all its lobbyists or individuals who lobby or support or assist a lobbying activity. However, a state agency may elect not to file a report concerning lobbying activities by boards, commissions, or entities that are attached for administrative purposes only as defined in 2-15-121 , MCA, or that have otherwise been granted autonomy to act under Montana law. If an agency elects not to include in its lobbying report the lobbying activities of any boards, commissions, or entities that are attached for administrative purposes only or entities that exercise autonomous powers, the agency shall specifically identify the boards, commissions, or entities not included in the state agency's lobbying report.

(a) the governor;

(b) the lieutenant governor;

(c) the secretary of state;

(d) the attorney general;

(e) the state auditor;

(f) the superintendent of public instruction;

(g) public service commissioners;

(h) justices of the supreme court;

(i) district court judges;

(j) the clerk of the supreme court; and

(k) legislators.

(a) any individual appointed to public office by the governor or the chief justice of the Montana supreme court and subject to Montana senate confirmation. This includes, but is not limited to, individuals appointed under 2-15-111 , 2-15-124 , 2-15-1505 , 2-15-1507 , 2-15-1707 , and 3-1-1001 through 3-1-1014 , MCA;

(b) the commissioner of political practices appointed under 13-37-102 , MCA;

(c) any individual appointed by the chief justice of the supreme court under 3-1-1001 , MCA;

(d) any individual appointed to serve as a member of the judicial nomination commission under 3-1-1001 , MCA;

(e) any individual appointed to serve as a member of the judicial standards commission under 3-1-1101 and 3-1-1102 , MCA;

(f) any individual appointed to serve as a member of the districting and apportionment commission under 5-1-101 and 5-1-102 , MCA;

(g) any individual who is appointed by the board of regents of higher education to serve as:

(i) the commissioner of higher education; or

(ii) the chief executive officer of a campus of the Montana university system; and

(h) any individual appointed by the board of trustees of a community college to serve as president.

(a) recommendations or reports to the legislature or a committee thereof, or a public official, in response to a request expressly requesting or directing a specific study, recommendation, or report by a state agency on a particular subject;

(b) any duty that is mandated by law, rule or executive order, such as the governor's annual message to the legislature;

(c) budget preparation activities related to preparation and submittal of the governor's executive budget as required by Article VI, section 9 of the Montana Constitution ( 5-7-211 , MCA) ;

(d) information or testimony provided in response to a request from the legislature, a legislative committee, or a public official if the information or testimony does not support or oppose the official action under consideration; and

(e) the actions of elected local officials while acting in their official capacity for a local government entity to promote or oppose the introduction or enactment of legislation before the legislature or the members of the legislature ( 5-7-102 (11) (b) , MCA) .

(2) Except as provided in (1) and unless otherwise exempted by Title 5, chapter 7, MCA, or other provisions of this chapter:

(a) the employees, agents, officers, and attorneys of a local government entity who are paid, reimbursed, or retained to lobby must register as lobbyists if they receive payments equal to or greater than the amount specified under 5-7-112 , MCA; and

(b) each local government entity must file reports under Title 5, chapter 7, MCA, and this chapter concerning the activities of their lobbyists or their individuals who lobby or support or assist a lobbying activity. Local government entities shall file consolidated lobbying reports covering the lobbying activities of all employees, officers, attorneys, and agents.

(1) As used in 5-7-208 (5) (c) , MCA, a contribution or membership fee is considered to be paid for the purpose of lobbying and therefore reportable by a principal if it is:

(a) solicited by the recipient to be used primarily for payment of lobbying expenses;

(b) paid to a group formed or existing primarily for the purpose of lobbying; or

(c) earmarked or intended by the donor to be used for payment of lobbying expenses.

(1) Pursuant to 5-7-208 , MCA, a principal who makes payments that exceed the amount specified in 5-7-112 , MCA, to one or more lobbyists or individuals engaged in lobbying activities during a calendar year shall report payments made to each lobbyist or individual for lobbying or to support or assist a lobbying activity as follows:

(a) To determine whether a principal has made payments exceeding the threshold amount in 5-7-112 , MCA, during a calendar year, the principal must include all payments made to lobbyists and to individuals engaged in lobbying activities, excluding payments or reimbursements for personal and necessary living and travel expenses.

(b) If a principal does not make payments that exceed the threshold amount in 5-7-112 , MCA, to one or more lobbyists or individuals engaged in lobbying activities during a calendar year as provided in (1) (a) , then the principal does not have to report any payments made.

(c) If a principal makes payments that exceed the threshold amount in 5-7-112 , MCA, to one or more lobbyists or individuals engaged in lobbying activities during a calendar year as provided in (1) (a) , then all payments (excluding personal and necessary living expenses) made to a lobbyist or an individual engaged in lobbying activities, including those payments excluded in determining whether the amount in 5-7-112 , MCA, was exceeded by the principal, must be reported under 5-7-208 , MCA, and these rules. Although travel expenses paid to a lobbyist or an individual engaged in lobbying activities are excluded from the threshold payment determination under (1) (a) , all payments or reimbursements for travel expenses to a lobbyist or an individual engaged in lobbying activities, including travel expense payments excluded from the determination of whether the amount in 5-7-112 , MCA, was exceeded by the principal, must be reported under 5-7-208 , MCA, and ARM 44.12.205(5) once payments to a lobbyist or for lobbying activities exceed the threshold amount for a calendar year as provided in 5-7-112 , MCA.

(2) Even if a principal declares that it made no payments for lobbying activities during a reporting period, a principal subject to the reporting requirements of 5-7-208 , MCA, must file a lobbying report as provided in 5-7-208 (4) , MCA.

(3) Principals must report each official action on which the principal's lobbyists or individuals engaged in lobbying activities exerted a major effort to support, oppose, or modify official action, together with a statement of the principal's position supporting or opposing the official action (5-7-208 (5) (d) , MCA) .

(4) Principals must identify each official action reportable under 5-7-208 (5) (d) , MCA, by using descriptive phrases, legislative bill draft request numbers, or legislative bill or resolution numbers as provided in ARM 44.12.103(2) (c) .

(5) A principal must retain all records supporting the reports filed under Title 5, chapter 7, MCA, for three years from the date of filing as required by 5-7-212 , MCA.

(1) Pursuant to 5-7-208(5) (a) , MCA, reports filed by principals shall disclose compensation paid to lobbyists in the following manner:

(a) If the compensation paid is a periodic, lump sum, or contingent fee and the primary purpose of the contract is for lobbying or to support or assist lobbying activities, the entire amount of the fee shall be reported.

(b) If the lobbyist or the individual engaged in lobbying activities is a salaried employee or officer of the principal, and his duties include lobbying or support or assistance for lobbying activities, the compensation may be allocated and reported on a daily basis or on an hourly basis based on the amount of time the lobbyist or the individual is engaged in lobbying or in supporting or assisting lobbying activities.

(c) If the compensation paid is a fee for services that includes lobbying or supporting or assisting lobbying activities but not as the primary purpose of the contract, either:

(i) the proportion of the total fee that equals the proportion of the total time spent lobbying or supporting or assisting lobbying activities on behalf of the principal shall be reported; or

(ii) if the principal is being billed on an hourly basis, the compensation paid for the actual time billed for lobbying or supporting or assisting lobbying activities on behalf of the principal shall be reported.

(2) In calculating and reporting compensation paid to a lobbyist or an individual for lobbying or to support or assist lobbying activities as provided in (1) (b) and (c) , a fraction of an hour for each day that a lobbyist or an individual lobbies or supports or assists lobbying activities shall be rounded up to the nearest quarter of an hour and so reported. For example, Lobbyist A reports to Principal White Hat that she spent the following time lobbying or assisting or supporting lobbying activities for the February 15 reporting period in a legislative year:

DATE�������������������������������HOURS

1/12����������������������������������3.2

1/13����������������������������������4.8

1/16����������������������������������2.1

1/28����������������������������������1.3

Total�������������������������������11.4

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Principal White Hat must, for each of the four days Lobbyist A engaged in lobbying or supported or assisted a lobbying activity, calculate and report Lobbyist A's time as follows:

�

DATE��������������������������������HOURS

1/12�����������������������������������3.2 is reported as 3.25

1/13�����������������������������������4.8 is reported as 5.00

1/16�����������������������������������2.1 is reported as 2.25

1/28�����������������������������������1.3 is reported as 1.50

Total��������������������������������11.4 is reported as 12.00

�

Principal White Hat must report 12 hours (not 11.4 hours) of time for Lobbyist A at the hourly compensation paid to Lobbyist A in the February 15 lobbying report.

(1) Pursuant to the operation specified in 5-7-112, MCA, the adjusted payment threshold for calendar years 2023 and 2024 is $2,900.

(2) If the lobbyist or the individual engaged in lobbying activities is being paid a periodic, lump sum, or contingent fee and the primary purpose of the contract is for lobbying services, all reimbursed expenses (excluding personal and necessary living expenses) shall be reported.

(3) If the lobbyist or the individual engaged in lobbying activities is being paid a fee and lobbying services are a part of the contract, only those expenses or the portion of them that are related to or incurred in lobbying or in providing support or assistance for a lobbying activity on behalf of the principal shall be reported (excluding personal and necessary living expenses) .

(4) If the expenses are incurred by a salaried employee or officer of the principal whose duties include lobbying, only those reimbursed expenses (excluding personal and necessary living expenses) or the proportion of them that are related to or incurred in lobbying or in providing support or assistance for a lobbying activity on behalf of the principal shall be reported.

(5) Travel expenses of a lobbyist or an individual engaged in lobbying activities that are paid or reimbursed by a principal shall not be included by the principal in calculating whether the threshold amount in 5-7-112 , MCA, has been exceeded by the principal. However, once a principal has made payments exceeding the amount in 5-7-112 , MCA, all travel expenses of a lobbyist or an individual engaged in lobbying activities that were paid or reimbursed by a principal (including those excluded in determining whether the amount in 5-7-112 , MCA, was exceeded by the principal) shall be reported by the principal.

(2) If a principal provides at the principal's expense office space, utilities, supplies, and equipment to a lobbyist or an individual to lobby or to support or assist a lobbying activity, the principal shall report the cost of providing such office space, utilities, supplies, and equipment as follows:

(a) If the actual cost of providing office space, utilities, supplies, and equipment can be determined and the actual cost is less than $5,000 for a reporting period, then actual cost may be reported. In the alternative, a principal may report that office space, utilities, supplies, and equipment were provided to a lobbyist or an individual engaged in lobbying activities during the reporting period and the cost of providing such office space, utilities, supplies, and equipment was:

(i) $1,000 or less for the reporting period; or

(ii) more than $1,000 but less than $5,000 for the reporting period.

(b) If the cost of providing office space, utilities, supplies, and equipment to a lobbyist or an individual engaged in lobbying activities during a reporting period is $5,000 or more, then the actual cost must be determined and provided.

(c) If the cost of providing office space, utilities, supplies, and equipment to a lobbyist or an individual engaged in lobbying activities is reported as provided in (2) (a) (i) or (ii) , the principal must make a good faith determination of such expenses and retain all calculations and records relied on as provided in ARM 44.12.202. If the actual cost of providing office space, utilities, supplies, and equipment can be determined but is not reported as provided in (2) (a) (i) and (ii) , the actual cost determination must be retained as a record under ARM 44.12.202.

(3) Nothing in this rule requires a principal to report the cost of office space, utilities, supplies, and equipment for a lobbyist or an individual engaged in lobbying activities if the lobbyist or the individual engaged in lobbying activities is responsible for paying the cost of the office space, supplies, equipment, and utilities out of the amount paid to the lobbyist or individual engaged in lobbying activities. If, however, the lobbyist or the individual engaged in lobbying activities is reimbursed by the principal for any office space, supplies, support personnel, equipment, or utility costs incurred as part of a lobbying activity, the amount of such reimbursement must be reported.

(a) if one or more public officials are invited and attend the event, all payments made by the principal, the lobbyist, or an individual engaged in lobbying activities for the benefit of the public officials who attend the event, including tips or gratuities, must be reported as a lobbying expenditure and, if applicable, itemized as provided in 5-7-208 (5) (b) , MCA, if:

(i) a principal's lobbyist, employee, officer, agent, attorney, or individual engaged in lobbying activities lobbies a public official during the event;

(ii) the event includes a program by a principal's lobbyist, employee, agent, attorney, or officer concerning proposed or pending official action; or

(iii) the event is paid for at the request or suggestion of a lobbyist or an individual for the purpose of supporting or assisting a lobbying activity.

(2) To determine whether the itemization requirements of 5-7-208 (5) (b) , MCA, apply, a principal shall calculate the benefit to a public official as follows:

(a) If the benefit to a public official can be determined based on actual expenditures made, then actual expenditures must be used to determine whether the itemization requirements of 5-7-208 (5) (b) , MCA, apply. For example, Principal White Hat's lobbyist takes two state representatives to dinner to lobby for their support of Principal White Hat's legislation. Rep. B orders a $30 dinner and $15 in drinks. Rep. S is ill and orders only a salad and a glass of milk (total cost for Rep. S, $6) . The lobbyist spends $26 on himself. The total bill, including tip, is $89. Principal White Hat must report $51 ($45 for Rep. B and $6 for Rep. S) , plus a proportionate share of the tip, as an entertainment expense and must report $45 plus a proportionate share of the tip as a benefit to Rep. B under 5-7-208 (5) (b) (i) , MCA. Rep. S does not have to be identified under 5-7-208 (5) (b) (i) , MCA, because the personal benefit to him was less than $25 and the $100 separate itemization requirement of 5-7-208 (5) (b) (ii) , MCA, does not apply because the event cost less than $100.

(b) If the benefit to a public official cannot be determined based on actual expenditures because of the size or type of event (e.g., a large reception for all 150 legislators with an open bar which is also attended by a large number of other lobbyists, principals, and friends) , the benefit to a public official in attendance shall be determined based on the total cost of the event, including tips or gratuities, divided by the total number of attendees. The per capita cost of the event becomes the benefit to each public official who attended the event. If the per capita cost of the event is $12 per person and 30 legislators attend the event, then $360 must be reported as an entertainment expense.

(a) if most or all of the time spent by a lobbyist or an individual during a reporting period is devoted to lobbying or supporting or assisting lobbying activities, the total sum of all compensation paid to the person during the period may be reported as lobbying payments;

(b) if less than all of the time spent by a lobbyist or an individual is devoted to lobbying or supporting or assisting lobbying activities, then the sum reportable may be calculated as the proportion of the total compensation paid that equals the proportion of the total hours or days spent lobbying or supporting or assisting lobbying activities during the reporting period. For example, if a lobbyist or an individual engaged in lobbying activities is paid $500 per week and spends the equivalent of two days lobbying or supporting or assisting lobbying activities, then $200 may be reported by his principal as lobbying payments; and

(c) office space, utilities, supplies, equipment, and salary payments made to support or assist a lobbyist or an individual engaged in lobbying or a lobbying activity may be reported as a proportion of total expenses for the reporting period. If it can be reasonably determined that a given proportion of total expenses during a period were related to lobbying or supporting or assisting lobbying activities, a principal may report the proportion of total expenses for the period that equals the proportion of time and budget spent on lobbying or supporting or assisting lobbying activities.

(2) A principal who uses the alternative reporting methods described in (1) (b) and (c) shall retain all calculations and records used to determine the amount reported as required by 5-7-212 , MCA, and ARM 44.12.202.

(a) The application must be accompanied by an application fee of $150 and by a principal authorization statement (form L-2) . An applicant may apply for a waiver of the fee based on hardship pursuant to the procedure set forth in (2) .

(b) A principal's authorization will not be approved if that principal has failed to file reports required by 5-7-208 , MCA.

(c) Upon approval of the lobbyist's application, payment of the $150 application fee, and filing of a principal's authorization statement, a license will be issued that entitles the lobbyist to practice lobbying on behalf of the principal or principals designated on the application.

(d) Licenses expire on December 31 of each even numbered year, or may be terminated earlier upon submission of a written request by the lobbyist. The commissioner is not authorized to refund the application fee or a portion of the fee if a license is terminated early upon the request of the lobbyist.

(2) An applicant who believes that payment of the application fee may constitute a hardship may request a waiver of the fee by filing a lobbyist license fee waiver request with the commissioner. The fee waiver request must include a detailed description of the circumstances that justify waiver of the fee, and must be accompanied by supporting evidentiary material. The commissioner may request additional information prior to making a determination.

(a) After considering the request and any accompanying evidentiary material, the commissioner may:

(i) deny the request;

(ii) waive the entire fee; or

(iii) waive a portion of the fee.

(b) The commissioner's decision will be based on consideration of factors including but not limited to:

(i) whether the applicant is a full-time or part-time lobbyist;

(ii) whether the applicant is employed or retained by more than one principal;

(iii) the amount of compensation received by the applicant through lobbying compared to compensation received through other employment or business activities within the preceding 12 months; and

(iv) the total amount of compensation for lobbying received by the applicant during the preceding 12 months.

(3) An applicant who is denied a license for any reason other than those provided in (1) (b) or (2) may request a hearing by submitting a written request with the commissioner. Upon receipt of a request the commissioner shall, within ten days of the filing of the application, hold an informal contested case hearing as provided in Title 2, chapter 4, part 6, MCA, and issue a decision.

(2) A complaint shall be typewritten or legibly handwritten in ink. The complete name and mailing address of the person filing the complaint shall be typewritten or legibly hand printed on the complaint; and the complaint shall be signed and verified by the oath or affirmation of such person, taken before any officer authorized to administer oaths. A complaint shall name the alleged violator, and should include the complete mailing address of the alleged violator, if known or readily discoverable.

(3) Upon receipt of a complaint, the commissioner shall investigate, except as provided in (4) , the alleged violation. The commissioner, upon completion of the investigation, shall prepare a written summary of facts and statement of findings, which shall be sent to the complainant and the alleged violator. Following the issuance of a summary of facts and statement of findings, the commissioner may take other appropriate action.

(4) No investigation shall be required if a complaint is frivolous on its face, illegible, too indefinite, does not identify the alleged violator, is unsigned, or is not verified by oath or affirmation of such person, taken before any officer authorized to administer oaths. In addition, no investigation shall be required if the complaint does not contain sufficient allegations to enable the commissioner to determine that it states a potential violation of a statute or rule within the commissioner's jurisdiction.

(5) A filed complaint and the summary of facts and statement of findings shall be public record.

(2) Such audits shall be conducted during normal and reasonable business hours and under circumstances that will ensure minimal disruption of business affairs.

(3) The information or materials involved in such audits shall not be made public by the commissioner unless the audit results in formal administrative or legal action, and then only to the extent necessary to accomplish such action.

(2) A person against whom a civil penalty is imposed may request a hearing to contest the penalty by filing a written request for a hearing with the commissioner within ten days after receiving notice of imposition of the penalty.

(3) Upon receipt of a timely request for a hearing the commissioner will schedule an informal contested case hearing and will issue a notice of hearing specifying the date, time, and place of the hearing.

(4) A person who has requested a hearing will be given the option of waiving an in-person hearing by filing a written waiver form that will be provided by the commissioner. A person who waives an in-person hearing will be given an opportunity to submit a written statement or argument to the commissioner, in lieu of appearing in person to present evidence or arguments.

(5) An in-person hearing will be conducted pursuant to the procedure specified in 2-4-604 , MCA.

(6) The commissioner will consider any facts or circumstances in mitigation of the penalty through the evidence, statements, or arguments presented at the hearing or submitted by a person who has waived a hearing, and will issue a written decision, which will be a final decision in a contested case.

(7) A person who is aggrieved by the commissioner's decision may seek judicial review pursuant to Title 2, chapter 4, part 7, MCA.