State of Alaska

Department of Administration

Alaska Public Offices Commission

Alaska Department of Administration, Alaska Public Offices Commission

AO 08-01-LOB

Number:           AO 08-01-LOB

Requested by:   Michael J. Hurley
                          On Behalf of Conoco Philips as an Employer of Lobbyist

Prepared by:    Brooke Miles
                          Executive Director

Date issued:      January 30, 2008

Subject:    Regarding the media campaign currently being conducted by ConocoPhillips Alaska, Inc. (Conoco) regarding their proposal to the State of Alaska for an alternative approach to gasline development outside the framework of the Alaska Gasline Inducement Act (AGIA). You have asked if Conoco’s costs connected with this media campaign are reportable under the Lobbying Law (AS 24.45).

This letter responds to your January 18, 2008 email requesting an Advisory Opinion regarding the media campaign currently being conducted by ConocoPhillips Alaska, Inc.  (Conoco) regarding their proposal to the State of Alaska for an alternative approach to gasline development outside the framework of the Alaska Gasline Inducement Act (AGIA).  You have asked if Conoco’s costs connected with this media campaign are reportable under the Lobbying Law (AS 24.45). 

Question:

  1. Are Conoco’s costs connected with this media campaign reportable under the Lobbying Law (AS 24.45)?

Short Answer

The short answer to your question is yes.  These costs are connected with Conoco’s lobbying efforts, and as such are reportable on the Employer of Lobbyist Report Schedule B even though the campaign does not explicitly urge others to contact public officials in support of Conoco’s position. 

Law

AS 24.45.061 requires employers of lobbyists to report the total amount of payments made to influence administrative or legislative action during the reporting period.  AS 24.45.061(3). 

AS 24.45.171(1) defines "administrative action" as “the proposal, drafting, development, consideration, amendment, adoption, approval, promulgation, issuance, modification, rejection, or postponement by any state agency of any rule or regulation, or any other quasi-legislative or quasi-judicial action or proceeding whether or not governed by AS 44.62 (Administrative Procedure Act); “administrative action” does not include

  • (A) a proceeding or an action to determine the rights or duties of a person under existing statutes, regulations, or policies;

  • (B) the issuance, amendment, or revocation of a permit, license, or entitlement for use under existing statutes, regulations, or policies by the agency authorized to issue, amend, or revoke the permit, license, or entitlement for use;

  • (C) the enforcement of compliance with existing law or the imposition of sanctions for a violation of existing law;

  • (D) procurement activity, including the purchase or sale of property, goods, or services by the agency or the award of a grant contract;

  • (E) the issuance of, or ensuring compliance with, an opinion or activity related to a collective bargaining agreement including negotiating or enforcing the agreement;”

AS 24.45.171(9) defines "legislative action" as “the preparation, research, drafting, introduction, consideration, modification, amendment, approval, passage, enactment, defeat, or rejection of any bill, resolution, amendment, motion, report, nomination, appointment, or other matter by the legislature, or by a standing, interim, or special committee of the legislature, or by a member or employee of the legislature acting in an official capacity; it includes, but is not limited to, the action of the governor in approving or vetoing a bill or the action of the legislature in considering, overriding, or sustaining that veto and the action of the legislature in considering, confirming, or rejecting an executive appointment of the governor;”

AS 24.45.071(11) defines “payment to influence legislative or administrative action as:

  • (A) a direct or indirect payment to a lobbyist whether for salary, fee, compensation for expenses, or any other purpose, by a person employing, retaining, or contracting for the services of the lobbyist separately or jointly with other persons;

  • (B) a payment in support of or assistance to a lobbyist or the lobbyist's activities, including but not limited to the direct payment of expenses incurred at the request or suggestion of the lobbyist;

  • (C) a payment that directly benefits a public official or a member of the immediate family of that official;

  • (D) a payment, including compensation, payment, or reimbursement for the services, time, or expenses of an employee for or in connection with direct communication with a public official;

  • (E) a payment for or in connection with soliciting or urging other persons to enter into direct communication with a public official;

  • (F) a payment or reimbursement for expenses in the categories set out in AS 24.45.051(2);

Facts

Conoco is an employer of lobbyists, subject to the reporting requirements under AS 24.45.061. 

Conoco is expending funds to inform Alaskans about its natural gasline proposal that did not comply with the AGIA requirements.  Conoco is currently paying for print, sound, and video advertisements that promote the Conoco’s Alaska North Slope natural gas pipeline proposal.  The advertisements do not explicitly urge the reader, listener, or viewer to contact public officials. 

Conoco is communicating with legislative and executive branch officials regarding their proposal for a natural gas pipeline.  To date there are five lobbyists registered to lobby on oil and gas issues for Conoco.

Analysis:

A media campaign need not explicitly solicit or urge others to communicate with public officials in order to support or assist a lobbyist’s activities.  The advertisements have closely tracked the status of Conoco’s alternative ANS natural gas pipeline proposal based on reactions from the Governor and the Alaska Legislature. Initial advertisements included summary information about the proposal, copies of correspondence to the Governor and encouragement to visit Conoco’s ANSNatural gas pipeline web site. Based on recent correspondence from the Governor rejecting Conoco’s proposed alternative, the advertisements have changed, with a current print ad stating  “Disappointed not discouraged.”  These advertisements clearly and strongly support attempts by Conoco’s lobbyists to influence legislative and/or administrative action toward acceptance of Conoco’s proposed alternative plan for an Alaska North Slope (ANS) natural gas pipeline. 

All of the materials contained in the advertisements and on the web site to which they refer state clearly that Conoco’s goal is to obtain the support of the Administration and the Legislature to reach the objective of “… a successful final project development and an efficiently operating ANS gas pipeline…” (Page 9 ConocoPhillips Proposal 11/30/07). In a January 24, 2008 letter from Conoco’s president Jim Bowles to Governor Palin, Mr. Bowles asks the governor to: “give our proposal fair and thorough consideration as a viable alternative, and empower a team to review our gas fiscal framework proposal and develop a mutually acceptable solution.”  He further states: “We plan to continue our public outreach effort regarding the merits of our proposal and look forward to your favorable consideration of our response.” It appears evident that the purpose of the advertisements is to support and assist Conoco’s lobbying activities with respect to their proposed alternative project. Under AS 24.45.071(11) (B), these are reportable expenditures.  

Although there is no current legislation regarding the Conoco’s natural gas pipeline proposal, Conoco has a substantial interest in such legislation being written and introduced.  To this end, Conoco has provided presentations to the legislature regarding their natural gasline project proposal.  See House and Senate Resource Committee schedules for January 23, 2008. This presentation falls under the statutory definition of influencing administrative or legislative action and was given by Brian Wenzel, who is registered as a lobbyist for Conoco. This lends further support to APOC’s interpretation that the advertising campaign must be reported as a payment “in support of or assistance to a lobbyist or the lobbyist’s activities.”  AS 24.45.071(B).  

In closing, a reasonable question to ask in determining whether these advertisements are subject to disclosure under the lobbying law is “why is Conoco conducting the advertising campaign?”  One answer is to inform the public about the non-AGIA compliant proposal offered by Conoco, but ultimately, to what purpose?  As stated above, the information and evidence clearly demonstrate that these advertisements support and assist Conoco’s lobbyists in their efforts to influence administrative and legislative action. 

. . . .

Conclusion

The advertisements sponsored by Conoco regarding their proposal for a natural gas pipeline project including development of fiscal terms to facilitate construction of that project constitute expenditures in support of or assistance to Conoco’s lobbyists’ activities and must be reported on the Employer of Lobbyist Report Schedule B per AS 24.45.071(11)(B).

The Commission approved the advice in this letter by an affirmative vote of 4-0 on February 6, 2008. The advice in this opinion applies only to the specific activity for which the advice was requested.

A copy of the original letter requesting the above advisory opinion is available upon request at the Alaska Public Offices Commission. Call (907)276-4176 or (800)478-4176.