• Advisory Opinion 2024-001 (pdf)

February 12, 2024

Questions Presented

An LSC grantee received a written, unsolicited invitation from a government agency to become one of twelve members of a task force with a written mandate to study the agency’s delivery of public services, recommend improvements, and help implement those improvements. The task force plans one activity—recommending rulemaking to the inviting agency—that would be restricted under 45 C.F.R. § 1612.3 if conducted by an LSC grantee.

1. Do the Part 1612 lobbying restrictions permit the grantee to become a member of this task force notwithstanding its planned recommendation of rulemaking?
    
2. While serving as a member of the task force, could the grantee comply with the Part 1612 lobbying restrictions by recusing and dissociating itself from the task force’s recommendation of rulemaking?
    
3. While serving as a member of the task force, could the grantee comply with the Part 1612 lobbying restrictions by using non-LSC funds to participate in the task force’s recommendation of rulemaking pursuant to the § 1612.6(a) exception for responding to a written, unsolicited, government request?

Brief Answers

1. Yes, the grantee may participate as a member of this task force that plans to recommend rulemaking, which would be a restricted administrative activity under 45 C.F.R. § 1612.3 if conducted by an LSC grantee. Under these circumstances, the grantee must either recuse itself from the recommendation of rulemaking or the rulemaking activity must meet all of the regulatory requirements of an applicable exception in 45 C.F.R. Part 1612.
    
2. Yes, the grantee could comply with the Part 1612 lobbying restrictions while serving as a member of this task force by recusing itself from the recommendation of rulemaking. Recusal requires that the grantee does not participate in the task force’s recommendation of rulemaking, clearly notifies the task force about its recusal, and takes reasonable steps to prevent its association with or the use of its resources for the recommendation of rulemaking.
    
3. Yes, if the rulemaking activity meets all of the regulatory requirements, the grantee could comply with the Part 1612 lobbying restrictions without recusal by using non-LSC funds to participate in the task force’s recommendation of rulemaking pursuant to the § 1612.6(a) exception for responding to a written, unsolicited, government request.

The grantee must document its actions and the funds used for each situation involving the recommendation of rulemaking by the task force. 45 C.F.R. Part 1630. For activities undertaken pursuant to the § 1612.6(a) exception, the grantee must also document compliance with all requirements of the applicable exception, maintain records, and provide reports as required by §§ 1612.6(d) and 1612.10.

If the task force engages in multiple activities restricted by § 1612.3, the grantee must conduct the analysis above for each individual lobbying activity separately. For example, if the task force engages in a different lobbying activity that does not qualify for any exception in Part 1612, the grantee must recuse itself from that other lobbying activity regardless of how it handled the recommendation of rulemaking.

Additionally, this analysis applies to the other two exceptions in § 1612.6 involving the use of non-LSC funds by a grantee for commenting on public rulemaking and for communicating with State or local governments about funding for the grantee. Id. § 1612.6(e) & (f).

The LSC Lobbying Rule

Generally, Part 1612 of LSC’s regulations “prohibit[s] attempts to influence government decisionmaking through communications addressing actions the government should or should not take.” AO-2014-005 (June 9, 2014). Nonetheless, “[t]he restrictions do not prohibit creating or distributing information about the impact and effects of actual or potential government actions, so long as that information does not advocate outcomes of government decisionmaking.” Id.

Section 1612.3 sets out the restrictions on legislative or administrative activities (lobbying activities). It implements the statutory prohibitions on grantee “attempts to influence”:

• “passage or defeat of any legislation or constitutional amendment”
• “[a]ny initiative, or any referendum or any similar procedure of [any] governing body acting in any legislative capacity;”
• legislation “appropriating funds to” an LSC grantee or LSC;
• legislation “defining or limiting the functions or authority of” an LSC grantee or LSC;”
• “oversight proceedings concerning” an LSC grantee or LSC;
• “rulemaking” by an agency; or
• “the issuance, amendment or revocation of any executive order.”

45 C.F.R. § 1612.3. Except as otherwise provided, these restrictions on lobbying activities apply to all activities of a grantee, regardless of the source of funding. Id. § 1612.6 (exceptions for limited uses of non-LSC funds); see also id. § 1610.4 (application of LSC restrictions to non-LSC funds).

Section 1612.6 sets out three separate exceptions to the prohibitions in § 1612.3. These exceptions allow a grantee to use non-LSC funds to engage in activities normally prohibited by § 1612.3 if the grantee is:

1. responding to a written, unsolicited, government request;
2. “provid[ing] oral or written comment to an agency and its staff in a public rulemaking proceeding”; or
3. “contact[ing] or communicat[ing] with, or respond[ing] to a request from, a State or local government agency, a State or local legislative body or committee, or a member thereof, regarding funding for the recipient [grantee] . . . .”

Id. § 1612.6(a)–(c), (e), (f). Grantees conducting activities pursuant to the § 1612.6 exceptions must comply with the documentation and reporting requirements in §§ 1612.6(d) and 1612.10.

This task force situation would qualify for the first exception for responding to a written, unsolicited government request with non-LSC funds if it meets the following requirements:

• The request is “written.”
• The request came “from a governmental agency or official thereof, elected official, legislative body, committee, or member thereof . . . .”
• The grantee did not “solicit or arrange for [the] request.”
• The request was “made to the employee [of the grantee], or to the [grantee] . . . .”
• The request asked the grantee to:
  1. “Testify orally or in writing;” or
  2. “Provide information which may include analysis of or comments upon existing or proposed rules, regulations or legislation, or drafts of proposed rules, regulations or legislation;” or
  3. “Participate in negotiated rulemaking under the Negotiated Rulemaking Act of 1990, 5 U.S.C. 561, et seq., or comparable State or local laws.”
• The grantee’s response to the request is “distributed only to”:
  • “the party or parties that made the request and”
  • “to other persons or entities only to the extent that such distribution is required to comply with the request.”

Id. § 1612.6(a).

Grantee Participation in this Task Force

A task force is “a group of people who deal with a specific problem.” Task Force, Encyclopedia Britannica, <http://www.britannica.com/dictionary/task-force> (January 18, 2019). The agency selected and invited twelve people to serve as the members of the task force who collectively determine the task force’s policies and actions. Thus, if the grantee serves as a member of the task force, it must ensure that its participation in or identification with the task force’s activities are conducted consistent with the restrictions in Part 1612.

The agency sent a written, unsolicited invitation to the Executive Director of the grantee to serve as one of the twelve members of the task force. The Executive Director plans to participate in their work capacity representing the grantee and on their paid work time. The analysis in this opinion would also apply had the grantee been invited and participated in its institutional capacity (e.g., a member position for the LSC-funded legal aid entity serving a specific county).

The task force operates with a written mandate from the agency to study its delivery of public services, recommend improvements including new rulemaking, and help implement those improvements. The primary activities of the task force do not involve activities that would be restricted for LSC grantees under 45 C.F.R. Part 1612. Rather, they involve conducting research, reviews, and hearings; reporting on challenges and problems; and recommending changes that do not require rulemaking, legislation, or executive orders. Nonetheless, the task force might sometimes engage in activities restricted by § 1612.3, such as influencing rulemaking or legislation. Specifically, and pursuant to its mandate, the task force expects to engage in one activity that would be restricted by § 1612.3 if conducted by a grantee: recommending rulemaking to the agency that created the task force and invited the grantee to become a member.

Analysis

For purposes of this analysis, the grantee’s participation as a member of the task force meets all other requirements for the use of LSC or non-LSC funds.

Pursuant to its mandate, the task force plans to recommend rulemaking to the agency and participate in the agency’s rulemaking process. Section 1612.3 states that grantees “shall not participate in or attempt to influence any rulemaking. . . .”  45 C.F.R. § 1612.3(b) ; see also 1612.2(d)(1) (“Rulemaking means any agency process for formulating, amending, or repealing rules, regulations or guidelines of general applicability and future effect . . . .”).

(1) Grantee Participation in the Task Force

When the grantee participates as a member of the task force, the § 1612.3 restrictions apply to the actions of the grantee. Thus, the grantee may participate as a member of this task force, but it must either recuse itself from the recommendation of rulemaking or the rulemaking activity must meet all of the regulatory requirements of an applicable exception in Part 1612.

(2) Grantee Recusal

The grantee could comply with the Part 1612 lobbying restrictions while serving as a member of this task force by recusing itself from the recommendation of rulemaking. For effective recusal, the grantee must not participate in the task force’s recommendation of rulemaking to the inviting agency, must clearly notify the task force about its recusal, and must take reasonable steps to prevent its association with or the use of its resources for the recommendation of rulemaking. The grantee must maintain adequate records to show that it took these required steps. 45 C.F.R. Part 1630.

The specific actions the grantee should take will depend on the facts and circumstances of the situation. For example, the grantee could notify the other members of the task force about its recusal in writing, not participate in meetings or activities involving the recommendation of rulemaking (such as meetings in which the members decide what recommendations the task force will suggest), and request in writing that the task force note its recusal in any meeting minutes or other documents connected to the recommendation of rulemaking.

(3) Exception Pursuant to § 1612.6(a)

If the situation meets the regulatory requirements, the grantee could comply with the Part 1612 lobbying restrictions by using non-LSC funds to participate in the task force’s recommendation of rulemaking to the inviting agency pursuant to the § 1612.6(a) exception for responding to a written, unsolicited government request. In the instant case, the rulemaking activity meets all § 1612.6(a) requirements:  The invitation that the grantee serve as a member of the task force (request) was “written” Id. § 1612.6(a).

• The request came “from a governmental agency or official thereof [or] elected official . . . .” § 1612.6(a).
• The grantee did not “solicit or arrange for a request from any official to testify or otherwise provide information in connection with legislation or rulemaking.” § 1612.6(c).
• The task force’s charter includes recommending and helping to implement improvements to the agency’s delivery of public services. Rulemaking is one method of accomplishing those goals. Thus, for these rulemaking activities, the agency invited the grantee, through participating as a member of the task force, to:
  • “(1) Testify orally or in writing;” or
  • “(2) Provide information which may include analysis of or comments upon existing or proposed rules, regulations or legislation, or drafts of proposed rules, regulations or legislation;” Id. § 1612.6(a)(1) & (2)
• The task force provides the recommendations to the agency and participates in the agency’s rulemaking process. These actions meet the requirements that responses to the request are “distributed only to”:
  • “the party or parties that made the request and”
  • “to other persons or entities only to the extent that such distribution is required to comply with the request.” § 1612.6(b).

Thus, pursuant to § 1612.6(a), instead of recusal, the grantee may use exclusively non-LSC funds to participate in the task force’s rulemaking recommendations to the agency that issued the invitation. The grantee must maintain the required records and provide required reporting to LSC, including meeting the requirements of §§ 1612.6(d) and 1612.10 and Part 1630.

(4) Additional Considerations

The grantee must conduct this analysis for each task force activity that would be restricted by § 1612.3 if conducted by the grantee. The grantee must recuse itself from all such activities except for those that both qualify for an exception to § 1612.3 and for which the grantee chooses to use the exception and maintains full documentation of compliance with all applicable requirements.

Recusal, determining whether an exception applies, and meeting all requirements of an applicable exception require careful attention to the grantee’s activities with the task force and diligent maintenance of all required documentation of activities and funds used. The grantee must vigilantly watch for any restricted lobbying activities of the task force to ensure the grantee properly follows and documents the applicable option for each restricted lobbying activity. Furthermore, the grantee will have to prepare itself for on-the-spot decision-making if a task force meeting or activity unexpectedly veers into restricted lobbying.

Conclusion

Consistent with the requirements of Part 1612, the LSC grantee may participate as a member of this task force that expects to recommend rulemaking to the agency that created the task force, which would be a restricted activity for the grantee under 45 C.F.R. § 1612.3. To comply with Part 1612, the grantee must either recuse itself from the recommendation of rulemaking or participate in the recommendation of rulemaking consistent with the requirements of an applicable exception in Part 1612. For recusal, it must not participate in the recommendation of rulemaking, clearly notify the task force of its recusal, and take steps to prevent association of it with or the use of its resources for that activity. Alternately, the grantee could use non-LSC funds to participate in the task force’s recommendation of rulemaking if the situation meets all the requirements of the exception at § 1612.6(a) for responding to a written, unsolicited government invitation to testify or provide information.

The grantee must clearly document its actions and the funds used to support its actions. 45 C.F.R. Part 1630. For activities undertaken pursuant to a § 1612.6 exception, the grantee must maintain the records and provide the reports required by §§ 1612.6(d) and 1612.10.

Grantees should contact the Office of Legal Affairs with any questions about this opinion, other situations involving task forces or similar groups, lobbying, or otherwise complying with the LSC requirements.

WILL A. GUNN
Vice President for Legal Affairs and General Counsel

MARK F. FREEDMAN
Senior Associate General Counsel