North Carolina § 120C-100 - Definitions.

§ 120C-100. Definitions.

As used in this Article, the following terms mean: Commission. - The State Ethics Commission under Chapter 138A of the General Statutes. Present, prior, or possible proceedings of a contested case hearing under Chapter 150B of the General Statutes, of a judicial nature, or of a quasi-judicial nature. A public servant's communication with a person, or another person on that person's behalf, with respect to any of the following: Applying for a permit, license, determination of eligibility, or certification. Making an inquiry about or asserting a benefit, claim, right, obligation, duty, entitlement, payment, or penalty. Making an inquiry about or responding to a request for proposal made under Chapter 143 of the General Statutes. Ratemaking. Internal administrative functions, including those functions exempted from the definition of "rule" in G.S. 150B-2(8a). Ministerial functions. A public servant's communication with a person or another person on that person's behalf with respect to public comments made at an open meeting, or submitted as written comment, on a proposed executive action in response to a request for public comment, provided the identity of the person on whose behalf the comments are made is disclosed as part of the public participation, and no reportable expenditure is made. Adjourns sine die. Recesses or adjourns for more than 10 days. A communication at a conference, meeting, or similar event. Except as otherwise defined in this section, the definitions in Article 1 of Chapter 138A of the General Statutes apply in this Chapter. (3) Designated individual. - A legislator, legislative employee, or public servant. (5) Executive action. - The preparation, research, drafting, development, consideration, modification, amendment, adoption, approval, tabling, postponement, defeat, or rejection of a policy, guideline, request for proposal, procedure, regulation, or rule by a public servant purporting to act in an official capacity. This term does not include any of the following: (7) In session. - One of the following: a. The General Assembly is in extra session from the date the General Assembly convenes until the General Assembly: b. The General Assembly is in regular session from the date set by law or resolution that the General Assembly convenes until the General Assembly: 1. Adjourns sine die. 2. Recesses or adjourns for more than 10 days. (9) Legislative action. - The preparation, research, drafting, introduction, consideration, modification, amendment, approval, passage, enactment, tabling, postponement, defeat, or rejection of a bill, resolution, amendment, motion, report, nomination, appointment, or other matter, whether or not the matter is identified by an official title, general title, or other specific reference, by a legislator or legislative employee acting or purporting to act in an official capacity. It also includes the consideration of any bill by the Governor for the Governor's approval or veto under Article II, Section 22(1) of the Constitution or for the Governor to allow the bill to become law under Article II, Section 22(7) of the Constitution. (11) Legislative employee. - Employees and officers of the General Assembly, consultants and counsel to committees of either house of the General Assembly or of legislative commissions, who are paid by State funds, and students at an accredited law school while in an externship program at the General Assembly approved by the Legislative Services Commission, but not including legislators, members of the Council of State, nonsupervisory employees of the Administrative Division's Facility Maintenance and Food Services staff, or pages. (13) Repealed by Session Laws 2018-146, s. 4.1(a), effective December 27, 2018. (15) Liaison personnel. - Any State employee, counsel employed under G.S. 147-17 , or officer whose principal duties, in practice or as set forth in that individual's job description, include lobbying legislators or legislative employees. (17) Lobby or Lobbying. - Any of the following: a. Influencing or attempting to influence legislative or executive action, or both, through direct communication or activities with a designated individual or that designated individual's immediate family. b. Developing goodwill through communications or activities, including the building of relationships, with a designated individual or that designated individual's immediate family with the intention of influencing current or future legislative or executive action, or both. The terms "lobby" or "lobbying" do not include communications or activities as part of a business, civic, religious, fraternal, personal, or commercial relationship which is not connected to legislative or executive action, or both. (19) Lobbyist. - An individual who engages in lobbying for payment and meets any of the following criteria: a. Represents another person or governmental unit, but is not directly employed by that person or governmental unit. b. Contracts for payment for lobbying. c. Is employed by a person and a significant part of that employee's duties include lobbying. In no case shall an employee be considered a lobbyist if in no 30-day period less than five percent (5%) of that employee's actual duties include engaging in lobbying as defined in subdivision (17)a. of this section or if in no 30-day period less than five percent (5%) of that employee's actual duties include engaging in lobbying as defined in subdivision (17)b. of this section. The term "lobbyist" shall not include individuals who are specifically exempted from this Chapter by G.S. 120C-700 or registered as liaison personnel under Article 5 of this Chapter. (21) Lobbyist principal and principal. - The person or governmental unit on whose behalf the lobbyist lobbies and who makes payment for the lobbying. In the case where a lobbyist is paid by a law firm, consulting firm, or other entity retained by a person or governmental unit for lobbying, the principal is the person or governmental unit whose interests the lobbyist represents in lobbying. In the case of a lobbyist employed or retained by an association or other organization, the lobbyist principal is the association or other organization, not the individual members of the association or other organization. The term "lobbyist principal" shall not include those designating registered liaison personnel under Article 5 of this Chapter. (22) through (31) Reserved for future codification purposes. (32) Payment. - Any money, thing of value, or economic benefit conveyed to the lobbyist for lobbying, other than reimbursement of actual travel, administrative expenses, or subsistence. (34) Reportable expenditure. - Any of the following that directly or indirectly is made to, at the request of, for the benefit of, or on the behalf of a designated individual or that individual's immediate family member: a. Any advance, contribution, conveyance, deposit, distribution, payment, gift, retainer, fee, salary, honorarium, reimbursement, loan, pledge, or thing of value greater than ten dollars ($10.00) per designated individual per single calendar day. b. A contract, agreement, promise, or other obligation whether or not legally enforceable. (36) Solicitation of others. - A solicitation of members of the public to communicate directly with or contact one or more designated individuals to influence or attempt to influence legislative or executive action to further the solicitor's position on that legislative or executive action, when that request is made by any of the following methods: a. A broadcast, cable, or satellite transmission. b. An e-mail communication or a Web site posting. c. A communication delivered by print media as defined in G.S. 163-278.38 Z. d. A letter or other written communication delivered by mail or by comparable delivery service. e. Telephone. The term "solicitation of others" does not include communications made by a person or by the person's agent to that person's stockholders, employees, board members, officers, members, subscribers, or other recipients who have affirmatively assented to receive the person's regular publications or notices. History (1933, c. 11, s. 1; 1975, c. 820, s. 1; 1991, c. 740, s. 1.1; 2001-424, s. 6.10(b); 2005-456, s. 1.; 2006-201, s. 18; 2007-347, s. 6(b); 2007-348, ss. 7, 8(a), (b); 2008-213, ss. 4-8, 90; 2009-129, s. 3; 2010-169, s. 17(a)-(e); 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 4.1(a), 6.1.) Recodification; Technical and Conforming Changes. - Session Laws 2017-6, s. 3, provides, in part: "The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled 'Elections and Ethics Enforcement Act,' as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate." The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification, in consultation with the State Ethics Commission, the State Board of Elections, the Secretary of State, and the new Bipartisan State Board of Elections and Ethics Enforcement. Re-Recodification of Former Chapter 163A Back Into Chapters 163, 138A, and 120C. - Session Laws 2018-146, s. 3.1(a), provides: "The Revisor of Statutes is authorized to re-recodify Chapter 163A of the General Statutes back into Chapters 163, 138A, and 120C of the General Statutes. In preparing the re-recodified chapters, the Revisor of Statutes shall revert the changes made by the Revisor pursuant to Section 3 of S.L. 2017-6, except that after consultation with the appropriate agency staff, the Revisor may separate subsections of statutory sections that existed in the former Chapters into new sections and, when necessary to organize relevant law into its proper place in the re-recodified chapters, may rearrange sentences that appeared within those subsections. The Revisor shall also incorporate into the re-recodified chapters all amendments to Chapters 163, 163A, 138A, and 120C that became effective on or after April 25, 2017, other than those made by S.L. 2017-6 or by Part VIII of S.L. 2018-2." Session Laws 2018-146, s. 6.1, provides: "Consistent with this act, when re-recodifying as directed under this act, the Revisor is authorized to change all references to the Bipartisan State Board of Elections and Ethics Enforcement to instead be references to the State Board of Elections, State Ethics Commission, or Secretary of State, as appropriate. The Revisor may modify statutory citations throughout the General Statutes, as appropriate, and may modify any references to statutory divisions, such as "Chapter," "Subchapter," "Article," "Part," "section," and "subsection"; adjust the order of lists of multiple statutes to maintain statutory order; correct terms and conform names and titles changed by this act; eliminate duplicative references to the State Boards that result from the changes authorized by this section; and make conforming changes to catch lines and references to catch lines. The Revisor may also adjust subject and verb agreement and the placement of conjunctions. The Revisor shall consult with the Bipartisan State Board of Elections and Ethics Enforcement, the State Board of Elections, the State Ethics Commission, and the Secretary of State, as appropriate, on this recodification." Editor's Note. - This section was recodified as now former G.S. 163A-250 by Session Laws 2017-6, s. 3. Former G.S. 163A-250 was then re-recodified as this section by Session Laws 2018-146, s. 3.1(a), effective January 31, 2019. The historical citation from the former section has been added to this section as re-recodified. Former Article 9 of Chapter 120 , as rewritten by Session Laws 1975, c. 820, s. 2, was recodified as Article 9A of Chapter 120 , by Session Laws 2005-456, s. 1. Session Laws 2006-201, s. 17, repealed former Article 9A of Chapter 120 and incorporated the subject matter of those articles in this Chapter 120C . Where appropriate, the historical citations to sections in former Articles 9 and 9A of Chapter 120 have been added to corresponding sections in this chapter. Former G.S. 163A-7, which authorized the former Bipartisan State Board of Elections and Ethics Enforcement to obtain criminal records checks, was recodified in Chapter 163 as G.S. 163-27.2 at the direction of the Revisor of Statutes. See editor's note at G.S. 163-27.2 . Session Laws 2006-201, s. 25, makes this Chapter effective January 1, 2007, and applicable to covered persons and legislative employees, to gifts received, to acts and conflicts of interest that arise, and to offenses committed, on or after January 1, 2007. Furthermore, G.S. 120C-304, as enacted by Session Laws 2006-201, s. 18, is applicable to appointments made on or after January 1, 2007. Prosecutions for offenses or ethics violations committed before January 1, 2007, are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions. Session Laws 2006-201, s. 23(a), provides: "Persons holding covered positions on January 1, 2007, shall file statements of economic interest under Article 3 of Chapter 138A of the General Statutes by March 15, 2007." Session Laws 2006-201, s. 23(b), as amended by Session Laws 2007-347, s. 16, provides: "Public servants holding positions on January 1, 2007, shall participate in ethics education presentations under G.S. 138A-14 and lobbying education programs under G.S. 120C-103 on or before January 1, 2008." Session Laws 2006-201, s. 24, is a severability clause. Session Laws 2013-360, s. 6.15(a), (b), provides: "(a) No State funds shall be used by a non-State entity to pay for lobbying or lobbyists. "(b) For the purposes of this section, the following definitions apply: "(1) Lobbying. - As defined by G.S. 120C-100(a)(9). "(2) Lobbyist. - As defined by G.S. 120C-100(a)(10). "(3) Non-State entity. - As defined by G.S. 143C-1-1(d)(18) . "(4) State funds. - As defined by G.S. 143C-1-1(d)(25) and interest earnings that accrue from those funds." Session Laws 2013-360, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2013.'" Session Laws 2013-360, s. 38.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2013-2015 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2013-2015 fiscal biennium." Session Laws 2013-360, s. 38.5, is a severability clause. Session Laws 2017-6, s. 22, provides in part: "Notwithstanding the recodification in Section 3 of this act, the Bipartisan State Board of Elections and Ethics Enforcement shall not administer or enforce Part 1, Part 3, or Part 6 of Article 8 of Chapter 163A of the General Statutes, and the Secretary of State shall maintain the authority to administer and enforce Articles 2, 4, and 8 of Chapter 120C of the General Statutes, as those Articles existed on May 1, 2017, until October 1, 2017." Session Laws 2018-146, s. 3.1(b), effective January 31, 2019, repealed Session Laws 2017-6, s. 3, which had recodified this section. Session Laws 2018-146, s. 3.4(a)-(d), provides: "(a) The authority, powers, duties and functions, records, personnel, property, and unexpended balances of appropriations, allocations, or other funds, including the functions of budgeting and purchasing, of the ethics compliance and enforcement functions of the Bipartisan State Board of Elections and Ethics Enforcement are transferred as a Type II transfer to the State Ethics Commission as re-recodified in this act. Specifically, the following positions shall be transferred: Administrative Assistant III (Position 60088563), Attorney Supervisor I (Position 60088564), Office Assistant V (Position 60088565), Administrative Assistant II (Position 60088566), Attorney II (Position 60088567), Administrative Assistant II (Position 60088568), Attorney II (Position 60088570), Disclosure Manager (Position 65012029), Compliance Analyst I (Position 65012032), and Compliance Analyst I (Position 65019901). "(b) The authority, powers, duties and functions, records, personnel, property, and unexpended balances of appropriations, allocations, or other funds, including the functions of budgeting and purchasing, of the lobbying registration and lobbying enforcement functions of the Bipartisan State Board of Elections and Ethics Enforcement are transferred as a Type I transfer to the Secretary of State as re-recodified in this act. Specifically, the following positions shall be transferred: Administrative Assistant II (Position 60088203), Administrative Assistant II (Position 60088204), Administrative Assistant II (Position 60088218), Attorney II (Position 60008800), and Administrative Specialist II (Position 60008803). "(c) The authority, powers, duties and functions, records, personnel, property, and unexpended balances of appropriations, allocations, or other funds, including the functions of budgeting and purchasing, of the elections and campaign finance functions of the Bipartisan State Board of Elections and Ethics Enforcement are transferred as a Type II transfer to the State Board of Elections as re-recodified in this act. Specifically, the following positions shall be transferred: Executive Director (Position 60088197), Elections Investigator (Position 60088201), Senior Elections Specialist (Position 60088207), Director of Election Operations (Position 60088209), Associate General Counsel, Elections (Position 60088211), Elections Support Technician (Position 60088212), Auditor (Position 60088199), Deputy Director/Chief Operating Officer (Position 60088200), Compliance and Disclosure Manager (Position 60088205), Elections Specialist (Position 60088206), Office Assistant III (Position 60088215), Business And Technology Applic Tech (Position 60088232), Auditor (Position 60088252), Auditor (Position 60088254), Elections Specialist III (Position 60088256), Elections Specialist III (Position 60088257), Chief Investigator (Position 60088259), Accounting and HR Specialist (Position 65005659), Auditor (Position 65005661), HR Director (Position 65005663), Senior Elections Investigator (Position 65022162), Elections Investigator (Position 65022163), Elections Investigator (Position 65022164), Agency General Counsel (Position 60088198), Software Tester (Position 60088202), Elections Specialist I (Position 60088208), Disclosure Specialist (Position 60088213), Software Tester (Position 60088216), Auditor (Position 60088217), Information Technology Director (Position 60088219), Database Administrator (Position 60088220), Senior Business System Analyst (Position 60088221), Business And Technology Applic Tech (Position 60088222), Business And Technology Applic Tech (Position 60088223), Business And Technology Applic Tech (Position 60088224), Operations Analyst (Position 60088227), Senior Elections Specialist (Position 60088228), Elections Systems Specialist (Position 60088229), Business And Technology Applic Analyst (Position 60088233), Database Administrator (Position 60088234), Business And Technology Applic Analyst (Position 60088235), Systems Program Analyst (Position 60088237), Elections Systems Specialist (Position 60088239), Elections Systems Specialist (Position 60088240), Information Technology Manager (Position 60088241), Information Technology Manager (Position 60088242), GIS Specialist (Position 65005664), Elections Systems Specialist (Position 65005665), Software Lead Developer (Position 65021730), Systems/Programmer Analyst (Position 65021731), Public Information Officer (Position 65020532), Chief Learning Officer (Position 65020533), Elections Specialist I (Position 65020534), Elections Specialist I (Position 65020535), Elections Specialist I (Position 65020536), Deputy General Counsel (Position 65021570), Chief Data Officer (Position 65021571), Administrative Specialist II (Position 60008801), Administrative Specialist II (Position 60008802), Executive Assistant (Position 60008806), Attorney II (Position 60088571), Attorney II (Position 65005579), Compliance Analyst I (Position 65012030), Voting Systems Manager (Position 65019619), Advanced Data Analyst (Position 65027807), Advanced Data Analyst (Position 65027808), and Chief Information Security Officer (Position 65027809). "(d) The Director of the Budget shall resolve any disputes arising out of the transfers provided for in this section." Session Laws 2018-146, s. 3.5(a)-(e), provides: "(a) Any previous assignment of duties of a quasi-legislative or quasi-judicial nature by the Governor or General Assembly to the agencies or functions transferred by this act shall have continued validity with the transfer under this act. Except as otherwise specifically provided in this act, each enumerated commission, board, or other function of State government transferred from the Bipartisan State Board of Elections and Ethics Enforcement, as created in S.L. 2017-6 and S.L. 2018-2, is a continuation of the former entity for purposes of succession to all the rights, powers, duties, and obligations of the former. Where the Bipartisan State Board of Elections and Ethics Enforcement is referred to by law, contract, or other document in lieu of the former entities, as re-recodified in this act, the former entity, as re-recodified by this act, is charged with exercising the functions of the former named entity. "(b) No action or proceeding pending on January 31, 2019, brought by or against the Bipartisan State Board of Elections and Ethics Enforcement shall be affected by any provision of this act, but the same may be prosecuted or defended in the name of the Secretary of State regarding the lobbyist registration and lobbying enforcement of the Secretary of State, the State Board of Elections, or the State Ethics Commission, as re-recodified in this act. In these actions and proceedings, the former entity, as re-recodified by this act, as appropriate, shall be substituted as a party upon proper application to the courts or other administrative or quasi-judicial bodies. "Any business or other matter undertaken or commanded by any State program or office or contract transferred by this act to the former entity, as re-recodified by this act, pertaining to or connected with the functions, powers, obligations, and duties set forth herein, which is pending on January 31, 2019, may be conducted and completed by the former entity, as re-recodified by this act, in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the Bipartisan State Board of Elections and Ethics Enforcement. "(c) The reorganization provided for under this act shall not affect any ongoing investigation or audit. Any ongoing hearing or other proceeding before the Bipartisan State Board of Elections and Ethics Enforcement on January 31, 2019, shall be transferred to the former entity, as re-recodified by this act, on January 31, 2019. Prosecutions for offenses or violations committed before January 31, 2019, are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions. "(d) Rules adopted by the Bipartisan State Board of Elections and Ethics Enforcement shall remain in effect as provided in G.S. 150B-21.7 . Policies, procedures, and guidance shall remain in effect until amended or repealed by the appropriate former entity, as re-recodified by this act. The list of covered boards adopted by the State Ethics Commission under G.S. 138A-11 as of December 31, 2016, as amended by the Bipartisan State Board of Elections and Ethics Enforcement, shall continue in effect until amended or repealed by the former entity, as re-recodified by this act. "(e) Any evaluation of a statement of economic interest issued by the Bipartisan State Board of Elections and Ethics Enforcement pursuant to Article 6 of Chapter 163A of the General Statutes in 2017 or 2018 shall remain in effect until amended or repealed by the former entity, as re-recodified by this act." Effect of Amendments. - Session Laws 2007-347, s. 6(a), effective October 1, 2007, inserted "counsel employed under G.S. 147-17 " in subdivision (a)(8). Session Laws 2007-348, s. 7, effective August 9, 2007, inserted "nonsupervisory employees of the Administrative Division's Facility Maintenance and Food Services staff" near the end of subdivision (a)(6). Session Laws 2007-348, s. 8(a), (b), effective October 1, 2007, repealed sub-subdivision (a)(10)a.; and in (a)(10)d., inserted "in no 30-day period" preceding "less than five percent (5%)" and added "or if no 30-day period less than five percent (5%) of that employee's actual duties include engaging in lobbying as defined in subdivision (9)b. of this section." Session Laws 2008-213, ss. 4-8, effective August 15, 2008, in subdivision (a)(8), substituted "individual's job description" for "person's job description" and substituted "legislators or legislative employees" for "designated individuals"; in subdivisions (a)(9)a and b, substituted "designated individual's" for "person's"; in subdivision (a)(10)b, inserted "or governmental unit" twice, substituted "payment for services" for "compensation for the purpose of lobbying," substituted "'payment for services'" for "compensation"; in subdivision (a)(11), inserted "or governmental unit" three times; and added subdivision (a)(11k). Session Laws 2008-213, s. 90, effective August 15, 2008, substituted "lobbyist principal" for "lobbyist's principal" twice in subdivision (a11). Session Laws 2009-129, s. 3, effective June 19, 2009, inserted "and students at an accredited law school while in an externship program at the General Assembly approved by the Legislative Services Commission" in subdivision (a)(6). Session Laws 2010-169, s. 17(a)-(e), effective January 1, 2011, and applicable to offenses committed on or after that date and reports filed on or after that date, in subdivision (a)(9), inserted "Lobby or" and in the last paragraph, substituted "The terms 'lobby' or 'lobbying' do not include" for "The term 'lobbying' does not include"; in subdivision (a)(10)b., deleted "and receives payment for services" from the end and deleted the last sentence, which read: "For the purposes of this sub-subdivision, the term 'payment for services' shall not include reimbursement of actual travel and subsistence"; in subdivision (a)(10)c., substituted "payment for" for "economic consideration for the purpose of"; in subdivision (a)(11), in the first sentence, added "and who makes payment for the lobbying," and in the second sentence, substituted "paid" for "compensated"; in subdivision (a)(11k), deleted "for services" following "Payment," and substituted "or economic benefit conveyed to the lobbyist for lobbying" for "or economic benefit paid to a lobbyist for the purpose of lobbying"; and in the introductory paragraph in subdivision (a)(13), substituted "to influence or attempt to influence" for "for the purpose of influencing or attempting to influence." Session Laws 2018-146, s. 4.1(a), effective December 27, 2018, deleted subdivision (a)(13), which formerly read: "Legislator. - As defined in G.S. 163A-152 and G.S. 163A-254."