Can the Virginia Port Authority hire a paid lobbyist to represent its interests in Washington, D.C.?

Plain-English summary

The Virginia Port Authority (VPA) wanted to hire a paid lobbyist to represent its interests at the federal level (with Congress, federal agencies, federal funding programs). The Chairman asked whether Va. Code § 2.2-434, which generally prohibits state agencies from employing compensated lobbyists, blocked the hiring.

The AG said no.

Section 2.2-434 prohibits the "[e]mployment of a lobbyist for compensation by an officer, board, institution or agency of the Commonwealth." The question was whether this prohibition extended to lobbyists hired for federal-level work or whether it only covered lobbyists hired to influence Virginia state government.

The AG looked at the definitions in Va. Code § 2.2-419:

• "Lobbyist": an individual employed or contracted for compensation "for the purpose of lobbying."
• "Lobbying": "[i]nfluencing or attempting to influence executive or legislative action through oral or written communication with an executive or legislative official."
• "Executive official" and "legislative official": defined exclusively in terms of state officials (Governor, Lieutenant Governor, Attorney General, members of the General Assembly, and others within Virginia's executive and legislative branches).

Because the definitions tie "lobbyist" to lobbying state officials, the § 2.2-434 prohibition reaches only state-level lobbying. Federal officials aren't covered. So hiring a federal lobbyist isn't "employment of a lobbyist" within the meaning of § 2.2-434.

The result: the VPA can employ a federal lobbyist with paid compensation without violating the statute.

This conclusion makes practical sense for state agencies that have substantial federal-government interactions. State-owned ports compete for federal funding (Maritime Administration grants, Army Corps of Engineers projects, etc.). Federal regulations affect port operations. A federal lobbyist helps the state agency advance the state's interests in federal forums. Section 2.2-434's prohibition is about preventing state agencies from spending public money to influence the state legislature that funds them; the analogous concern doesn't apply to federal lobbying.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Virginia lobbying-related statutes have been amended multiple times since 2013, with additions to disclosure requirements and definitional scope. The basic state-vs-federal distinction in § 2.2-434 has remained intact.

Common questions

What is § 2.2-434?
Virginia's prohibition on state agencies hiring paid lobbyists. The premise is that a state agency should not use public funds to lobby the state legislature that funds it; the agency's interests should be communicated through the agency's leadership and budget submissions, not through paid third-party advocates.

Why doesn't this apply to federal lobbyists?
Because § 2.2-434's definitions are tied to state officials. A federal lobbyist is influencing federal officials, not state officials. The state legislature wasn't concerned about state agencies lobbying federal officials when it enacted the prohibition.

Can other state agencies hire federal lobbyists?
Yes, under the same reasoning. The AG opinion's logic isn't VPA-specific; it applies to any state agency facing the § 2.2-434 question for federal lobbying.

What about agencies that have their own lobbyist exceptions?
Some state agencies have specific statutory authority to do certain lobbying (a state university's federal relations office, for example). Those agencies operate under their own statutes; the § 2.2-434 question is for agencies without specific authority.

Are state employees prohibited from advocating to the General Assembly?
No. State employees in their official capacity can present testimony, respond to legislator inquiries, and otherwise communicate with the General Assembly. § 2.2-434 addresses paid lobbyists, not state employees doing their jobs.

Can the VPA's federal lobbyist also lobby Virginia officials?
Not without running into § 2.2-434. A lobbyist whose work includes lobbying Virginia executive or legislative officials triggers the prohibition. The agency would need to structure the engagement to keep the federal-state separation clear.

What if a state legislator is also a member of Congress?
This doesn't usually happen in practice, but it would create a hybrid case. The opinion does not address this scenario.

Does the federal Lobbying Disclosure Act apply?
Yes, separately. A lobbyist hired to lobby federal officials must register and report under federal law, regardless of whether the client is a state agency, private corporation, or anyone else.

Background and statutory framework

• Va. Code § 2.2-434: prohibition on state agencies employing compensated lobbyists.
• Va. Code § 2.2-419: definitions of "lobbyist," "lobbying," "executive official," "legislative official," "executive action," "legislative action."

The interpretive moves:

• The definitions in § 2.2-419 limit the operative scope of § 2.2-434.
• Federal officials are not within any defined category.
• Therefore federal lobbying is not "lobbying" within the meaning of § 2.2-434.

Citations

• Va. Code § 2.2-419
• Va. Code § 2.2-434

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/13-058_Fralin.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

July 19, 2013

The Honorable William H. Fralin, Jr.
Chairman, Board of Commissioners
Virginia Port Authority
600 World Trade Center
Norfolk, Virginia 23510

Dear Mr. Fralin:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether the prohibition contained in § 2.2-434 of the Code of Virginia prohibits the Virginia Port Authority's employment of a lobbyist for compensation to represent its interests at the federal level of government.

Response

It is my opinion that § 2.2-434 does not prohibit the Virginia Port Authority ("VPA") from employing a lobbyist for compensation to represent its interests at the federal level of government.

Applicable Law and Discussion

Section 2.2-434 expressly prohibits the "[e]mployment of a lobbyist for compensation by an officer, board, institution or agency of the Commonwealth ...."[1] For purposes of § 2.2-434, a "lobbyist" is an individual who is engaged in specified activities "for the purpose of lobbying."[2] "Lobbying" is defined as: "[i]nfluencing or attempting to influence executive or legislative action through oral or written communication with an executive or legislative official ...."[3] In turn, "executive official" and "legislative official" are further defined exclusively in terms of state officials such as the Governor, Lieutenant Governor, Attorney General, members of the General Assembly, and others within the Commonwealth's executive and legislative branches.[4] The enumerated definitions clearly limit the application of § 2.2-434 to lobbying at the state level of government.[5] Because these definitions do not include federal officials, § 2.2-434 does not prohibit the VPA from employing a lobbyist for compensation to lobby the federal level of government.

Conclusion

Accordingly, it is my opinion that the prohibition contained in § 2.2-434 does not prohibit the VPA's employment of a lobbyist for compensation to represent its interests at the federal level of government.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General

[1] Va. Code Ann. § 2.2-434 (2011).

[2] Section 2.2-419 defines "[l]obbyist" as: 1. An individual who is employed and receives payments, or who contracts for economic consideration, including reimbursement for reasonable travel and living expenses, for the purpose of lobbying; 2. An individual who represents an organization, association, or other group for the purpose of lobbying; or 3. A local government employee who lobbies.

[3] Section 2.2-419 (2011). "Lobbying" also includes the "[s]olicitation of others to influence an executive or legislative official." Id.

[4] See § 2.2-419 (defining "executive official" and "legislative official").

[5] Id.; see also the definitions of "Executive action" and "Legislative action," as contained in that statute, which similarly limit their applicable scope to state government matters.