[Federal Register Volume 59, Number 189 (Friday, September 30, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-24275]


[[Page Unknown]]

[Federal Register: September 30, 1994]


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LEGAL SERVICES CORPORATION

45 CFR Part 1608

 

Prohibited Political Activities

AGENCY: Legal Services Corporation.

ACTION: Proposed rule.

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SUMMARY: This proposed regulation would revise the Legal Services 
Corporation's (``Corporation'' or ``LSC'') regulation relating to 
prohibited political activities. The proposed revisions both clarify 
existing law and substantively expand the scope of certain 
prohibitions. The proposal also includes a number of technical and 
structural revisions to make the rule easier to apply and use.

DATES: Comments should be received on or before November 29, 1994.

ADDRESSES: Comments should be submitted to the Office of the General 
Counsel, Legal Services Corporation, 750 First St., N.E., 11th Floor, 
Washington, DC 20002-4250.

FOR FURTHER INFORMATION CONTACT: Victor M. Fortuno, General Counsel, 
Office of the General Counsel, (202) 336-8810.

SUPPLEMENTARY INFORMATION: On June 19 and July 15, 1994, the Operations 
and Regulations Committee (``Committee'') of the LSC Board of Directors 
held public hearings on proposed revisions to 45 CFR Part 1608, LSC's 
regulation on electoral political activities. At the July 15 meeting in 
Washington, DC, the Committee approved a draft to be published in the 
Federal Register as a proposed rule for public comment and agreed to 
extend the customary 30-day comment period to 60 days.
    The Committee recognizes that Congress is currently considering 
reauthorization legislation for the Corporation. Whenever Congress does 
pass a new LSC Act, the Corporation's regulations will be revisited and 
revised accordingly.

Authority

    A technical correction has been made to the authority section. The 
reference to Sec. 2996f(b)(2) is incorrect and has been replaced by 
reference to Sec. 2996f(b)(4).

Section 1608.1  Purpose

    No change is proposed for this section.

Section 1608.2  Definitions

    The definition of ``attorney'' is based on the one found in Part 
1600. It would apply to attorneys employed by a recipient as well as to 
PAI attorneys who are providing services to eligible clients referred 
by a recipient.
    The definition of ``political'' in Part 1608 is intended to 
supersede the definition of ``political'' in 45 CFR Part 1600. The term 
applies only to restrictions in this part and needs revision to better 
reflect the scope of the statutory provisions implemented by this 
regulation. The definition is also revised from the definition in Part 
1600 to delete references to ``ballot measures'' and ``publicity and 
propaganda.'' Part 1608 implements several statutory restrictions on a 
variety of electoral political activities, so it is difficult to have a 
definition of political activities that is true to the meaning of the 
specific political activities regulated in each statutory restriction. 
Therefore, instead of a definition that refers to specific activities 
such as ballot measures, a more general definition is retained and 
``ballot measures'' are dealt with in the section that sets out the 
restrictions on those activities. In addition, the term ``publicity and 
propaganda'' generally refers to grassroots lobbying activities which 
are not directly implicated by any of this part's restrictions and are 
better dealt with in the Corporation's regulations on lobbying, 45 CFR 
Part 1612.
    The definition of ``legal assistance activities'' is proposed to be 
deleted. It has been difficult to interpret and is not based on any 
statutory language. The language is instead incorporated into the only 
provision (the proposed Sec. 1608.7) that uses the phrase. Nothing in 
this part is intended to suggest that an employee may not use his or 
her own salary to make personal contributions to political 
organizations or campaigns.
    A definition of ``staff attorney'' is added and is intended to 
supersede the definition of ``staff attorney'' currently found in 45 
CFR Part 1600. The definition is modified to clarify that a ``staff 
attorney'' means an attorney who is a salaried employee of a recipient 
and not a private attorney who has contracts with a recipient to 
provide part-time legal services to program clients. Section 1608.3 
Attorney-client relationship.
    This section has been moved from Sec. 1608.7 in the current 
regulation to make it clear that all of the restrictions and 
prohibitions contained in Part 1608 are subject to the exception for 
legal representation. This section would apply to PAI attorneys when 
they are engaged in legal assistance activities supported by a 
recipient.

Section 1608.4  Prohibitions Applicable to the Corporation and to 
Recipients

    The only change to this section is the addition of language 
intended to better reflect the statutory prohibition. The revision 
clarifies that no resources of the Corporation or of a recipient may be 
used for political activities or purposes. Section 1608.5 Prohibitions 
applicable to all employees
    The current Sec. 1608.4, which applies to all Corporation and 
recipient employees, and most of the current Sec. 1608.5, which applies 
to Corporation employees and staff attorneys, have been merged into 
Sec. 1608.5 in the proposed rule. The Committee believes that the 
rule's prohibitions concerning the misuse of official authority and 
coercion should apply to all Corporation and recipient employees. 
Section 1608.6 Prohibition applicable to Corporation employees and to 
staff attorneys.
    There is no substantive change in this section other than to 
accommodate the merger reflected in the proposed Sec. 1608.5. The 
prohibition on candidacy for partisan elective public office is still 
applicable only to Corporation employees and staff attorneys.

Section 1608.7  Prohibitions Applicable to All Attorneys

    This proposal incorporates the relevant language from the current 
definition of ``legal assistance activities'' deleted from Sec. 1608.2 
into paragraph (a). Further, paragraph (a), together with paragraph 
(b), makes explicit what is not restricted by the Act, both with 
respect to individual attorneys and recipients.
    First, consistent with the provision of the LSC Act that restricts 
these activities, the proposal makes it clear that recipients' non-LSC 
resources are not restricted, so long as they are used by attorneys who 
receive no LSC funding.
    Second, this section would apply to all attorneys employed by a 
recipient as well as PAI attorneys who are providing recipient 
supported legal assistance to the recipient's clients. However, an 
attorney may do the activities regulated by this section on ``his or 
her own time.'' For an attorney employed by a recipient, that means any 
time outside of normal working hours (e.g., evenings, weekends, and 
leave time) so long as the attorney is not representing or providing 
legal assistance to the recipient's clients. Thus, an attorney employed 
by a recipient should not transport a recipient's clients to the polls 
on a workday, even if it is in the evening outside of normal working 
hours, if he or she could be presumed to be working for the recipient. 
But that same attorney could take leave to do so, or could do so if 
clearly identifying him or herself as a private citizen rather than as 
a legal services attorney, because the attorney would clearly be doing 
it on his or her own time.
    For a PAI attorney, it means any time that the attorney is not 
actually working on PAI activities. Thus, a PAI attorney could 
participate in political activities as a regular part of his or her 
private practice, so long as the activity is not done while providing 
PAI services supported by the recipient. The restriction would not 
affect any other paid or pro bono work that the PAI attorney does.
    Finally, paragraph (b) makes it clear that an attorney is free to 
contribute his or her own funds, including those derived from a salary 
from the recipient, to political activities.
    Paragraph (c) is added to clarify the scope of the statutory 
restriction regarding voter registration activity. Clearly, Congress 
intended to prohibit legal services attorneys, while working on program 
time or using LSC resources, from participating directly in voter 
registration drives that could easily be tailored to achieve some 
partisan political purpose. However, the restriction applies only to 
attorneys and not to recipients specifically. Legal services programs 
are often requested by public officials to place nonpartisan 
information regarding voter registration procedures and qualifications 
in their waiting rooms to encourage voter registration among the 
clients. While many programs permit the materials in their offices, 
many others are hesitant to do so. In light of the developments such as 
the new ``Motor Voter Registration'' law and the fact that the LSC Act 
does not restrict voter registration activity by recipients, the 
regulation should state clearly that engaging in nonpartisan 
activities, such as making available nonpartisan voter registration 
information, is permissible.

Section 1608.8  Enforcement

    This section is proposed to be deleted. The current language refers 
to the enforcement provisions in Sec. 1612.5. However, the enforcement 
provisions of Part 1612 were removed from Sec. 1612.5 and are currently 
found in Sec. 1612.12. Regardless, the Committee believes that the 
enforcement procedures dealing with other matters are not appropriate 
for this part and has decided to deal with compliance issues outside 
the context of this rule.

List of Subjects in 45 CFR Part 1608

    Legal services, Political activities.

    For the reasons set forth in the preamble, LSC proposes to revise 
45 CFR part 1608 to read as follows:

PART 1608--PROHIBITED POLITICAL ACTIVITIES

Sec.
1608.1  Purpose.
1608.2  Definitions.
1608.3  Attorney-client relationship.
1608.4  Prohibitions applicable to the Corporation and to 
recipients.
1608.5  Prohibitions applicable to all employees.
1608.6  Prohibitions applicable to Corporation employees and to 
staff attorneys.
1608.7  Prohibitions applicable to all attorneys.

    Authority: 42 U.S.C. 2996(5), 2996d(b)(2), 2996e(b)(3), 
2996(b)(5)(B), 2996e(d)(3), 2996e(d)(4), 2996e(e)(1), 2996e(e)(2), 
2996f(a)(6), 2996f(b)(4).


Sec. 1608.1  Purpose.

    This part is designed to ensure that the Corporation's resources 
will be used to provide high-quality legal assistance and not to 
support or promote political activities or interests. The part should 
be construed and applied so as to further this purpose without 
infringing upon the constitutional rights of employees or the 
professional responsibilities of attorneys to their clients.


Sec. 1608.2  Definitions.

    As used in this part,
    (a) Attorney means a person who provides legal assistance to 
eligible clients of, or referred by, a recipient and who is authorized 
to practice law in the jurisdiction where assistance is provided.
    (b) Political means associated with a political party or the 
campaign of any candidate for elective public or party office, or 
engendering support for or opposition to any such political party or 
candidate.
    (c) Staff attorney means an attorney who is employed by a recipient 
and more than one-half of whose annual professional salary is derived 
from the proceeds of a grant from or contract with the Legal Services 
Corporation or is received from a recipient that limits its activities 
to providing legal assistance to clients eligible for assistance under 
the Act.


Sec. 1608.3  Attorney-client relationship.

    Nothing in this part is intended to prohibit an attorney from 
providing any form of legal assistance to an eligible client, or to 
interfere with the fulfillment of any attorney's professional 
responsibilities to a client.


Sec. 1608.4  Prohibitions applicable to the Corporation and to 
recipients.

    (a) Neither the Corporation nor any recipient shall use any 
political test or qualification in making any decision, taking any 
action, or performing any function under the Act.
    (b) Neither the Corporation nor any recipient shall contribute or 
make available any Corporation or recipient funds, personnel or 
equipment, regardless of source:
    (1) To any political party or association;
    (2) To the campaign of any candidate for public or party office; or
    (3) For use in advocating or opposing any ballot measure, 
initiative or referendum.


Sec. 1608.5  Prohibitions applicable to all employees.

    No employee of the Corporation or of any recipient shall--
    (a) intentionally identify the Corporation or a recipient with any 
partisan or nonpartisan political activity, or with the campaign of any 
candidate for elective public or party office;
    (b) use any Corporation funds for activities prohibited to 
attorneys under Secs. 1608.6 or 1608.7; nor shall an employee 
intentionally identify or encourage others to identify the Corporation 
or a recipient with such activities;
    (c) use official authority or influence for the purpose of 
interfering with or affecting the result of an election or nomination 
for elective public office, whether partisan or nonpartisan; or
    (d) directly or indirectly coerce, attempt to coerce, command or 
advise any employee of the Corporation or of any recipient to pay, 
lend, or contribute anything of value to a political party, or 
committee, organization, agency or person for political purposes.


Sec. 1608.6  Prohibition applicable to Corporation employees and to 
staff attorneys.

    No Corporation employee and no staff attorney shall, at any time, 
be a candidate for partisan elective public office.


Sec. 1608.7  Prohibitions applicable to all attorneys.

    (a) No attorney who is engaged in legal assistance activities 
supported in whole or in part by resources derived from a grant from or 
contract with the Corporation shall, during the hours the attorney is 
working for the recipient or while actually providing legal assistance 
to or representing clients of, or referred by, the recipient, engage 
in:
    (1) any political activity;
    (2) any activity to provide voters with transportation to the 
polls, or to provide similar assistance in connection with an election; 
or
    (3) any voter registration activity.
    (b) Nothing in this section shall prohibit any attorney from 
engaging in the activities prohibited in Sec. 1608.7(a) on his or her 
own time or from contributing his or her personal funds or resources to 
support such activities.
    (c) Nothing in this section shall prohibit a recipient from making 
available general, nonpartisan information on voter registration 
procedures or qualifications.

    Dated: September 27, 1994.
Victor M. Fortuno,
General Counsel.
[FR Doc. 94-24275 Filed 9-29-94; 8:45 am]
BILLING CODE 7050-01-P