{ "id": 6814251, "name": "DONALD R. BEASON, Petitioner v. NORTH CAROLINA DEPARTMENT OF THE SECRETARY OF STATE, Respondent", "name_abbreviation": "Beason v. North Carolina Department of the Secretary of State", "decision_date": "2013-04-02", "docket_number": "No. COA12-838", "first_page": "222", "last_page": "233", "citations": [ { "type": "official", "cite": "226 N.C. App. 222" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "418 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 558", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497251, 2498471 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0558-01", "/nc/331/0558-02" ] }, { "cite": "413 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "291-92" } ], "opinion_index": 0 }, { "cite": "330 N.C. 761", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511641 ], "year": 1992, "pin_cites": [ { "page": "785-86" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0761-01" ] }, { "cite": "Miss. Code Ann. \u00a7 5-8-3", "category": "laws:leg_statute", "reporter": "Miss. Code Ann.", "year": 2002, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "282 S.E.2d 509", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1981, "pin_cites": [ { "page": "511" }, { "page": "511" } ], "opinion_index": 0 }, { "cite": "54 N.C. App. 202", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521226 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "205" }, { "page": "206" } ], "opinion_index": 0, "case_paths": [ "/nc-app/54/0202-01" ] }, { "cite": "562 S.E.2d 26", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "30" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 572", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9130206 ], "year": 2002, "pin_cites": [ { "page": "576" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0572-01" ] }, { "cite": "685 S.E.2d 562", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "565" }, { "page": "565" } ], "opinion_index": 0 }, { "cite": "201 N.C. App. 70", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4173324 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "72" }, { "page": "73" } ], "opinion_index": 0, "case_paths": [ "/nc-app/201/0070-01" ] }, { "cite": "385 S.E.2d 148", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "150-51" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 204", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520975 ], "year": 1989, "pin_cites": [ { "page": "207" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0204-01" ] }, { "cite": "731 S.E.2d 146", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "opinion_index": 0 }, { "cite": "724 S.E.2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "140" } ], "opinion_index": 0 }, { "cite": "732 S.E.2d 373", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2012, "pin_cites": [ { "page": "377" } ], "opinion_index": 0 }, { "cite": "522 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "579" } ], "opinion_index": 0 }, { "cite": "351 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155801 ], "year": 1999, "pin_cites": [ { "page": "162" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0159-01" ] }, { "cite": "59 S.E.2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "opinion_index": 0 }, { "cite": "232 N.C. 744", "category": "reporters:state", "reporter": "N.C.", "year": 1950, "opinion_index": 0 }, { "cite": "57 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "381" } ], "opinion_index": 0 }, { "cite": "231 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629835 ], "year": 1950, "pin_cites": [ { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0357-01" ] }, { "cite": "392 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "736" }, { "page": "736" } ], "opinion_index": 0 }, { "cite": "326 N.C. 723", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307026 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "725" }, { "page": "726" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0723-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 136-28.7", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2011, "opinion_index": 0 } ], "analysis": { "cardinality": 999, "char_count": 28500, "ocr_confidence": 0.711, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.18303692609105782 }, "sha256": "08920e6dffaabe6674d2c9e558bedb2e98e33a4bf3940cd76b03a0653b1f718c", "simhash": "1:b3e9b52a561e4d61", "word_count": 4409 }, "last_updated": "2023-07-14T18:05:47.059681+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and STEELMAN concur." ], "parties": [ "DONALD R. BEASON, Petitioner v. NORTH CAROLINA DEPARTMENT OF THE SECRETARY OF STATE, Respondent" ], "opinions": [ { "text": "HUNTER, Robert C., Judge.\nRespondent the North Carolina Department of the Secretary of State appeals the trial .court\u2019s order reversing and setting aside the civil fine assessment imposed against petitioner Donald Beason. After careful review, we affirm in part and reverse and remand in part the trial court\u2019s order.\nThis case involves the lobbying efforts of petitioner to repeal or amend N.C. Gen. Stat. \u00a7 136-28.7 (2011), commonly known as the \u201cBuy America\u201d law, which prohibits the North Carolina Department of Transportation from purchasing or using foreign-made steel and iron in highway construction projects. Petitioner was a registered lobbyist in North Carolina from 1993 until 2007. His son, Mark Beason (\u201cMark\u201d), has been a registered lobbyist since 1999. Between late 2006 and August 2007, Mark worked for petitioner at Beason Government Affairs (BGA), a lobbying firm operated by petitioner. Respondent and the North Carolina Ethics Commission are the administrative agencies statutorily charged with enforcing and administering Chapter 120C of the North Carolina General Statutes (the \u201clobbying laws\u201d). N.C. Gen. Stat. \u00a7 120C-600 and \u00a7 120C-601 (2011).\nIn late 2006, Sigma, a New Jersey corporation that imports and sells foreign manufactured cast iron and steel products in the United States, and petitioner discussed the possibility of BGA lobbying on behalf of Sigma and/or the Engineering Export Promotion Council (\u201cEEPC\u201d), an Indian trade association for exporters of iron products from India. During those discussions, Sigma requested that petitioner send a proposal for lobbying services so that Sigma could forward it to EEPC. Petitioner sent a proposal indicating that he, Mark, and T. Jerry Williams (\u201cMr. Williams\u201d), an independent contractor of BGA, would perform lobbying services for EEPC. In December 2006, EEPC sent petitioner an unsigned agreement that incorporated the proposal. Petitioner signed his name and Mark\u2019s name on the proposed contract and returned it to Sigma for EEPC to sign. EEPC refused to execute the contract.\nIn February 2007, Sigma executed a contract with BGA. The contract stated that petitioner, Mark, and Mr. Williams would lobby on behalf of Sigma and be paid $95,000 plus expenses. Documents obtained by respondent during its investigation indicate that five companies engaged in importing and selling iron products \u2014 specifically, EEPC; Star Pipe Products (\u201cStar\u201d); General Foundries, Inc. (\u201cGF\u201d); Serampore Industries Products (Ltd.) Inc. (\u201cSIP\u201d); and Capitol Foundry of Virginia (\u201cCapitol\u201d) \u2014 agreed to reimburse Sigma for its contract with BGA. It is not definitively established whether petitioner was aware of the agreement between Sigma and the five other companies. After executing the contract, both Mark and Mr. Williams lobbied on behalf of Sigma to repeal the \u201cBuy America\u201d law. Petitioner, Don, and Mr. Williams all reg-istered with respondent as lobbyists for Sigma.\nIn March 2007, in response to safety concerns of Indian iron products, petitioner attended a meeting in Washington, D.C. with Sigma representatives, EEPC, and various other representatives of companies involved with exporting Indian Steel. Mark and Mr. Williams were not aware of this meeting.\nIn 2007, respondent initiated an investigation into the lobbying activities of petitioner and Mark. On 29 March 2010, respondent issued a civil fine assessment against petitioner for nine alleged violations of the lobbying laws and administrative rules. In the civil fine, respondent noted that it was based on petitioner\u2019s \u201ccoordinated efforts\u201d on behalf of Sigma and five unregistered lobbyist principals and his \u201cacting in concert\u201d with numerous individuals and business entities in his lobbying efforts. Respondent fined petitioner $111,000.\nRespondent also fined Mark for three alleged violations of the lobbying laws. Mark\u2019s fine totaled $6000.\nOn 15 April 2010, because they were both fined by respondent, petitioner and Mark filed a joint petition for contested case hearing with the Office of Administrative Hearings appealing their civil fine assessments. The matter came on for hearing on 30 August 2010, and Administrative Law Judge Fred G. Morrison, Jr. (\u201cAU Morrison\u201d) issued his Decision (\u201cAU Decision\u201d) on 22 November 2010. Relying on the definition of lobbying in N.C. Gen. Stat. \u00a7 120C-100(a)(9), AU Morrison concluded that \u201c[t]he activities of Don Beason, Mark Beason, and T. Jerry Williams during 2007 to seek repeal or amendment of the \u2018Buy America\u2019 law constituted lobbying.\u201d Because petitioner failed to register as lobbyist for EEPC, failed to disclose to designated individuals that he was lobbying on behalf of EEPC, and failed to file lobbyist reports as a lobbyist for EEPC, the AU Decision upheld the civil assessment against petitioner in a modified amount of $6000.\nPetitioner filed a Petition for Judicial Review, including a North Carolina Constitutional Claim, in Wake County Superior Court on 8 March 2011. On8April2011, respondent issued its Final Agency Decision, affirming in part and modifying in part the AU Decision. The Final Agency Decision adopted the conclusion, made by AU Morrison, that petitioner\u2019s \u201cactivities\u201d constituted lobbying. Moreover, respondent concluded that the \u201cjoint lobbying activities of Don Beason... as defined by N.C. Gen. Stat. \u00a7 120C-100(a)(9)\u201d violated N.C. Gen. Stat. \u00a7 120C-200(e), \u00a7 120C-200, and \u00a7 120C-402 for failing to file lobbyist reports for, failing to disclose he was a lobbyist for, and failing to register as a lobbyist for five undisclosed principals. The undisclosed principals included EEPC, Capitol, GF, SIP, and Star. Thus, the civil fine assessment against petitioner was affirmed in a modified amount of $30,000 ($2000 fine per violation per undisclosed principal).\nIn response to the Final Agency Decision, petitioner filed an Amended Petition for Judicial Review (\u201cAmended Petition\u201d), which also included a North Carolina Constitutional Claim, in Wake County Superior Court on 2 May 2011. In response to various discovery motions and respondent\u2019s motion to dismiss petitioner\u2019s constitutional claim in his Amended Petition, the trial court issued an order deferring ruling on the discovery motions, staying discoveiy, and staying petitioner\u2019s constitutional claim. The trial court also dismissed petitioner\u2019s 8 March 2011 Petition for Judicial Review because petitioner\u2019s Amended Petition was the matter currently pending before the trial court.\nOn 5 December 2011, petitioner\u2019s Amended Petition came on for hearing. On 6 January 2012, Judge Ridgeway issued a Memorandum of Decision and Order (\u201corder\u201d), reversing and setting aside the civil fine assessment against petitioner. Specifics of the order will be discussed as they relate to respondent\u2019s arguments on appeal. Respondent appealed the order on 3 February 2012. On 23 August 2012, petitioner filed a motion to dismiss the appeal.\nGrounds for Appeal\nAs an initial matter, we must determine whether respondent\u2019s appeal is interlocutory. Petitioner claims that the appeal is interlocutory because the order did not resolve all of his claims for relief, specifically, his constitutional Corum claim. Therefore, the order was not a final order, and the appeal should be dismissed.\n\u201cGenerally, there is no right of immediate appeal from interlocutory orders and judgments.\u201d Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). \u201cAn interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.\u201d Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381, rehearing denied, 232 N.C. 744, 59 S.E.2d 429 (1950). There is no evidence in the record that the trial court addressed petitioner\u2019s Corum claim besides its order staying it. Since petitioner\u2019s Corum claim is still pending, the trial court\u2019s order did not fully dispose of petitioner\u2019s case. Thus, we must conclude that petitioner\u2019s appeal is interlocutory.\nHowever, an interlocutory appeal is immediately appealable if it involves a substantial right. Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577, 579 (1999). To determine if an appeal involves a substantial right, \u201c[ejssentially a two-part test has developed \u2014 the right itself must be substantial and the deprivation of that substantial right must potentially work injury... if not corrected before appeal from final judgment.\u201d Goldston, 326 N.C. at 726, 392 S.E.2d at 736.\nWe conclude that since respondent is charged with investigating violations of and enforcing Articles 2, 4, and 8 of the lobbying laws pursuant to N.C. Gen. Stat. \u00a7 120C-600 (a-b), respondent\u2019s right to carry out these duties is substantial. Moreover, respondent\u2019s ability to carry out its duties requires that it be able to act timely on allegations it believes constitute violations. The substantial basis of this appeal involves the trial court\u2019s order concluding that the alleged violations respondent lined petitioner for were not actually violations. In other words, the trial court found that respondent was improperly interpreting statutes it is responsible for enforcing. Thus, we conclude that respondent suffers the risk of injury if we do not consider the merits of this interlocutory appeal. Therefore, we deny petitioner\u2019s motion to dismiss.\nStandard of Review\nPursuant to N.C. Gen. Stat. \u00a7 150B-51(b) (2009), a trial court reviewing a decision of an agency\nmay affirm the decision of the agency or remand the case to the agency or to the administrative law judge for further proceedings. It may also reverse or modify the agency\u2019s decision, or adopt the administrative law judge\u2019s decision if the substantial rights of the petitioners may have been prejudiced because the agency\u2019s findings, inferences, conclusions, or decisions are:\n(1) In violation of constitutional provisions;\n(2) In excess of the statutory authority or jurisdiction of the agency;\n(3) Made upon unlawful procedure;\n(4) Affected by other error of law;\n(5) Unsupported by substantial evidence admissible under G.S. 150B-29(a), 150B-30, or 150B-31 in view of the entire record as submitted; or\n(6) Arbitrary, capricious, or an abuse of discretion.\nThe trial court\u2019s review of respondent\u2019s 8 April 2011 Final Agency Decision is governed by N.C. Gen. Stat. \u00a7 150B-51(c) (2011), which states:\nIn reviewing a final decision in a contested case in which an administrative law judge made a decision, in accordance with G.S. 150B-34(a), and the agency does not adopt the administrative law judge\u2019s decision, the court shall review the official record, de novo, and shall make findings of fact and conclusions of law. In reviewing the case, the court shall not give deference to any prior decision made in the case and shall not be bound by the findings of fact or the conclusions of law contained in the agency\u2019s final decision. The court shall determine whether the petitioner is entitled to the relief sought in the petition, based upon its review of the official record.\nOur standard of review of a trial court\u2019s order reviewing a final agency decision is well-established:\nOn appeal from a trials court\u2019s review of a final agency decision, an appellate court\u2019s task is to examine the trial court\u2019s order for error of law by (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) determining whether the court did so properly.\nBulloch v. N.C. Dep\u2019t of Crime Control & Pub. Safety, _ N.C. App. _, _, 732 S.E.2d 373, 377, disc. review denied and appeal dismissed, _ N.C. __, _ S.E.2d _ (2012). \u201cFor errors alleged regarding violations of subsections 150B-51(b)(l) through (4), the appellate court engages in de novo review; for errors alleged regarding violations of subsections 150B-51(b)(5) or (6), the \u2018whole record test\u2019 is appropriate.\u201d Id. Here, the trial court stated that it reviewed the matter de novo. Respondent does not allege that the trial court applied the wrong standard of review, only that it applied it incorrectly. Therefore, we must determine whether the trial court applied its de novo review properly.\nArguments\nRespondent\u2019s overarching argument is that the trial court erred in concluding that respondent lacked authority to interpret the lobbying laws and find violations of those laws through the common law doctrine of \u201cacting in concert.\u201d Respondent contends that since it is obligated to enforce the lobbying laws, it had implied powers to use a concerted effort theory to establish violations of the lobbying laws. There seems to be two basic issues that must be resolved with regard to respondent\u2019s first argument. The first issue is whether respondent had the authority to interpret the lobbying laws. The second is whether respondent properly found that petitioner was a lobbyist for EEPC based on his \u201ccoordinated efforts\u201d and \u201cacting in concert\u201d with others.\nWith regard to the first issue, whether respondent had the authority to interpret the lobbying laws, we conclude that the trial court properly found that respondent did not have such authority. \u201c[T]he responsibility for determining the limits of statutory grants of authority to an administrative agency is a judicial function for the courts to perform.\u201d McDonald v. N.C. Dep\u2019t of Corr., _ N.C. App. _, _, 724 S.E.2d 138, 140, disc. review denied, _ N.C. _, 731 S.E.2d 146 (2012). \u201cAn administrative agency is a creature of the statute creating it and has only those powers expressly granted to it or those powers included by necessary implication from the legislature grant of authority.\u201d Boston v. N.C. Private Protective Servs. Bd., 96 N.C. App. 204, 207, 385 S.E.2d 148, 150-51 (1989).\nIn concluding that respondent lacked the authority to interpret the lobbying laws, the trial court looked to N.C. Gen. Stat. \u00a7 120C-101(a) (2011), the statute setting out the rule-making responsibilities of the Ethics Commission and respondent. Respondent was required to adopt any rules, orders, and forms necessary to administer the provisions of Articles 2, 4, and 8 of the lobbying laws. Id. However, the Ethics Commission was responsible for adopting rules necessary to interpret all provisions of the lobbying laws and for adopting rules necessary to administer Articles 1, 3, 5, 6, and 7 of the lobbying laws. Id. (emphasis added). Based on this statute, the trial court concluded that: (1) the legislature delegated the authority to interpret the lobbying laws to the Ethics Commission; (2) any interpretation of the lobbying laws by respondent was \u201cnot entitled to traditional deference by the [c]ourt\u201d; and (3) any inteipretation by respondent that would expand the plain meaning of the lobbying laws or define terms would be beyond its statutory authority.\nWhile respondent, in administering Articles 2, 4, and 8 of the lobbying laws, would have the implied power to determine whether certain actions constituted violations of those laws, the power to interpret the lobbying laws has been expressly granted to the Ethics Commission pursuant to N.C. Gen. Stat. \u00a7 120C-101(a). \u201cIn performing its function, the power of an agency to interpret a statute that it administers is limited by the actions of the legislature.\u201d Charlotte-Mecklenburg Hosp. Auth. v. N. C. Dep\u2019t of Health & Human Servs., 201 N.C. App. 70, 72, 685 S.E.2d 562, 565 (2009). Here, the legislature has specifically stated that although respondent has the power to administer Articles 2, 4, and 8, respondent has no power to interpret any of the provisions of the lobbying laws. The power to interpret rests solely with the Ethics Commission. Thus, the legislature has given respondent no power to interpret the statutes it is charged with administering. Therefore, we affirm the trial court\u2019s conclusion that respondent does not have authority to interpret the lobbying laws and that any interpretation by respondent that expands or defines terms in a way that conflicts with the plain language of the statutes would be outside its statutory powers.\nMoreover, we note that \u201c[although the interpretation of a statute by an agency created to administer that statute is traditionally accorded some deference by appellate courts,\u201d Charlotte-Mecklenburg Hosp. Auth., 201 N.C. App. at 73, 685 S.E.2d at 565, respondent had no authority to interpret the statutes it was charged with administering. Thus, we also affirm the trial court\u2019s conclusion that the interpretation of the lobbying laws by respondent was \u201cnot entitled traditional deference.\u201d\nNext, we must determine whether respondent was authorized to find violations of the lobbying laws based on the common law doctrine of \u201cacting in concert.\u201d In reviewing the lobbying laws, the trial court strictly construed them, concluding that they are penalty statutes. Statutes imposing penalties are to be strictly construed. State v. Holmes, 149 N.C. App. 572, 576, 562 S.E.2d 26, 30 (2002). \u201cStatutes imposing penalties are similarly strictly construed in favor of the one against whom the penalty is imposed and are never to be extended by construction.\u201d Winston-Salem Joint Venture v. City of Winston-Salem, 54 N.C. App. 202, 205, 282 S.E.2d 509, 511 (1981). Respondent contends that the trial court erred in strictly construing the lobbying laws because, as a whole, they should not be considered penalty statutes, only the statutes in Article 6 entitled \u201cViolations and Enforcement.\u201d However, the statutes in Articles other than Article 6 provide the basis for a penalty. Moreover, the statutes in Articles 2, 4, and 8 of the lobbying laws are specifically incorporated in N.C. Gen. Stat. '\u00a7 120C-602(b), the statute authorizing respondent to \u201clevy civil fines\u201d for violations of statutes in those Articles. While the statutes in sections 200 and 400 are not per se penalty statutes, they allow the imposition of a fine or penalty under Article 6 of the lobbying laws. See id. Therefore, they constitute penalty statutes and must be strictly construed and in favor of petitioner. See generally Winston-Salem Joint Venture, 54 N.C. App. at 206, 282 S.E.2d at 511.\nStrictly construing N.C. Gen. Stat. \u00a7 120C-100(a)(9), the statute that defines terms used in Articles 2, 4, and 8, we conclude that respondent improperly construed the definition of \u201clobbying\u201d to find violations based on \u201ccoordinated efforts\u201d or \u201cacting in concert\u201d with another. Pursuant to N.C. Gen. Stat. \u00a7 120C-100(a)(9) (2011), lobbying is defined as:\na. Influencing or attempting to influence legislative or executive action, or both, through direct communication or activities with a designated individual dr that designated individuars immediate family.\nb. Developing goodwill through communications or activities, including the building of relationships, with a designated individual or that designated individual\u2019s immediate family with the intention of influencing current or future legislative or executive action, or both.\n(Emphasis added). Respondent only contended that petitioner engaged in \u201clobbying\u201d as defined in subparagraph (a). The definition of lobbying at issue here specifically states that lobbying only includes direct communication or activities. Therefore, indirect communications, such as those that could be based on \u201cacting in concert\u201d or imputed liability, would not constitute lobbying. Here, the language and intent of the legislature is unambiguous, and respondent did not have room to construe the statute and find violations of the lobbying laws based on imputed liability. Thus, by doing so, respondent impermissibly expanded the definition of lobbying. We note that, as the trial court concluded, had the General Assembly wanted to include \u201cindirect communication\u201d in its definition of lobbying, it could have drafted the statute similar to Minnesota\u2019s statute which defines a lobbyist as an individual \u201cengaged for pay or other consideration ... for the purpose of attempting to influence legislative or administrative action, or the official action of a metropolitan governmental unit, by communicating or urging others to communicate with public or local officials.\u201d Minn. Stat. \u00a7 10A.01, subd. 21 (2005) (emphasis added). Similarly, Mississippi defines \u201clobbying\u201d as \u201c(i) [i]nfiuencing or attempting to influence legislative or executive action through oral or written communication; or (ii) [sjolicitation of others to influence legislative or executive action.\u201d Miss. Code Ann. \u00a7 5-8-3 (2002) (emphasis added). However, here, our General Assembly did not include such language in the definition of \u201clobbying.\u201d Therefore, the trial court did not err in concluding that respondent exceeded its statutory authority by extending the definition of lobbying.\nNext, respondent alleges that, as applied, the trial court\u2019s decision leads to absurd results. Specifically, respondent contends that \u201c[t]he manifest purpose of the [lobbying laws] [are] to provide full and complete public disclosure of all lobbying activities and expenditures.\u201d By concluding that only \u201cin person, face-to-face\u201d communication constitutes lobbying, the trial court circumvents that purpose. While respondent couches its argument in its overarching argument that the order \u201cprohibits [respondent] from carrying out [its] statutory duties],]\u201d we conclude that the trial court\u2019s conclusion was erroneous for a different reason.\nHere, the trial court concluded that\nin order for [petitioner to be a \u2018lobbyist,\u2019 as that term is defined by statute, he must have individually and personally \u2018lobbied,\u2019 which in turn requires that he have engaged in direct communication or activities with legislators, legislative employees, or public servants in an attempt to influence legislative or executive action, or both.\nBecause the trial court found that \u201c[t]here is no evidence of record that petitioner personally engaged in direct communication with any designated individual],]\u201d he did not engage in lobbying. In fact, the trial court noted that \u201cwithout a showing that [petitioner individually had direct communication with any designated individual, he was not a \u2018lobbyist\u2019 required to file a registration under plain meaning of the terms used in N.C. Gen. Stat. \u00a7 120C-200(a).\u201d In other words, the trial court concluded that petitioner was not a lobbyist because he never directly communicated with any individual on behalf of EEPC, SIP, Star, Capitol, or GF.\nAlthough respondent claims that the trial court\u2019s interpretation of \u201clobbying\u201d is erroneous because it curtails the authority of respondent, we find that the trial court erred by not considering both prongs of the definition of \u201clobbying\u201d found in N.C. Gen. Stat. \u00a7 120C-100(a) (9)(a). Specifically, lobbying can be effectuated by either influencing or attempting to influence legislative or executive action, or both, through: (1) direct communication, or (2) activities. While the trial court specifically quoted this definition, it only considered whether petitioner lobbied by engaging in direct communication. It failed to find whether the evidence supported a conclusion that petitioner lobbied based on his \u201cactivities,\u201d the second prong of the definition. Moreover, we note that both the AU Decision and respondent\u2019s Final Agency Decision concluded that petitioner\u2019s \u201cactivities\u201d constituted lobbying. While the trial court is not bound by these previous decisions, its failure to address both types of \u201clobbying\u201d specifically stated in N.C. Gen. Stat. \u00a7 120C-100(a)(9) (a) was error. Therefore, we must reverse and remand the matter to the trial court on the issue of whether petitioner\u2019s activities constituted lobbying under the statute.\nConclusion\nFor the foregoing reasons, we affirm in part and reverse and remand in part the trial court\u2019s order.\nAFFIRMED IN PART; REVERSED AND REMANDED IN PART.\nJudges ELMORE and STEELMAN concur.\n. We note that the amount of this fine, specifically the enhancement of petitioner\u2019s fine based on aggravating factors, is discussed in a separate case, Donald, R. Beason v. The N.C. Dep\u2019t of the Sec\u2019y of State, _ N.C. App. _, _ S.E.2d _ (No. COA 12-874) (April 2, 2013), filed contemporaneously with this opinion.\n. We note that ALJ Morrison cites to N.C. Gen. Stat. \u00a7 120C-100(a)(10) when quoting the definition of \u201clobbying.\u201d However, the definition of \u201clobbying\u201d is found in section 100(a)(9).\n. In contrast to respondent, ALJ Morrison concluded that petitioner only violated three statutes and that the only undisclosed principal was EEPC.\n. In Corum v. Univ. of N.C, 330 N.C. 761, 785-86, 413 S.E.2d 276, 291-92, rehearing denied, 331 N.C. 558, 418 S.E.2d 664 (1992), our Supreme Court concluded that, under specific circumstances, a plaintiff may bring a direct claim under our state constitution in the absence of an adequate state remedy and that sovereign immunity does not bar these claims.\n. We note that N.C. Gen. Stat. \u00a7 150B-51 was modified by Session law in 2011. See 2011 N.C. Sess. Laws ch. 398, sec. 27 (2011). However, the modifications were not effective until 1 January 2012. Since the Final Agency Decision was issued 8 April 2011 and petitioner\u2019s Amended Petition was filed 2 May 2011, the trial court\u2019s review is governed by the version of N.C. Gen. Stat. \u00a7 160B-51 in effect prior to 1 January 2012.\n. We note that both the AU Decision and the Final Agency Decision stated that \u201c[l]obbying consists of any of the following activities: 1) influencing or attempting to influence legislative or executive action, or both, through direct communication or activities[.]\u201d Thus, the conclusions are written in such a way that \u201cactivities\u201d could include both direct communication or activities or could simply mean \u201cactivities,\u201d the second prong of the lobbying definition. However, what the ALJ Decision and the Final Agency Decision meant by \u201cactivities\u201d does not affect our ultimate conclusion that the trial court erred in not considering both parts of the lobbying definition.", "type": "majority", "author": "HUNTER, Robert C., Judge." } ], "attorneys": [ "Bailey & Dixon, LLP, bySabraJ. Faires, MichaelL. Weisel, andAdam N. Oils, and Allen, Pinnix & Nichols, P.A., by M. Jackson Nichols, Anna Baird Choi, and Catherine E. Lee, for petitioner-appellee.", "Attorney General Roy Cooper, by Special Deputy Attorney General Daniel Snipes Johnson and Assistant Attorney General Melissa H. Taylor, for respondent-appellant." ], "corrections": "", "head_matter": "DONALD R. BEASON, Petitioner v. NORTH CAROLINA DEPARTMENT OF THE SECRETARY OF STATE, Respondent\nNo. COA12-838\nFiled 2 April 2013\n1. Appeal and Error \u2014 interlocutory orders and appeals \u2014 lobbying enforcement \u2014 substantial right\nRespondent\u2019s appeal was from an interlocutory order but immediately appealable because a substantial right was affected where respondent investigated petitioner\u2019s lobbying activities and issued fines, and the matter proceeded through administrative hearings to the superior court, where the fines were set aside. Petitioner\u2019s constitutional claim was still pending, but immediately appealable because respondent was charged with investigating violations of and enforcing the lobbying laws and respondent\u2019s ability to carry out its duties required that it be able to act timely on allegations it believed constituted violations.\n2. Administrative Law \u2014 lobbying statutes \u2014 interpretation\u2014 authority\nThe trial court properly found that respondent Department of the Secretary of State did not have the power to interpret the lobbying laws, which rests solely with the Ethics Commission, although the Department of the Secretary of State has some power to administer certain parts of the law.\n3. Administrative Law \u2014 lobbying statutes \u2014 imputed liability\nRespondent-Secretary of State improperly construed the definition of \u201clobbying\u201d to find violations based on \u201ccoordinated efforts\u201d or \u201cacting in concert\u201d with another. Respondent only contended that petitioner engaged in lobbying as defined in N.C.G.S. \u00a7 120C-100(a) (9)a; the language and intent of the legislature is unambiguous, and respondent did not have room to construe the statute and find violations of the lobbying laws based on imputed liability.\n4. Administrative Law \u2014 lobbying\u2014definition\u2014two prongs\nA trial court decision on whether petitioner\u2019s activities constituted lobbying was reversed and remanded where the trial court did not consider both prongs of the definition of \u201clobbying\u201d found in N.C.G.S. \u00a7 120C-100(a)(9)(a).\nAppeal by respondent from order entered 6 January 2012 by Judge Paul C. Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 8 January 2013.\nBailey & Dixon, LLP, bySabraJ. Faires, MichaelL. Weisel, andAdam N. Oils, and Allen, Pinnix & Nichols, P.A., by M. Jackson Nichols, Anna Baird Choi, and Catherine E. Lee, for petitioner-appellee.\nAttorney General Roy Cooper, by Special Deputy Attorney General Daniel Snipes Johnson and Assistant Attorney General Melissa H. Taylor, for respondent-appellant." }, "file_name": "0222-01", "first_page_order": 232, "last_page_order": 243 }