Lobbying An Ethics Commission Should Be Lobbying
Can a local ethics commission be lobbied? It's conceivable, especially with respect to recommendations for ethics reform. It is
important for an ethics commission to have an ethics code provision
or regulation that prohibits ex parte communications relating to any
proceeding. But with respect to ethics reform recommendations, the public's input is important, and there would seem to be no
reason why a registered lobbyist shouldn't be able to put in her two
cents. But it appears that, in most jurisdictions, those who lobby an ethics commission are not required to register or disclose whom they are representing.<br>
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Of course, the ethics commission could simply ask. But what if the lobbyist was clever enough to find a way not to have to disclose whom she was representing if it was merely requested rather than required?<br>
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According to <a href="http://azcapitoltimes.com/news/2011/10/31/fair-game/" target="”_blank”">an
article in yesterday's Arizona Capitol <i>Times</i></a>, two attorneys
have been lobbying the state's independent redistricting commission
on behalf of the FAIR Trust, a "legal trust," which the article
defines as "a banking vessel that allows people to anonymously
deposit money into an account and others to take money out."<br>
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According to the attorneys, lobbying laws do not apply to those who
lobby a redistricting commission. It is lobbying that is legally not
lobbying at all. And since the trustees insist on confidentiality,
the attorneys cannot disclose their names without a law requiring this.<br>
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Do lobbying laws apply to lobbying ethics commissions? Since no one
thinks of this possibility, the answer is probably No, at least in
those jurisdictions that have any limits on which government boards
and agencies their lobbying laws apply to. Who would think to
include an ethics commission?<br>
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In New York City, for example, <a href="http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDAT…; target="”_blank”">Administrative
Code §3-211(c)</a> defines "lobbying" to include a number of
activities that would not include ethics commission recommendations
of ethics reforms. The last and most general activity is "any
determination of a board or commission." But is a recommendation a
determination? If you consider that an ethics commission determines
what reforms to recommend, then the answer is Yes. If you consider a
determination to mean something that actually has a direct, concrete
effect, then the answer is No.<br>
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And yet an ethics commission recommendation is something that is
taken seriously by many local legislative bodies. Affecting a
recommendation can affect the law.<br>
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<a href="http://clerk.ci.seattle.wa.us/%7Escripts/nph-brs.exe?d=CODE&s1=2.06.010…; target="”_blank”">Seattle's
lobbying law</a> §2.06.10(J) limits the definition of
"lobbying" to communications with city council
members, legislative department staff, the mayor or the mayor's
staff. Therefore, lobbying the ethics commission would not be
lobbying.<br>
<br>
Lobbyists are generally attorneys who care about law, not ethics.
Here's one of the Arizona lobbyists on a complaint filed against him
(from <a href="http://azcapitoltimes.com/news/2011/08/23/fair-trust-targeted-over-alle…; target="”_blank”">an
August 23 Capitol <i>Times</i> article</a>): “It’s legally meritless.
What matters here is Arizona’s lobbying rules… and the clear
definition of lobbying is attempting to influence the passage or
defeat of any legislation.”<br>
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What matters to an ethics commission is the ethics of the situation,
but the laws have to reflect the ethics or the ethics will be
ignored. So, before lobbying becomes an issue, an ethics commission should recommend to the local
legislative body that it expressly include in the definition of
"lobbying" the lobbying of the ethics commission regarding
recommendations of any sort. It should also make sure that the
lobbying law applies to lobbying the ethics commission relating to
the passing of rules and regulations, which can have as important an
effect on ethics proceedings as the passing of ordinances.<br>
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And an ethics commission should consider adding a regulation
requiring lobbyists to disclose the names of the clients they are
representing, including those who are trustees, partners, owners,
board members, executives, etc. Lobbyists who refuse to disclose
their clients should not be permitted to participate in ethics
commission meetings or communicate with ethics commission members or
staff. This seems a fair exchange in order to have lawyers make use
of one's free speech rights in a public forum.<br>
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Who is the FAIR Trust representing? The article suggests it is
representing incumbent legislators from one of the two major
parties, who are seeking safe districts to run in next year. And the
article also suggests that the same thing is happening in other
states.<br>
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Independent redistricting commissions may be sexier than independent
ethics commissions, but when ethics reforms are controversial,
lobbyists will surface. It's best to be prepared.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
203-859-1959