School District Lobbying: Defining, Disclosing, Penalizing

Defining what lobbying is is one of the most important parts of a lobbying law. Not only are many definitions of lobbying unclear or full of loopholes, but it is difficult to get even a good definition across, because the popular concept of lobbying is different from what lobbying really is.

This can be clearly seen in what has recently happened in the Orange County, FL school district. According to an article this week in the Orlando Sentinel, the school district has a new policy requiring anyone who approaches a district decision-maker hoping to influence a current or future decision or policy to register as a lobbyist, and to report all their phone calls, e-mails, and meetings with school district officials.

The school board chair sums the problem up in a sentence: "Seventy, eighty percent of the people who come talk to me don't think they're lobbying, but they are." The problem is even more starkly seen in the registration statistics since the district created a lobbyist registry in 2009:  only one person registered. Since the rule was changed in late April (it took effect July 1), thirteen more people registered as lobbyists. Most of these lobbyists are vendors and their representatives. Since vendors are not trying to change policy, they often do not think of themselves as lobbyists.

With respect to enforcement, the school district is taking the right approach. Individuals who lobby without registering will receive a letter telling them to do so. Repeated noncompliance could lead to a ban on conducting business with the school district for up to three years. But penalties won't be harsh at first. "For the first three months, we want to educate people," said the school district's general counsel. When people call requesting a meeting, they will be notified of the changes. In other words, school officials have the responsibility to educate lobbyists.

An alternate way to deal with the problem is to ask officials for a list of those who have lobbied them over the past two or three years, and then send them an explanation of the new lobbying registration rules and/or require them to attend a training session. The school district's voluntary information session a month after the policy's effective date is insufficient.

As for the responsibility to report communications and meetings, it is shared by lobbyist and official. Separate disclosure is the best approach, because it provides a check and makes disclosure more likely. Only those conspiring to hide communications and meetings will be likely not to report them.

The lobbying rules also require lobbyists to disclose any familial or business ties to school board members and school district employees, to say whom they are lobbying for, and to file an annual expenditure report.

Here is the full definition of lobbying from the new Ethics and Lobbying Policy:

[C]ommunicating ... directly or indirectly with either the Superintendent, any Board Member, any Procurement Official or any Staff Member with Contracting Authority, for the purpose of or seeking to encourage the approval, disapproval, adoption, repeal, rescission, passage, defeat or modification of any policy, resolution, agreement, procedure, bid, procurement contract, recommendation, decision or other foreseeable action of the School Board. Lobbying shall include, without limitation, all such communications, regardless of whether initiated by the Lobbyist or by the person being lobbied...

Unfortunately, the definition of a conflict of interest, which must be reported by every vendor, is poor:

[S]ituations in which regard for a private interest tends to lead to disregard of a public duty or interest.

This is a purely theoretical definition, which will not provide anyone with guidance. There is nothing about benefits, relationships, or obligations. The new policy still needs some work.

Robert Wechsler
Director of Research-Retired, City Ethics

203-859-1959