Some Excellent Lobbying Reforms in NYC

Anonymous

Tue, 05/20/2014 - 04:55

City Related

A must-read for lobbying reformers! A series of fascinating
amendments that were made to New York City's lobbying law last
December will take effect this month. There are some reforms here
that I've never seen anywhere else, and they raise some issues that
need to be more widely discussed. 
 
The amendments, made in Local Law 129 (attached; see below), are
based on recommendations made by a special reform task force, the <a href="http://www.nyc.gov/html/lobby/html/home/home.shtml" target="”_blank”">NYC
Lobbying Commission</a>, established by the mayor and council to
examine the lobbying law, hold hearings on it (reading <a href="http://www.nyc.gov/html/lobby/html/meetings/meetings.shtml" target="”_blank”">the
transcripts</a> is instructive), and <a href="http://www.nyc.gov/html/lobby/downloads/pdf/final_report_adopted_3_13_1…; target="”_blank”">report
on ways in which it could be improved</a>. It's worth noting that
the task force had five members and six staff.

Expansion of "Lobbying Activities" 
One of the principal results of this reform process was to expand
the range of individuals and activities that require registration as
lobbyists. This wasn't done in one big way, but in a lot of small
ways. For instance, the definition of "lobbying activities" was
expanded, as follows (in part; text in italics is new; text in brackets has been struck):<blockquote>

any attempt to influence: 
 
(i) any determination made by the city council or any member
thereof with respect to the introduction,
passage [or], defeat, or substance of any local [law] legislation
or resolution [by the city council], 
 
(ii) [the approval or disapproval of any local law or resolution by
the mayor] any determination made by the mayor to
support, oppose, approve, or disapprove any local legislation or
resolution, whether or not such legislation or resolution has been
introduced in the city council,</blockquote>

The commission recognized that a simple description of a specific
range of activities that may be influenced by lobbyists — passage or defeat of a local resolution, for
instance — leaves out a lot of activities that are equivalent, such
as the introduction or drafting of such resolutions, as well as activities relating to
legislation that is not yet in the form of a resolution and may
never take such form. After all, the goal of many lobbyists is to
prevent an issue from becoming a resolution. Under the old language,
this common form of lobbying was not considered lobbying at all. 
 
There is another way to fix this problem, but it would require
throwing out the old language and taking a different approach. The
most common alternative approach is to focus not on the actions
lobbyists are trying to influence, but rather on the actions that
constitute lobbying, that is, what lobbyists do. This is the
principal approach taken in <a href="http://ethics.lacity.org/pdf/laws/law_mlo_jan2013.pdf" target="”_blank”">Los
Angeles</a> and in many other cities and counties. I consider this
the preferable approach. It can be useful to also describe lobbying
activities in terms of the actions influenced, but it should be made
clear that the list of such actioins is not exhaustive, but rather
for the purpose of describing the lobbying process. Such a list
belongs less in a lobbying code than in a lobbying manual 
 
Indirectly Lobbying the State and Federal Governments 
The addition to this list that is the most interesting and unusual
is as follows:<blockquote>

(xi) any determination made by an elected city official or an
officer or employee of the city to support or oppose any state or
federal legislation, rule or regulation... </blockquote>

At first blush, this seems odd. Why should lobbying about state and
federal rules be considered local lobbying? The answer is that local
officials spend a great deal of time lobbying at the state and
federal level, especially for grants that can be very valuable to
those who lobby at the local level. Lobbying local officials to give priority to
certain grant opportunities is no different from lobbying state or federal
officials directly, but it is not considered state or federal
lobbying, because no state or federal officials are directly
contacted. 
 
Like so many indirect activities, this indirect lobbying often falls
between the cracks of lobbying laws at different levels. The
lobbying commission did not recommend this change. Kudos to whoever
was astute enough to recognize the problem and fix it. 
 
Other Interesting Changes 
An interesting change (actually turning an unenforced rule into law)
brings a contract lobbyist's client into the lobbying program by
requiring, "before a lobbyist files a statement of registration
[that] the lobbyist and its client shall enroll in the electronic
filing system." 
 
The reforms also include a waiver provision for late filing
penalties, with five factors that the clerk's office must take into
account in making its decision. Such a decision must be put into
writing. 
 
And the reforms include some more exceptions for architects and
engineers, so that fewer of their activities are considered "lobbying
activities." Although too complex to enumerate here, these
exceptions, and the lobbying commission's consideration of them, are
useful for thinking through the issue of the extent to which the
work of certain professionals should or should not be considered lobbying. 
 
Active Oversight 
Also very interesting is a new requirement to provide active
oversight in order to identify lobbyists who have not registered.
The amendment requires that the city clerk (which enforces the
lobbying law) "develop a protocol to review sources of information"
that may provide such information. It even provides some examples of "sources of information":<blockquote>

1. state lobbying registration documents 
2. notices of appearances before city agencies that identify the
representative of an applicant 
3. the city's "doing business" database</blockquote>

This is a great idea. Like ethics oversight, lobbying oversight
should not be passive. If information is available through the city
or state government, or in the news media, it should lead lobbying
program staff to contact possible lobbyists, tell them about their obligations and, if necessary, commence
proceedings against them. 
 
Outreach and Amnesty 
Making it clear that active oversight is not just about more enforcement, the reforms
also require the city clerk to work with the council and city
agencies "to develop notices and advertisements to be placed in
print and electronic media intended to reach persons and
organizations doing business with the city that will inform them of
the requirements set forth in this subchapter." The goal is to
identify lobbyists and get them into the lobbying program, or to
have them identify themselves by seeking advice or registering as
lobbyists. 
 
The icing on the cake of getting everyone into the lobbying system
is an amnesty program. Register now and the past will be ignored.
That's a good deal for a lobbying program that, like most, is
limited in resources. 
 
Should the Clerk's Office Be an Oversight Agency? 
A local good government organization recommended to the lobbying
commission that the lobbying program be transfered from the clerk's
office to the conflicts of interest board, because the clerk is
appointed by the council and, in fact, is the clerk of the council,
as well. The clerk's office does have a special <a href="http://www.cityclerk.nyc.gov/html/lobbying/lobbying_bureau.shtml" target="”_blank”">lobbying
bureau</a>, with its own investigators and electronic filing
system. But if the clerk went easy in a situation involving a council member or someone who had a special relationship with a council member, it certainly
would look like it was not acting independently. 
 
The lobbying commission, as so many non-government ethics professionals do, misunderstood the conflict of
interest that the clerk's office has. It wrote, "There has been no
evidence or testimony before the Commission that the Clerk has acted
in a manner that is less than independent or that evidences any
intent to be less than robust in its enforcement of the Lobbying
Laws." This is not the point. Before dealing responsibly with a
conflict situation, one need not wait for evidence that it has
mattered. 
 
It appears that the current clerk is doing an excellent job, and is
on board for the reforms that have been passed. But what about the
next clerk, and the next council that appoints someone to the position? A decision should not depend on the individual in a
government office, but on the office itself, its selection process, and the conflicts that arise from the office's relationship with officials whose activities and relationships are under its jurisdiction. 
 
Ethics Reform Is Ongoing 
Finally, it's notable that the lobbying commission recognized that ethics reform is an ongoing
process and, therefore, recommended that another lobbying commission
be appointed three to four years from now. This recommendation was
wisely accepted. 
 
For a valuable review of the lobbying amendment, see <a href="http://www.gtlaw.com/portalresource/lookup/wosid/contentpilot-core-401-…; target="”_blank”">this
report</a> by the law firm Greenberg Traurig. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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