Including Subcontract Lobbyists in a Lobbying Code

One of the areas where government ethics laws are weakest is the indirect relationship, such as when a gift is given not to an official, but to an official's spouse or child; an official's business relationship is not with a developer, but with the owner of the developer's parent; an official's aide participates on a recused official's behalf; or an official participates in a contract matter when she has a family relationship with the owner of a subcontractor that is not directly involved in the bid. Simply adding the words "directly or indirectly" can allow an ethics code to make it clear that these are all conflict situations. But too many ethics codes do not contain these words.

This can also be the case with a lobbying code. Not all contract lobbyists have a direct contract with their client. For example, a public relations firm may be hired by a lobbyist as a subcontractor to work on a campaign to get a development approved. Or a lobbyist firm may hire an outside lobbyist who has an especially good relationship with a mayor.

It is important, therefore, to make it clear that such subcontractor lobbyists must also register and be bound by the lobbying and ethics codes of the jurisdiction. And it should be clear what responsibility the client, the contract lobbyist, and the subcontract lobbyist have with respect to the disclosure of information.

The occasion for raising this issue is a bill that has recently been passed by the Colorado senate, SB 217 (attached; see below). The bill would require contract lobbyists' annual disclosure to include not only income from lobbying for a client, but also income from lobbying for another lobbyist. In addition, the contract lobbyist must report the same income, given to a subcontractor, in an addendum to his annual disclosure, so that there is a check on the disclosure. In other words, both lobbyists are responsible for disclosure involving the paid work of a subcontractor lobbyist.

The Colorado bill expressly states that a contract lobbyist is not a "client." Los Angeles and other jurisdictions put this another way, not expressly making an exception, but suggesting it instead. Los Angeles defines "client" as:

the person on whose behalf a lobbyist or lobbying firm attempts to influence such municipal legislation, even if the lobbyist or lobbying firm is compensated by another person for such representation.

This means that the contract lobbyist does not become a client just because it is the one that compensates the subcontract lobbyist. The ultimate client is the sole beneficiary of and is responsible for the work of subcontractors.

However, it is better to expressly require the disclosure of a subcontract lobbyist's work, income, and expenditures, and to make it clear who (subcontractor, contractor, and/or client) is responsible for disclosure. It is also valuable to make it clear that subcontract lobbyists are under the jurisdiction of the lobbying or ethics program and must follow relevant laws.

Robert Wechsler
Director of Research-Retired, City Ethics

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