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Lobbying An Ethics Commission Should Be Lobbying
Tuesday, November 1st, 2011
Robert Wechsler
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.
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?
According to an article in yesterday's Arizona Capitol Times, 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."
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.
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?
In New York City, for example, Administrative Code §3-211(c) 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.
And yet an ethics commission recommendation is something that is taken seriously by many local legislative bodies. Affecting a recommendation can affect the law.
Seattle's lobbying law §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.
Lobbyists are generally attorneys who care about law, not ethics. Here's one of the Arizona lobbyists on a complaint filed against him (from an August 23 Capitol Times article): “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.”
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.
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.
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.
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.
Robert Wechsler
Director of Research-Retired, City Ethics
203-859-1959
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?
According to an article in yesterday's Arizona Capitol Times, 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."
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.
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?
In New York City, for example, Administrative Code §3-211(c) 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.
And yet an ethics commission recommendation is something that is taken seriously by many local legislative bodies. Affecting a recommendation can affect the law.
Seattle's lobbying law §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.
Lobbyists are generally attorneys who care about law, not ethics. Here's one of the Arizona lobbyists on a complaint filed against him (from an August 23 Capitol Times article): “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.”
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.
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.
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.
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.
Robert Wechsler
Director of Research-Retired, City Ethics
203-859-1959
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