You are here
Some Excellent Lobbying Reforms in NYC
Tuesday, May 20th, 2014
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 NYC Lobbying Commission, established by the mayor and council to examine the lobbying law, hold hearings on it (reading the transcripts is instructive), and report on ways in which it could be improved. 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):
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 Los Angeles 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:
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":
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 lobbying bureau, 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 this report by the law firm Greenberg Traurig.
Robert Wechsler
Director of Research-Retired, City Ethics
---
The amendments, made in Local Law 129 (attached; see below), are based on recommendations made by a special reform task force, the NYC Lobbying Commission, established by the mayor and council to examine the lobbying law, hold hearings on it (reading the transcripts is instructive), and report on ways in which it could be improved. 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):
any attempt to influence: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.
(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,
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 Los Angeles 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:
(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...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":
1. state lobbying registration documentsThis 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.
2. notices of appearances before city agencies that identify the representative of an applicant
3. the city's "doing business" database
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 lobbying bureau, 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 this report by the law firm Greenberg Traurig.
Robert Wechsler
Director of Research-Retired, City Ethics
---
Story Topics:
| Attachment | Size |
|---|---|
 NYC Local Law 129.pdf | 0 bytes |
- Robert Wechsler's blog
- Log in or register to post comments
