ATTACHMENT 2
To: Council members Cam Hill, Dorothy Verkerk, Edith Wiggins; attorney Ralph Karpinos
From: Council member Sally Greene
Re: Lobbying ordinances
Date: February 23, 2004 as amended March 13, 2004
Sample Provisions of Municipal Lobbying Ordinances
The following is a compilation of key provisions of example lobbying ordinances for our discussion. Not a scientific compilation, this rather random collection tell us, first of all, that a lobbying ordinance can be constructed in many ways. If we can make any generalizations from this collection, we might observe a few common themes.
First, the law only cares about lobbyists who engage in lobbying as part of their job. Individuals who make appeals to their government officials on their own behalf and their own volition do not need to register. Some ordinances exclude individuals who own all or most of their own business.
These regulations are about public disclosure of the work of monied interests in local politics. The existence of municipal lobbying regulations (at an accelerated pace in recent years) corroborates the conclusion of political science professors Anthony J. Nownes and Jacqueline Giles that “private interests are active and engaged participants in many city policy battles,” that “business interests—especially those intent on land intensification—are permanent players in urban governing coalitions.”[1]
Note that in some cases, it is only private communications that need to be documented; appearances at public hearings are by definition in the public record and so there is no particular need to document them—according to some cities. Other cities ask lobbyists to report all appearances, even those already public.
Note also that “lobbying” can be defined broadly, to include the preparation of reports and data that are used to communicate with public officials and to include time spent “monitoring” public processes related to the lobbyist’s interest. It can cover “promoting” or “supporting” a potential decision as well as advocating directly for it.
The application of these ordinances to “government officials” is handled in various ways. Often the ordinance exempts “public officials” acting in their “official capacity.” Sometimes this is qualified: for example, one ordinance limits the exemption to officials who appear to “explain[] the effect of any legislative or administrative matter pending.”
The State of New York requires lobbyists in all municipalities of over 50,000 population to register as municipal lobbyists. This regulation applies to universities in the SUNY system.
The State of Minnesota requires lobbyist registration in all municipalities of any size as long as the individual lobbyist is paid more than $3,000 in a year; but employees of the state university systems are not within the definition of “lobbyist.”[2]
Finally comes the matter of the financial threshold for the reporting requirement. Some cities do not require registration unless a threshold amount (for example $2,000 per year) is allocated or expended for lobbying. Whether this amount is attributed to the principal (i.e. the lobbyist’s employer or client) or the individual lobbyist varies by city. Some cities have no financial threshold: if you lobby as part of your job, you must report.
For our preliminary purposes, I have not gone into other details such as the frequency and content of the reports, the enforcement mechanisms, etc. They also vary by city.
I hope that the passages I’ve pulled below from various ordinances will be helpful for us in thinking about what kind of regulation, if any, might be appropriate for Chapel Hill.
Purpose of Ordinance
“The purpose of this division is to provide registration and disclosure requirements whereby individuals acting as Municipal Lobbyists are required to register with the City. The purpose of registration is to require Lobbyists to provide sufficient information so that complete disclosure of principals and Clients they represent may become public information for the benefit of the City Council and the general public. This division is not intended to discourage or prohibit the exercise of constitutional rights.”
(San Diego, “purpose” statement at beginning of lobbying ordinance as amended Dec. 7, 1998.)
“The Common Council recognizes the right of the people of Madison to know who seeks to influence the actions of their City government. The Council finds that, in order to preserve the integrity of the City’s decisionmaking processes, it is necessary to establish a procedure whereby persons acting as lobbyists are required to provide to the public full information as to their identity, the identity of their principal, their expenditures, and their lobbying activities. It is not the intent of this ordinance to discourage or limit the exercise or constitutional rights.”
(Madison, statement of “legislative intent” at beginning of lobbying ordinance enacted Sept. 5, 2000.)
“[T]he Board of County Commissioners of Hillsborough County, Florida has received expressions of concern by citizens about the disclosure of information concerning the identity of those who, on behalf of another, seek to encourage the passage, defeat, or modification of any matter before, or which may come before, the Board of County Commissioners; and . . . the Board of County of Commissioners . . . wishes to address those concerns of citizens by establishing a procedure to provide the information the citizens desire to have.”
(Hillsborough County, Fla., preamble to lobbying ordinance enacted Oct. 3, 2003.)
Definition of Lobbying
“‘Lobbying’ means ‘Direct Communication’ with a City Official’ for the purpose of Influencing a Municipal Decision on behalf of any other Person.”
“‘Direct Communication’ means:
(a) talking to (either by telephone or in person); or
(b) corresponding with (either in writing or by electronic transmission or facsimile machine).
It does not include
(a) solely responding to any questions from any City Official; or
(b) appearing as a speaker at, or providing written statements which become part of the record at, a Public Hearing, so long as the Lobbyist identifies the Client(s) represented.
“‘Influencing a Municipal Decision’ means affecting or attempting to affect any action by a city Official on one or more Municipal Decisions by any method, including promoting, supporting, opposing or seeking to modify or delay such action. ‘Influencing a Municipal Decision’ also includes providing information, statistics, analysis or studies to a City Official.”
“‘Municipal Decision’ includes (a) the drafting, introduction, consideration, reconsideration, adoption, defeat, or repeal of any ordinance or resolution; and (the amendment of any ordinance or resolution; and (c) a report by a City Official to the City Council or a City Council Committee; and (d) contracts; and (e) quasi-judicial decisions; and (f) any other decision of the City Council or a City Board.”
“‘Threshold Determination.’ For the purpose of determining whether a Lobbyist has met the threshold for Compensation registration . . . , time spent on the following activities shall be included:
(1) monitoring a Municipal Decision the Lobbyist is seeking to influence;
(2) preparing testimony and presentations;
(3) attending hearings on a Municipal Decision the Lobbyist is seeking to influence;
(4) communicating with the Lobbyist’s Client or the Lobbyist’s employer on a Municipal Decision the Lobbyist is seeking to influence; and
(5) waiting to meet with City Officials. These and similar activities are an integral part of Influencing a Municipal Decision.”
(San Diego)
“‘Lobbying’ means the practice of attempting to influence legislative or administrative action by oral, written or electronic communication with any City official, and includes time spent in preparation for such communication and appearances at public hearings or meetings or service on a committee in which such preparation or communication occurs.”
“‘Lobbying communication’ means an oral, written or electronic communication with any City official that attempts to influence legislative or administrative action.”
“‘Lobbying expenditure’ means an expenditure related to the performance of lobbying whether received in the form of an advance or subsequent reimbursement. The term includes an expenditure for conducting research or for providing or using information, statistics, studies or analyses in communicating with a City elected official, employee, or member of a City board, committee or commission that would not have been incurred but for lobbying.”
(Madison)
“In the broadest sense of the term, ‘to lobby’ is to attempt to influence a councilmember, appointee of the Council, the City Manager, the director of any department listed in the Charter or Administrative Code of the City, or any member of the staff of any public officer or City employee decision maker. A citizen's voluntary opinion regarding a measure under consideration by a councilmember can be considered ‘lobbying.’ However, such ordinary activities of citizens who exercise their constitutional right to petition the government or individual members of the government on any matter are separate and distinct from ‘professional’ lobbying, so long as such activities are exclusively the exercise of individual liberty.”
“‘Actively advocate’ [‘lobby’] means to promote, advocate, or oppose the passage, modification, or defeat of any legislation by direct communication with any member of the council or appointee of the council, the city manager, the director of any department listed in the Charter or Administrative Code of the City, or any member of the staff of any public officer or employee listed in this chapter. ‘Actively advocate’ does not include the action of any person not engaged by an employer who has a direct interest in legislation if the person, acting under Section 3 of Article I, Ohio Constitution, assembles together with other persons to consult for their common good, instructs a public officer or employee who is listed in this chapter, or petitions that public officer or employee for the redress of grievances.”
(Cincinnati)
“‘Lobbying’ means meeting privately with a member of the Board of County Commissioners, County Administrator, any Assistant County Administrator, any Department head, the County Attorney, or any Chief Assistant County Attorney in order to encourage the passage, defeat, or modification of any item pending before the Board of County Commissioners or being considered by the lobbied employee for presentation or recommendation to the Board of County Commissioners.”
(Hillsborough County, Fla.)
“‘Lobbying’ or ‘lobbying activities’ on the local level are defined as any attempt to influence the passage or defeat of any local law, ordinance or regulation by any municipality or subdivision thereof or adoption or rejection of any rule or regulation having the force and effect of local law, ordinance or regulation or any rate making proceeding by any municipality or subdivision thereof.”
(New York State)
“‘Lobby’ means communication with any elected City official for the purpose of influencing official action.”
(Phoenix)
“‘Lobby’ or “lobbying’ means any oral or written communication (including an electronic communication) to a city official, made directly or indirectly by any person in an effort to influence or persuade an official to favor or oppose, recommend or not recommend, vote for or against, or take or refrain from taking action on any municipal question.”
(San Antonio)
Lobbyist
“‘Lobbyist means an individual who receives or becomes entitled to receive the threshold Compensation during any calendar quarter for Lobbying, and who has had at least one Direct Communication with a City Official in that calendar quarter. Lobbyist includes:
(a) ‘In-House Lobbyists’ who engage in ‘Lobbying’;
(b) individuals under contract to engage in Lobbying; and
(c) individuals employed by a firm under contract to provide lobbying services, whose pro-rated salary for Lobbying activities meets the threshold Compensation during any calendar quarter.”
(San Diego)
“A professional lobbyist, also known as a legislative agent or lobbyist, is a person who receives compensation for his or her efforts to influence Council members or other city decision makers on behalf of a client or employer.”
(Cincinnati)
“A ‘Lobbyist’ is a person or organization employed, retained, or designated by another, who attempts to influence the passage or defeat of legislation by the State Legislature, the approval or disapproval of legislation by the Governor, or the outcome of a rule, regulation, or rate-making proceeding by a State agency. Beginning April 1, 2002, lobbying efforts include attempts to influence the passage or defeat of any local law, ordinance or regulation by any municipality or subdivision thereof or the adoption or rejection of any rule or regulation having the force and effect of a local law, ordinance or regulation or any rate-making proceeding by any municipality or subdivision thereof.”
“Municipality” shall man any jurisdictional subdivision of the state . . .with a population of more than fifty thousand; and public authorities, and public corporations, but shall not include school districts.”
(New York State)
“‘Lobbyist’ means any person who is compensated to lobby for a person other than himself.”
(Phoenix)
“‘Lobbyist’ means a person who engages in lobbying, whether directly or through the acts of another. If an agent or employee engages in lobbying for a principal or employer, both the agent and the principal, or the employee and the employer, are lobbyists.”
“‘Compensation’ does not include a payment made to any individual regularly employed by a person if (1) the payment ordinarily would be made regardless of whether the individual engaged in lobbying activities and (2) lobbying activities are not part of the individual’s regular responsibilities to the person making the payment.”
(San Antonio)
“This section [lobbyist registration] shall extend to any person who undertakes to influence any legislative or administrative action as any part of his duties as an employee of another, regardless of whether such person is formally designated as a lobbyists by his employer.”
(Chicago)
“‘Lobbyist’ means any person who, on behalf of another, engages in ‘lobbying’ as defined in this ordinance [see above: “lobbying” here excludes appearances at public meetings]. The definition of ‘Lobbyist’ includes officers, directors, shareholders, employees, principals, and members of legal entities when such persons engage in lobbying on behalf of their respective entities.”
(Hillsborough County, Fla.)
“‘Lobbyist’ means an individual who is employed by a principal, or contracts for or receives economic consideration, other than reimbursement for actual expenses, from a principal and whose duties include lobbying on behalf of the principal, regardless of whether the individual’s duties on behalf of a principal are or are not limited exclusively to lobbying.”
(Madison)
“‘Legislative agent’ [‘lobbyist’] means any individual, except a member of the council, a member of the staff of the council or the city manager, who is engaged during at least a portion of his time to actively advocate as one of his or her main purposes.”
(Cincinnati)[3]
Exemptions
“(a) a Public Official acting in his or her official capacity and any government employee acting within the scope of his or her employment;
(b) any newspaper or other regularly published periodical, radio or television station that in the ordinary course of business publishes news items [etc.],
(c) any Person whose sole activity includes one or more of the following:
(1) to submit a bid on a competitively bid contract;
(2) to submit a written response to a request for proposals or qualifications;
(3) to participate in an oral interview for a request for proposals or qualifications; or,
(4) to negotiate the terms of a contract or agreement with the City. . . .”
(San Diego)
“(1) Appearances before meetings of the committees of the council or the full council, and appearances before public hearings of the committees of the council;
(2) News, editorial, and advertising statements published in bona fide newspapers, journals, or magazines, or broadcast over radio or television;
(3) The gathering and furnishing of information and news by bona fide reporters, correspondents, or news bureaus to news media . . . ;
(4) Publications primarily designed for and distributed to members of bona fide associations or charitable or fraternal nonprofit corporations.”
(Cincinnati)
“The following persons shall not be required to register as lobbyists:
(a) Government employees discussing government business. Government business shall not include discussions regarding a competitive procurement when an employee’s agency is a participant in a competitive procurement process;
(b) Law enforcement personnel conducting an investigation; and
(c) Persons who meet privately with Board members, the County Administrator, any Assistant County Administrator, any Department Head, the County Attorney, an any Chief Assistant County Attorney in their individual capacity for the purpose of self-representation, or on behalf of their immediate family, without compensation or reimbursement.
(d) Persons or representatives of organizations contacted by a Board member, the County Administrator, any Assistant County Administrator, any Department Head, the County Attorney, and any Chief Assistant County Attorney, when the contact is initiated by that Board member or employee.”
(Hillsborough County, Fla.)
“This ordinance does not apply to the following activities:
(a) Lobbying through communications media or by public addresses to audiences made up principally of persons other than City of Madison officials . . .
(b) [News media.]
(c) Requests by a member of the Common Council, or by a board, committee, or commission, for information from City employees and the furnishing of the requested information by City employees, acting in their official capacity.
(d) Actions taken by a public official acting in his/her official capacity.
(e) Participation as a member of a board, committee or commission or a committee or subcommittee thereof.
(f) Requests by a City employee, acting in an official capacity, for information from any person and the furnishing of the information by that person. Requests by any person for information from a City employee and the furnishing of the information by that employee are also exempt.”
“Individual Right to Lobby.” Nothing in this ordinance may be applied so as to interfere with the right of any individual to engage in lobbying:
1. Solely on her or his own behalf; or
2. On behalf of a business corporation of which he/she owns more than 50 percent of the shares, of a firm of which he/she is the sole owner, or of a single member limited liability company of which he/she is the sole member, or of a partnership in which the individual is a general partner.”
(Madison)
“The term ‘lobby’ or ‘lobbying’ does not include a communication:
(1) Merely requesting information or inquiring about the facts or status of any municipal question, matter, or procedure, and not attempting to influence a city official,
(2) Made by a public official or employee (including, but not limited to, an official or employee of the City of San Antonio) acting in his or her official capacity;
(3) Made by a representative of a media organization . . .
(4) Made in a speech, article, publication, or other . . . medium of mass communication.
(5) Made at a meeting open to the public under the Open Meetings Act.
(6) Made in the form of a written comment filed in the course of a public proceeding or any other communication that is made on the record at a public proceeding;
(7) Made in writing as a petition for official action and required to be a public record pursuant to established city procedures.
(8) Made in writing to provide information in response to an oral or written request by a city official for specific information;
(9) The content of which is compelled by law;
(10) Made in response to a public notice soliciting communications from the public and directed to the official specifically designated in the notice to receive such communications;
(11) Made on behalf of an individual with regard to that individual’s employment or benefits;
(12) Made by a fact witness or expert witness at an official proceeding; or
(13) Made by a person solely on behalf of that individual, his or her spouse, or his or her minor children.
(San Antonio)
“1. A person who is not compensated for lobbying activity other than reimbursement for actual expenses.
2. A person acting in his own behalf, who appears before the City Council or contacts an elected City official to support or oppose official action.
3. A public official, public employee or appointed member of a State, County or local board, commission or council acting in his official capacity on matters pertaining to his office, employment, board, commission or council.
4. An expert introduced or identified by a registered lobbyist or public official who provides technical information or answers technical questions and makes no expenditure required to be reported by this article.
5. A person who performs professional services in drafting legislation or in advising and rendering opinions to clients as to the construction and effect of proposed or pending legislation.
6. An attorney who represents clients at any quasi-judicial hearing held by the City Council.
7. A person who contacts an elected City official solely for the purpose of acquiring information.
8. A person who contacts an elected City official concerning any contract awarded through competitive bidding.”
(Phoenix)
“(a) [News media.]
(b) Official and employees of the City of Chicago, or of any other unit of government, who appear in their official capacities before any city agency for the purpose of explaining the effect of any legislative or administrative matter pending before such body;
(c) Persons who participate in drafting Municipal code or other ordinance revisions at the request of the city; or
(d) Persons who testify publicly before the city council, a committee or other subdivision of the city council, or any city agency, department, board or commission. This exemption (d) shall apply only to the extent that such persons appear in the foregoing capacity. If such persons also engage in activities for which this article otherwise requires them to register, they shall so register for those activities.”
(Chicago)
Thresholds for Reporting
“Every principal who makes expenditures or incurs obligations in an aggregate amount exceeding $500 in any reporting period [or, $2,000 in any one year] for the purpose of engaging in lobbying . . . shall . . . file with the City Clerk an expense statement covering each reporting period. Such statement shall be filed on or before April 30, July 31, October 31, and January 31.”
(Madison)
“The Lobbying Act applies to lobbyists, public corporations, and clients of lobbyists, who in any calendar year either reasonably anticipate expending, incurring, or receiving, or actually expend, incur, or receive, more than $2,000 of combined reportable compensation and expenses for lobbying activities.”
The language of the act, sec. 1-3(a)(1):
“Every lobbyist shall annually file with the commission . . . a statement of registration for each calendar year; provided however that the filing of such statement of registration shall not be required of any lobbyist who . . . in any year does not expend in cur or receive an amount in excess of two thousand dollars of reportable compensation and expenses. . . .”
NOTE: New York’s “Advisory Council on Municipal Lobbying” on 31 Dec. 2002 recommended that the threshold be raised to $5,000. From their discussion and from my phone conversation with an official at the SUNY Buffalo it seems unclear whether this applies to principals or to individual lobbyists.[4]
(New York State)
“For calendar year 2004, the threshold compensation [for registration purposes] is $2.452. Provisions of the lobbying ordinance require that the threshold be adjusted annually, based on the San Diego Consumer Price Index percentage change. . . .”
“In determining whether or not you’ve reached the threshold, you must take into account all compensation you’ve received or become entitled to receive not only for lobbying as it is defined in this brochure, but also for monitoring a municipal decision you’re seeking to influence; for preparing testimony and presentations; for attending hearings on a municipal decision you’re seeking to influence; for communicating with your client or employer about a municipal decision you’re seeking to influence; and for waiting to meet with City officials. These and similar activities are an integral part of influencing a municipal decision.” (“Basic Guide to Municipal Advocacy Registration and Reporting Requirements for 2004; cf. San Diego, “Threshold Determination,” under “Lobbying,” above.)
(San Diego)
Any “financial transaction” of any amount must be reported by either the lobbyist or the principal.
(Cincinnati)
“A statement [of lobbying expenditure] shall be filed even if there have been no expenditures during the reporting period.”
(Hillsborough County, Fla.)
A lobbyist must register if the lobbyist engages in lobbying activities for compensation; or expends monies for lobbying activities.
(San Antonio)
“This section [registration] shall extend to any person who undertakes to influence any legislative or administrative action as any part of his duties as an employee of another, regardless of whether such person is formally designated as a lobbyist by his employer.”
(Chicago)
“At the time of registration or any time thereafter a lobbyist may file a statement certifying that the lobbyist intends to make no expenditures reportable under this article. Upon filing this statement the lobbyist shall be exempt from the expenditure reporting requirements of this section, so long as no expenditures are made. If a lobbyist who has signed an exemption statement subsequently makes any reportable expenditure that lobbyist shall notify the City Clerk of such expenditure within ten days and shall thereafter be subject to expenditure reporting requirements.”
(Phoenix)
Other Obligations
“Any individual who is required to register as a Lobbyist under the provisions of this division shall:
(a) disclose his or her status as a Lobbyist to a City Official before providing anything of value to that individual which would require disclosure . . .
(b) abstain from doing any act with the purpose or intent of placing a City Official under personal obligation to the Lobbyist, or to the Lobbyist’s employer or Client;
(c ) correct, in writing, any misinformation given to a City Official, specifying the nature of the misinformation;
(d) not deceive or attempt to deceive a City Official as to any material fact pertinent to any pending or proposed Municipal Decision;
(e) not cause any communication to be sent to a City Official in the name of any fictitious Person or in the name of any Real person, except with the consent of such real Person; and
(f) not attempt to evade the obligations in this section through indirect efforts or through the use of Agents, associates or employees.”
(San Diego)
[1] Anthony J. Nownes and Jacqueline Giles, “Big City Lobbyists: Who They Are and What They Do” (paper presented at annual meeting of Western Political Science Ass’n, Long Beach Calif., March 2002), p. 17.
[2] See http://www.cfboard.state.mn.us/forLobbyists.htm/ and http://www.revisor.leg.state.mn.us/stats/10A/01.html/. Minn. Stat. Ch. 10A,.01 Subd. 21(b)(2): “Lobbyist does not include an employee of the state, including an employee of any of the public higher education systems.” See also Advisory Opinion No. 224, http://www.cfboard.state.mn.us/ao/AO224.HTM/.
[3] Cincinnati is a special case. Its lobbying ordinance defines a “Person” for the purposes of meaning “employer” who engages a “legislative agent” as “any individual, partnership, trust, estate, business trust, association, or corporation; any labor organization or manufacturer association; any department, commission, board, publicly supported college or university, chapter, institution, bureau, or other instrumentality of the state; or any county, township, municipal corporation, school district, or other political subchapter of the state.” Cincinnati is a “charter city”: it has all the powers of local self-government except to the extent they are prohibited by state legislation. The University of Cincinnati, on the other hand, was a city university until the late 1970s when it came under the jurisdiction of the state (phone conversation with Greg Vehr (sp.?), public affairs, (513) 556-3028, Univ. of Cincinnati, Feb. 5, 2004). The university is not under zoning or any other authority of the City of Cincinnati today.
[4] In my conversation with Ryan McPherson of SUNY Buffalo, he said it applied to the principal. I pointed out that the university’s web site said it applied to the individual. I think the information on the New York State web site can be read either way.