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A. Thomas Levin Authors, “Surprise! You May Be A Lobbyist” for the Nassau Lawyer

Publication Source: Nassau Lawyer

A-Thomas-LevinIf your law practice involves contacts with local governments in any matter in which you seek governmental action regarding your client, including procurement matters, you may be subject to the New York Lobbying Act.

Once thought only to apply to those who engaged in efforts to have legislation adopted or blocked in the State Legislature in Albany, the term “lobbyist” has had a substantially different and broader meaning since 2002, and the scope of that term has been significantly broadened by the 2015 Legislature.

As this article will demonstrate, “lobbying” now includes a range of activities, not necessarily limited to legislation, and those who engage in it are subject to a myriad of registration and reporting requirements. Further, the regulated activities are not limited the those involving the State or its agencies, and now apply with respect to activities involving counties, cities, towns, villages, school districts, industrial development agencies and other levels of local government which have a population base in excess of 5,000.

Those who ignore this new regulatory area, or who fail to appreciate how pervasive it is, do so at their peril. The legislation is complex, and riddled with details and exceptions, and the space available for this article does not permit a thorough exposition. It is the intention of the author to provide here an overview, perhaps to be expanded upon in future articles.

The New York Lobbying Act is found in Legislative Law Article 1-A, and is supervised and enforced by the Joint Commission on Public Ethics (JCOPE). As summarized in JCOPE’s Guidelines to the New York State Lobbying Act1, any person or entity (including a public corporation), and clients or employers of any such person or entity, who in any year actually does, or reasonably anticipates, spending, incurring or receiving more than $5,000 of combined reportable compensation and expense for lobbying activities at the State and/or local level is required to file disclosure reports with.

In determining whether one is subject to this legislation, the first line of inquiry is whether you are or expect to be compensated or have expenses in any one year in excess of $5,000 for engaging in lobbying activities. If your anticipated income and expenses is less than that, you are not required to file disclosure forms (although those for whom you perform such activities may have to do so anyway).

“Local Lobbying” is generally defined as an attempt to influence the passage or defeat of any local law, ordinance, resolution or regulation, or the adoption or rejection of any order, rule, regulation or resolution having the force of law, or any rate making proceeding, by any covered local government. “Local Lobbying” also includes any attempt to influence a public official, or any person acting in cooperation with a public official, in relation to a governmental procurement. The breadth of this definition is clear – read it again, carefully, and think about your recent interactions with local government officials on behalf of your clients.

Fortunately, there are some exceptions which exempt a variety of activities from the foregoing definition. For example, the statute expressly provides that if you are engaged in drafting, advising clients on, or rendering opinions on proposed legislation, orders, rules, regulations, ordinances, resolutions, rates or procurement contracts you are not engaged in “lobbying” so long as your activities are not otherwise connected with executive or legislative action. In other words, if you are providing professional services in the form of research, advice, or drafting documents for your client, and not doing so in connection with legislative or executive action, you are not “lobbying.”

Other activities which are exempt from the definition include participation as an attorney, witness, or other representative in a public proceeding (but only if your participation is part of a public record of the proceeding) or in an adjudicatory proceeding (as defined in the State Administrative Procedure Act) and all preparation for such participation. (It is unclear whether “preparation” which includes contact with public officials which includes discussion intended to persuade would qualify for this exemption.) Also exempt is any communication with a public agency, public officer or body, which is in response to a request from the agency, officer or body for information or comments.

Appearing on behalf of a client in a conference provided for in an RFP or invitation for bids, or otherwise responding to an offer of or invitation to bid for a procurement contract, is also not “lobbying.” And contact with a staff person designated for such purpose as part of any procurement proceeding is not “lobbying”. Similarly, applying for a license or permit authorized by law, or making or being a party to a complaint to an official agency or administrative body is not “lobbying” (but additional contacts with public officials or agencies in furtherance of such applications or complaints may be).

If you or your client2 are subject to the local lobbying regulations, various filing requirements apply.

For lobbyists, that means filing a statement of registration as a lobbyist.

This must be done every two years, commencing January 1, 2015 if you were retained on or before December 15, 2014. If you are retained after that date, you must register within fifteen days after being retained for an activity which will cause you to be considered a “lobbyist,” or within ten days after you receive or incur payment or expenses related to your services, whichever comes first. You must also file bi-monthly reports, until you have concluded your lobbying activities, at which time you must file a termination report.

Clients who retain lobbyists must file semi-annual reports of the compensation and expenses they have paid for that purpose. These reports are required even if the lobbyist is not required to register or report. These reports are due January 15 and July 15 of each year.

Public corporations which retain lobbyists or engage in lobbying are also subject to reporting requirements. Space does not here permit the details.

The Local Lobbying Act contains many counter-intuitive provisions and many intricacies which bring ordinary actions into the category of “lobbying”. If you deal with covered local governments in the course of your law practice, you should take the time to read this statute carefully and become familiar with it (or become good friends with someone who has). Those who fail to do so put themselves, and their clients, at peril.