NEW YORK LOBBYING DISCLOSURE

Transcription

1 NEW YORK LOBBYING DISCLOSURE These resources are current as of June 1, We do our best to periodically update these resources and welcome any comments or questions regarding new developments in the law. Please us at This guide summarizes key aspects of laws and regulations governing lobbying on the state level. It is not intended to provide legal advice or to serve as a substitute for legal advice. In some jurisdictions (e.g., New York City), city and/or county regulations may also apply to certain political activities. For example, a lobbyist who engages in lobbying activities in New York City must comply with both the State Lobbying Act and the New York City Administrative Code, Title 3, Chapter 2, Subchapter 2. Check with the appropriate local jurisdiction before undertaking any activity. Lobbying in New York State is governed by the New York State Lobbying Act (the Lobbying Act ), codified in N.Y. CLS Legis. 1-a, et seq. 1 The Lobbying Act regulates all lobbyists and lobbying activities that occur at the local level. The New York State Joint Commission on Public Ethics ( JCOPE ), established by the Public Integrity Reform Act of 2011 ( PIRA ), Ch. 399, Laws of 2011, is the independent agency that regulates lobbyists and their clients in New York State through administration of the Lobbying Act s disclosure and enforcement provisions. JCOPE has issued regulations, implementing certain Lobbying Act provisions, and has published a series of informal guidelines clarifying the lobbying disclosure requirements. The following summarizes the State s regulation of lobbyists and their activities. DEFINITIONS Lobbyist: Lobbyist a lobbyist is any person or organization retained, employed, or designated by a client to try to influence certain acts or decisions of: 1 N.Y. Lobbying Law (McKinney Supp. 2014). 1

2 Public officials or their employees or representatives; or Governments or agencies of the State or its municipalities. Lobbying Act 1-c(a),(c). o A person need not earn monetary compensation to be a lobbyist under the Lobbying Act, as volunteers may need to register if they are designated by an organization; the term designated is not defined under the Lobby Act or in JCOPE s regulations. Principal Lobbyist The principal lobbyist is the person or entity that registers with JCOPE and that is responsible for required filings and disclosures. Registration and reporting requirements for other lobbyists are fulfilled if they are listed on the forms filed by the principal lobbyist. Lobbying: Lobbying any attempt to influence the various actions listed below. Attempts to influence include activities intended to support, oppose, modify, delay, expedite or otherwise affect decisions of a government agency or public official. See Guidelines to the New York State Lobbying Act, available at o Passage or defeat of legislation by the State legislature; o Action by the Governor, including: Approving or vetoing legislation, or Issuing, adopting, rescinding or modifying an executive order; o Award of State budget line items, including member item funding; o Any action by a State agency that has the effect of law, including making rules and setting rates; o Any determination on a matter involving government procurement by: A public official; An officer or employee of the N.Y.S. unified court system; or An organization or individual working in cooperation with either of them relating to government procurement; 2 2 Government procurement includes all steps of the process by which the government acquires, disposes of, or otherwise alters inits interest in any good or service, including technology, public works and real property. Lobbying Act 1-c. See Lawyers Alliance for New York, Memorandum: Important Changes 2

3 o Legislative action by any municipality or subdivision thereof, including counties, cities, towns, villages, and special districts; o Action by the chief executive of a municipality, including issuing, adopting, rescinding or modifying an executive order; o Action by a municipality that has the effect of a local law, ordinance, resolution or regulation, including rate making by the municipality or its subdivision; and o Approval, disapproval, or administration of certain tribal-state agreements. Lobby Act 1-c (c). Lobbying does not include the following actions: o Individuals seeking redress of grievances and freely expressing one s opinion about legislative or government functions; o Communication with public officials limited to inquiries or the exchange of factual information, which does not recommend or advocate any action and is independent of any pending legislative, executive, or other government decisions; 3 o Providing professional services such as drafting, advising clients on or rendering opinions on proposed legislation, rules, regulations or rates, municipal ordinances and resolutions, executive orders, procurement contracts when such professional services are not otherwise connected with state or municipal legislative or municipal legislative or executive action on such legislation, rules, regulations or rates, municipal ordinances and resolutions, executive orders [or] procurement contracts. o Attempting to influence any local law or similar measure having the effect of law, if the organization is a religious organization exempt from filing a federal income tax return under certain provisions of U.S. Code Title 26. o Newspapers, other periodicals, and radio/television stations (and owners and employees thereof) publishing or broadcasting news to the New York State Lobbying Act- Including Lobbying on Procurement Contracts (Dec. 19, 2005), available at 3 However, any person required to file a statement or report under the Lobbying Act by virtue of engaging in lobbying does not fall within this exception. Lobbying Act 1-c(c)(Q). 3

4 items, editorials, or other comments, including publishing paid advertisements. o Appearing as a witness, attorney or other representative before a public agency when the proceedings are part of the public record (when a stenographic transcript or recording is made); o Responding to a request for information or comments by a governmental entity. o Attempting to influence the award of government grants of $15,000 or less; o Attempting to influence decision-making by a public agency in an adjudicatory proceeding; o Applications for State or local licenses, certificates, or permits; o Attempting to influence an action relating to government procurements by: Non-profits appointed by the Commissioner of the Office of Child and Family Services, or the Commission for the Blind and Visually Handicapped, or the Commissioner of Education; or Non-profit agencies for the blind or severely disabled; 4 o Certain communications regarding State procurements, including, among other activities, Submitting a bid in response to a government solicitation; Negotiations regarding the bid; Protests of a contract award; and Responses to a government request for proposals or bids; 5 Lobbying Act 1-c(c). Public Official the following individuals are public officials under the Lobbying Act, the lobbyists attempts to influence their decisions on the actions listed avoce are regulated: o Any Statewide elected official including the Governor, Lieutenant Governor, Comptroller and Attorney General; 4 However, it is still lobbying if either of these types of organizations attempts to influence the following: (1) issuance or specifications that are the basis of bid documents; or (2) requests for proposals, invitations for bids, solicitations of proposals, or any other method intended to solicit a response from bidders hoping to win a public procurement contract. Lobbying Act 1-c(c)(G). 5 See Lawyers Alliance for New York, Memorandum: Important Changes to the New York State Lobbying Act Including Lobbying on Procurement Contracts (Dec. 19, 2005), available at 4

5 o Members, officers, and employees of the State Legislature; o Appointed heads of State departments or agencies, their deputies and assistants, other than uncompensated members of the SUNY Board of Regents; o State Officers and employees including: Officers and employees of Statewide elected officials; Officers and employees of State departments, boards, bureaus, divisions, commissions, councils, or other State agencies; and Members, directors, or employees of public authorities, public benefit corporations, and commissions; 6 o Municipal officers and employees, including unpaid officers of a municipality. Lobbying Act 1-c(I). Grassroots Lobbying: o Grassroots Lobbying is not a defined term under the Lobbying Act or JCOPE s regulations. REGISTRATION Persons Required to Register: A person or organization who earns or spends more than $5,000 for purposes of lobbying during a calendar year (or who reasonably anticipates earning or spending more than that amount) must register with the JCOPE. Campaign contributions do not count toward the $5,000 spending threshold. Lobbying Act 1-e; 1-i. Each principal lobbyist must file her own Statement of Registration. Additional lobbyists, who will be lobbying for the named principal, can be included on the principal s form. If the lobbyist is an organization, then it may file a single form listing the required information for any officer or employee who engages in lobbying. The principal lobbyist must file a separate registration for each client. While all lobbyists have to register, only the principal lobbyist has to file her own Statement of Registration. The other lobbyists fulfill the registration requirement by being listed on the principal lobbyist s forms. 6 Excluded from the definition of public official are the members or directors of the following organization/entities where at least one member is appointed by the governor: 1) multi-state authorities; 2) public benefit corporations; and 3) commissions. Furthermore, the activities of persons who are commission salespersons with respect to governmental procurements are not lobbying activities. See Lobbying Act 1-c(c)(U) (defining commission salesperson ). 5

6 Registration Deadlines/Requirements: Lobbyists who expend, incur, or receive more than $5,000 for lobbying or who reasonably anticipate that they will do so in the coming year, must register once every two years, on or before Jan. 1 of the first year of the biennial cycle commencing in 2005 and thereafter, filing a separate registration for each client whom they represent. The biennial fee is $200 per registration, except that the fee drops to $100 for registrations filed after January 1 of the second year of the biennial period. Lobbying Act 1- e(a)(3). See Supp. A Every public corporation that employs or designates an officer, director, trustee, or employee of the corporation to lobby on its behalf, and that reasonably anticipates or actually expends, incurs, or receives more than $5,000 in the aggregate for State and/or local lobbying activity in any year during the biennial period must file a biennial public corporation registration statement. The name of each individual who will be engaged in lobbying must be disclosed in the registration statement. If information related to a registration changes, the lobbyist must file an amended registration within 10 days. Lobbying Act 1-e(d). JCOPE may impose a penalty for late filing. The maximum penalty is $25 for each day the statement is late. The fine is reduced to $10 per day if the lobbyist has never before registered. Lobbying Act 1-o. The Statement of Registration includes the following: o Name, address and phone number of the lobbyist, the client, and, if the lobbyist is an organization, the names, addresses, and phone numbers of any officer or employee who engages in lobbying or who is employed in an organization s division that engages in the organization s lobbying activities. o Copy of the client s written contract or, if there is no written contract, a written authorization from the client and a summary of the lobbying agreement; 7 o Detailed information about the subject matter of the lobbying, including a description of the general subject(s); legislative bill numbers; numbers or subject matter of executive orders; titles and 7 See Supp. B 6

7 identifying numbers of procurement contracts or other documents related to government procurement; the rule, regulation, and ratemaking numbers of any rules, regulations, rates, or municipal ordinances and resolutions (whether enacted or proposed); o Details of the lobbyist s compensation; 8 o Nature of the client s business; and o Detailed information about reportable business relationships between the lobbyist and the person or entity being lobbied. 9 Termination When a lobbyist ceases to be employed or retained to lobby on behalf of a client, both the lobbyist and the client must give JCOPE written notice within 30 days of the end of the lobbyist s activities on the client s behalf. The lobbyist must file the reports that cover the period up to and including the date the lobbying activity ceased, and both the lobbyist and client shall file the appropriate semi-annual reports. The termination will be entered by JCOPE in its monthly registration docket. Lobbying Act 1-g. REPORTING Bi-Monthly Reporting: Reports are filed with JCOPE every two months, by the 15 th day following the close of each reporting period. As with the Statement of Registration, a principal lobbyist must file one report for each client, but may include multiple lobbyists on each report. While every registered lobbyist is required to report, this may be fulfilled by being listed on the reports by the principal lobbyist. Reporting periods are as follows: o January 1-last day of February o March 1-April 30; o May 1-June 30; 8 If the lobbyist is retained by an organization, then she must report her actual compensation. Likewise, if the lobbyist is being paid a daily or hourly rate, she must specify her rate. If the lobbyist is a salaried employee, then her prorated salary for lobbying must be reported. Guidelines to the New York State Lobbying Act, available here: ( 9 JCOPE guidelines clarifying the Reportable Business Relationship requirements are available at 7

8 o July 1-August 31; o September 1-October 31; o November 1-December 31. Lobbying Act 1-h. Reports must include: o Name, address, and telephone number of the lobbyist, her client, and the names of all employees who have engaged in lobbying on behalf of their employer (unless such employees have registered separately as lobbyist for the same client or employer). o Whom the lobbyists sought to influence; o Information about the subject matter of the lobbying, including bill/executive order numbers; a general description, information relating to the procurement contracts, and the enacted or proposed rule, regulation, ratemaking or municipal ordinance or resolution numbers; o Expenses expended, incurred, or received by the lobbyist for purposes of lobbying; 10 o All compensation paid or owed to the lobbyist. (There is no minimum reporting threshold for compensation or expenses.) o See Supp. C Disbursement of Public Monies Reports: In addition to periodic reports, registered lobbyists must file separate bimonthly Disbursement of Public Monies Reports ( DPMRs ) if they attempt to influence the disbursement of $15,000 or more in public monies through a grant, loan or other agreement (whether or not such grant, loan, or agreement was received). The principal lobbyist must file one report for each client. o DPMRs do not need to be filed for lobbying regarding government procurements. 10 Expenses of $75 or less must be listed in the aggregate. Expenses exceeding $75 must be detailed as to amount to whom paid and for what purpose. Lobbying Act 1 (h) (b) (5) (ii). Expenses do not include (i) personal sustenance lodging and travel disbursements of such lobbyist ; or (ii) expenses of $500 or less in one calendar year directly incurred for printing, reproducing, or mailing written communications. Id at 1(h)(b)(5)(iii). 8

9 o DPMRs are filed only in the periods when such lobbying occurs or when the lobbyist receives compensation/reimbursement of expenses for such activities. Lobby Act 1-I. Semi-Annual Reporting Requirements for Clients: Organizations and individuals must file reports with JCOPE semi-annually if they retain, employ, or designate a lobbyist and reasonably expect to expend or incur more than $5,000 on lobbying that year. o All compensation and expenses must be disclosed; there is no minimum reporting threshold. o Clients may list multiple lobbyists on each report. o Filing deadline Reports are due January 15 and July 15. o Fling fee The filing fee is $50. Late filings may be assessed with a fine of $25 per day. ($10 per day for first-time filers). Lobbying Act 1-j. Reports must include the following information: o Client s name, address, and telephone number; o Whether the lobbyist was retained, employed, or designated; o Name, address, and telephone number of the lobbyists (including the names of all employees who have engaged in lobbying on behalf of their client). o Amount of compensation paid or owed to the lobbyist for the semiannual reporting period, as well as other lobbying expenses paid or incurred by the client for purposes of lobbying. o Details concerning the subject matter of the lobbying; o Identity of person, organization, or governmental body being lobbied; o The name and office address of any Statewide elected official, State officer, or employee legislator or legislative employee/entity with whom the client has a reportable business relationship ; a description of the subjects of the transactions constituting the business relationship; and the compensation (and expenses) to be paid by virtue of the business relationship. 9

10 Additionally, for lobbyists that are organization, the report must disclose the names of any non-principal lobbyists. See Supp. D RESTRICTIONS Gift Ban: Public officials are barred from soliciting, accepting or receiving any figt of more than a nominal value if the gift was intended to influence the official or if it could reasonably be inferred that it was intended to influence the official in the performance of his or her official duties or that it was intended as a reward for any official action. N.Y. Public Officers Law 73 (5). o Lobbyists may only offer or give gifts when it would be unreasonable to infer that the gift was intended to influence the official. 11 Lobbying Act 1-m. o The restriction covers gifts from all persons or entities listed on a registration statement to public officials, their spouses, or dependent minor children. o Nominal value has been interpreted to be such a small amount that acceptance of an item of nominal value could not be reasonably interpreted or construed as attempting to influence a State employee or public official. For example, a cup of coffee generally has only nominal value, while an alcoholic beverage or a meal has more than nominal value. State of New York Comm. On Public Integrity, Advisory Op. No (2008) at page 16, available here: ( Multiple gifts from a single donor, however, even if gifts are of only nominal value, could create a reasonable basis for the appearance of improper influence. The term gift does not include the following: o Complimentary attendance at charitable or political events, including food and beverage that are offered as part of a meal and 11 JCOPE will consider the following factors, among others, in deciding whether there was an intention to influence the public official; (i) history and nature of the relationship between donor and recipient; (ii) whether donor had purchased the item; and (iii) whether the donor contemporaneously gave similar items to other public officials. The gift is presumed to have been intended to influence if donor seeks to charge or deduct its value as a business expense or seek reimbursement from a client. 10

11 food and beverage of a nominal value that are not part of a meal; or o Free attendance, beverages and food at widely attended events related to the attendee s responsibilities as a public official, but under no circumstances may travel or lodging be included; 12 o Reimbursements for travel or transportation, meals and accommodations at an information event or meeting by a government entity, college or university that hosts the event at which the public official is a speaker or attendee; o Ceremonial awards or other items presented in recognition of public service, provided they are of the type customarily bestowed at similar ceremonies are otherwise reasonable; honorary degrees; o Promotional items with no substantial resale value; o Goods and services or discounts for such offered to the public official, provide that same is offered to the general public on the same terms; o Personal gifts from family members (i.e. direct descendants of the public official s grandparents and the spouses therof), close friends, or members of the same household when circumstances establish that it is the family, household, or personal relationship that is the primary motivating factor : o Campaign contributions within the limits set by State law; as well as contributions made in violation of State law. o Food and beverages valued at $15 or less; o Meals/refreshments when participating in a professional or education program if provided to all other participants; o providing transportation to inspect or tour NYS facilities, operations, or properties in connection with the individual s official duties. Lobbying Act 1-c(j). Contingency Payments: a lobbyist s compensation, including bonuses, may not be either partly or wholly contingent on her success in achieving her client s aims. The law bans any arrangement made wherein any compensation is tied to success 12 There is an in-depth interpretation of this exception on pages of Advisory Opinion 08-01, available here: ( 11

12 in achieving a client s goals. Discretionary bonuses are permissible so long as they are not a disguised contingent retainer. A discretionary bonus is best understood as a bonus that is independent of a specific lobbying achievement and is only conceived of after the lobbying activity has been substantially completed. Lobbying Act 1-k. Public Contracts and Government Procurement Lobbying for State, court, industrial development agency, or public benefit corporation procurements is prohibited during the so-called restricted period. The restricted period begins with the earliest notice or any solicitation that is intended to result in a procurement contract with a State agency, legislature, State court system or municipal agency governed by the Lobbying Act. The restricted period ends when the final contract award is approved by the appropriate entity. During the restricted period, registered lobbyists and their clients may only communicate with the person designated pursuant to the New York State Finance Law 13 as the procurement contact person. Lobbyists and their clients are also barred from contacting any other individual in any State agency regarding the procurement contract. There is, however, no restriction on communication with members of the State Legislature regarding the procurement, but that would be reportable lobbying activity. Lobbying Act 1-n. Some contract, however, is permitted even during the restricted period. An offeror may complain about untimely responses to the Office of the General Counsel of the procuring agency; protest or appeal the award or process to the procuring agency or in a subsequent judicial proceeding; complain about improper conduct by the procuring agency to the Attorney General s office or the appropriate court; file written protests, appeals or complaints with the State Comptroller s office, when alleging improper conduct by a municipal agency, local legislative body, or when Comptroller approval is required for the underlying procurement. ENFORCEMENT PENALTIES Violating the ban on contingent retainers by lobbyists or their clients may be a Class A misdemeanor, punishable by up to one year in jail. Lobbying Act 1-k. 13 See N.Y. Finance Law, Section 139-j (McKinney 2014). 12

13 Knowingly and willfully violating the ban on prohibited lobbying communications during the restricted period of a government contract is punishable by a fine of up to $10,000. If a client or lobbyist violates the ban twice within four years, she may be fined up to $25,000 and banned from lobbying with respect to procurement contracts for four years. Lobbying Act 1-o. It is a misdemeanor to knowingly and willfully (1) file a late report; or (2) file a report with false information. Civil fines may also be assessed, including fines of the greater of $25,000 or up to three times the amount that the lobbyist, public corporation or client failed to timely report as a gift. o If a person who has been convicted of a misdemeanor files another late or false report within five years, that person may be found guilty of a felony. Lobbying Act 1-o. o See Supp. E o Regulations governing adjudicatory proceedings by JCOPE can be found in 19 NYCRR Part 941 at CONTACT INFORMATION N.Y.S. Joint Commission on Public Ethics 540 Broadway Albany, NY Telephone: (518) Website: jcope@jcope.ny.gov Written for Alliance for Justice by Jerry H. Goldfeder, Adjunct Professor, Fordham Law School, Lecturer-in-Law, University of Pennsylvania Law School, Special Counsel, Stroock & Stroock & Lavan LLP, 180 Maiden Lane, New York, NY Copyright These materials are copyrighted and may not be reproduced without permission. FOR FURTHER ASSISTANCE 13

14 For assistance regarding these resources or for more information about federal law, please contact our attorney one-on-one counseling service: Telephone: NPLOBBY ( ) For assistance regarding state law in New York, please contact: Jerry H. Goldfeder Stroock & Stroock & Lavan LLP Telephone: Maiden Lane Fax: New York, NY

15 Supplements to AFJ s Lobbying Disclosure Guide Supplement A: If the lobbyist has been retained, employed or designated (i) on or before December 15 and reasonably anticipates combined compensation/expenses over $5,000 for lobbying, the registration statement must be filed by January 1 of the first year of the biennial period; (ii) after December 15, the registration statement must be filed within 15 days of the start date set forth in the applicable agreement or authorization. If the lobbyist incurs or receives combined compensation/expenses over $5,000 for lobbying, the registration statement shall be filed within 10 days of the date the lobbyist incurs or receives such compensation/expenses. Guidelines to the New York State Lobbying Act, available here, %20Guidelines%209_11_12.pdf Supplement B: Evidence of the agreement or authorization for lobbying services must be submitted with each registration statement. Such agreement/authorization must specify the exact term (start and end date) that the agreement/authorization is in effect during the biennial period, the amount of compensation, and any other provisions agreed on. Guidelines to the New York State Lobbying Act, available here, %20Guidelines%209_11_12.pdf Supplement C: Lobbyist Source-of-Funding Disclosure: Any registered lobbyist performing lobbying activity on its own behalf (and not pursuant to retention by a client) who spent over $50,000 on lobbying during the calendar year or the 12-month period before the date of the bi-monthly report, and who also devoted at least 3% of total expenditures during such period to lobbying in New York, must report to JCOPE the names of each source of funding over $5,000 from a single source that were used to fund the lobbying and the amounts received from each identified source. This disclosure requirement does not apply (i) if JCOPE determines that disclosure of a source of funding may cause harm, threats, harassment, or reprisals to the source or to individuals or property affiliated with the source ; (ii) to any governmental entity; (iii) to 501(c)(3) organizations; and (ic) to 501(c)(4) organizations whose primary activities concern an area of public concern that, in JCOPE s determination, would create a substantial likelihood that disclosure of the source of funding would lead to harm, threats, harassment, or reprisals to the source or to individuals or property affiliated with such source. See Lobbying Act 1-h(c)(4); 19 NYCRR Part

16 Supplement D: Client Source-of-Funding Disclosure: Any client filing a semi-annual report who spent over $50,000 on lobbying during the calendar year or the 12-month period before the date of the semi-annual report, and who also devoted at least 3% of total expenditures during such period to lobbying in New York, must report to JCOPE the names of each source of funding over $5,000 from a single source that were used to fund the lobbying and the amounts received from each identified source. This disclosure requirement does not apply (i) if JCOPE determines that disclosure of a source of funding may cause harm, threats, harassment, or reprisals to the source or to individuals or property affiliated with the source ; (ii) to any governmental entity; (iii) to 501(c)(3) organizations; and (iv) to 501(c)(4) organizations whose primary activities concern an area of public concern that, in JCOPE s determination, would create a substantial likelihood that disclosure of the source of funding would lead to harm, threats, harassment, or reprisals to the source or to individuals or property affiliated with such source. See Lobbying Act 1-j(c)(4); 19 NYCRR Part 938. Supplement E: JCOPE, with respect to its lobbying-related functions, has the power and duty, among other things: (i) to administer and enforce all provisions of the Lobbying Act, (ii) conduct random audits of lobbyist filings; (iii) conduct hearings; (iv) issue advisory opinions; and (v) provide an online ethics training course for persons registered as lobbyists. Lobbying Act 1-d. 16

17 New York State Joint Commission on Public Ethics New Website Addresses: New York State Joint Commission on Public Ethics= Guidelines to the New York State Lobbying Act= Technical Support, Education Resources, Public Access to Records, Filing a Complaint with the Commission, and Advisory Opinions= Joint Commission on Public Ethics Legal Guidance= jcope@jcope.ny.gov 17