Higher Education Institute: Avoiding Compliance Pitfalls Across Your Campus From Admissions to the Title IX Office to the Board Room Understanding New York State Lobbying Rules and Regulations Presented by: Amy J. Kellogg
Who am I? A Partner at Harter Secrest & Emery I am a Government Affairs Attorney Represent Clients before the New York State Legislature Ensure compliance with New York Lobby Law, New York Campaign Finance Law and New York Election Law Ensure Compliance with Local Lobby Laws Understand Federal Lobby Law and Campaign Finance Law
What will be cover? What is lobbying? An overview of the legislative process An understanding of the difference between lobbying (government affairs) and public relations An understanding of the difference between lobbying and political activity The intricacies of New York State lobbying rules and regulations Best practices to ensure full compliance with all applicable rules and regulations
What is lobbying? What is lobbying? We ll get into the technical legal definition More generally, what is it? Campus visits? Attending receptions? Speaking at events?
Understanding the legislative process Who are the players? Legislative Branch Governor What is the process? Session Passing legislation/securing funding
Understanding the legislative process The Players: The New York State Legislature: Two-house legislature 213 members in Senate and Assembly Serve 2 year terms
Understanding the legislative process The Assembly - 150 Members Democrats control with a 104-42 majority with 2 vacancies Democrats have a supermajority Speaker of the Assembly is the leader
Understanding the legislative process The Senate - 63 Members Republicans have a majority with 30 elected Republicans, 1 Democrat that conferences with them There are 5 members of the Independent Democratic Conference (IDC) that tend to work with the Republicans The mainline Democratic Conference has 27 members The leader of the Senate is the Senate Majority Leader
Understanding the legislative process The Governor In 2 nd year of second 4 year term Democrat
Understanding the legislative process Legislative Session Part time legislature January June Two year legislative cycle
Understanding the legislative process Session begins in January with the Governor's State of the State Address. The Legislative cycle runs for two years and contains two sessions. The Governor must submit a proposed Budget by the end of January. The budget must be passed by April 1. The budget must be done every year. Once the Budget is complete then non-money issues addressed until adjournment. Session traditionally concludes by the end of June with special session later in the year if there is urgent business.
Understanding the legislative process If you are seeking funding, the budget process is going to be your most likely avenue for success The budget must be in place by April 1 If you want funding in the budget, know when to start
Understanding the legislative process 1. The Idea 2. Sponsorship 3. Bill Drafting 4. Introduction 5. Committee Actions 6. Revision 7. Assembly Ways & Means and Senate Finance 8. Rules Committee 9. Floor Vote 10. The Governor 11. Veto 12. A Bill Becomes a Law
Understanding the legislative process Key Points: There is a low success rate for bills passing both houses. During this two year legislative session, the Assembly introduced 10,743 bills and the Senate has introduced 8,169 bills In order for a bill to become law in New York, the bill must pass the Senate and the Assembly in the exact same version. If even one word is different, the bill cannot become law. Only 618 bills passed both houses of the Legislature this year 1,041 bills passed just the Assembly 1,752 bills passed just the Senate
Understanding the difference between government affairs and public relations
Understanding the difference between government affairs and public relations Public relations tends to encompass both government affairs and public affairs. On many campuses, the government affairs and public affairs offices are connected and in some cases, the same person/people do(es) both roles There are definitely overlapping responsibilities, but it is important to know the distinction and to respect the distinction
Understanding the difference between government affairs and public relations Mastering Public Relations, v. 1.0 by Shannon A. Bowen, Brad Rawlins, and Thomas Martin Government relations is the branch of public relations that helps an organization communicate with governmental publics. Public affairs is the type of public relations that helps an organization interact with the government, legislators, interest groups, and the media. These two functions often overlap, but government relations is often a more organization-to-government type of communication in which regulatory issues are discussed, communication directed to governmental representatives takes place, lobbying efforts directed at educating legislators are initiated, and so on.
Understanding the difference between government affairs and public relations Why does this distinction matter? If you have a relationship with an elected official that is purely for public affairs purposes, there is no lobbying component and you do not trigger the need to register If you have a relationship with an elected official for the purposes of government affairs, you are lobbying and thus you will need to know the lobbying rules and regulations and ensure compliance If you have the same office, or same person, doing both of these, they must understand this distinction When you have the same person doing both, the lines can get blurred, and the person may not realize they have crossed the public affairs/lobbying line
Understanding the difference between lobbying and political activity As with understanding the difference between lobbying and public relations, it is important to understand the difference between lobbying and political activity Lobbying and political activity tend to go hand in hand but again, they are different What is political activity? Political Activity, generally speaking, is any partisan activity that is designed to help or defeat a candidate, party or group
Understanding the difference between lobbying and political activity There is an absolute prohibition on a 501(c)(3) participating in political activity. Participating in political activity will result in a revocation of your tax exempt status You must know your tax exempt status before participating in any political activity, such as endorsing a candidate, making a political donation, hosting a fundraiser, etc. Ex. Donating college swag to an event would be a political contribution and probably prohibited Political activity does not include activities like hosting a candidate forum or a voter registration drive. It also does not include educating the public on a particular issue.
New York State Lobbying Rules and Regulations Lobbying in New York is regulated by the New York State Joint Commission on Public Ethics (JCOPE) Legislative Law Article 1-A, known as the Lobbying Act, applies to Lobbyists, Public Corporations, and Clients who in any year during the biennial period either reasonably anticipate expending, incurring, or receiving, or actually expend, incur, or receive, more than $5,000 in combined reportable compensation and expenses for lobbying activities on the state and/or local level.
New York State Lobbying Rules and Regulations What is lobbying? Lobbying is defined as: passage or defeat of any legislation or resolution by either house of the state legislature including but not limited to the introduction or intended introduction of such legislation or resolution or approval or disapproval of any legislation by the governor adoption, issuance, rescission, modification or terms of a gubernatorial executive order adoption or rejection of any rule or regulation having the force and effect of law by a state agency outcome of any rate making proceeding by a state agency the passage or defeat of any local law, ordinance, resolution, or regulation by any municipality or subdivision thereof
New York State Lobbying Rules and Regulations the adoption, issuance, rescission, modification or terms of an executive order issued by the chief executive officer of a municipality the adoption or rejection of any rule, regulation, or resolution having the force and effect of a local law, ordinance, resolution, or regulation or the outcome of any rate making proceeding by any municipality or subdivision thereof any determination: (A) by a public official, or by a person or entity working in cooperation with a public official related to a governmental procurement, or (B) by an officer or employee of the unified court system, or by a person or entity working in cooperation with an officer or employee of the unified court system related to a governmental procurement. the approval, disapproval, implementation or administration of tribal-state compacts, memoranda of understanding, or any other tribal-state agreements and any other state actions related to Class III gaming as provided in 25 U.S.C. 2701, except to the extent designation of such activities as "lobbying" is barred by the federal Indian Gaming Regulatory Act, by a public official or by a person or entity working in cooperation with a public official in relation to such approval, disapproval, implementation or administration.
New York State Lobbying Rules and Regulations What does all this really mean? There are really 4 main types of lobbying State Lobbying Attempting to influence decisions by Public Officials and the passage or defeat of Legislation Local Lobbying Lobbying before a local municipality with a population over 5,000 Note General zoning issues are probably not lobbying Procurement Lobbying Bidding on State or local contracts Disbursement of Public Monies Attempting to influence determinations affecting disbursements of public funds that exceed $15,000
New York State Lobbying Rules and Regulations If you are engaged in lobbying as was just defined and you expend, incur or receive more than $5,000 in combined reportable compensation or expenses, you must register with JCOPE. If you are an institution, you arrive at the $5,000 calculation by looking at what you actually spend on lobbying. This includes money paid to a contract lobbyist and the value of time your employees, and perhaps volunteers, spend on lobbying. The $5,000 threshold is aggregate, so even if one person at an institution does not exceed the $5,000, you will need to register if the value of all time exceeds the threshold. For an individual, if you are paid to lobby and the payment exceeds $5,000, you must register. If you are a volunteer, you must calculate the value of your time spent lobbying, and if that exceeds $5,000, you must register.
New York State Lobbying Rules and Regulations Very important note In New York, there is no such thing as grassroots lobbying What does this mean? You can t just lobby on a cause close to your heart and not follow all of the applicable rules and regulations. There is no recognized citizen activist
New York State Lobbying Rules and Regulations If you meet the lobbyist definitions, you must report your activity. If you incur or receive more than the $5,000 in compensation, you must register as a lobbyist Bi-monthy reports If you expend more than the $5,000, but do not do any actual lobbying on your own behalf, you must register as a client of a lobbyist Semi-annual reports In many cases, an institution will be both a lobbyist and a client
New York State Lobbying Rules and Regulations In addition to the lobbying disclosure reports, you must also disclose any business relationships you have with an elected official Reportable Business Relationships A relationship where a lobbyist or client of a lobbyist has a business relationship where an elected official is paid or makes more than $1,000 a year»example you have an elected official as an adjunct professor
New York State Lobbying Rules and Regulations Common Pitfalls: 1. Local Lobbying Law Requirements If you work with elected officials and agencies on the local level, you will need to know all applicable rules and regulations at that level as well Example New York City has its own set of rules and regulations that are separate and apart from the State regulations Most other municipalities do not have distinct rules and regulations, but you must always be mindful of this Even localities without specific rules and regulations may have some disclosure or filing requirements
New York State Lobbying Rules and Regulations Common Pitfalls: 2. Gift laws Ethics and Gift Rules exist at the state and federal level In addition to the lobbying rules, you need to know if there are gift rules and/or ethics rules that limit your ability to interact with an elected official Generally what is a gift: any gratuity, favor, discount, entertainment, hospitality, loan, travel or other item having monetary value Cash is never a permissible gift even if there is a personal relationship
New York State Lobbying Rules and Regulations Common Pitfalls: 2. Gift laws (continued) Lobbying Act 1-m provides that no individual or entity required to be listed on a Registration Statement (Lobbyist or Client) shall offer or give a gift to any public official unless, under the circumstances, it is not reasonable to infer that the gift was intended to influence the public official. If you are a registered lobbyists, there is essentially a zero gift rule There are very limited exceptions Personal relationship Something of value under $15 Honorary Degree Awards, plaques, and other ceremonial items that are publicly presented in recognition of public service and are customarily bestowed
New York State Lobbying Rules and Regulations Common Pitfalls: 2. Gift laws (continued) A public official is a very broad term: The Governor, Lieutenant Governor, Comptroller or Attorney General Members of the New York State Legislature State officers and employees Municipal officers and employees
New York State Lobbying Rules and Regulations Common Pitfalls: 2. Gift laws (continued) General gift rules: Gifts to the spouse or children are prohibited as well Tickets to sporting events or concerts must be reimbursed at face value One major item to note if an elected official asks you to make a contribution to a charitable organization, this is viewed as a gift to the elected official and is prohibited Do not assume that the elected official is familiar with the gift rules
New York State Lobbying Rules and Regulations Common Pitfalls: 3. Seeking State Funding If you are seeking funding from the State, this is lobbying Many don t think of this as lobbying Not only is it lobbying, it requires special disclosure Source of Funding Disclosure Requires lobbyists who lobby on their own behalf and registered clients to make publicly available each source of funding over $5,000 Public Monies Lobbying Disclosure Lobbying with respect to the solicitation, award or administration of a grant, loan, or agreement involving the disbursement of public monies in excess of $15,000 requires the lobbyist to file a NYS Lobbyist Disbursement of Public Monies Report
New York State Lobbying Rules and Regulations Common Pitfalls: 4. Procurement lobbying If you attempt to influence a government contracting or purchasing decision, this is procurement lobbying. This activity is not necessarily prohibited, but there are separate rules and regulations governing what you can and cannot do with respect to attempting to influence the granting of the contract If you are seeking a government procurement, you must know the applicable rules and regulations for this area They are separate and distinct from regular lobbying
Best Practices 1. Do not ignore the governing rules A clear understanding of the rules is imperative if you are going to be lobbying at any level (local, state, federal) Ignorance of the law is not a defense
Best Practices 2. Always ensure strict compliance Make sure you have someone who is tasked with knowing the applicable rules and regulations This person should be in a position that allows them interactions with anyone who has contact with an elected official This person must have authority over anyone they oversee
Best Practices 3. Continually review your organizations activities to determine if your lobbying status has changed Lobbying activity may ebb and flow You need to be mindful of the threshold and where you are in relation to the threshold at all times
Best Practices 4. Have a government affairs plan established Know who is in charge of what Know who must report their activity Know the chain of command for those who must report Know every person who has contact with elected officials and all levels of government
Best Practices 5. Establish chains of leadership and communication for all areas that have interactions with government You must have someone in charge of the overall operation This person must be able to make decisions and enforce consequences for not following the chains of command
Best Practices 6. If you care unclear of whether you are lobbying or how to implement best practices, consult a professional The sanctions and fines for violating the lobbying rules and regulations are steep so you want to ensure you are following the law A government affairs professional can help you establish the chains of leadership and ensure overall compliance
Best Practices So often, one hand does not know what the other is doing. For government affairs purposes and lobbying, this is a worst case scenario. The lobbying rules and regulations are very strict and clear. You must ensure that you and your organization are following all the rules and regulations fully
Best Practices So, have you been lobbying and didn t realize it? Amnesty and Compliance Program for Lobbyists, Clients Who Have Not Previously Filed With JCOPE Extended On June 28, 2016, JCOPE Commissioners approved a three-month extension to an amnesty and compliance program that began on January 1, 2016 and is meant to encourage non-filing lobbyists and clients of lobbyists to comply with the Lobbying Act and disclose information about their lobbying activities. This means the program will now run through September 30, 2016.
Resources A lot of information on all of this can be found on the JCOPE web site http://www.jcope.ny.gov/
Contact the Presenter Amy J. Kellogg Location: Albany Phone: 518-434-4377 Email: akellogg@hselaw.com Website: www.hselaw.com