Regulating Lobbying Activities
Part 2 of 2
This column is a service of the Institute for Local Government (ILG), whose mission is to promote good government at the local level. For more information and to access ILG’s resources on public service ethics, visit www.ca-ilg.org/trust.
Author Daniel D. Purnell is both a former local elected official and former executive director of the Oakland Public Ethics Commission. Purnell practices campaign and election law in California and serves as a volunteer for ILG. He can be reached at dandp626@gmail.com.
Question
After a series of unfortunate experiences, our agency is considering whether to adopt regulations related to lobbying the agency. What should we understand about regulating lobbyists?
Answer
The August “Everyday Ethics” column (Part I) examined common elements contained in local lobbying laws. This column presents options for securing compliance with these laws and questions to ask in determining what kind of laws make sense for a particular community.
The Challenges of Effective Enforcement
Establishing a culture of effective administration and compliance presents one of the greatest challenges to a successful lobbyist registration program. It is not enough simply to prescribe penalties in the text of an ordinance. An effective lobbying program depends largely on active administration and workable compliance measures.
Getting Complete and Accurate Reports
Lobbying laws essentially operate on the honor system. Lobbyists are expected to register in a timely manner and truthfully report their activities. So how does a local agency ensure that these registration and reporting requirements are being met?
One of the ways to help ensure accurate reporting is by requiring lobbyists to verify under penalty of perjury that the information contained in the reports is both complete and accurate. Professional lobbyists are not likely to risk damaging their credibility by failing to make full and honest disclosures. However, a strict verification requirement can help remind lobbyists that their disclosures are important and the local agency takes them seriously.
Another way to ensure full disclosure is by developing a process for diligently reviewing information contained in lobbyist reports and cross-checking it against other sources. Given the large number of lobbyists, clients and decisions they seek to influence, even in moderately sized jurisdictions, chances are good that some reportable information may go unreported unless the lobbyist reports are reviewed carefully for errors and possible omissions.
Penalties for Noncompliance
Many lobbying laws provide for criminal misdemeanor penalties in the event of an intentional violation. But because of the high burden of proof in criminal prosecutions, not all claimed violations may receive the attention they arguably deserve. Consequently some jurisdictions also provide for civil penalties, such as monetary fines and suspension from practice, in addition to criminal sanctions.
Before any civil penalties can be imposed, however, alleged violations must first be investigated and, if necessary, submitted to a neutral fact-finder authorized to impose penalties. Investigating alleged violations of lobbying laws, often in the form of written complaints filed by members of the public, can be a complex, time-consuming activity. The process frequently involves interviewing parties and witnesses, obtaining records and ultimately analyzing whether enough facts exist to proceed with a formal hearing. If an investigation finds a reasonable basis for believing a violation has occurred, the local agency may conduct a formal hearing before a neutral hearing officer. While rare, such formal hearings can also be very time intensive and must conform to exacting procedural due-process requirements. These include adequate notice and a fair hearing.1
Assigning Responsibility for Enforcing and Administering the Law
Some jurisdictions have addressed the compliance issue, along with administrative issues, by creating a local body with limited powers of oversight and enforcement. For example, the cities of San Diego, Los Angeles, Oakland and San Francisco have delegated civil enforcement authority over their respective lobbying laws to local ethics commissions. These commissions also have jurisdiction over other local ethics laws, such as campaign finance and government conduct ordinances. Staff to these appointed boards investigate alleged violations in addition to administering the law, including such activities as developing forms, creating educational material and managing filed documents. The ethics commissions are authorized to sit as hearing panels to determine alleged violations of law and impose appropriate civil penalties.
Not every local jurisdiction has the resources or desire to create an ethics commission to take responsibility for ensuring lobbyist compliance. Before adopting any lobbying law, serious thought should be given to the resources that the local agency is prepared to commit for necessary administration and enforcement. Without credible enforcement, compliance can suffer. The initial and annual registration fees many jurisdictions charge to cover or defray the cost of administering and enforcing the ordinance cannot always anticipate the sometimes extensive costs for a complex investigation or a protracted enforcement proceeding.
Alternative and Complementary Laws
Given that lobbying laws can be challenging to administer and enforce, what alternative approaches can local agencies use? If one of the primary purposes of lobbying laws is to shed light on how public decisions are influenced and made, lobbyists are not the only source of pertinent information. Public officials can also serve as a source of information.
One option is to adopt “ex parte communication” rules that essentially take the burden of disclosure and shift it to or share it with the public officials being lobbied. This approach is unique because it expands a public official’s obligation to disclose his or her outside (“ex parte”) communications made in connection with quasi-judicial proceedings to include communications related to certain legislative or administrative actions as well.2 For example, the City of San Jose’s municipal code includes the following language:
“Before taking any legislative or administrative action, the mayor, each member of the city council … and each member of the planning commission, civil service commission or appeals hearing board must disclose all scheduled meetings and telephone conversations with a registered lobbyist about the action. The disclosure may be made orally at the meeting before discussion of the action on the meeting agenda. The oral disclosure must identify the registered lobbyists, the date(s) of the scheduled meetings and telephone conversations and the substance of the communication …”3
Not all public officials will be particularly excited about having to track and record the names of lobbyists they speak with, much less having to announce publicly that they meet with lobbyists at all on legislative or administrative matters. Still, few people are in a better position to know who is trying to influence decision-makers’ actions than a public official. A requirement to disclose ex parte communications on legislative and administrative matters has the advantage of providing the public with information that is both immediate and relevant to the decision at hand. It can also provide an effective cross-check on subsequent lobbying reports.
Another source of information about lobbying activities is the online posting of public officials’ calendars and appointment books. Such requirements are usually adopted in the context of local transparency ordinances. But in conjunction with a local lobbying law, such requirements can provide relevant information about meetings involving public officials and lobbyists. Some public agencies and officials already use software packages that include electronic calendaring functions that can be adapted to include the pertinent meeting information. This information can be posted and updated daily if desired.
The compulsory disclosure of meeting information is not without controversy. California courts have generally upheld disclosure requirements as part of the regulation of professional lobbyists.4However, the courts have not addressed the specific issue of whether local agencies can compel uncompensated residents to register as lobbyists and provide information regarding their communications with public officials. Privacy and First Amendment issues could also arise if public officials are required to publicly identify and disclose the names of constituents with whom they meet or produce records containing similar information.5
Legal issues aside, it would seem essential to consider as a matter of public policy whether a contemplated disclosure law — such as ex parte communications and public posting of appointment calendars — could chill public interest and participation for individual residents in the decision-making process.
Identifying the Right Approach for Your Agency
An unfortunate reality is that ethics laws are often adopted reactively following a public crisis or scandal. Lobbying laws are no exception and are sometimes susceptible to the political dynamic in which legal, ethical or practical considerations give way to an overriding desire to “do something.”
Part of the measured consideration of whether and how to regulate lobbying should include an assessment of:
- Which approach is pertinent and necessary within a particular jurisdiction; and
- How the information gathered will be put to use.
What Problem Does the Agency Need to Solve?
Looking at what other jurisdictions have done can be helpful in assessing which approach makes sense, but policy-makers are also well-advised to consider the dynamics within their particular community. Such considerations include:
- Are there relatively few or many lobbyists operating in the community?
- What types of interests do they represent, and what types of decisions tend to be influenced?
- How do lobbyists exercise influence: by directly urging certain public policy decisions, financing political campaigns and/or channeling money to favored causes or organizations?
- Which approach would best target the perceived need?
It may be helpful to consider other options, too, such as:
- A local campaign-financing ordinance that limits the amount and/or restricts the source of contributions; or
- A transparency ordinance that augments the local agency’s duty to disclose information.
Taking the community’s unique needs into account will help determine what type of information to seek from local lobbyists as well as what restrictions to place on lobbying activities.
How Will Any Information Collected Be Used?
The next question is what should be done with the information once it is obtained. This is a key element of a lobbying ordinance’s effectiveness. Some jurisdictions use interactive online systems. These can be more convenient for both those reporting information and those wanting to access it. Some have useful search functions and other helpful features.
In jurisdictions without interactive systems, one option is to post a current list of lobbyists and their clients on the agency’s website.
The goal is to present information in a way that allows the public and public officials to easily access key facts. Charts and tables can be beneficial tools in this regard.
Sharing this information regularly with elected officials and staff can also be a good practice. Doing so can provide an important check to ensure that lobbyists are fully complying with disclosure requirements. Periodically transmitting such information can encourage recipients to contact the filing office if they notice any discrepancies or errors.
Measuring Lobbying Ordinance Effectiveness
Tracking and analyzing the number of lobbyists and clients registered, the issues lobbied upon and the number of staff hours expended to administer and enforce the ordinance can provide valuable and useful information. The ultimate success of a lobbyist registration program, however, will ultimately rely on community perceptions. Has the law improved transparency and public confidence in the decision-making process? Does it help community members better understand lobbyists’ role in influencing public policy? Have problematic activities diminished?
While there may not always be consensus about whether these subjective standards have been achieved, a publicly noticed discussion — as part of a governing board, ethics commission or committee meeting — can produce valuable insights as to the effectiveness of the local ordinance and produce ideas for future amendments. At the very least, a well-administered lobbying law can and should provide elected officials and the public essential insight into the role of professional influence on the people’s business.
Footnotes:
[1] See, for example, City of San Diego Municipal Code Section 26.0420 et seq; Los Angeles Administrative Code Section 24.1.2.
[2] For more information on ex parte communications in quasi-adjudicative proceedings, see the “Everyday Ethics for Elected Officials” column, “When an Elected Official Feels Passionately About An Issue: Fair Process Requirements in Adjudicative Decision-Making,” October 2006.
[3] San Jose Municipal Code Section 12.12.800.
[4] Fair Political Practices Comm. v. Superior Court, supra.
[5] See generally, City of San Jose v. Superior Court (1999), 74 Cal.App.4th 1008 and cases cited therein.
This article appears in the October 2012 issue of Western
City
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