New York State Advisory Opinion Broadens Definitions of Lobbying

By: Jason Torchinsky – Holtzman Vogel Josefiak Torchinsky PLLC

In a January 2016 Advisory Opinion, the New York Joint Commission on Public Ethics (JCOPE) clarified reporting obligations for those individuals and entities compensated for consulting services in connection with lobbying activity. The Advisory Opinion, referred to as AO 16-01, specifically addresses grassroots lobbying, “door-opening” lobbying, and the presence of a consultant at a lobbying meeting.

Following the release of AO 16-01, several public relations firms filed suit in federal court to prevent the JCOPE from enforcing the portion of AO 16-01 that would require individuals who are being paid to discuss legislation with editorial writers to register and report with JCOPE as lobbyists.

The following summary will focus on the new advisory opinion and the ensuing litigation.

1.      Grassroots Lobbying

Although New York’s lobby law already covered “grassroots lobbying”, this type of lobbying required a “call to action” in addition to a reference to specific legislation and a clear position on legislation. As a result of AO 16-01, however, public relations professionals working on matters that directly or indirectly involve communicating with public officials are now considered to be engaged in these lobbying activities. A communication is considered to be grassroots lobbying when it:

(1)   References, suggests, or implicates a state or local “government action”;

(2)   Takes a clear position on the issue in question; and

(3)   Is an attempt to influence a public official through a call to action.

For example, a solicitation, exhortation, or encouragement to the public or a segment of the public to contact a public official is considered grassroots lobbying. Further, an individual or organization that participates in the formation of the content and delivery of such a communication may be considered to be lobbying. In other words, public relations discussions with editors about current or pending legislation may require registration if the discussions involve the formation of content and delivery of a communication.

Individuals engaged in grassroots lobbying must register with JCOPE as a lobbyist if they or their employer receives or expends more than $5,000 for this and/or any activity that New York State considers lobbying. JCOPE has noted, however, that public relations consultants would not need to disclose “the content or details of specific communications with reporters or others.”

2.      “Door Opening” Lobbying

Preliminary contact by a consultant with a covered official is lobbying if it is intended to enable or facilitate the ultimate advocacy.

Under AO 16-01, certain activities by a consultant may constitute reportable direct lobbying. Specifically, a paid consultant engages in reportable direct lobbying under this opinion when the consultant has preliminary contract with a public official to enable or facilitate lobbying by a client or has any direct interaction with a public official in connection with lobbying by a client. As a result, a person who makes introductions between a covered official and his/her client may need to register as a lobbyist even if he/she does not engage in any substantive discussion of an issue if his/her employer receives or expends more than $5,000 for this and/or any activity that NY State considers lobbying.

3.      Consultants Attending Meetings

According to AO 16-01, merely attending a meeting with a covered official may be sufficient to trigger registration. To be clear, an individual who has direct interaction with a public official in connection with lobbying must register. These interactions include, but are not limited to:

(1)   Verbal or written communications, including communications made for the purpose of facilitating access to a public official;

(2)   Attendance at a meeting with a public official; and

(3)   Presence on a phone call with a public official.

AO 16-01 does confirm the long-standing exemption that individuals who attend meetings with public officials to address technical questions are not considered to be lobbying. This includes individuals such as architects, scientists, and engineers among others. 

Examples of Lobbying Which Trigger Registration

Considering the broad scope and application of AO 16-01, it is worth noting certain examples that would trigger registration by an individual. Consider actions and communications like the following:

  • Rallies to “get involved”
  • Billboards with a call to “Contact the Governor”
  • Radio or television ads stating  “Tell your Senator”
  • Websites/online petitions to “click here to sign this petition to our Assemblyperson”
  • Letter writing campaigns organized to oppose a regulation before a State agency
  • Speaking to a trade group to encourage them to contact a public official about a specific government action
  • Appearing on television to support the client’s position with respect to a government action
  • Contacting a newspaper to encourage editorial board to support the client’s position

Pending Litigation

In March 2016, a group of five public relations firms filed a lawsuit in the Southern District of New York seeking to prevent JCOPE from enforcing the portion of AO 16-01 that would require public relations professionals, who are paid to discuss legislation with editorial writers, to register and report with JCOPE as lobbyists. The group claims that AO 16-01 violates the First and Fourteenth Amendments of the U.S. Constitution by unlawfully subjecting public relations firms to a disclosure and punishment regime designed for true lobbyists, when in fact, public relations professionals only speak to the press about public issues. The group further argues that the result of AO 16-01 is that public relations firms, their clients, and members of the press are deterred, chilled, and silenced in violation of their First Amendment rights. The plaintiffs are seeking a temporary restraining order that would prevent JCOPE from taking action to enforce AO 16-01. The Southern District of New York has authorized a temporary stay of enforcement of AO 16-01 as applied to the group of plaintiffs. However, litigation is ongoing and the parties will be filing briefs in opposition to, or in support of, the various motions before the Court in the coming weeks.  A decision in expected this summer.

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