The Scope of Reportable Lobbying in New York Just Expanded

In its first advisory opinion in two years, the Joint Commission on Public Ethics ("JCOPE") has revisited the definition of lobbying in New York and expanded the notion of reportable activities. Given the heightened awareness in Albany and elsewhere across New York regarding corruption and those that are attempting to influence public officials, JCOPE's new and expansive interpretation of the Lobbying Act is not surprising. It also is not unexpected that JCOPE's new opinion is being both hailed and criticized by the regulated community. Indeed, even some members of the Commission voted to reject the advisory opinion and its expansive reading of the Lobbying Act.

The concept of lobbying, and thus what is covered by the Lobbying Act and reportable, has been a moving target in New York for decades. The Lobbying Act itself has been amended on more than one occasion and the agency charged with its enforcement has been reinvented too many times to count. In many cases, the "attempt to influence" has been in the eye of the beholder causing many to disclaim that their activities were not reportable lobbying. Moreover, little guidance on the Lobbying Act exists and the majority that is available was issued by JCOPE's predecessor agencies and often based on outdated versions of the Lobbying Act. Enforcement also has not always been consistent or wide-ranging. The combined result has been somewhat inconsistent interpretations by the regulated community of what is and is not lobbying, with some over-reporting and others disclaiming any need to register and report their activities under the Lobbying Act. This should now change, at least in two discrete circumstances.

In its newest advisory opinion adopted on January 26, 2016, entitled Reporting obligations under the Lobbying Act for a party who is compensated for consulting services in connection with lobbying activity, JCOPE takes a fresh look at the services provided by "consultants," including communications and media relations, community organizing, coalition building, strategic planning, social media, grassroots advocacy and electoral campaigns. In doing so, JCOPE focuses on two principal activities performed by consultants – facilitating direct lobbying with a public official and orchestrating grassroots lobbying campaigns directed to the public.

With respect to the first consultant activity – enabling direct lobbying, JCOPE expressly recognizes that "the scope of the Lobbying Act is limited to those circumstances defined as lobbying in the Lobbying Act." However, it goes on to note that "advocacy has evolved[,]" such that it is revisiting activities "clearly within the ambit of the Lobbying Act, but not [ ] previously considered." It then concludes that "any direct interaction with a public official in connection with an advocacy campaign, including preliminary communications to facilitate or enable the eventual substantive advocacy" must be reported as lobbying under the Lobbying Act. JCOPE's rationalizes that, regardless of what one calls him/herself, when an individual communicates with a public official, "for the purpose of enabling the client to explicitly advocate before the public official[,]" lobbying has begun because but for the individual's access, the subsequent advocacy could not have occurred.

The take away for consultants and their clients is that reportable lobbying begins at the first contact with a public official, even if that contact is merely an introduction to the client or limited to merely setting up a future meeting for the client. It also includes the consultant's attendance at a subsequent lobbying meeting (or participation in a conference call) with a public official even if the consultant's role is limited to making introductions or observing the discussions.

Regarding grassroots lobbying, advisory opinions from JCOPE's predecessor agencies declared that lobbying did not require direct interaction with a public official but could occur through calls to action urging the public to contact a public official. In this new advisory opinion, JCOPE seeks to account for the 2011 amendments to the Lobbying Act that have expanded the definition of lobbying to include attempts to influence the introduction or intended introduction of legislation. In doing so, JCOPE finds that a grassroots communication does not need to reference a bill number, specific rulemaking or executive order to be reportable. Rather, the communication needs only to relate to one of the enumerated governmental actions covered by the Lobbying Act (e.g., legislation pending before the State legislation, the adoption of an executive order, rulemaking by a state agency, etc.) to constitute reportable lobbying. Thus, a grassroots communication will be deemed to constitute lobbying if it simply references, suggests or otherwise implicates one of the enumerated government actions covered by the Lobbying Act, takes a position on the issue in question, and attempts to influence a public official through a call to action.

With this expanded understanding of grassroots lobbying, JCOPE reaffirms that a consultant's activity on a grassroots campaign is reportable lobbying if the consultant controlled the delivery of the grassroots communication and had input into the message's content. "Control" of the delivery requires the consultant's participation in the actual delivery of the grassroots communication, whether it be in writing or verbally. This would include, for example, any attempt to induce a third-party, including the public and media outlets, to deliver the client's lobbying message to a public official. In turn, "input" on the content means the consultant's participation in the message's formation, which is something more than mere proof reading but less than full decision-making authority.

Bottom line, although the statutory definition of lobbying itself has not changed, JCOPE has taken a proactive look at what activities constitute lobbying in this new advisory opinion and expanded the definition beyond what many had considered reportable lobbying since the Lobbying Act first became law decades ago. With the increased awareness of attempts to influence public officials, all direct and indirect interactions with public officials should be closely scrutinized to determine if they are reportable or not.