Who is a lobbyist? New York ethics opinion blurs lines and raises questions

Who qualifies as a lobbyist? Is a political consultant a lobbyist? What about someone with a public relations firm?

Understanding the definition of a lobbyist under state law and, additionally, who must register and complete lobbyist filings is an important consideration for both lobbyists and their employers and clients. In January 2016, the state of New York’s Joint Commission on Public Ethics (JCOPE) issued an advisory opinion outlining when New York’s Lobbying Act covers services provided by political consultants and public relations firms. The opinion also addresses when grassroots activity constitutes reportable lobbying activity.

The advisory opinion concluded that a consultant’s preliminary contact with a public official to facilitate advocacy on behalf of a client is reportable lobbying. This preliminary contact does not necessarily need to include substantive lobbying to qualify under the advisory opinion’s interpretation — communications could be initial outreach, designed to enable access to a public official so that a substantive conversation can occur later.

Grassroots communications are also considered lobbying if they reference, suggest or otherwise implicate an activity covered by New York’s Lobbying Act or if the communication takes a clear position on the issue in question and is an attempt to influence a public official through a call to action.

In its reasoning for expanding the definition of lobbying to cover consultants, JCOPE noted that lobbying begins, though one may call him or herself a consultant, when such individual communicates with a public official, or his or her staff, on behalf of a client in order to enable the client to explicitly advocate before the public official. As such, a consultant must report these activities if he knows or has reason to know that lobbying will occur in front of the public official.

In March 2016, a group of prominent public relations firms filed suit against JCOPE in the United States District Court for the Southern District of New York. The plaintiffs are requesting a temporary restraining order and preliminary injunction against the advisory opinion’s ruling. The public relations firms claim that JCOPE overstepped its mandate by adopting an advisory opinion that reinterprets the definition of lobbying. They also argue that the advisory opinion limits their right to free speech and press and due process.

Under Ohio law, lobbying is generally an attempt to promote, oppose or otherwise influence legislation, executive agency decisions or retirement system decisions on behalf of an employer through direct communication with a reportable person. A lobbyist is a person who is compensated by an employer for the purpose of engaging in lobbying activities. For legislative lobbyists, Ohio law requires registration with JLEC as a legislative agent if the lobbyist spends 5 percent of his or her compensated time promoting, opposing or otherwise influencing the passage, defeat or modification of legislation through direct communication with a “reportable person,” including a member of the general assembly or controlling board, certain legislative staff, and certain staff of the governor’s office or department. “Direct communication” means verbal or written communication through any medium that is directed toward a reportable person.

While, under the JCOPE interpretation of New York law, a person may be a lobbyist after only one communication with a public official, Ohio’s compensated time threshold can mean that one call to a legislator by a consultant to facilitate a meeting will likely not result in the consultant being required to register as a lobbyist. However, repeated communications may result in the threshold being met and registration being required, even if the individual thinks of him or herself as a political consultant or public relations professional, rather than a lobbyist.

Ohio law also specifically excludes grassroots efforts from the definition of lobbying. Grassroots lobbying are efforts by uncompensated individuals who have a direct interest in pending legislation or administrative actions and who petition public officials for the redress of grievances.

This article was reprinted from the Spring 2016 Compliance Connections Newsletter. Download the complete issue here.