Time is running out for nefarious lobbyists seeking private backroom deals with the City Council. Be warned: you have six months to peddle your influence without reproach.
City Council passed new rules for lobbying local government at their March 1 meeting but the rules will not take effect for at least six months to allow staff time to properly prepare for the new workload.
The rules passed this week are the third attempt at a lobbying ordinance. The first set, proposed in July of 2015, was rejected for being too complex and the second set, proposed in October of 2015, failed for being too simple.
The third set apparently split the difference in a way that satisfied Council. The rules define a lobbyist as anyone who is paid to communicate with any official or employee of the city for the purpose of influencing decisions. Those lobbyists must register with the city, disclose their clients and report who they’ve spoken to within 10 days of being hired or before the first meeting related to their lobbying, whichever comes first. Lobbyists are also required to disclose any gifts or expenditures paid or given to city officials/employees over $20.
The rules were drafted by the City Attorney’s office, but will be administered by the City Clerk. Staff recommended a six-month implementation window to allow the Clerk to evaluate the staffing needs for the new rules and to develop the appropriate process for handling the new law.
Newly appointed clerk Denise Anderson-Warren said the six-month window seemed right, but it could change as they learn more about the potential pitfalls.
“The previous city clerk thought there might be 10 people who would register, but we really have no idea,” she said. “So we probably have to do a little more work and check with other cities to see how many lobbyists they have registered.”
Council ultimately approved the staff recommendations with a few modifications to address specific concerns regarding government contractors and additional reporting requirements.
Several quasi-governmental agencies, including Downtown Santa Monica Inc., the Pier Board and Santa Monica Travel and Tourism had asked for clarification on the rules applicability to their work. Those organizations are independent non-profit entities but they have connections to the government through board appointments, budget or organization. As such, their staff could be considered as government contractors whose communications with other city staff would not be considered lobbying, or under a strict interpretation of the rules, those organizations could have been required to register.
Council added language to the rules that exempts government contractors from the lobbying rules as their communication with the city is at the city’s own request. That exemption covers the three boards in question but raised another issue articulated by Councilwoman Sue Himmelrich: If those entities are part of the government, and explicitly exempted from the rules at large, then any lobbying that targets those boards, as opposed to lobbying undertaken by them, would also be exempt from the rules.
Council chose to move forward with the rules with an understanding that it was better to put a basic framework in place as soon as possible and modify it as needed rather than wait for a perfect ordinance to be developed down the line.
“[The rules] are not 100 percent what I want but I think we need to get it into place, particularly if it’s going to take six months to implement,” Himmelrich said.
Local government watchdogs generally approved of the ordinance.
“We’re really pleased to see this ordinance come back before Council and we hope we can get it passed tonight, it would be great to have a lobbying ordinance here,” said Mary Marlow on behalf of the Transparency project.
Marlow asked that a private right of action be restored to the rules, allowing private citizens to file civil lawsuits over the violations. Such action was permissible in the first draft but was removed over concerns private enforcement would degenerate into petty lawsuits and infighting.
Councilwoman Gleam Davis was strongly opposed to the private right of action.
“The fact is, a private right of action can become vengeance,” she said. “We’re talking here about people exercising their First Amendment rights and we can certainly require them to disclose when and to whom they exercise their rights. The idea that people might find themselves liable for civil penalties and attorneys fees and what not because they didn’t turn in the right report at the right time, I think would take it from being a statue or ordinance concerned with transparency to one to creating the wild west with people suing each other all over the place and that troubles me.”
Himmelrich and Councilman Kevin McKeown said they favored the private right of action, but said it wasn’t a deal breaker and could be added later if necessary.
The new rules are more explicit in defining a government official as anyone elected or appointed to a city office, appointed to serve as director of a department or an employee making direct recommendations about or who has the authority to approve contracts, permits or bestow benefits.
In addition lobbyists are now required to provide a list of every official they have contacted for lobbying purposes.
Council debated the level of detail that would be required from registered lobbyists and eventually settled on language that puts the burden of reporting on the lobbyists with an understanding that staff and the council are also expected to disclose their contacts with anyone regarding important decisions. As with any new rules, staff said there would be an opportunity for revisions once the community had some time to adjust to the proposals.
“To begin with, I’d rather have too much disclosure than too little,” McKeown said.