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HomeMy WebLinkAboutMINUTES - 01252005 - C51 . . .. C o t ra f TO: BOARD OF SUPERVISORS CostaFROM: INTERNAL OPERATIONS COMMITTEE DATE: DECEMBER 6, 2004 ''' -"' COnt SUBJECT: STATUSREPO ON THE DEVELOPMENT OF A LOBBYING ORDINANCE SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDATIONS 1. ACCEPT status report on the development of an ordinance requiring individuals, groups, or entities that lobby the Board of Supervisors or other County officials to register with the County their lobbying affiliations and submit reports on their lobbying activities. 2. DIRECT the County Counsel to prepare two draft lobbying ordinances, as specified herein, for consideration by Internal Operations Committee in early 2005. r CONTINUED ON ATTACHMENT: YES SIGNATURE: R COMMENDATION OF COUNTY ADMINISTRATOR v �C ROMMENDAT N F BOARD COMMITTEE ;�E PROVE OTHER SIGNATURE(S): � 'GAYLE� 8,'JJtCK"*eMA, CHAIR MARK DeSAULNIER ACTION OF BOARD O v5 Z jaAPPROVE AS RECOMMENDED Vor, O ER VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT �/ COPY OF AN ACTION TAKEN AND ENTERED v UNANIMOUS(ABSENT ON THE MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE SHOWN AYES: NOES: ATTESTED: January 25, 2005 ABSENT: ABSTAIN: JOHN SWEETEN,CLERK OF THE BOARD OF SUPERVISORS AND COUNTY ADMINISTRATOR CONTACT: JULIE ENEA(925)335-1077 BY 4< ,DEPUTY CC: INTERNAL OPERATIONS COMMITTEE STAFF MARY ANN MASON,DEPUTY COUNTY COUNSEL Lobbying Ordinance Status Report December 6, 2004 Internal Operations Committee Page 2 BACKGROUND On March 16, 2004, Supervisor DeSaulnier suggested that the Board should consider developing, in the public's interest, an ordinance similar to that of the City and County of San Francisco that would require individuals, groups or entities that lobby the Board of Supervisors so to register with the County their lobbying affiliations. Staff began reviewing ordinances of the City and County of San Francisco, and other counties, and found wide variances as to the breadth of disclosure requirements and prohibitions related to lobbyists. Supervisor DeSaulnier provided an outline of the provisions he wished to see included in an ordinance and the County Counsel prepared a draft ordinance that was introduced to the Board of Supervisors on September 28, 20040 The Board of Supervisors wanted more opportunity to study and possibly modify the draft ordinance, and referred it to the Internal Operations Committee for further discussion and report back to the Board within 90 days. Our Committee held two discussions (October 18 and December 6) with staff, the County Counsel, and interested members of the public to discuss the scope and possible provisions for the ordinance. The County Counsel provided the IOC with an array of possible provisions for a lobbying ordinance, covering such areas as lobbyist registration requirements and exemptions thereto, lobbyist reporting requirements, prohibitions on lobbyist activities, and enforcement options. The report also included several tables showing side-by-side comparisons among provisions of similar ordinances of other local agencies. Staff surveyed other agencies regarding lobbying ordinance enforcement issues and reported findings to the Committee. Those reports are attached hereto for informational purposes. Concerns expressed by members of the public and agencies that might be subject to the ordinance included the need or motive for the ordinance, the burden of documentation and reporting by registrants, the impact on nonprofit agencies, and the cost to the County of developing and administering the ordinance. Our Committee recognizes these concerns and is inclined to continue studying the development of the ordinance. Our Committee concurs that any County lobbying ordinance: 0 should be prospective in its timing, 0 should be simple and limited in scope, a should require all lobbyists to register a should require periodic reporting by contract lobbyists making more than $101000 annually, 0 should exempt certain nonprofit organizations from reporting, 0 should not require ex parte reporting N and should not require reciprocal (both lobbyist and official) reporting .. However, as a Committee, we differed on several fundamental issues: Lobbying Ordinance Status Report December 6, 2004 Internal Operations Committee Page 3 Issues Supervisor Uilkema Su2ervisor DeSaulnier Periodic reporting of Only contract lobbyists making Only contract lobbyists making lobbying activities more than $10,000 should more than $10,000 or 25 or report; volunteer (non-paid) more contacts per year should lobbyists should be exempted report Frequency of reporting Monthly, and staff should post Semi-annually reports on the County website Elements of reporting Name of the official that was Name of the official that was contacted, the number of contacted and the number of . contacts, and the subject of the contacts, but not the subject of contact the contacts Penalties for non- Progressive or escalating As provided in the attached compliance penalties for non-compliance draft ordinance with the ordinance I I We, therefore, recommend that the Board of Supervisors direct the County Counsel to prepare two drafts for a lobbying ordinance for further consideration by our Committee. It is our intent to continue to study the available options to determine if consensus can be achieved. However, our Committee may determine to proffer two different versions of a lobbying ordinance for the Board's consideration. f ORDINANCE NO. 2004- (Division 532 Lobbyist Registration) DRAFT The Contra Costa County Board of Supervisors ordains as follows (omitting the parenthetical footnotes from the official text of the enacted or amended provisions of the County Ordinance Code): SECTION I. ENACTMENT. Division 532 is added to the County Ordinance Code, to require registration of lobbyists who attempt to influence legislative or administrative action of the County and its officials and to require such lobbyists to file quarterly reports of their lobbying activities. DIVISION 532 LOBBYIST REGISTRATION AND REPORTING CHAPTER 532-2 REGISTRATION AND REPORTING REQUIREMENTS ARTICLE 532-2.2 GENERAL 532-2.202 Citation. This division maybe cited as the Contra Costa County Lobbyist Registration and Reporting Ordinance. (Ord. 2004- 532-2.204 Purpose. The Board of Supervisors finds that public disclosure of 1)the identity of Lobbyists who attempt to influence the decisions of County government and 2)the means employed by those Lobbyists to advance their Clients' interests,is essential to protect public confidence in the responsiveness and representative nature of government officials and institutions. It is the purpose and intent of the Board of Supervisors to impose on Lobbyists reasonable registration and disclosure requirements, to reveal information about Lobbyists' efforts to influence decision-making regarding County legislative and administrative matters. (Ord. 2004- 532-2.206 County Clerk-Recorder's forms. The County Clerk-Recorder may create any forms or publications that may assist Lobbyists in complying with this chapter and may require electronic reporting. (Ord. 2004- ARTICLE 532-2.4 DEFINITIONS 532-2.402 Words and phrases. Unless otherwise specifically provided in this division or required by the context,the words and phrases in this division have the same meanings as in the Political Reform Act of 1974 as amended(Government Code sections 8 1000 et. seq.) and the regulations adopted thereunder. 1 Ordinance 2004- (Ord. 2004- DRAFT 532-2.404 Definitions. (a) "Activity Expense"means any expense incurred or payment made by a Lobbyist or arranged by a Lobbyist which benefits in whole or in part any County'Official or candidate for County office, or a member of the immediate family of one of these individuals. Activity Expenses 'include gifts,honoraria, consulting fees, salaries, and any other form of compensation but do not include campaign contributions. (b) "Client"means the person on whose behalf the Lobbyist attempts to influence County Legislative or Administrative Action. (c) "Contact"means communications, oral or written including communication through an agent, associate, or employee, for the purpose of influencing or attempting to influence County Legislative or Administrative action. (d) "Count'means the County of Contra Costa. (e) "County Legislative or Administrative Action"means the drafting, introduction, consideration,modification, enactment, defeat, approval,veto, granting or denial by any County Official(s) of any resolution,motion, appeal, application,petition,nomination, ordinance, regulation, amendment, approval,referral,permit, license, entitlement to use, or contract. (f) "County Official"means members of the Board of Supervisors, elected or appointed County officers, the County Administrator, County department heads, Planning Commissioners and Area Planning Commissioners. (g) "Influence"means promoting, supporting, opposing, or seeking,to modify or delay any County Legislative or Administrative Action by any means, including but not limited to using persuasion or providing incentives, information, statistics, analyses or studies. (h) "Lobbying"means influencing or attempting to influence County Legislative or Administrative action, including but not limited to Contacts with County Officials. (i) "Person,515 means an individual,proprietorship, firm,partnership,joint venture, syndicate,business trust, company, corporation, limited liability company, association, committee, and any other organization or group of persons acting in concert. (j) "Public meeting"means any open and noticed proceeding. (Ord. 2004- .) 532-2.406 Lobbyist defined. "Lobbyist"means the following: (a) Contract Lobbyist: any Person who contracts for economic consideration to contact any County Official on behalf of any other Person, and who either(1)receives or becomes entitled to receive at least$3,000 in economic consideration in any calendar year in exchange for lobbying on County Legislative or Administrative Actions- or(2)has at least 25 Contacts in any 2 Ordinance 2004M calendar year with County Officials. For purposes of calculating whe r eached the income threshold in subpart(1), all economic consideration the Person or become entitled to receive during the calendar year from all Clients in exchange for to bying shall be combined. For purposes of calculating whether a Person has reached the Contacts threshold in subpart(2), all Contacts with County Officials that were made by the Person during the calendar year on behalf of all Clients shall be aggregated. (b)Business and Organization Lobbyist: any business or organization that has employees or members who, as a regular part of their employment or duties, contact County Officials on behalf of that business or organization and such employees or members have a combined total of at least 25 Contacts with County Officials in any calendar year. Contacts made by an employee or member who merely indicates his or her affiliation or identification with the business or organization,but who does not represent the official position of the business or organization shall not be included in the calculation of Contacts. (c) Expenditure Lobbyist: any Person who makes payments totaling$3,000 or more in value in any calendar year to influence County Legislative or Administrative Action on one or more matters (e.g., for public relations, advertising,public outreach,research, studies). Payments counting toward the$3,000 threshold shall not include(1)payments to any Contract Lobbyist or Business and Organization Lobbyist for Lobbyist services; (2) dues payments, donations, or other economic consideration paid to an organization even if such payments are used for lobbying. (Ord. 2004--.) ARTICLE 532-2.6 EXEMPTIONS 532-2.602 Exemptions. Notwithstanding any other provision in this chapter,this chapter does not apply to: (a)Any public official acting in his or her official capacity, and any government employee acting within the scope of his or her employment. (b)Representatives of a news media organization while they are engaged in gathering, publishing or broadcasting news items, editorials or other commentary, or paid advertisements which directly or indirectly urge governmental action. (c)Any applicant or opponent, or licensed attorney, architect,, or engineer representing an applicant or opponent on: a grading permit; a permit relating to the construction, alteration, demolition or moving of a building; a parcel map; or a subdivision tract map, whose attempts to influence County Legislative or Administrative action are limited to (a) appearing at a public meeting,public hearing, or other official proceeding open to the public; (b)preparing or submitting documents or writings for use at a public meeting,public hearing, or other official proceeding open to the public; and(c) contacting County employees or agents working under the direction of a County department head. 3 Ordinance 2004- 1 1 1 (d)Any Person whose communications regarding any County Le lative or Administrative Action are limited to appearing or submitting testimony Ubis meeting held by the Board of Supervisors or by any County committee, commission, , ant as long as the communications are public records available for public review. '� (Ord. 2004--.) ARTICLE 532-2.8 REGISTRATION OF LOBBYISTS 532-2.802 Registration of Lobbyists required. (a)No Lobbyist shall either contact any County Official or make payments to influence 0 County Legislative or Administrative Action, without first registering as a Lobbyist with the County Clerk-Recorder and complying with the reporting and disclosure requirements imposed by this chapter. Once the Lobbyist has registered, that registration shall be good until December 31 of the year for which the lobbyist registered. (b)The County Clerk-Recorder shall issue a registration number to each Lobbyist and indicate thereon the expiration date of the registration and the time for annual reregistration. (Ord. 2004- .) 532-2.804 Continuing obligations; annual reregistration. (a) Once a Person has initially qualified as a Lobbyist, even if the thresholds set forth in section 530-2.404 are no longer met, that Person shall remain subject to all registration and reporting requirements and prohibitions imposed by this chapter,until the Person has ceased all lobbying activity for at least 12 consecutive months and so notifies the County Clerk-Recorder as required by section 532-2.806.. (b) Each Lobbyist shall reregister annually with the County Clerk-Recorder no later than December 31 for the subsequent calendar year. (Ord. 2004-. .) 532-2.806 Termination of Lobbyist status,, A Lobbyist who has terminated all lobbying activities for at least 12 consecutive months shall so notify the County Clerk-Recorder in writing. Thereafter,he or she shall be relieved of any further obligations under this chapter until such time as he or she commences activity requiring registration. (Ord. 2004-, o) 532-2.808 Content of registration and reregistration reports. (a) At the time of initial registration each Lobbyist shall file a registration report with the County Clerk-Recorder.. The registration report shall contain the following information: (1) All registration reports shall include the Lobbyist's name,business address, and business telephone number. (2)All registration reports shall list all campaign contributions of$100 or more, 4 Ordinance 2004- made or delivered by the Lobbyist, or made by a Client at the behest of the Lobbyist, duTing the twelve months preceding the date of registration, in support of or in opposition to a candidate for County office, a committee controlled by such candidate, or a committee which supports or opposes such candidate. For each contribution,the report shall specify the date on which the contribution was made; the name of the candidate or committee receiving the contribution; the amount of the contribution; and the name of the Client for whom the contribution was delivered, if any. (3)All registration reports shall contain information about the Lobbyist's lobbying activities in the twelve months preceding the date of registration: (A) If the Lobbyist is a Contract Lobbyist, the registration report shall include the following additional information: (i) If the Lobbyist is an entity, the name of each individual who is an owner,partner or officer of the Lobbyist; (ii) If the Lobbyist is an individual, the name of the Lobbyist's employer and a description of the employer's business activity; (iii)The name of each person employed or retained by the Lobbyist to contact County Officials; (iv)The name, address and telephone number of each current Client on whose behalf the Lobbyist will lobby County Officials and of each Client on whose behalf the Lobbyist has lobbied County Officials during the twelve(12)months preceding the date of registration. (v)For each Client reported under(iv) above, the County Legislative or Administrative Action the Lobbyist was retained to influence and the outcome sought. (vi)The total economic consideration that the Lobbyist has received oris entitled to receive from Clients for lobbying County Officials during the twelve months preceding the date of registration. (vii)The total number of contacts that the Lobbyist has had with County Officials during the twelve(12)months preceding the date of registration. (B) If the Lobbyist is a Business or Organization Lobbyist, the registration report shall include the following additional information: (i)A description of the purpose of the business or organization, including a statement whether the Lobbyist is an industry, trade or professional association. (ii)The name of each employee or member of the business or organization authorized to contact County Officials on behalf of the business or organization. (iii)The total amount of payments to influence County Legislative or Administrative Action made by the Lobbyist during the twelve(12)months preceding the date of registration. (iv)The total number of Contacts with County Officials made on behalf of 5 Ordinance 2004- 1 the Lobbyist by the Lobbyist's employees or members during the twelve(12)mo seceding the date of registration. (v)A description of each County Legislative or Administrative Action the Lobbyist seeks to influence or sought to influence during the twelve(12)months preceding the date of registration and the outcome sought. (C) If the Lobbyist is an Expenditure Lobbyist, the registration report shall include the following additional information: (i) If the Lobbyist is an entity(e.g., corporation,partnership,joint venture, or other unincorporated association) , a description of the nature and purpose of the entity, and the name of each individual and entity who is an owner,partner or officer of the Lobbyist. (ii) If the Lobbyist is an individual,the name and address of the Lobbyist's employer, if any, or his or her principal place of business if the Lobbyist is self-employed, and a description of the business activity in which the Lobbyist or his or her employer is engaged. (iii)The total amount of payments to influence County Legislative or Administrative Action made by the Lobbyist during the twelve(12)months preceding the date of registration. (iv)A description of each County Legislative or Administrative Action the Lobbyist seeks to influence or sought to influence during the twelve(12)months preceding the date of registration and the outcome sought. (b)At the time of annual reregistration, each Lobbyist shall file a reregistration report that updates to the date of reregistration any information that is no longer current in the registration report filed pursuant to subsection(a). (Ord. 2004- 532-2.810 Fees. At the time of registration or reregistration, each Lobbyist shall pay a fee to the County Clerk-Recorder. The fee shall be in the amount established annually in accordance with a fee schedule set by the Board of Supervisors. (Ord. 2004- ARTICLE 532-2.10 DISCLOSURE OF LOBBYING ACTIVITIES 532-2.1002 Quarterly disclosure reports. (a) Each Lobbyist shall file with the County Clerk-Recorder quarterly disclosure reports. The quarterly report for the period starting January 1 and ending March 31 shall be filed no later than April 15; the quarterly report for the period starting April 1 and ending June 30 shall be filed no later than July 15; the quarterly report for the period starting July 1 and ending September 30 shall be filed no later than October 15; the quarterly report for the period starting October 1 and ending December 31 shall be filed no later than January 15. (b) Quarterly reports shall contain the following information: 6 Ordinance 2004- 4 L .r` 532- (1)All quarterly reports shall include the information specified,-"in si�i 2.808 subsection(a), subparts (1) and(2). (2)All quarterly reports shall include the date, amount and description of each Activity Expense of$25 or more paid or incurred by the Lobbyist during the reporting period; the name and title of the County Official benefitting from the Expense; the name and address of the payee; and the Client, if any, on whose behalf the Expense was incurred. An Activity Expense shall be considered to be incurred or paid on behalf of a Client, if the Client requested or authorized the Expense. (3)All quarterly reports shall contain information about the Lobbyist's lobbying activities during the current quarter: (A)If the Lobbyist is a Contract Lobbyist,the quarterly report shall include the following additional information: (i)The information specified in section 532-2.808, subsection(a), subpart(3)(A), for the reporting period. (ii)For each Contact with a County Official during the reporting period: the name and title of the official contacted by the filer; the name of the Client on whose behalf the Contact was made; the County Legislative or Administrative Action about which the Contact was made; and the outcome sought. (B) If the Lobbyist is a Business or Organization Lobbyist,the quarterly report shall include the following additional information: (i)The information specified in section 532-2.808, subsection(a), subpart(3)(B), for the reporting period. (ii)For each Contact with a County Official during the reporting period, the name and title of the official contacted by the filer; the County Legislative or Administrative Action about which the Contact was made; and the outcome sought. (C) If the Lobbyist is an Expenditure Lobbyist, the quarterly report shall include the following additional information: (i)The information specified in section 532-2.808, subsection(a), subpart(3)(C), for the reporting period. (ii) Each County Legislative or Administrative Action the Lobbyist sought to influence during the reporting period and the outcome sought. (Ord. 2004- ARTICLE 532-2.12 PROHIBITIONS 532-2.1202 Prohibitions. No Lobbyist shall: 7 Ordinance 2004- (a) contact any County Official in the name of any nonexistent Person or int e name of any existing person without the consent of such Person; (b)do any act with the purpose of placing any County Official under personal obligation to the Lobbyist, or the Lobbyist's employer; (c)intentionally deceive or attempt to deceive any County Official with regard to any material fact pertinent to any pending or proposed County Legislative or Administrative Action; (d)represent falsely, either directly or indirectly,that the Lobbyist can control the official action of any County Official; (e) cause or influence the introduction or initiation of any County Legislative or Administrative Action for the purpose of thereafter being employed or retained to secure its granting, denial, confirmation,passage or defeat; (f) accept or agree to accept payment in any way contingent upon the defeat, enactment, or outcome of any proposed County Legislative or Administrative Action. (Ord. 2004- ARTICLE 532-2.14 ENFORCEMENT 532-2.1402 Penalties. Every violation of this division is a misdemeanor and punishable as such. (Ord. 2004- 532-2.1404 District Attorney's court suits. The District Attorney may enforce the provisions of this chapter by filing, in his or her discretion, any appropriate legal action. (Ord. 2004- SECTION II. SEVERABILITY. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this Division is for any reason held to be invalid or unconstitutional by the final decision of any court of competent jurisdiction., that decision shall not affect the validity or enforceability of the remaining portions of this Division, and the Board of Supervisors declares that it would have adopted this Division, and each section, subsection, subdivision, sentence, clause,phrase, or portion thereof, irrespective of the validity of any other part. SECTION III. EFFECTIVE DATE. This ordinance becomes effective 30 days after passage and within 15 days after passage shall be published once with the names of supervisors voting for and against it in the Contra Costa Times, a newspaper published in this County. PASSED ON ,by the following vote: 8 Ordinance 2004- AYES: NOES: ABSENT: ABSTAIN: ATTEST: JOHN SWEETEN, Clerk of the Board and County Administrator By: Deputy Board Chair [SEAL] MAM: H:\Iobbyists\mam-lobbyord-2clean.w d 9 Ordinance 2004- COMPARISON-OF PROPOSED ORDINANCE WITH OTHERS Compared with: Richmond,Oakland, SF, Sacramento,LA City, San Diego City DEFINITION OF LOBBYIST CCC proposal sets threshold based upon income earned and number of contacts. Other jurisdictions set varying thresholds based on income or contacts. CCC proposal exempts public officials acting in their official capacity;news media; applicant/attorney/architect/engineer in certain land use matter communications; and communications made at a public meeting. Other jurisdictions all include exemptions for public officials and news media; some do not include exemptions for lawyers/architect/engineers; some include exemptions for non-profits and neighborhood associations. Other varying exemptions, as well. DISCLOSURE OF LOBBYING ACTIVITIES IN REPORTS All filed quarterly except Richmond(twice a year) Contains: 1. Lobbyist's name, address,phone Richmond Oakland SF Sacramento' San Diego LA 2. All campaign contributions made/delivered by Lobbyists more than$100 (to candidate or candidate controlled committee) Richmond SF Sacramento LA 3. Each activity expense greater than$25 —showing date, amount and description and name of Official benefiting from the expense, and the name/address of the payee, and name of client . Richmond SF Sacramento LA 4. Name of each individual who is an owner of the Lobbying entity or name of the Lobbyist's employer SF Sacramento San Diego LA 5. Name of each person employed by the Lobbyist to contact Officials Richmond SF Sacramento LA 6. Name, address,phone of each of the Lobbyist's clients and the issue/outcome for which the Client hired the Lobbyist Richmond Oakland SF Sacramento San Diego LA 7. Total economic consideration to be paid to the Lobbyist for lobbying the County .Richmond SF LA San Diego (listed by range of income only) 8. Total number of contacts the Lobbyist has had with Officials 1 s t Office of the County Counsel Contra Costa County 651 Pine Street, 9th Floor Phone: (925)335-1800 Martinez, CA 94553 _ Fax:(92s)646-1078 Date: November 30, 2004 To: Internal Operations Committee From: Silvano B. Marchesi, County Counsel By: Mary Ann McNett Mason,Deputy County Counsel Re: Possible Modifications to Draft Lobbying Ordinance At the October 18,2004 Internal Operations Committee meeting,we were asked to research and report back to the Committee on the following issues: 1) for those state agencies that require public officials to report ex parte conversations with persons interested in matters before the agency board,the rules and exceptions for such reporting; 2)whether other local lobbying ordinances require reporting of lobbyist contacts by both the public official and the lobbyist; 3)possible modifications to the draft ordinance to avoid retroactive application; 4) possible modifications to the draft ordinance to limit or eliminate the reporting that would be required of non-profits; 5)miscellaneous possible modifications to the draft ordinance: We address these topics below. 1. "Ex Parte"Reporting Requirements for State Board Members A number of state agencies that conduct adjudicatory proceedings have specific rules requiring disclosure of ex parte communications,that is a communication between a state board member and an interested person about a matter before the state body when that communication occursoutside of the state body's public hearing or other official proceeding. .A few examples are discussed below. (See attached Table, Time for Disclosure-Ex Parte Contact in Adjudicatory Proceeding.) The San Francisco.Bay Conservation and Development Commission currently is considering regulations that would establish a formal Commission policy on ex parte communications. (Copy attached.). The regulations would prohibit ex parte communications in adjudicatory actions(i.e.,issuance of permits and cease and desist orders,.matters that affect a single entity).and address the method of disclosure if such a communication occurs. The prohibitions and disclosure requirements would not apply to legislative actions(i.e., adoption of policies,regulations,plan amendments,matters that affect a class.of entities);.the discussion of non-controversial procedural matters, and certain communications.from BCDC employees and representatives who.are not prosecuting the matter before the Commission. A Commission member who receives an ex parte communication in an adjudicatory proceeding must disclose the content of the communication on the.record before or when the Commission considers the matter.. The disclosure is made in writing. If the ex parte communication was a written Internal Operations Committee November 3 0, 2004 Page 2 document, the Commissioner must submit the document to the Commission's Executive Director as soon as practicable. If the ex parte communication was oral,the Commissioner must submit a memorandum to the Executive Director that tells the substance of the communication, the identity of the person who contacted the Commissioner, and the Commissioner's response, if any. (Proposed BCDC Regulations., §§ 10280-10289.) Commissioners on the California Coastal Commission must disclose ex parte communications within seven days of the communication,or if the communication is within seven days of a Commission hearing, at the hearing. Commissioners complete a disclosure form that includes the time, date, time, and location of the communication, the identity of the persons making and receiving the communication, a description of the communication, and a copy of the communication, if written. (Gov. Code, § 30324.) Ex parte communications do not include communications limited to procedural issues such as hearing format,communications that occur on the record of another agency's proceeding where the Commissioner is also an official of that agency, and communications with the staff and officials of the Commissioner's other agency. (Gov. Code, § 30322.) Members of the State Mining and Geology Board must disclose ex parte communications about Board actions on reclamation plans,review of orders setting administrative penalties, and various appeals. Disclosure must be made to the Board's executive director within seven days of the communication,or if the communication is within seven days of a Board hearing, at the hearing. Board members must make the same type of disclosure that persons on the California Coastal Commission make. (Pub. Res. Code, § 663.1.) Aboard member who knowingly fails disclose an ex parte communication is prohibited from participating in Board decisions on the matter and is subject to civil fines. (Pub.Res. Code, §§ 663.1-663.2.) The Public Utilities Commission generally prohibits ex parte communications on adjudicatory proceedings.and permits.only limited ex parte communications in ratesetting proceedings.. Ex parte communications are permitted without restriction or reporting in quasi- legislative proceedings. The PUC.may impose penalties for violation of these.rules. (Cal.-Code Regs tit..20, § 7.) For ratesetting proceedings,the interested person,rather than the Commissioner,must report the ex parte communication. A"Notice of Ex Parte Communication"must be filed within three working days of the communication and must report the date,time,. location and form of the communication,the identities.of each decision-maker involved,.the persons.present during,.and the initiator of the communication, and a description of the.interested person's.communication and its content. 20. .Reporting Requirements.for Officials.Who Are Lobbied We reviewed the lobbyist registration ordinances for the Cities.of Los Angeles, Oakland,,Richmond, Sacramento, and San Francisco,the County of San Diego, and the Political Reform Act. None of these enactmentscurrently requires that officials report contacts with Internal Operations Committee November 30, 2004 Page 3 lobbyists prior to participating in a decision or when a matter is raised in a board meeting. However, in its Governmental Ethics Ordinance,, the City of Los Angeles does require that an elective city officer make a written disclosure under certain circumstances when the city officer participates in a decision on a matter about which he has been lobbied. The disclosure is required if within 12 months prior to the decision 1)the lobbyist contributed more than$7,000 to the officer, 2)the lobbyist raised at least$15,000 for the city officer, or 3)the lobbyist was campaign staff for the city officer or provided legal or professional services to the city officer, or paid activity expenses of$1,000 or more for the city officer. The written disclosure must be made within two business days of when the city officer participated in the decision. The disclosure includes the name of the officer,the date of participation,the name of the lobbyist, the matter,the amount of contributions, fund-raising or activity expenses through the lobbyist,or the nature of the services provided by the lobbyist. The disclosure is filed with the city ethics commission and is posted on its website within one business day of receipt. (Los Angeles Municipal Code, § 49.5.16 (A), (E).) (See attached Table, Time for Disclosure-Lobbying Activities.) 3. Possible Modifications to Draft Ordinance to Avoid Retroactive Application So that persons potentially subject to the draft ordinance will have full notice of the ordinance and its requirements before being subject to it,the Committee could direct that the draft ordinance be modified to include a provision specifying that the ordinance will not be retroactive. For example, a provision could be added to read: "The provisions of this ordinance apply prospectively only. Only compensation received for lobbying after the effective date of this ordinance shall count toward the threshold for qualification as a Lobbyist.. Only Contacts with County Officials that occur after the effective date of this ordinance shall count toward the threshold for qualification as a Lobbyist.. Only payments to influence County Legislative or Administrative.Action that are made after the effective date of this ordinance shall count toward the threshold for qualification as a Lobbyist.. No.person shall be required to register as a Lobbyist or to complete a Quarterly Disclosure Report based on activities that occurred before the effective date of this ordinance. No person shall be subject to civil or criminal sanction for lawful lobbying activities that occurred prior to the effective date of this.ordinance." Internal Operations Committee November 30,, 2004 Page 4 4. Possible Modifications to Draft Ordinance to Limit or Eliminate Reporting bv Non- Profit Corporations To limit or eliminate the imposition of reporting and registration requirements for non-profit corporations,the Committee could direct that the draft ordinance be modified in one or more of the following ways: A. Exempt from the definition of Lobbyist all non-profits,no matter what their purpose is. (Wefound no ordinance with an exemption of this nature.) B. Exempt from the definition of Lobbyist all non-profits(and their employees) that 1)receive funding from any government agency for the purpose of representing specified interests, i.e., indigent persons, children; and 2)whose primary purpose is to provide direct services to the population represented; and 3)that do not receive payment from the population represented for such representation. (The City of Los Angeles Lobbying Ordinance includes this exemption.) C. Add a specific exemption from the definition of Lobbyist for any person who is not compensated to lobby and who performs lobbying services on a purely volunteer basis apart from reasonable reimbursement for travel. This would clarify that uncompensated members or directors of non-profit organizations and neighborhood associations who contact County Officials on behalf of their organizations are not Lobbyists subject to ordinance requirements. D. Modify the definition of Business and Organization Lobbyist to clarify that only employees or members of a business or organization who are compensated by the business or organization for lobbying services would be required to register as Business and Organization Lobbyists. E. Add a specific exemption from the definition of Lobbyist for any person whose only Contact with County Officials is submitting a bid or responding to a request for proposals or qualifications,or negotiating a contract if selected,or contacting County Officials only in connection with administration of the person's on-going county contract. This.possible exemption could be narrowed by providing that the exemption applies only to.Contacts with the county department that will administer the contract, or by providing that it appliesonly to contracts below a specified dollar value. 5. Possible Modifications.to the Draft Ordinance.to Simplfv the Reporting Requirements.and Prohibitions When the draft ordinance was considered by the Board of Supervisors, concern was expressed about the requirement that a Lobbyist's Quarterly Disclosure Report reflect every Contact the Lobbyist had with a County Official during the reporting period. (See draft ordinance, §§ 530-2.1002 (b) (3) (A) (ii), (B) (ii).) The Committee could direct that the draft ordinance be modified to delete this provision entirely or to require only that Lobbyists report which County Officials were contacted during the reporting period. Internal Operations Committee November 3 0,2004 Page 5 Concern was also expressed about inclusion of a prohibition on Lobbyist activity not found in other local ordinances. Lobbyists would be prohibited from accepting payment contingent on the outcome of any proposed County Legislative or Administrative Action. (See draft ordinance, § 532-2.1202 (f).) The Committee could direct that the draft ordinance be modified to delete this prohibition. MAM/am, cc: Members, Board of Supervisors Steve Weir, County Clerk-Recorder District Attorney Atte: Jim Sepulveda, Senior Deputy District Attorney County Administrator Attn: Julie Enea, Senior Deputy County Administrator Clerk of the Board(press box) Time for Disclosure- Ex Parte Contact in Adjudicatory Proceeding Reported By How Reported When Reported BCDC Commission In writing Prior to or when member Commission considers matter that is subject of communication Coastal Commission In writing Within 7 days of Commission member communication, or if it occurs within 7 days of hearing, at hearing State Mining& Board member In writing Within 7 days of Geology Board communication, or if it occurs within 7 days of hearing,.at hearing Public Utilities Interested In writing Within 3 Commission person working days of communication Time for Disclosure- Lobbying Activities State City of City of City of City of County City and Draft Oakland Richmond Los Sacra- of San County ordinance Angeles mento Diego of San Francisco Reported Lobbyist Lobbyist Lobbyist Lobbyist/ Lobbyist Lobbyist Lobbyist Lobbyist by Official' How In In In L-in In In In In reported disclosure disclosure disclosure disclosure disclosure disclosure disclosure disclosure report report report report/ report statement report report 0-in writing When Within 30 Within 30 Within 15 L-within Within 15 Within 15 Within 15 Within 15 reported days of days of days of 30 days of days of days of days of days of end of end of end of six end of end of end of end of end of calendar calendar calendar calendar calendar calendar calendar calendar quarter in quarter in months in quarter in quarter in quarter in quarter in quarter in which which which which which which ex- which which activity activity activity activity activity penditure activity activity occurred occurred occurred occurred/ occurred or contri- occurred occurred button was 0-within made 2 days of participa- tion in decision on which he was lobbied 'Under LA Governmental Ethics Ordinance, City Official must make disclosure if within 12 months prior to the decision 1)the lobbyist contributed more than$7,000 to the Official 2)the lobbyist raised at least$15,000 for the Official,or 3)the lobbyist was campaign staff for the Official or provided professional services, or paid activity expenses of$1,000 for the Official. :46 FAX 415 352 3606 SF BCDC Q0021110912004 10 SAN FRANcisco 13AY CONSERvAnON AND DEVES' ME'NT COMMISSION So California Street Suits 2600 Son Francisco,Califomia 94111 (415)352-3600 FAX(415)352-3606 www.bodc.ca.gov Agenda Item #8 August 27, 2004 TO: Cornmissioner3 and Alternates FROM: Will Travis, Executive Director (415/352-3653 travis@'bcdc.cawzov) W bcdc.ca.gov) Jonathan Smith, Chief Counsel (415/352*3655 jons@ SUBJECT: Staff Recomma ndation on Proposed Regulations To Establish A Commission Policy on Ex Parte Communications (For Commission consideration on September 2,2004) i 7"Reco �7 • Oo-nMnve d •r�;:: :,�- .�. a- ; iraic i�r�rifaL • 2�L-L-- .64.49 The staff reports reconanends that the Concession adopt proposed regulations to establish a Cox�:nrrussion policy on ex parte communications.The proposed regulations are the result of a series of workshops held by a committee that the Commission established and previous Comn��s►sion public hearings over the last two years.The Commussion held a public hearing as part of this formal rulemal process on Thursday,August 19, 2004 and received no testimony.The Commission also has not received any written comments as part of this rulemaking proceeding.TI.e text of the proposed regulations is attached. m rp V 7.T 7 ons, that occur as Currently, the Commt3sion has written policy on ex parte commumcati part of a Commission consideration of a permit application, but the policy is not enforceable because the Commission hisilnot adopted it as a regulation.The Commission also has a written policy on ex parte co Mi aucations that occur=as part of a Commission consideration of an enforcement action that is enforceable because the Commission has adopted that policy as a regulation. The Commission believes that it is important to have a single enforceable policy for aU ex parte communications that occur during any type of Commission adjudicative Proceedin& such aspermit applications,federal consistency matters,and enforcement matters. California state law almady establishes a basic policy and inp tentation framework that dea�Lswith ex par*te communications in adjudicative proCeeA;v%"e See Cal. Govt. Code Sections %�., %A""&51J a 11430,10 throwgh 11430.80. However, the Commission believes, that it is important to adopt a Policy that is consistent vrith-that framework and that also emphasizes the purpose and 10 poritance of the olicy,that clarifies when the poli�be�u�ito alply, establishes a procedure for dealing With Tie receipi.-of an ex parte communication after ,e dose of the public hearing and the time limit for the r.z..ceipt of written comments, and also establishes a dear policy on Cornnussion field trips. MkUn,g Un Fmndm B"Dater 11/09/2004 10:46 FAX 415 352 3606 SF BCDC Q003 2 Several major diffe:-ences exist between this proposed policy and existing Commission & re? eCommission members to submit a policies. First, state law and the proposed policy will written memorandum to the Executive Director t 7at includes the substance of the 0 0 communication., any response made by the reapient Commission member, and the identity of 11 each person from whom the communication was received. See proposed Section 10283(d) and 10283(e). Second, although the proposed regulations do exempt certain limited types of 0 commumcations outside of the formal hearing process (see proposed Section 10284), the proposed regulations do not exempt types of communications outside of the hearing process that the Commission previously expressed an interest in exempting. Such typesof 0 commumcations,include the receipt of information at a properly noticed public hearing or meeting which members of the public could attend and where a Commission member attends in an official capacity, SUCIL as a city council or county board of supervisors meeting. Such types Is Iq also include instances,including social gatherings. at which a Commission Mr." discusses a matter covered by the policy with another member of the public.These types of communications are not exempt because the state law framework does not exempt them. In summary.,the proposed regulations would do the following: Proposed Section 10230: state the purpose of the proposed regulations; Proposed Section 1021,31: define an ex parte communication; Proposed Section 102132: define a quasi-legislative proceeding and a quasi judicial proceeding and distinguish between the two; Proposed Section 102133: provide that ex parte communications in permit and in ft enforcement matters are prohibited and establish how such communications must be disclosed and made part of the record if they nevertheless occur; Proposed Section 10284: establish certain categories of communications that the proposed regulations would not prohibit; 0 Proposed Section 102E5: establish the point after which in time any ex parte communications that occur must be disclosed; Proposed Section 10286:establish the procedure by which the Commission's Executive Director must notify all p�.rties that an ex,parte communication has occurred and make it available; Proposed Section 10287:establish when a party can submit rebuttal evidence in response to ID an ex parte commumcation and when the Commission may reopen a public hearing to allow other interested persons mid the public to comment on or respond to an ex Parte communication; Proposed Section 102813:establishes procedures for the Commission to follow if a 40 40 We Commission member receives an ex parte communication after the Commission has dosed the timipt 0public hearingand the for the receipt f written comments and materials has passed;and 4 Proposed Section 1028�l:establishes procedures for Commission members who want to a field trip to the site of a proposed project that is the subject of a pending Commission permit application or to the site of a pending enforcement matter. Two minor spelling mic;takes have been made in the text compared to the text sent out with the notice of proposed rulemaking on July 2, 2004.In line 3 of proposed Section 10281,the . word ",fan"has been Chang,-.3.d to the word "a." In line 3 of proposed Section 10283(e),the word "who"has been changed tc "whom."Neither change has any regulatory effect. 11/09/2004 10:46 FAX 415 352 3606 SF BCDC 004 Proposed Commission Regulations Aegaiding Ex Porte Communications 1. Delete Commission Regulation Section 11325 as follows.* a Oft AiG nova Q1%r%] Id mail •�rM n»t-=�.=..Saw��w�.iwes...�r�ww.�w��s�:.w �ww�.w� lww�Y+ • wiE6 C r w��..aa�,.`aa as yZQ � 19tLag,m�aftw4"r Par IM no"Ic dock= We Qac is Ina �1 tA�M�w •� wwM Lw wl.w • • ff�+�T�a�1..w wr�waw L1.w.��wL��� �,��L'�Lj.���w4 ww� wa 1..wLww t LMw �s.�.aaa va araaa a.avaa� Wy 1.10Me.Feee As=16vailad in Haa mattAM� If1Y1tf At1A •maA7ff11fg that masulaac h 11 -I xab a cc Ck 13213 Sao R331aiarms:tr. Mamnual lamp n ritu stata of aithar.t1aga fiall Cm Ic i an O=thA V%MRq6jLjLAb %Mf A%446& %'%W LJP%&16FJ%W%Wlp 1p%w A6%OJLA&%o V%&j6 %,.7 %4 A L A SPJ v%F%P%O%wFJL %WJLSWLJLWA %WLA%W &%MAA '%wOv4IjI VbWdL%-ff&&%F46 r_a=3=4t&_A if tha MIA3=12,23 * % a 93 Ic Q_^A 0 aasua 2. Adopt Commission Regulation Sections 10280 Through 10289 as follows: X0280. Purpose.Fairness anti dueRrocess of law are essential elements of responsible govern- ment. Public confidence tri government is hirhest when an a^v^ducts its adjudicatory business openly and impartin] v 'This regulation supplements and helps exyminimum leizal reg,uirements conceming,the disclosure of communications that occur outside of ffie normal hearm'oz process and would therefore not be Hart of the administrative record when the 040 Cgm..nussion actson 2ermit a�plications and on enforcement cases and takes other adni�catory actions. Comnusc ion members can,and are encouraged to,disclose more information native to any communicati on that occurs outside of the public record to ensure that all Commission members can rnake informed decisions. 10281. Definition of an Ex'Paiie Communication. An--ex parte communication is any oral or written communication between a member of the Cam-mission and either mTarty to a pendin2 Commission adjudicatory]2roceeding or a member of the public that does not occur in a Commission public hearm" z� Commission workshop,_ or other official Commission RLO.Ceeg or on the official Commissic n record for the,proceeding: 10281.DtfInIflons of a QuasisJudicial Proceeding and of gQuasi-Legislative Proceeding.All Commissi on actions are considered to be either adjudi_catM or guasi4egi§Iative. An ad'udi icatorX action by the Commission affects s ecific rijzhts or interests of an individual or business entitX baied on sy dfi cts,such as the juantingP of a permit,the issuance of a cease and desist order,the issuincva report to the California Enerev Commission pursuant to CaRfomia Government Code Section 66645(d),or Comnvission review of a federal consisfiencv determination or certification_A guasi-lezislative action generally 12lies to a Qiven class or soup of individuals or entities and usually falces the form of a Commission elan amendment. poli or re lation. 10283.General Policy and D'sctosure of Ex Parte Communications, (a) Ex parte communica tip, ns are,prohibited in adiudi�tory actions However,ff such a Prohibited communication ac,�s,my Commission member who receives an ex parte 11/09/2004 10:46 FAX 415 352 3606 SF BCDC 005 VO 2 communication--conceninz adjudicatory M,ater pending before the Comnvssion shall disclose the content the communication M on the record. (b) cur pnor to or at the ia1hedisclog shfdI ocsame time as the Commission considers the matter that is the subject of the ex partecommunication. (C) aw� Compliance with ihis disclosure recuireentrezadin&the recei2t of an ex varte communicatio writter.foshall be accomplished by sending-a covv of the written communication tion to the Commission Executive Director =cation and My response to the communication as soon as practicable. (d) Compliance with t uirem receipt of an ex var.. Wg disclosure rea * ent re-eard z the IV communication orally hall be accomRlished bbmittin randumLo the Executive y sul a 48 Director for inclusion into the record of the matter that is the subject of the ex parte communication. (e) The memorandurnOguired by paragravh(d)shall include the substance the communication, any resvonse bx the recipient Commission member,and the identity of each versortfrom whom the recipient Commission-member received the communic (f) This policy shall not gMly to-cuasimlegLslative matters such as the adoption of or the amendment to aCommission an tion of or the ment of aCommission rethe ad * gWa or RMd:mgtion,and Commission corrMents on proposed 10284. Permissible Ex Parte Communications.The following tykes of ex parte communications m..� are not 2rohibited by these regulations and do not require any disclosureintoe record. th (a) communications gpecificallv authorized by statute and required- for the!"osifion of an adjudicatory atter; or practice that is not controv1) the commum*cation involves a matter Of procedure (c) the communication is from an=21oyee or,representative of BCDC who has not served flww� as an invgstiEator, secutor,or advocate durim the 2roceedipg or2re-,adW&:cative state and :)r advise he Corrunisswhose purpose is to assist (d) the communication is ----- an emR]Ioyee or re2resentative of BCDC and concerns a &q.ttlement grg .Rosal advocated by the emvIovee or revresentative;and (e1 the communication is from an employee or representative of BCDC and involves a non- prosecutorial proceeding. 10285, When the Policy A& les. (a)- The voligy establis,11 ed by Section 10284 sball,commence to aRply for.a rant avvficati2n or a federal consistency determinationgi Geratication when an=Rhcant firstsubmits an avvficationa cc or a Ons stoa certification to the Commission. _(b) The licv.shallmcme for a Commission enforcement action when the . apply Commission staff mails eitf.er a violation Mort or a cg=Iajpt for the imposition of adrninistrafve civil rpenalties, 10286. Nottficatlon of Parties and Interested Persons. (a) As soon as i s practicable, Executivein writing allvartiepffie Director shall notify to a vroceedine and all Versons interested ir�the proceedigg diat,a Commissioner has d art - 48 �eraussible ex pUte commumcation. (b) If the communicatia.-a was received orally.the Executive Director slwoffll include a co2y e ten the memorandum required bv Section 10283(c)and(d)with 936.written notification. 11/09/2004 10:47 FAX 415 352 3606 SF BCDC 10006 3 (C) If the communication was received in writing,the Executive Director shaU jDjcMdja _21-2aa 0 cgmy of the written communication with the written notification. (4) In eitherc the notice shall also gate that the�arty„ Rerson notified must rninz*ecommunication within 10 request an ORRortunkY to address the Commission days of receiving„_„the notice or the part all v or verso waive the oRR_to address the Comnussion. 102.87. Resc�ondanParte If a va=re eParty ORportunitEx OvROrtunijy to address the �..Ojm n cancerruniz the asco, thin 10 days ,,,..��u�m&afion-m reguired 10286, heCommissionshall rant there st andhy Secuon, may allow the MguesfiM Rarjy to present buttal evidence congemmiz the Mbje!ft of the ex parte communication. 10288. Ex Porte Communications After the Ciose of the-Public Hearing and Affer the End of the Time Period for Receipt of Wri#enCommunicctions; PublLcComments gndResDonses. an oral epartecation occurs after the dose of the hearingor a written �,a) ,If �. x ccexparteCO, & after the deadlinefor sub written COMMMI&the ex pazte communication occurs 0 com-mumcation shall be disclosed as required by--Section 10283. * 1* 0 41 #A 0 CoChair or the C n mav dete that the commumcation (b) The sion contains new or different info)rmation 2ertinent to the decision being made. The Commission 0 Chair or the Commission that MM the 2mblichearingW9%,may also determine reopening ffiereforw.- necessa1y to vrotect theinteQzit�of the decision-making Rrocess. (c) If the Commission diair or the Commission makes both such determinations,it shall circulate-the communication to the entire Commission and Ma ..,reopen the public hearinQ�to allow the public sufficient portMit�_comment on and to rebut the contained in the communication unless lez,al deadline for vong-prevents reI the hearins. (d) If necessary,either the deadline for Commission 3Mfing shall be extended or the Commission shall dente a;plication because of the public's inability-to comment on the new or different information. (e) If a conflict occurs between this,section and Commission Regulation Section 10430,this section shall take vrecedence. 10289.field Trim. (a) A.Commission take an individual field to the site of a proposed pro- he ie, ct or a Pendinethe fact of t enforcement action so member discloZ asthe Field trip and the- substance of all that he orsheobserved to the Commission as soon as practi- cable afterwards. (b) The Commission's vohcv-on ex.parte communications shall arovly to any-coMMum communication that involves a Commission:member that occurs du a field trig either by an individual Commission member or by the Commission. County of Contra Costa OFFICE OF THE COUNTY ADMINISTRATOR MEMORANDUM DATE: DECEMBER 1,2004 TO: INTERNAL OPERATIONS COMMITTEE: SUPERVISOR GAYLE B. UILKEMA,Chair SUPERVISOR M DeSAULNIER,Member FROM: JULIE ENE or Deputy County Administrator SUBJECT: LOBBYING INANCE ENFORCEMENT SURVEY At the October 18,2004 Internal Operations Committee meeting, staff was asked to research and report back to the Committee on the experiences of other local agencies with lobbying ordinances with compliance and enforcement. Staff conducted telephone interviews of key officials in each of the local agencies identified in previous reports as having lobbying ordinances regarding the following issues: 1)how long has the agency's ordinance been in effect;2)has the agency received any complaints under the ordinance; 3)what, if any,was the nature of the complaints received;4)how were the complaints resolved; 4)who is responsible for investigating and hearing complaints; 5)were any penalties assessed and by whom; 5)does the agency receive many requests for the lobbying information it maintains; and 6)has the agency had difficulty in collecting the quarterly reports submitted by lobbyists. Following are summaries of the interviews with local agencies officials. The information did not lend itself well to a matrix format and is presented here in narrative format. State of California,FPPC Enforcement Division FPPC has no separate enforcement for its lobbying ordinance. They receive about 1,000 complaints each year on all areas of enforcement: campaign contributions,conflicts of interest, lobbying ordinance. Between 75%-85%of these complaints are not acted upon either because there is not enough evidence to substantiate them or the infraction is too old. Very few of these complaints related specifically to the lobbying ordinance,as the ordinance is basically an honor system. Atypical complaint under the lobbying ordinance is that someone meeting the thresholds is not registered as a lobbyist and Should be. These complaints are not detected through active monitoring efforts of the FPPC,but typically result from a complaint from someone in opposition to an issue. The agency finds that it is very difficult to develop the evidence that would substantiate claims under the lobbying ordinance without tracking every financial transaction,or private or public contact. Most of the lobbyists meeting the state ordinance thresholds are professional lobbyists and have a strong interest in protecting their reputations. In the Lobbying Ordinance Enforcement Survey Results December 1,2004 Internal Operations Committee Page 2 official's opinion,that is usually enough to encourage compliance. If a complaint or "tip"is received,the FPPC will assess the complaint and decide if there is enough information to pursue it and make an assessment as to the level the public harm related to the infraction. They may investigate the complaint. If the complaint can be substantiated,the FPPC may issue a warning letter or, if the offense is egregious,may impose a fine up to $5,000 per infraction. The amount of the fine, if any, is usually determined through negotiation between the FPPC legal staff and the person's attorney. In summary,the FPPC follows up on about 150 complaints a year and only a few of those complaints might be related to the lobbying ordinance. Examples of lobbyist ordinance infractions they have followed up on were loans made to legislators by lobbyists or lobbyists making campaign contributions in the Capitol,both of which are illegal. City and County of San Francisco Ethics Commission The San Francisco Ethics Commission receives many complaints each year,but only three to five relate to the lobbying ordinance,according to the official who was interviewed. The lobbying ordinance is basically an honor system. There is no regular monitoring by the Ethics Commission. Monitoring is complaint based. Complaints can come from anyone. A complaint will usually prompt an investigation by the Commission. The only complaints they have received relative to the lobbying ordinance pertained to lobbyists who failed to register. If upon investigation an infraction is found,a penalty up to$5,000 may be assessed. The amount of the penalty is usually negotiated between attorneys for the Ethics Commission and the lobbyist. Thus far, all complaints under the lobbying ordinance have been settled through such negotiations and have not escalated to a Commission hearing. Los Angeles County Counsel's Office The Los Angeles County lobbying ordinance has been in effect for 10 years and they have had very few complaints. The primary complaints pertained to lobbyists who failed to file quarterly reports. The Board Clerk's Office monitors quarterly reporting and sends reminder/warning notices when reports are delinquent. If no corrective action is taken, the matter is referred to the County Counsel for civil court action. Only a few cases have been taken to court. Judgments/penalties can be as high as$2,000. The attorney who was interviewed had just prosecuted a complaint,obtained a default judgment in the case, and is now trying to collect the fine. City of Oakland Ethics Commission Oakland's ordinance differs from the others in that lobbyists do not have to name specific officials contacted in their quarterly reports;they need name only the type of official contacted,e.g.,administrative,elected, etc. In the two years since their ordinance Lobbying Ordinance Enforcement Survey Results December 1,2004 Internal Operations Committee Page 3 became effective,they have received only one complaint,which related to a lobbyist's alleged failure to register. This complaint was investigated and dismissed. The Oakland Ethics Commission will soon be recommending significant changes to strengthen the lobbying ordinance. The official who was interviewed expects there to be increased complaints due to new requirements in the ordinance. The official additionally offered some advice to agencies contemplating adopting a lobbying ordinance. He suggested that any agency considering such an ordinance start out simple and use terms that are easy to define. Once an ordinance is in place, it is much easier to change or expand it. Beginning with a very cumbersome ordinance would be like trying to"swallow an anvil". He recommends that we avoid using the number of contacts as a criterion for registration because it's too hard to define and results in a lot of confusion amongst those responsible for complying with and enforcing the ordinance. City of Richmond,City Clerk Richmond's lobbying ordinance has been in effect for five to six years. Since that time, they have received no complaints nor conducted any investigations regarding the ordinance. The City Clerk indicated that the registered lobbyists file their quarterly reports and annual reports regularly and rarely need to be prompted. To the best of her recollection,they have never received a public request to view any of the lobbying information maintained by her office. 9 If compliance issues were to arise,they would be referred to the City Attorney for follow- UP- Citv of Sacramento.City Clerk The City's ordinance has been in effect since October 1,2003 and they have had only about a year of experience with it. To initiate registration,the Clerk's Office did outreach to advise potential lobbyists of the new requirements for registration and reporting. Since inception,the City has received no complaints and experienced no compliance problems with quarterly reporting requirements. They receive few requests for lobbyist information and post a simple report with this information on their website. In addition,they added a box to their Speaker Card for persons who address the City Council to identify if they are registered lobbyists and who they represent. This information is required to be stated publicly by the speaker before making any comments to the Council. Contractors' Alliance of Contra Costa County A Consortium of Non-Profit 2977 Ygnacio Valley Road, #445 Walnut Creek, CA 94598 Community-Based Agencies phone:925-932-4755 fax:925-932-491 thealliance@astound.net Position Paper on a Lobbyist Registration& Reporting Ordinance Nonprofit organizations have a long,proud and successful history of public interest advocacy in the United States. Most of the significant social,environmental, and cultural changes in the last century happened because nonprofits took the initiative to raise their voices and advocate for their clients,their constituencies and their communities' needs. The nonprofit leaders in the Contractors' Alliance are advocates for this community and provide a voice for those who do not have one. We stand up for our clients and their families. We push for government funding for those who need the services our system of care provides. We work to influence public policy affecting our clients and our organizations and to ensure that our communities' resources are being directed in the most effective and efficient ways. Thus,we also advocate for streamlined contracting processes and for input into administrative decisions on issues affecting the delivery of health and human services in this county. As part of the system of care in this county,we encourage partnership and strive to increase the positive image and visibility of nonprofit and community-based organizations. Lobbying,as defined by both the state and the federal government, is an important part of the advocacy and public policy work of nonprofits,but it is distinguishedftom that work. Yet the proposed ordinance under consideration by the Internal Operations Committee does not make that distinction. In fact,the proposed ordinance is so broad in the interactions it seeks to regulate,that it endangers the very spirit of civic engagement and participative governance. The truth is that very little of what we do in the nonprofit sector falls within the definition of lobbying as contained in section 5 01(c)(3)of the Internal Revenue Code or as defined in the 1976 Federal Lobby Law. Even the Fair Political Practices Commission(FPPC), the agency with primary responsibility for interpretation and administration of the Political Reform Act of 1974,cited in the proposed ordinance, states clearly that"If you are trying to obtain a permit,license,grant or contract at a state agency,you are not trying to influence legislative or administrative action; [and therefore] your time and contacts are not counted as lobbying." In the introduction to Section 1 of their guidelines,they further restrict their interpretation of lobbyists as"persons who make payments for the purpose of influencing the actions of the California state Legislature,the actions of the Governor in approving or vetoing legislation, and quasi-legislative actions of California state agencies."(emphasis added) Clearly,their intention is not to sweep each and every contact with each and every public official under the broad.heading of lobbying,but to limit the reach of that legislation to those who would influence the making and interpretation of state law. Again,the proposed ordinance imposes no such limitations. Under the terms of the proposed ordinance,"any business or organization that has employees or members who,as a regular part of their employment or duties,contact County officials on behalf of that business or organization and such employees or members have a combined total of at least 25 contacts with county officials in any calendar year"would have to register as a Business and Organization Lobbyist. But the FPPC, in those same guidelines, states clearly that"an individual who only engages in activities to secure a grant, contract, or permit from a state administrative agency and does not otherwise attempt to influence legislative or administrative action"is not a lobbyist. And it further states that"a bona fide federation,confederation or trade,labor or membership organization which is ongoing in nature and whose membership services are not limited to influencing legislative or administrative action"is not a lobbying coalition. Again,the proposed ordinance covers behaviors that fall well outside those of individuals or businesses whose primary purpose is to influence legislation or quasi- legislative action. Thus,the Contractors' Alliance opposes this or any ordinance that either intentionally or unintentionally: • Would result in executive directors of nonprofit organizations having to register as lobbyists or"public policy advocates"unless they spend at least one-third of their time in direct communication with qualifying officials for the purpose of influencing legislative or administrative action; • Does not specifically exempt discussions with county officials that pertain to existing or potential county contracts; • Does not specifically exempt individuals who lobby on a voluntary(unpaid) basis and those organizations whose lobbying activities are carried out primarily by volunteers; • Does not specifically exempt self-defense lobbying on matters affecting a nonprofit's own status, as defined by Section 501(c)(3)of the Internal Revenue Code; • Sets the compensation level for contract lobbyists at a level less than$2000 in a calendar month for direct communication with qualifying officials for the purpose of influencing legislative or administrative action, as set forth in the FPPC guidelines; • Limits an organization's attempts to educate its constituents; and • Does not exempt public outreach,research and studies designed to provide nonpartisan analysis and information on a legislative issue from the definition of expenditure lobbyist. Finally,we believe that the Board of Supervisors must distinguish between special interest lobbying and the work that nonprofits do to ensure that public policy and public resources benefit the communities we serve. It is a distinction that does not always translate to public policy or public law and it is only after the fact that the architects of such well-intentioned legislation apologize to the nonprofit sector for inadvertently and unintentionally restricting their advocacy efforts. Let us avoid that inadvertent and unintentional consequence in Contra Costa.County.