Ethics Advisory Opinion No. 16
September 13, 2004
Issued By: The Ethics Review Board
Whether an individual who works as an independent contractor for a non-profit organization and who represents that organization while appearing before the City must register as a lobbyist?
An individual works as an independent contractor for a 501(c)(3) non-profit organization that advocates on issues related to land conversation. Her job description states that she provides professional technical assistance services to state and local government officials, the Texas Legislature, and public agencies to identify and secure public financing for land conservation, specifically state and local parks. She has been working on the Aquifer Protection Initiative (API) that the City Council recently placed on the May 2005 ballot.
She has not been engaged in private meetings with city council members or their staff in asking them to place API on the ballot. However, she has informed several organizations of the efforts to get API on the ballot and requested that they contact council members with their thoughts and opinions. In addition, she participated in an editorial board meeting at the San Antonio Express News where her organization informed the board of the Aquifer Protection Initiative and their desire to see API on the November 2004 ballot.
The Ethics Review Board has been asked to provide an opinion on whether she needs to register as a lobbyist with the City of San Antonio.
Under Part E, Section 1, a “lobbyist” is a person who
1) communicates, either verbally or in writing
2) with a city official
3) in an effort to influence or persuade the official
4) regarding a municipal question.
Under Part E, Section 2, except as provided by Section 3 of Part E (Exceptions), a person who engages in lobbying must register with the City Clerk if:
(a) with respect to any client, the person engages in lobbying activities for compensation; or
(b) the person expends monies for lobbying activities.
The terms “compensation” and “expenditure” are defined in Section 1 of Part E (Definitions) of the Code. Compensation does not include a payment made to any individual regularly employed by a person or entity if the payment ordinarily would be made regardless of whether the individual engaged in lobbying activities, and lobbying activities are not part of the individual’s regular responsibilities to the person or entity making the payment.
The Ethics Code provides for some exceptions to the lobbyist registration requirements. First, it excepts mobilizing entities and not-for-profit organization from registration for certain types of activities:
A person whose only lobbying activity is to encourage or solicit the members, employees, or owners (including shareholders) of an entity by whom the person is compensated to communicate directly with one or more city officials to influence municipal questions. This exception is intended to apply to neighborhood associations and not-for-profit organizations. Part E, Section 3(b).
Further, the Ethics Code exempts an organization from registration if its expenditure is to hire a lobbyist to advocate on its behalf:
A client who would only be required to register under Section 3 because of any expenditure to compensate a registrant, other than an employee, to lobby on a municipal question of interest to a client, provided that the compensated registrant files a registration statement or activity report for the period in question. Part E, Section 3(f).
As noted, an exception is made for non-profit organizations and their employees where the only lobbying activity is to encourage or solicit its members, employees, or owners (including shareholders) to communicate directly with one or more city officials to influence municipal questions. This exception applies even if the non-profit’s employee engaging in such activity is compensated. Also, if the employee contacts public officials during an open meeting open to the public, the registration requirement is not triggered because that activity does not constitute lobbying.
However, if a member of the organization either engages in other activities as described in Section 1(h) of Part E) for compensation or expends funds for lobbying, the individual is required to register as a lobbyist. Whether the individual receives compensation for lobbying, if any lobbying activity is undertaken, must be determined in accordance with Section 2 of Part E.
Based upon the facts presented in the original request there is no requirement for the individual in question to register.
However, if the organization expends funds for the purpose of lobbying, for example to conduct a poll of voter attitudes on a municipal question where those results are intended and will be used to influence or persuade City officials, there may be a requirement for the organization to register. This issue may need to be addressed in a separate request for opinion.
ARTHUR DOWNEY, District 9