Buried in the 2015-16 state budget is a provision that makes the New York State Lobbying Act apply to school districts.
Because the Lobbying Act now applies to those who seek to “lobby” school districts by seeking to influence official actions, school board members and other school officials should be aware of the basic aspects of the act. School boards may want to consider amending their codes of ethics to include a reference to the Lobbying Act (Article 1-A of the Legislative Law), particularly with regard to the receipt of gifts from those seeking to influence official actions.
Currently, there are questions about the effects of the changes, including whether all school districts will be affected, and which specific actions will be considered “lobbying.”
Which education entities are covered by the Lobby Act?
The budget bill broadened the Lobbying Act by changing the definitions of two terms for the purpose of the act. In the definition of “municipality,” it deleted language that expressly said that the term “shall not include school districts.” It also broadened the coverage of the law from municipalities with a population of more than 50,000 to those with a population of more than 5,000.
In addition, the definition of “local legislative body” now includes not only boards that may adopt local laws and ordinances (which does not include school districts) but also boards that adopt budgets (even if some further approval is needed for the budget to become effective).
One possible interpretation of the amendments is that the Lobbying Act now applies to school districts with populations greater than 5,000. This would include about three-quarters of the school districts in New York State.
However, the state entity that promotes transparency regarding ethics and lobbying laws – the Joint Commission on Public Ethics (JCOPE) – has stated that it interprets the law as applying to all school districts, regardless of their population.
Absent a ruling by a court or the commissioner of education to the contrary, it would be prudent for school districts, lobbyists and their clients to follow JCOPE’s interpretation and assume that the law applies to all school districts. School districts would be well-advised to check with their school attorney on this issue.
While the law does not expressly reference BOCES, it would be prudent to assume that this law applies to BOCES. (The definition of “municipality” includes “any jurisdictional subdivision of the state” that otherwise fits the definition.)
What is lobbying?
School boards do not pass “laws.” Therefore, the common view of “lobbying” as engaging in efforts to influence legislators to take specific actions regarding bills would not seem to apply to school districts. However, under the Lobbying Act, “lobbying” includes any attempt to influence the passage or defeat of a resolution by a municipality.
”Lobbying” also includes attempts to influence public procurement of an estimated annualized expenditure over $15,000.
It remains to be seen who will be required to register as a lobbyist as a result of interactions with school districts.
Notably, there are various exclusions from the definition of “lobbying.” For example, it does not include participating in a public hearing or other public proceeding, responding to a request for information or comments, asking questions to clarify instructions or specifications, or responding to invitations for bids or requests for proposals (RFPs). Nor does it include negotiating the terms of a procurement contract after an award has been made.
Who must report campaign contributions?
The amendments do not make it clear whether lobbyists and clients of lobbyists making contributions to individuals running for school board will be among those required to report campaign contributions to JCOPE, in addition to current requirements that school board candidates furnish itemized statements of both campaign expenses and contributions to the district clerk and State Education Department if campaign expenditures exceed $500.
If campaign contributions are reportable under Article 14 of the Election Law, they are exempted under the Lobbying Act. This exemption applies to candidates for many local offices, who must file with the Board of Elections. However, candidates for election to a school board have different filing requirements under the Education Law. They file statements with the district clerk and the State Education Department.
The legislative intent appears to be that one is exempt from reporting campaign finance information to JCOPE if such information must be reported somewhere else. By that logic, one would not expect that information about campaign contributions to school board candidates must be filed with JCOPE. However, as currently written, the exception in the Lobbying Act only mentions filings under Article 14 of the Election Law.
It would be helpful if the state Legislature amends the law to clarify this issue. If this does not happen, it is likely that JCOPE will be asked to express an opinion on whether contributions to candidates in school board elections by lobbyists or their clients must be disclosed in filings with JCOPE. A related open question is whether such contributions are considered to be “gifts” for the purpose of the Lobbying Act.
Gifts to public officials
Public school board members and employees should already be familiar with restrictions on their acceptance of gifts, as set forth in General Municipal Law section 805-a and local codes of ethics. GML 805-a prohibits accepting a gift with a value of at least $75 (when it could reasonably be inferred that the gift was intended or expected to influence an officer or employee in the performance of official duties or as a reward for official action).
The Lobbying Act also deals with gifts to public officials. For the purpose of the Lobbying Act, a “public official” includes “an officer or employee of a municipality, whether paid or unpaid.” The rules under the Lobbying Act are more detailed than those under the GML. The rules are outlined in the statute and in regulations issued by JCOPE.
According to JCOPE’s regulations, there is a presumption that it is impermissible for a lobbyist or client to offer or give a gift to a public official. In order to rebut this presumption, (1) it must not be reasonable to infer that the lobbyist or client made the gift with the intention of influencing the public official, (2) the gift could not reasonably be expected to influence the public official in performing official duties, and (3) it must not be reasonable to infer that the gift was intended as a reward for any official action by the public official.
There are rules on what is treated as a “gift” for this purpose. For example, it is permissible for a lobbyist or client to pay for food or beverage valued at $15 or less per occasion.There is also an exclusion for complimentary attendance (including food and beverage) offered by a lobbyist or client who is the sponsor of a “widely attended event.”
The Lobbying Act regulates the acts of lobbyists and their clients in making gifts to public officials (including municipal officers and employees). However, the Lobbying Act does not directly prohibit public officials from accepting gifts. That is dealt with in other laws (Public Officers Law section 73 for state officers and employees, and GML section 805-a for local officers and employees). Of course, for all practical purposes, if a lobbyist or client is prohibited from making a gift to a public official, the public official should refrain from
accepting the gift.
Lobbyists must register and file reports with JCOPE if they incur, expend or receive more than $5,000 annually in compensation and expenses for lobbying activities, or if they anticipate doing so. Clients of lobbyists must also file reports with JCOPE if they reasonably anticipate that they will spend or incur over $5,000 during the year in reportable compensation and expenses for the purposes of lobbying. Information contained in these fi lings is available on JCOPE’s website (www.jcope.ny.gov).
The definition of a “lobbyist” does not include any officer, employee, counsel or agent of a municipality (such as a school district), when discharging their official duties. These individuals need not register themselves as lobbyists.
However, if a “public corporation” uses its own in-house staff to engage in lobbying at the state and/or local level, and spends more than $5,000 in a year on reportable compensation and expenses for this purpose, the public corporation must file with JCOPE. If it retains a lobbyist, and spends more than $5,000 in a year for this purpose, it must file as a client. For example, during 2014, 19 public corporations registered as lobbyists and filed reports on behalf of themselves, and 86 public corporations retained lobbyists and filed as clients of these lobbyists.
There is a great deal of material about the Lobbying Act and related requirements on JCOPE’s website, at www.jcope.ny.gov. This includes information about the law and regulations, forms, and mandatory ethics training for lobbyists. Questions may be posed to JCOPE by calling 800-87-ETHICS (800-873-8442). Persons who now fi nd themselves required to register as lobbyists or clients may be directed to JCOPE for further information.
School districts and BOCES boards should consult their school attorneys with any specific legal questions.
Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Craig Atlas of Ferrara Fiorenza P.C.