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There has been a longstanding prohibition on school district funds being used for certain forms of advocacy. For instance, the commissioner of education has ruled in numerous decisions that it is improper for district funds to be used to exhort voters to approve a district’s budget or favor certain candidates in board elections. New restrictions on advocacy were included in the 2015-16 state budget, which extended the state’s Lobbying Act to apply to school districts.

The act, found in Article 1-A of the Legislative law, now regulates individuals and entities who engage in certain defined interactions with school district officials in an effort to influence the official actions of the district (although there is still an open question as to whether, under its terms, the act applies to school districts with populations of 5,000 or less).

The following is a primer on what school board members and school administrators need to know about the Lobbying Act.

Although “lobbying” commonly refers to the activities of paid advocates who engage in efforts to influence the passage of laws at the state and federal level, the Lobbying Act extends to other forms of influence that affect governmental decisions at all levels. For instance, the Lobbying Act applies to “any attempt to influence … the passage or defeat of any … resolution…” and thus could apply to actions by school boards.

On the other hand, many school board interactions and activities appear to fall outside of the act. For instance, the bulk of the restrictions and requirements of the Lobbying Act apply to those who lobby and not to the individual or entity that they attempt to lobby.

Also, the Lobbying Act contains a number of exceptions. For instance, speaking at a public hearing or meeting of the school board (or a board committee) requires no form of disclosure to satisfy the Lobbying Act. In this circumstance, the public already has the ability to see who is attempting to influence the actions of the district.  The primary objective of the Lobbying Act was to regulate situations where lobbying occurs outside of public proceedings. The Lobbying Act also applies to school district procurement, but excludes from coverage many of the usual interactions prospective vendors engage in with school districts during that process, such as:
  • Responding to a request for proposals or invitation to bid.
  • Participating in informational meetings regarding the procurement process.
  • Post-award communications.
Nonetheless, school district officials should take care to evaluate the potential application of the Lobbying Act to any interactions with potential vendors that occur outside of a pending public advertisement and outside of any public proceedings of the school board. If a vendor privately advocates for the school district to pursue a proposed project or service (e.g., takes board members out to dinner or meets privately with school district administrators), that is the type of interaction that could fall within the scope of the Lobbying Act. The potential application of the Lobbying Act to such private interactions with vendors provides even more reason for school district officials to ensure that procurement is handled in a manner consistent with the requirements of state law and the school district’s adopted procurement policy.

As a practical matter, a school district itself is unlikely to be considered a “lobbyist” under the act; an exception is carved out for advocacy in the course of “discharging … official duties ...” and this would appear to cover membership in advocacy organizations as well as traveling to meet with legislators. (Membership in NYSSBA is specifically authorized in statute.)  However, advocacy that is not related to a board member’s official duties could fall within the scope of the act. Unfortunately, there is no current guidance or identification of the specific types of activities that would fall outside of the “official duties” exception, so school district officials should consult with their school attorneys if any circumstances arise that could potentially implicate the Lobbying Act’s provisions.   

While the impact of the Lobbying Act on school districts appears modest in many common situations involving advocacy, school board members and administrators should be cognizant of the act and its requirements.  Familiarity with the Lobbying Act can prevent situations where a school district unwittingly becomes embroiled in what may be described as a “lobbying scandal,” or where otherwise salutary school district actions are tainted by allegations of impermissible lobbying.

A number of questions regarding the practical and legal impact of the Lobbying Act on school districts remain undetermined. The state agency charged with administration of the Lobbying Act – the Joint Commission on Public Ethics (JCOPE) – continues to evaluate how the act should apply to advocacy efforts on social media and through “grassroots” organizing, and has issued proposed regulations to address these as well as other questions regarding application of the act. School district officials will be well-served to continue to monitor these developments.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Jeffrey Swiatek of the Hodgson Russ law firm.