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Advisory Opinions

ADVISORY OPINION 1988-1
FACTS

This office has received numerous inquiries about the reporting of compensation and expenses on the lobbyist periodic and annual report forms and the scope of certain exceptions to reporting requirements. This opinion addresses four such inquiries.

OPINION
(1) How are salaries of employees of the principal lobbyist to be reported by the lobbyist?
Pursuant to sections 3-216(b)(1) and (b)(5)(i), and 3-217(c)(2) and (c)(5)(i) of the New York City Administrative Code, the principal lobbyist must report on the periodic and annual report forms the names of associates and other employees who engage in lobbying and that portion of their salaries attributable to lobbying, whether or not the funds used to pay such salaries can be directly traced to funds paid to the principal lobbyist. If the principal lobbyist is an employee of the client, then the names of other employees who lobby and all forms of compensation attributable to lobbying should be reported in Part 3A of the lobbyist periodic and annual report forms. In all cases where the principal lobbyist is not an employee of the client, the names of employees and compensation of such employees attributable to lobbying should be reported in Part 5A.

Partners of firms who are compensated by a share allocation rather than a salary constitute an exception to the general rules stated above. Partners who engage in lobbying must be listed in Part 1B. In addition, in the usual case where a firm is retained by a client to lobby, if the work done by any partner constitutes an identifiable billable expense it should be reported as such in Part 5A. However, this office views the breakdown of partnership share allocations to be overly burdensome and unnecessary for effectuating the purposes of the Lobbying Law. Therefore, in cases where partners are reimbursed for lobbying as part of their partnership share and their work does not constitute an identifiable billable expense, only the partners' names and the cumulative compensation received by the firm for its services need be listed in Part 1B and in the "Principal" column of Part 3A, respectively.

(2) How are the salaries of support staff of the principal lobbyist to be reported by the lobbyist?

Sections 3-216(b)(5)(i) and 3-217(c)(5)(i) of the Administrative Code require with certain exceptions, the reporting of all expenses "expended, received or incurred by the lobbyist for the purpose of lobbying." These include "salaries other than that of the lobbyist", but such salaries need only be "listed in the aggregate" (sections 3-216(b)(5)(iv), 3-217(c)(5)(iv)).

Persons who serve to aid a lobbyist but who do not engage in substantive aspects of lobbying activity such as policy meetings or the drafting of substantive portions of documents are persons who receive salaries "other than that of the lobbyist" for the purposes of the above-cited provisions. Thus, architects or accountants who participate in a lobbying effort would not generally fall into this category unless such persons serve a support function not typical of their professions. Persons whose salaries must be reported only in the aggregate generally include office managers, paralegals, law clerks, secretaries, typists, bookkeepers, and certain consultants employed to assist in purely technical aspects of lobbying activities. In certain cases, however, participation by such persons may be substantive enough to merit individualized reporting of compensation.

In order to compute that portion of the salary of each employee attributable to lobbying to be reported on the lobbyist periodic report form, whether or not such portion must ultimately be aggregated, the following formula, set forth in City Clerk Advisory Opinion 1987-1, may be used:

Salary Attributable to Lobbying=Hours Attributable to Lobbying for the QuarterXSalary for the Quarter
Total Hours Works

(3) What is the scope of the exception contained in section 3-211(c)(2), relating to the drafting of and the giving of advice and opinions on certain proposals?

Section 3-211(c)(2)(i) of the Administrative Code deems the following persons not to be engaged in lobbying activities:

persons engaged in drafting legislation, rules, regulations or rates, advising clients and rendering opinions on proposed legislation, resolutions, rules, regulations or rates, where such professional services are not otherwise connected with legislative or executive action on such legislation, board of estimate action on such resolutions, administrative action on such rules, regulations or rates or determinations of a board or commission;1

This subparagraph, read in its entirety, excludes work on proposed legislation, rules, regulations or rates only where such proposals have not yet been submitted by the lobbyist or the client to the appropriate body or to the executive for action. After such submission, "professional services" with respect to such proposals are "connected" with action by such bodies or by the executive, and such services are "lobbying activities" if they are part of an attempt to influence the officers or agencies enumerated in Section 3-211(c)(1). Therefore, the exception contained in Section 3-211(c)(2)(i) refers to legislation or resolutions that have not been introduced, and to rules, regulations or rates not yet submitted to the appropriate agencies for review or comment. The New York State Temporary Commission on the Regulation of Lobbying, established under the State lobbying law in part to render opinions interpreting that law, is in accord with our analysis. See Commission Opinion No. 78-12, at 3 (under virtually identical State law predecessor to Sec. 3-211(c)(2)(i), meetings, advice and preparation related to "specific pending legislation" (emphasis in the original) rather than mere proposed legislation constituted lobbying). Once a proposal is introduced or submitted, any work in relation to a lobbying effort constitutes lobbying.

Before the introduction or submission of a proposal, the activities described in Section 3-211(c)(2)(i) do not constitute lobbying if the person engaged in such activities restricts himself or herself to only these activities, without otherwise engaging in an attempt to influence the government officers or agencies enumerated in section 3-211(c)(1), However, where the person engaged in these activities also directly or indirectly contacts such officers or agencies in person, over the telephone, by mail or otherwise, then all of the activities related to the proposal, both before and after such contacts, including drafting and advice, constitute "lobbying activities." See New York Temporary State Commission on Lobbying Opinion No. 25(79-9), at 2 ( under virtually identical State law predecessor to Section 3-211(c)(2)(i), when a firm communicates with the Governor's staff in an attempt to influence a decision on legislation, "development of analyses and opinions on the particular legislation which would have been excepted [from the State lobbying law] had the firm done no lobbying, now must be considered part of the lobbying activity").

(4) When must expenses for printing, reproduction and mailing of written materials be reported?

Sections 3-216(b)(5)(i) and 3-217(c)(5) require, with certain exceptions, the reporting of all expenses "expended, received or incurred by the lobbyist for the purpose of lobbying." These include expenses for the preparation of written materials, but the Lobbying Law contains an exception from its reporting requirements for those "expenses, not in excess of five hundred dollars" which are "directly incurred for the printing or other means of reproduction or mailing of letters, memoranda or other written communications." Administrative Code Sections 3-216(b)(5)(iii)(B), 3-217(c)(5)(iii)(B). A lobbyist is required to file periodic and annual reports for each of his or her clients. Where the total amount spent by a lobbyist for the printing, reproduction or mailing of materials used in his or her lobbying activities on behalf of all clients exceeds five hundred dollars, he must report the amount expended for each client on his or her report filed for the client, regardless of whether such individual amount is less than five hundred dollars.

The Lobbying Law excludes from expenses for the purpose of lobbying those expenses "directly incurred" for the activities listed in Section 3-216(b)(5)(iii)(B) and 3-217(c)(5)(iii)(B). Therefore, salaries for support staff employed by the lobbyist who engage in such activities are not included in the five hundred dollar threshold, and should be reported in full, as described supra on pages 2-3, to the extent attributable to lobbying. However, if a person or entity other than an employee of the lobbyist, such as a photocopying business, performs these activities, the entire amount paid to that person or entity may be viewed as "directly incurred" and must be reported only if all expenses for printing, reproduction and mailing of written materials exceed five hundred dollars.

In summary, expenses directly incurred for printing reproduction and mailing of written materials are reportable if: such expenses are for the purpose of lobbying; the five hundred dollar threshold has been exceeded; and the activities in connection with which these expenses are incurred are not deemed not to be "lobbying activities" under Section 3-211(c)(2) of the Administrative Code. The fact that such materials may be prepared for the client and not be sent to any employee of City government does not exclude them from the reporting requirement if they constitute part of a lobbying effort.

CARLOS CUEVAS City Clerk and Clerk of the Council
KATHERINE E. TIMON General Counsel
WILLIAM THYMIUS Deputy General Counsel 

  1. The draft memorandum in support of the virtually identical predecessor to this provision, L. 1977, c. 937, Sec.11(a)(1), stated that it applied to "those engaged in drafting legislation, rules, regulations or rates or advising clients and rendering opinions on such matters". Memorandum in support for S-6357 and S-6357-A. This language indicates that the phrase "advising clients" was not meant to provide an independent exception to the Lobbying Law, but rather should be read together with "on proposed legislation, resolutions, rules, regulations or rates…" Nevertheless, advice given merely on compliance with existing law generally would not constitute lobbying.
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