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Advisory Opinions

ADVISORY OPINION 1989-2
FACTS

A law firm writes asking if the following constitute "lobbying" or "lobbying activities" under the Lobbying Law:

a) A manufacturing company has applied for benefits under the Industrial and Commercial Incentive Program and the New York City Energy Cost Savings Program. The company retains the law firm to provide legal representation, which may include requesting interpretations of rules, regulations and procedures governing those programs from the responsible agency. The firm also represents a developer seeking tax benefits under Section 421-a of the Real Property Tax Law, and may request from the agency responsible for the program an interpretation of rules, regulations, and procedures governing the program.

b) The Department of Housing Preservation and Development has published proposed regulations governing partial tax exemptions pursuant to Section 421-a of the Real Property Tax Law, and has solicited public comment thereon. The law firm, which represents clients who have applied for benefits under this program, desires to respond to this request even though the comments will not be made on behalf of any clients.

c) The Department of Finance has promulgated rules for the Industrial and Commercial Incentive Program. Without receipt or expectation of fees, the law firm, which represents clients who have applied for benefits under this program, seeks to modify these rules, but not on behalf of those clients.

OPINION
a) Is it "lobbying" when the firm requests interpretations of rules, regulations, and procedures of a program from the City agency responsible for the program, in connection with legal representation of a client applying for benefits under the program?

New York City Administrative Code §3-211(c) defines "lobbying" or "lobbying activities" as "any attempt to influence." Therefore, without more, merely requesting interpretations of rules, regulations, and procedures relating to a program from the City agency responsible for the program, in connection with legal representation of a client applying for benefits under the program, is not lobbying.

b) Does it constitute "lobbying" when a law firm responds to an agency request for public comment on proposed regulations in a situation where the firm represents clients in applying for benefits under the programs to be governed by the proposed regulations, even though the response is not made on behalf of any of those clients?

Administrative Code §3-211(c)(2) exempts certain activities from the definition of "lobbying." §3-211(c)(2) of the Code states in pertinent part:

The following persons and organizations shall be deemed not to be engaged in 'lobbying activities':
(v) persons who prepare or submit a response to a request for information or comments by the city council or one of its committees, the mayor, the board of estimate, or an agency (emphasis added).

Thus, the statute specifically provides that a response to an agency's request for public comment on proposed regulations does not constitute lobbying, regardless of whether the response is on behalf of a particular client.

The Department of Housing Preservation and Development (HPD) is an "agency" within the meaning of the Lobbying Law. Accordingly, a response to a request from HPD for public comment on published proposed regulations is exempt from the definition of "lobbying." Ad. Code §3-211(c)(2)(v).

It should be noted that the exemption contained in §3-211(c)(2)(v) applies only when the response is solicited by the City official, body or agency. Any other attempts to influence the adoption or rejection by an agency of any rule constitutes lobbying. Ad. Code §3-211(c)(1)(iv).

c) Does it constitute "lobbying" when a firm seeks to modify regulations published by a City agency, in a situation where the firm represents clients who have applied for benefits under the program governed by the regulations, but does not seek the modification on the explicit behalf of those clients and does not expect to receive compensation for this activity?

Attempts on behalf of a client to influence certain actions by a City agency are deemed "lobbying activities" by Administrative Code §311-2(c)(1). That paragraph reads in pertinent part:

"(c)(1) The term 'lobbying' or 'lobbying activities' shall mean any attempt to influence:

(iv) the adoption or rejection by an agency of any rule or regulation having the force and effect of law,

(v) the outcome of any rate making proceeding before an agency, [or]

(vi) any determination by an agency in connection with a proposed concession agreement..."

Clearly, seeking modifications to existing rules or regulations is an attempt to obtain the rejection of an existing rule in favor of the adoption of a new rule. The fact that the new rule or regulation may be a different version of the old rule is irrelevant. Thus, seeking to obtain modifications of rules or regulations can be "lobbying" within the meaning of the Administrative Code.

The fact that the firm is not seeking the modification on the direct behalf of any identifiable client or clients, and that the firm will not be compensated directly for seeking the modification, does not in this case affect the determination that the activity is lobbying. If the attempt to modify the regulations could reasonably be expected to benefit any of the firm's clients, it must be reported as lobbying on behalf of those clients.

In the given fact situation, seeking to modify regulations for the Industrial and Commercial Incentive Program published by HPD would be an attempt to influence the adoption or rejection by an agency of a regulation if the effort could reasonably be expected to benefit one or more clients. The effort would then be "lobbying" as defined by §3-211(c)(1)(iv) of the Administrative Code. If the firm anticipates reaching or already has reached the applicable thresholds for combined reportable compensation and expenses, then the firm must report such effort as lobbying in the reports filed for all clients who could reasonably be expected to benefit from such effort.

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

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