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Advisory Opinions

Advisory Opinion: 2012-1

Facts 

A volunteer board member of a not-for-profit organization meets with a New York City Council (“Council”) member on behalf of the not-for-profit organization in an attempt to persuade the Council member to vote against a previously introduced bill. The board member is not compensated for his activities in this effort and incurs no related expenses.

Issue

Under what circumstances, if any, would the above-described board member’s activity be deemed reportable lobbying? 

Opinion

The first inquiry is whether or not the board member’s meeting with the Council member constitutes lobbying.  The New York City Administrative Code (“Administrative Code”), in relevant part, defines “lobbying” or “lobbying activities” as “any attempt to influence . . . the passage or defeat of any local law or resolution by the city council.”  Ad. Code §3-211(c)(1)(i).  Therefore, as the board member is attempting to influence the defeat of a local law by the Council member, the board member is engaged in a lobbying activity. 

The second inquiry is whether such lobbying is reportable under the Administrative Code, i.e., whether the $2,000 per annum reporting threshold was exceeded, thereby requiring the lobbyist, the not-for-profit organization,[1] to file a statement of registration and other requisite reports.  The Administrative Code provides that:

Every lobbyist shall annually file with the City Clerk . . . a statement of registration . . . provided that the filing . . . shall not be required of any lobbyist who in any year does not expend, incur or receive an amount in excess of two thousand dollars of reportable compensation and expenses. . . for the purpose of lobbying.  Ad. Code §3-213(a)(1) (emphasis added).

Consequently, a lobbyist is required to file a statement of registration if such lobbyist expends, incurs or receives in excess of $2,000 in combined compensation and expenses for lobbying in a given calendar year.  See Ad. Code §3-213(a)(1).

Advisory Opinion 1987-13 interprets this provision and provides guidance in calculating the reporting threshold.  The Advisory Opinion confirms that the reporting threshold is calculated cumulatively and not per client. 

. . . [I]t is clear that the $2,000 threshold applies to lobbying activity cumulatively and not per client. There is no mention in the statute that a lobbyist must reasonably anticipate they will receive combined reportable compensation in excess of $2,000 per client. In other words, any lobbyist receiving a total of $2,000 or more in compensation for lobbying for the year, must file a registration statement for each and every client . . . See Advisory Opinion 1987-13 (emphasis added).

Applying these principles to the instant matter, the compensation paid and expenses incurred for the not-for-profit organization’s cumulative lobbying activity must be calculated to determine if the $2,000 reporting threshold is exceeded.  If the not-for-profit organization does not exceed the annual $2,000 threshold, no statement of registration is required.  Conversely, if the combination of the not-for-profit organization’s compensation and expenses exceeds the $2,000 reporting threshold, the not-for-profit organization must file a statement of registration and report all lobbying activity, including the volunteer board member’s meeting with the Council member. 

Other factors may influence whether or not other filings are required.  The volunteer board member may be required to file a separate statement of registration in his/her own name.[2]  If the board member expends, receives, or incurs in excess of $2,000 in combined compensation and expenses for his/her cumulative lobbying activity other than in such person’s capacity as a volunteer board member, the volunteer board member would be deemed a “lobbyist” and required to file a statement of registration as well as periodic reports.

Administrative Code §3-216 et seq. provides that if a lobbyist is required to file a statement of registration pursuant to Administrative Code §3-213 et seq., such lobbyist is also required to file a first periodic report detailing the specific lobbying activity engaged in within the reporting period in which the cumulative total expended on lobbying is greater than $2,000 and subsequent reports for the periods in which the lobbyist expends, receives or incurs in excess of $500 on lobbying.  See Ad. Code §3-216 et seq.  Therefore, if the not-for-profit organization or the volunteer board member is required to file a statement of registration, the organization or the board member would also be required to report details of all lobbying activity, including the meeting with the Council member described above, on the periodic reports required pursuant to Ad. Code §3-216.

Conclusion

It is the determination of the City Clerk that if a not-for-profit organization’s volunteer board member engages in a lobbying activity on behalf of the organization such activity must be reported under two circumstances.  First, if the not-for-profit organization otherwise exceeds the $2,000 reporting threshold for its cumulative lobbying activity in such calendar year, it is required to file a statement of registration and periodic reports listing all lobbying activity, including the volunteer board member’s lobbying.  Second, if the volunteer board member otherwise exceeds the $2,000 reporting threshold for such board member’s individual lobbying activity in a given calendar year, he or she is required to file an individual statement of registration and periodic reports listing all lobbying activity including the volunteer lobbying.  However if neither party exceeds the $2,000 reporting threshold, the volunteer board member’s activity would not be deemed reportable lobbying.

MICHAEL MCSWEENEY, City Clerk of the City of New York
PATRICK SYNMOIE, Counsel to the City Clerk
JAIME LYNN ECKL, Deputy Counsel to the City Clerk

 

***To properly report a volunteer lobbyist, please enter the information as instructed in the employee store, select the role “Employee that lobbies” and in the last name field, after entering the last name of the volunteer add (Volunteer).


[1] Statements of registration are filed in the name of the entity and individuals who lobby on its behalf are listed on the statement of registration and relevant periodic reports. An entity whose employees lobby on behalf of such entity is a “lobbyist/client filer.”   

[2] As statements of registration are filed in the name of a business/organization, the only circumstances in which an individual would file a statement of registration is when it is a sole proprietor or when lobbying on his/her own behalf rather than as part of his/her employment with a business/organization.

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