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Advisory Opinion 2013 - 1

Facts

The New York City Department of Cultural Affairs (“DCA”) is responsible for the administration of the Cultural Development Fund, an annual grant awarded to eligible nonprofit cultural organizations in New York City. Through the grant process, the DCA provides financial support for cultural programs. In order to initiate the process, DCA posts an online application form and notifies cultural organizations of its availability once posted. Cultural organizations interested in receiving grant funding complete the online application and submit any required documentation. The applications are then reviewed by a confidential “Peer Panel” designated by the DCA. The Peer Panel consists of seven persons including practitioners in the cultural field as well as one or two elected officials. The Peer Panel makes recommendations to the DCA Commissioner regarding potential grantees including ranking the applications presented and recommending to the DCA Commissioner which organizations should be funded and at what level they should be funded. The grant application process does not require personal appearances by applicants before the DCA, the Peer Panel, or the Commissioner. All final decisions regarding the award of grant funding to an applicant are made by the Commissioner based upon the grant application and the Peer Panel’s recommendations.

Organizations A and B apply for DCA grants as follows:

 

(a)    Organization A is a cultural organization which operates an after-school art program. Organization A completes the application and submits additional documentation in connection with its application. Organization A does not communicate with any City officials, officers, or employees in connection with its grant application.

 

(b)   Organization B is a cultural organization that operates a community dance school. Organization B completes the application and submits additional documentation in connection with its application. Organization B contacts a New York City Council (“Council”) member to request assistance in the award of grant funding.

Issues

(1)   Whether Organization A, which completes the online application for a grant from the DCA, is engaged in “lobbying” or “lobbying activities” pursuant to New York City Administrative Code (“Administrative Code”) §3-211(c) et seq.?

(2)   Whether Organization B, which completes an online application for a grant from the DCA and subsequently contacts a Council member for assistance in securing the grant funding, is engaged in “lobbying” or “lobbying activities” pursuant to Administrative Code §3-211(c) et seq.?

Opinion

Pursuant to the Administrative Code organizations that attempt to influence any determination made by an elected City official, or an officer or employee of the City with respect to the “solicitation, award or administration of a grant, loan, or agreement involving the disbursement of public monies” are engaged in lobbying. See Ad. Code § 3-211(c)(1)(iii).   In connection with the grant allocation process, the DCA requests that organizations interested in securing grants complete an online application and submit required documentation.

(1)  Organization A completes the online application and submits documentation to the DCA. Absent any other action on its part, Organization A is not “attempting to influence” a determination of a City official, or an officer or employee of the City with respect to the award of a grant. As a result, Organization A, as described above, is not engaged in “lobbying” or a “lobbying activity” within the meaning of section 3-211 of the Administrative Code.

(2)   Organization B, on the other hand, not only completed DCA’s online application, but also contacted a Council member to request assistance in the award of grant funding. By contacting the Council member and requesting assistance in the award of the grant funding, Organization B is attempting to influence a determination made by officers and employees of the DCA with respect to the award of public monies. Therefore, Organization B is engaged in “lobbying” or “lobbying activity” pursuant to section 3-211 of the Administrative Code.

Conclusion

It is the determination of the City Clerk that completion of an online application for a DCA grant is not “lobbying” pursuant to Administrative Code §3-211(c) et seq. because merely completing a form upon the invitation of an agency is not an “attempt to influence.” However, if a cultural organization attempts to influence the determination of the DCA Commissioner, by contacting City officials, officers, or employees through either a hired lobbyist or its own affirmative efforts, such communications would constitute “lobbying” or “lobbying activities” pursuant to Administrative Code §3-211(c) et seq.

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

 

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