Charter Revision and Lobbying

The expectation is that NYC Mayor Bloomberg will soon appoint a Charter Revision Commission. The Commission would conduct a review of the New York City Charter, ultimately proposing a new charter or amendments to be voted on by referendum.

Theoretically, the Commission would be an independent City agency. As a practical matter, especially in recent years, mayors have taken a dominant role in shaping past commissions’ agendas and proposals. Indeed, like the mayor, various officials and employees of the City of New York have potentially enormous stakes in the changes Charter revision may make in the City’s government for years to come. Government officials and employees can therefore be expected to advocate for their institutional interests.

Lobbying regulation is intended to shed light on attempts to influence the actions of public officials. Will City and State lobbying laws facilitate public scrutiny of City officials’ and employees’ efforts to influence the actions of a Charter Revision Commission?

The brief answer is No.

The lobbying laws generally require persons meeting certain thresholds of compensation or expenditures for lobbying activity to register with the applicable monitoring agency and submit periodic reports. But neither City nor State lobbying law, in their current form, mandates registration and reporting by City officials and employees who lobby a Charter Commission.

Under City law, attempts to influence the “determination of a … commission” are defined as lobbying, but the term “lobbyist” expressly excludes officers and employees of the City of New York when discharging their official duties.

State lobbying law is more complex. Lobbying includes attempts to influence “passage or defeat of any local law … by a municipality.” There is no express exception for municipal officers and employees. Indeed, municipal corporations are required to register and report their lobbying, an obligation which does not distinguish between lobbying at the State or NYC level.

There has, however, been a longstanding unwritten exception for “government-to-government” contacts that has allowed municipal corporations to avoid registration. In any event, because a Charter Commission is not a legislative body, it only proposes local law(s) for public referendum. Attempts to influence the Commission’s proposals are legally distinct from attempts to influence the “passage or defeat” of the local law itself.

Are these gaps in City and State lobbying regulation loopholes? Given the likelihood that some NYC officials and employees will try to influence the Charter Commission’s proposals, should existing lobbying regulations be extended to promote transparency and public scrutiny of their Charter lobbying efforts?

And even if these laws are not amended, should officials be encouraged to voluntarily submit their lobbying on Charter revision to the current State and City registration and reporting regimes, and to direct their employees to do likewise?

The answer may depend on how highly the public values the independence of a Charter Commission. If Commission independence is seen as critical to the credibility of its proposals, an expanded lobbying law could be useful as a means of fostering that independence. On the other hand, if independence is not a prime value, there would be little public benefit in burdening “government-to-government” communications with compliance obligations under the overlapping and detailed regimes that regulate private sector lobbyists.