The Joint Commission on Public Ethics (“JCOPE”) released another round of proposed rulemaking to clarify its lobbying regulations, as published in the New York State Register on November 10, 2020. This comes a few months after opening the rulemaking to public comment in July. Now that the proposed changes have been officially updated, the public is again allowed to provide comments for another 45 days.

The initial lobbying regulations went into effect in January 2019. After hearing some criticism, JCOPE is now clarifying some of the requirements through amendments concerning (1) “source of funding” requirements; (2) the definitions pertaining to “Direct” and “Grassroots” lobbying, (3) who should be registered as a lobbyist if participating in a “Lobby Day” on behalf of an organization, and (4) how Coalitions must file their reports.

Source of Funding

Source of funding requirements pertain to clients who retain outside lobbyists and are required to file Client Semi-Annual reports in January and July. As part of this filing, these clients are required to disclose the source of the funds used to pay their outside lobbyists. The proposed changes clarify the definition of these “contributions,” which are intended to fund the client’s lobbying activities in whole or in part. JCOPE states that a “contribution” shall not mean the following:

• A payment in exchange for goods or services rendered or delivered directly to the individual or entity making the payment, and
• A payment that is earmarked and conditioned by a payor that it may be used only for a specific purpose other than lobbying activity in New York state and is thus maintained in a separate bank account and otherwise unavailable for general operating expenses. It is not sufficient for a payor to merely restrict the use of the funds for lobbying activity in New York state; to qualify for this exception, the payment must be earmarked for its specific purpose.

Defining Direct and Grassroots Lobbying

JCOPE has also proposed changes in an attempt to clarify the growing use of social media as part of Grassroots Lobbying campaigns. When contact occurs through an organization’s social media account, such activity is reportable “Lobbying Activity” by the organization but it does not need to list an individual lobbyist. Moreover, when an individual initiates contact with a public official through their personal social media account, this activity is not considered reportable lobbying activity unless such individual is specifically retained by a client for such social media activity.

Requirements for Lobby Day

Organizations expressed concern related to the registration requirement of their employees by their mere attendance at a “Lobby Day,” noting the administrative burden this could place on organizations hosting these events. According to the proposed language, JCOPE would now only require the registration of individuals who speak to public officials at a Lobby Day on behalf of their organization and further clarifies that mere attendance by an employee or a volunteer does not require that individual to register as a lobbyist.

The initial lobbying regulations allowed Coalitions the freedom to determine whether to file as a Coalition or have each individual member include their own activity on their own reports. The proposed changes intend to provide more guidance on how a Coalition should report its activity by establishing an objective standard. If adopted, a Coalition that meets the proposed standard for a “Structured Coalition” by having a President, Treasurer, or someone acting in that capacity must register and report as a Coalition.

For a more detailed look at JCOPE’s amendments, please visit pgs. 11-12 of the NYS Register published on November 10, 2020. If you have questions about the proposed changes or would like to provide public comment, please contact one of our Lobbying Compliance team members: Karl Sleight at ksleight@harrisbeach.com, Joan Sullivan at jsullivan@harrisbeach.com, Kelsey Hanson at khanson@harrisbeach.com or Christian Flemming at cflemming@harrisbeach.com.

This alert is not a substitute for advice of counsel on specific legal issues.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.