My Letter To The Ethics Commission On Proposed Revisions To The Municipal Lobbying Ordinance

As you may already know, the City Ethics Commission is in the process of proposing revisions to the Municipal Lobbying Ordinance. The full proposal is here. They’ve been holding meetings to solicit input and, given the anti-regulatory stance adopted by a significant number of the Commissioners recently, it’s essential that right-minded people get their comments in to soonest.

I’ve been working on a letter for a few weeks now,1 and yesterday I finally finished it. You can get a copy of the PDF or read a transcription after the break. Please feel free to use any part of this to guide or inspire your own letters, which, as I said, I really hope you will send in as soon as possible.

The next Commission meeting is on October 17, and I’m told by staff that all comments received by a few days before then will be distributed to the Commissioners. If you can get your comments in pretty soon, though, they’ll also be discussed by staff prior to finalizing the proposals, which may be a good thing.

As promised, here is a transcription of the letter I sent to the Commission yesterday. It’s generated from source by a script, so some of the formatting is wonky. I fixed as much as I noticed, but I almost certainly missed stuff.

Proposed revisions

Definition of lobbyist

  1. The current definition of lobbyists is essentially unusable from the points of view of both compliance and of enforcement. Furthermore, it creates a lot of presumably unintentional edge cases wherein two people who are very similarly situated have very different obligations under the law as it now stands. Moving to a compensation-based scheme will make both compliance and enforcement easier and will create more consistent compliance obligations.

  2. First, consider compliance. People who are compensated to lobby but charge a flat rather than an hourly rate may easily and inadvertently violate the law as it now stands. For instance, suppose a person does 29 hours of lobbying activity in January including a contact and then happen to spend an hour in March monitoring a City Council meeting. This triggers the registration requirement, but it’s easy to imagine that the person wouldn’t realize that that extra hour so long after the bulk of the work was done created a legal obligation. In January they had no reason to track their hours and by March they may not even remember how long they worked, if they ever knew. It’s likely, therefore, that the current definition increases the rate of inadvertent noncompliance. In contrast, everyone keeps close track of how much money they earn.

  3. Next, consider enforcement. As above, the fact that many people who might be required to register charge on a flat-rate basis means that there may well be no records of how much time a given person is paid to attempt to influence City officials. If there are no time-sheets it’s difficult, although admittedly not impossible, to prove a violation of the registration requirement. Again, though, everyone keeps track of the money they earn and because it’s effectively impossible to operate outside the financial system, even if a lobbyist doesn’t keep track of compensation there will be evidence held by third parties that will be available to investigators.

  4. Finally, the current definition of lobbyists creates situations where similarly situated people are treated very differently under the law and in which there’s no public policy being furthered by the essentially arbitrary distinctions. Just for instance, imagine that a person is paid for 100 hours of lobbying activity in January but makes no contact with City officials. They don’t do any lobbying activity in February. If they make contact on March 31 to attempt to influence they’re required to register. If they make contact on April 1 they’re not required to register. The public either has an interest in knowing what both these people are up to or they have an interest in neither. It’s impossible to imagine that there’s any principled distinction between the two cases, and yet the MLO as currently configured makes a huge distinction.

  5. The proposed change from a time-based registration requirement to a compensation-based requirement is in my opinion the single most important proposal currently being considered. Many of the public comments made during the current round of discussion about MLO revision have focused on getting unregistered lobbyists to register. A number of commissioners have expressed the same concern at Commission meetings. Although some commenters seem to assume there’s a dichotomy between revising the MLO and increasing the registration rate, in fact there’s no way to increase the number of registrations without having crystal clear requirements that are easy to understand, easy to follow, and easy to enforce. The current language has none of these properties. The proposed language has all of them.

  6. At one of the Interested Persons’ Meetings I heard someone say that a compensation-based threshold was unfair because more highly paid lobbyists would qualify for registration after fewer hours than their colleagues whose time wasn’t worth as much. Presumably, however, clients are willing to pay certain lobbyists more because the services they provide are more valuable. The only reasonable candidate for what creates the value of a lobbyist’s work is the quality of the influence provided. Thus there’s almost certainly some kind of equilibrium dollar value of a “unit of influence” determined by the market for lobbying services. It’s pretty likely, therefore, that the $5,000 registration threshold represents approximately the same amount of influence no matter how many or how few hours it’s spread out over. Thus the fact that different lobbyists earn different rates isn’t a reason to discard a compensation-based registration threshold.

Definition of “agency”

  1. The proposal to explicitly include neighborhood councils (“NCs”) in the definition of “City agency” found at LAMC 48.02 of the Municipal Lobbying Ordinance is important both to inform the general public about paid lobbying of NCs and also to inform NC board and audience members of the attempts by professional lobbyists to influence NCs and, through them, other City agencies.

  2. From comments made at the Interested Persons’ Meeting on September 7, 2017, it’s apparent that lobbyists actively seek out NC approval for their clients’ development projects. This claim is easily justified in fact as well as in theory. Just for instance, take a look at the August 2017 agenda of the PLUM committee of the Downtown Los Angeles Neighborhood Council (“DLANC”), appended here as on page . There are six presentations from people seeking approvals of real estate matters. Each of these presentations was conducted by a paid representative. Many but not all of these representatives are or have been in the past registered with the CEC. Irrespective of their registration status, though, some time with Google reveals that all are paid for their advocacy.

  3. At recent Commission meetings and Interested Persons’ meetings, some commenters, and even some commissioners, have questioned the utility of disclosure and wondered who, if anyone, might be interested in the information of which the CEC was proposing to require disclosure. This is a case where, I hope, the utility is clear. The members of boards of NCs are deluged with information from paid representatives. As it stands the NC board members aren’t necessarily easily able to track down who’s paying whom or, more importantly, which other City agencies are being lobbied in support of projects.

  4. The kind of information that would be disclosed under this proposal could be essential for helping NC board members, who have a great deal of influence and responsibility but no research staff or other investigative resources comparable to, e.g., Councilmembers, weigh the credibility of representatives, discuss representatives’ presentations with other NCs or other City agencies, and so on. Transparency has intrinsic abstract value, to be sure, but in this case it has immense immediate practical value as well. This very point was discussed at the September 9 Interested Persons’ Meeting on NCs and lobbying.

  5. There’s a lot of money at stake in these projects and in all the projects that come before NCs. There’s no real reason why advocacy before NCs shouldn’t require disclosure whereas advocacy before e.g. a zoning administrator or other City officials who control the early stages of projects.

Registration deadline

  1. The proposal is to require lobbyists to register 10 days after they qualify rather than 10 days after the end of the month in which they qualify. I support this change for the reasons given in the staff report, to which I have only one comment to add. In various venues, comments from the public and from some commissioners have focused on the burdens which more rapid filing deadlines might impose on the “regulated community.” Here there’s not much of a case to be made for that. Every lobbying entity has to register but once a year and the work involved in preparing an annual registration is minimal. The benefits to the public as outlined in Arman Tarzi’s report far outweigh any potential burden which this change might impose on those required to register.

Content of registration forms

  1. I am in favor of the changes proposed in the staff report for the reasons given there. It’s important to note that these requirements are not out of line with the rules in other cities so presumably there’s a workable and profitable business model for lobbyists that can absorb whatever burden the changes might place on registrants.

Prior city service

  1. The proposal here is to require lobbyists who formerly worked for the City to disclose their last date of service. The idea is to make former City employees more aware of their obligations under the so-called Revolving Door Ordinance (“RDO”).

  2. I support this proposal, but I think it does not go far enough. I encourage you all to amend your proposal to, in addition, require the disclosure of the City agencies that employed the person as well as their ranks when employed. The ranks should be given in the same terms as are listed in LAMC 49.5.13(C)(1) rather than by title. That is, for instance, as Council Aide VI instead of “Deputy Chief of Planning” or whatever.

  3. This information would be extremely useful to have in the proposed context for at least two reasons with respect to investigating RDO compliance:

    1. First, because even though LAMC 49.5.13(E) seems to require the controller to produce a list of people at the relevant ranks and submit this list to the CEC each year, I don’t think this actually happens. At least I’ve never been able to get a copy of this list from either the controller or the CEC, and mostly they don’t seem to even know what I’m asking for. It may be that I’ve been asking wrong. However, even if this list were made available, having the information linked to people who are actually engaged in lobbying would make it much more useful.

    2. It is exceedingly difficult in practice to obtain the ranks and positions of former City employees. Just for instance I’ve had the controller’s office tell me that they cannot even confirm that someone formerly worked for the City, let alone tell me what their rank was. They have occasionally asserted that this is private personnel information. To make matters worse, sometimes they just tell me and sometimes they refer me to other offices, e.g. the Clerk, and sometimes the Clerk just tells me. As often as not, though, no one will tell me. It’s evidently not secret information, though, because occasionally the controller or the clerk will reveal it. Also, often current employees of the agencies are reluctant to reveal the ranks of their former comrades who’ve turned lobbyist, perhaps out of solidarity?1

  4. It’s my impression after a few years of research that the RDO is regularly violated, possibly on purpose, possibly by mistake. Requiring at least registered lobbyists to disclose the details of their former City employment would, therefore, not only help to raise awareness of the RDO, but also to make investigation and reporting of violations of the RDO much easier. This would, in turn, raise awareness even further and almost certainly increase compliance.

Frequency and deadlines

  1. When a City matter is being considered, lobbyists attempt to influence the decisionmakers. Non-lobbyists who are interested in the outcome need information on the positions the lobbyists are taking and the City officials they’re contacting so that they can effectively oppose or support these efforts. Because City matters can be decided rapidly and because it takes time to turn disclosures into actionable information2 to guide political action, the faster the disclosure happens the better a position non-lobbyists are in.

  2. As an example, consider the case of the Skid Row Neighborhood Council (“SRNC”) formation election, which unfolded in the first four months of 2017. There was an election scheduled for April. Professional lobbying against the SRNC provably started in February and quite likely began as early as January. It involved some public contacts, e.g. comments before the Board of Neighborhood Commissioners and before the City Council’s Rules and Elections Committee, but the bulk of the attempts to influence, e.g. emails, phone calls, and private meetings with Council staff and José Huizar, would ordinarily only have been discoverable through disclosure.3 If the deadlines had been as proposed here the details would have had to have been disclosed by March 10, which would have given SRNC proponents four weeks prior to the election to investigate and counter lobbying activities. The present deadlines only required disclosure by May 1, almost a month after the election.4

  3. While I would like to see disclosure be as rapid as possible, even real time, I realize that that may not be practically possible and it’s clear that that’s not politically possible. There’s nothing particularly special about bimonthly reporting and ten day deadlines except that they’re faster than what we currently have and they may be politically attainable.

Detailed reporting of contacts

  1. Of all the proposed revisions to the MLO I think this is the second most important for promoting government transparency and preserving the faith of the public in their elected officials. I rank it directly after the proposed move to a compensation-based registration requirement. The fact that the present disclosure requirements are vastly inadequate has been discussed in detail at both the August Commission meeting and at at least one of the Interested Persons’ Meetings, so I won’t go over it again here. Instead, I will focus on some specific ways in which this proposal would increase transparency and also reply to two objections that have been made to the proposal.

  2. The CPRA requires requests to be “focused” in the sense of identifying specific records. There’s also some common law that suggests that local agencies can deny requests on the grounds that there are too many responsive records. The City of Los Angeles routinely denies or delays the production of records on both of these grounds. Thus in order to use the CPRA effectively to investigate attempts to influence, it’s necessary to have as much information as possible in hand prior to making a request.

  3. If I ask for e.g. “all emails between anyone on Council Staff and anyone at Lobbying Firm X” it will almost certainly be denied. Even if I narrow it to the typical parameters found in current disclosures my chance of receiving records promptly if at all is not high. However, if I know that lobbyist X met with staffer Y on day Z to discuss issue W I can frame a really specific request that the City is unlikely to deny, at least for the generic reasons given here.

  4. Additionally, there’s a strong perception that some City officials are more friendly to lobbyists than others. It would be invaluable therefore to be able to conduct quantitative analyses on contacts between lobbyists and officials. Now this task, while it may be theoretically possible, is practically impossible due to the vast amounts of time and resources that would have to be invested in order to gather the data. Even if someone did try to collect this information via CPRA requests for staff appointment calendars and so on, there’d be no way to be sure the data was consistent across City offices given their wildly uneven policies for disclosure. If the proposal were in place, however, it would be (relatively) easy to study, e.g., how much time different Council offices, different staff members, and so on, spend with lobbyists.

  5. A number of commenters have claimed that this proposal would impose an unsupportable burden on people subject to the disclosure requirements. I don’t think this is true, for at least two reasons:

    1. First, as noted in the staff report, other cities require this level of reporting. See, e.g., , which is an actual quarterly lobbyist disclosure from San Francisco which illustrates the level of detail required. The form lists date of contact, person(s) contacted, and issue(s) discussed. The lobbying profession is alive and well in San Francisco. It hasn’t been driven out of business by this requirement. It would not be in Los Angeles either.

    2. Some commenters have noted that they wouldn’t be able to keep track of people at meetings and that sometimes they don’t even know the names of everyone present. A registered lobbyist and commenter at the September 7 meeting said that this proposal would be unworkable unless some of the responsibility were shared with City staff. I think this is absolutely right. There’s no reason, e.g., not to require City staff and officials to distribute their business cards at every meeting with the public, or to have schedulers or other people who set meetings prepare and distribute an official statement of who was present. This can possibly be implemented as a regulation or an interpretation rather than requiring new laws.

  6. At least one commenter has claimed that disclosure at this level of detail is unnecessary. The claim seems to be that members of the public who are following an issue and attending or attending to public meetings on the issue will know which lobbyists are working on the issue, what their positions on the issue are, and which City agencies they’re contacting. This position is true as far as it goes, but it fails to address the fact that a large amount of lobbying takes place only in private offices, or on the phone, or by email, and doesn’t involve public comments at public meetings. Many City matters are at the discretion of a single City official or City office and do not need a vote, are therefore not subject to the Brown Act, and may never come to light without disclosure.

  7. There have been some public comments proposing reporting levels strictly between this proposal and the current law. For instance, lobbyists might be required to propose that they’d contacted Council District 13 but not disclose who in particular they’d contacted. I think this kind of proposal would be worse than useless. It can’t possibly be less work to disclose this information than it would be to disclose actual names and yet the information revealed would be almost as inadequate as it is now.

Position taken on issues

  1. I support this proposal for precisely the reasons given in the staff report. I heard at least one public comment claiming that, as above in , members of the public who are interested in a given issue will know from exposure what positions various lobbying entities are taking. As above, though, this ignores the fact that many, perhaps most, City matters are settled without public hearings of any kind. If members of the public are to be able to track who’s attempting to influence and how they’re attempting, disclosure of precisely this kind is needed.

Other considerations

Of what use is disclosure information?

In the present

  1. I’ve discussed the immediate utility of disclosed information above in some detail. Some of the important uses are:

    1. To allow tracking of lobbying and City officials’ responses to it via CPRA.

    2. To allow members of the public to respond to positions taken by lobbyists before the matters being lobbied are settled.

    3. To allow more detailed analyses of the effects of lobbying on City decision-making.

    4. To track the level of compliance with government ethics and lobbying laws.

In the future

  1. One important use for lobbying disclosure information that I have not seen discussed is that it constitutes a unique and irreplaceable source of data on how politics works in the City of Los Angeles. Detailed disclosures of the kind proposed here will help preserve an often neglected aspect of the history of Los Angeles in a manner befitting the dignity and importance of our City on the world stage.

  2. The extent to which lobbying can, does, and should affect government decisions has been debated in the United States at least since 18th Century discussions on “Factions.” It’s a legitimate subject of scholarly interest and this essential part of the history of our City should be preserved, rather than oublietted to serve the short-sighted convenience of our politicians and those who attempt to influence them. The proposed disclosure requirements will support this important goal.

Regulation of lobbying does not malign lobbying

  1. In various discussions on the matter I’ve heard a number of comments to the effect that the proposed revisions to the MLO imply that there’s something wrong or dangerous about lobbying. Perhaps the argument is that if lobbying weren’t bad it wouldn’t need to be regulated?

  2. Whatever the reasoning might be, I don’t think this argument has much force. The state of California and every other jurisdiction in this country regulates and oversees various professions by imposing licensing requirements, standards of professional conduct, disclosure requirements, disciplinary boards, and so on. This is true not only of lobbyists in Los Angeles, but doctors, lawyers, tattoo artists, massage therapists, psychologists, and many other trades. The fact that these trades are subject to some regulation surely doesn’t reflect anyone’s judgment that there’s something wrong with them. Instead it’s related to the sensitivity of the areas in which the trades or professions are practiced. The same is true of lobbying.

  3. Irrespective of that, and without meaning to seem insensitive, even if the thought of being regulated somewhat hurts the amour propre of our local “regulated community,” that’s surely not a reason not to have regulations.5

Los Angeles lobbying entities can survive this proposal

  1. It’s a theme in the public comments heard so far on this MLO revision proposal that more stringent disclosure requirements have the potential to “regulate lobbyists out of business.” It has also been argued that some of the proposals would be too expensive to implement or use too much staff time to comply with. I don’t think those are serious dangers, though.

  2. First note that the proposed disclosure frequency and deadlines fall somewhere in the middle of the corresponding time-frames used in other jurisdictions, as outlined in the staff report. Similarly, the proposal to require detailed disclosure of contacts is not novel either.

  3. Lobbyists around the country, and even around the state of California, are subject to more stringent disclosure requirements than are proposed here, and they don’t seem to be declaring bankruptcy en masse. Because of the size of our population and the size of our economy, the value of City matters lobbied for in Los Angeles almost certainly outweighs the value in other jurisdictions. If lobbyists in smaller Cities, e.g. San José or San Francisco, can deal financially with detailed disclosure of contacts along with reporting frequency and deadlines on the same order of magnitude as those proposed here, it’s hard to imagine that lobbyists in Los Angeles cannot do so as well.

  4. If the amount of money required to comply with new regulations along the lines of those proposed here isn’t enough to drive lobbyists out of business then, if it’s true that compliance will require additional staff time, there will be enough money to hire additional staff. As noted, if lobbyists in other jurisdictions can afford sufficient staffing to comply with similar laws, there’s no reason why lobbyists in Los Angeles cannot also do so.

  5. Finally, the present reporting system has a lot of inefficiencies which, if eliminated, would free up resources for compliance with the new proposals. Some of these are already being discussed, e.g. providing pre-populated disclosure and registration forms. Others are easy to imagine, such as app-based tracking of contacts with City officials, and so on.



Exhibit 1 DLANC PLUM Committee agenda August 2017


Exhibit 2 San Francisco lobbyist filing with detailed contact reports

  1. Sometimes they willingly reveal them, as they should do.

  2. E.g. through the California Public Record Act (“CPRA”) which, even when it’s uncharacteristically operating at ideal speed, rarely produces results in less than a couple of weeks. It often takes significantly longer than that, especially when, due to inadequate information in lobbying disclosures, it’s not possible to frame highly specific requests.

  3. Coincidentally I was able to obtain a lot of information about this process through CPRA, but mostly because at first it was responsive to requests I’d made for other reasons. I didn’t get anything before the middle of April, though, because I understand the extent of the lobbying prior to then.

  4. As it happens even that deadline was unmet, leading to a number of complaints filed with CEC enforcement staff.

  5. The principle that the regulation of lobbying is necessary for the proper functioning of the City of Los Angeles is already well-accepted and all of us, as adults, have, I suppose, had to accomodate ourselves to the fact that our feelings might not be the most important consideration in collective decision-making.

The picture of Heather Holt at the head of this post is ©2017 MichaelKohlhaas.Org and is based on an original to be found here. The words in Heather Holt’s mouth are a quote from this article.

  1. If you’re wondering, this is why I have been posting at such a pathetically slow rate. That should change somewhat, although I’m starting another labor intensive project tomorrow, but there’s no pressing deadline for that one.

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