[For reference, while the Burbank Municipal Code does not currently have lobbyist registration provisions, the Code prohibits former City officials and high level employees from engaging in lobbying activities before City officials and/or employees for a period of one year after leaving City service. Burbank Municipal Code Sections 2-1620 through 2-1626.]

A. Los Angeles Ordinance

The Los Angeles Municipal Lobbying Ordinance (Exhibit A to this staff report) is quite lengthy (13 pages) and imposes a very detailed and complex regulatory scheme, with oversight provided by the Los Angeles Ethics Commission. The ordinance covers "lobbying activity" before elected officials, appointed officials and city employees. "Lobbying activity" is defined very broadly and includes the following conduct if related to a direct communication to influence "municipal legislation"²:

(1) engaging in, either personally or through an agent, written or oral direct communication with a city official;

(2) drafting ordinances, resolutions or regulations;

(3) providing advice or recommending strategy to a client or others;

(4) research, investigation and information gathering;

(5) seeking to influence the position of a third party on municipal legislation or an issue related to municipal legislation by any means, including but not limited to engaging in community, public or press relations activities; and

(6) attending or monitoring City meetings, hearings or other events.

The ordinance requires all lobbyists to register and file statements annually, paying a $300 registration fee plus $50 for each client on whose behalf or from which the lobbyist receives or becomes entitled to receive $250 or more in a calendar quarter. In addition, lobbyists are required to file amendments to their registration statements within 10 days of any change in information required to be set forth in the registration statement. Lobbyists must file a termination statement within 20 days after ceasing activity governed by the ordinance. The ordinance has several different classifications of lobbyist, including "lobbyist", "lobbying firm", "individual contract lobbyist", "lobbyist employer" and "major filer". Only those lobbyists who receive at least $4,000 a quarter as compensation for lobbying activities are governed by the ordinance. Those persons who perform lobbying activities without compensation are not covered by the ordinance. All covered lobbyists are required to attend a city lobbying information session at least once every two years.

Lobbyists are required to disclose a number of things in the annual lobbyist registration statements, including the following for each client:

(a) the period during which representation will occur;

(b) the items for which the firm was retained to represent the client;

(c) each city agency that the lobbyist has the authority to attempt to influence on behalf of the client;

(d) a letter from the client authorizing the lobbyist to represent the client.

In addition to the annual registration, each lobbyist is required to file a quarterly disclosure report with the City Ethics Commission. Quarterly reports disclose all required information for the calendar quarter immediately prior to the month in which the report is filed. The quarterly reports must include the following information:

(a) each client, a description of each item of municipal legislation for which the lobbyist represented the client and the total amount of payments received from each client;

(b) the total amount of compensation received for all lobbying activities;

(c) the date, amount and description of each activity expense³ of $25 or more made by the lobbyist during the reporting period, the name and title of the city official benefiting from the expense, the name and address of the payee, and the client on whose behalf the expense was made;

(d) the total amount of activity expenses made by the lobbyist during the reporting period;

(e) the name of any elected city officer or candidate who received $100 or more made or delivered by the lobbyist, or in connection with which the lobbyist acted as an intermediary, during the reporting period and the date and amount of the contribution;

(f) if the lobbyist provided compensated services, including consulting services, to the campaign or any candidate for elective city office, or to a campaign for or against any city ballot measure, the date of the election, the amount of compensation earned, and a description of the services provided. Such information shall be reported if the lobbyist personally provided the services, or if the services were provided by a business entity in which the lobbyist owns at least 10% investment;

(g) if the lobbyist provided compensated services under contract with the city, including consulting services, the amount of the compensation received, the agency for which the services were provided, a description of the services. Such information shall be reported if the lobbyist personally provided the services, or if the services were provided by a business entity in which the lobbyist owns at least a 10% investment;

(h) each city agency that the lobbyist attempted to influence;

(i) any other information required by the City Ethics Commission.

It is important to note that the definition of lobbyist is very broad. Indeed, there is no exception for people who hold positions in companies, coming to the city to "lobby" on behalf of their company. I called the Los Angeles Ethics Commission to ask about this issue and was told that it was true that the ordinance did not exempt such persons. The ethics commission staff person said, however, that they do not apply the ordinance to everyone; rather, they look at how often the person has contact with city staff and officials in order to decide whether or not to apply it to such people. While this distinction is not in the ordinance, it appears to be logical since the ordinance provides that only the compensation received for lobbying activities is used to determine if an individual qualifies as a lobbyist. If a person is not specifically employed as an "in-house" lobbyist and spends an insignificant amount of time lobbying on their employer�s behalf, the percentage of their total compensation attributable to the time spent lobbying would probably not meet the $4,000 quarterly threshold.

The ordinance provides for civil penalties of up to $2,000 per violation and up to a $500 penalty for late filing. At the close of each quarter, the City Ethics Commission provides a report to the Mayor and City Council summarizing the activities of persons subject to the ordinance.

The ordinance provides that if a person is not registered as a lobbyist, but is performing acts which would require the person to so register, they may continue to act as a lobbyist provided that they register with the City Ethics Commission within 10 days after the end of the calendar month in which the individual qualifies as a lobbyist. In other words, pursuant to this ordinance, a person can perform activities as a lobbyist, but yet not be required to disclose this fact until weeks after they perform the lobbying activities. Indeed, the ordinance largely appears to be an elaborate and cumbersome mechanism to obtain an accounting of lobbying activities after such activities have already taken place.

Note: The City of San Diego�s lobbyist ordinance (Exhibit B to this staff report) is similar in length and scope to the Los Angeles ordinance. The San Diego ordinance applies to lobbyists who receive at least $2,000 in a quarter for lobbying. The San Diego City Clerk is responsible for implementation of the provisions of the lobbyist ordinance.

B. San Francisco Ordinance

Although San Francisco�s Lobbyist ordinance (Exhibit C to this staff report) is similar in complexity and length to the Los Angeles ordinance, the definitions of lobbyist and lobbying are different in the two ordinances.

There are several different categories of "lobbyist" in the ordinance, but basically, a person will be considered a lobbyist if they are hired to lobby and (1) earn at least $3,200 in any quarter for lobbying services OR (2) have at least 25 separate contacts⁴ with city officers in any two consecutive months. For non-lobbyist businesses that have employees who lobby on behalf of the business, the business will be considered a "business and organization lobbyist" if (1) the entity pays employees any amount to lobby on behalf of the entity AND (2) the employees have at least 25 separate contacts with city officers within a two-month period, for the purpose of influencing legislative or administrative action. Business and organization lobbyists may include for-profit and non-profit corporations and organizations, associations and unions. San Francisco�s "lobbyist manual" cautions that persons who attempt to influence local legislative or administrative action, but who have not yet qualified as lobbyists, must keep adequate records of their activity in order to know when they meet the threshold and to be able to provide all required information at the time of initial registration. Note that in contrast to the Los Angeles ordinance which applies to contacts with any city employee who participates in decisions other than in a purely clerical, secretarial or ministerial capacity, the San Francisco ordinance only applies to contacts with city officers, which are defined as elected officials, members of city boards, commissions, authorities and agencies and department heads. As with all of the cities� lobbyist registration ordinances described in this memorandum, a person who volunteers their time to lobby and is not paid would not be covered by the San Francisco ordinance.

Similar to Los Angeles, San Francisco requires lobbyists to register annually and to file quarterly reports detailing all clients, compensation and contacts with the City. Lobbyists must pay an initial registration fee, plus an additional fee for each client and when they re-register each year, they must pay a re-registration fee and a re-registration fee for each client. At the time of initial registration, each lobbyist must submit to the Ethics Commission a written authorization from each client. If a lobbyist is retained by a client after the date of initial registration, the lobbyist shall file a client authorization statement before providing lobbying services to the client, and in no event later than 15 days after being retained by the client. Within 15 days after a client terminates the services of the lobbyist, the lobbyist must file a "Client Termination Statement"⁵.

Lobbyists are prohibited from making gifts to city officers of more than $50 within 3 months of contacting the officer. And, whenever a lobbyist makes a gift to an officer, the lobbyist must provide the officer with a written statement including the date, value and description of the gift. Lobbyists must also file a statement if the lobbyist employs a city officer, family member of a city officer or a city employee, or if a lobbyist�s client employs a city officer, family member of a city officer, or city employee. Lobbyists are required to report all political contributions (for city office or city ballot measures) made or delivered by the lobbyist.

The ordinance exempts certain limited kinds of communications with officers from the definition of "contact"⁶. The exempt communications do not count for the purposes of determining whether an individual or entity has qualified as a lobbyist. Interestingly, providing oral or written testimony that becomes part of the record of a public hearing is exempt from the definition of contact. However, if a person has already qualified as a lobbyist and is testifying on behalf of a client on the record at a public hearing, the lobbyist must identify the client on whose behalf the person is testifying, or if the lobbyist does not identify the client, the lobbyist is required to report the appearance or testimony as a "contact" on the appropriate reporting form.

As in the City of Los Angeles, San Francisco has an Ethics Commission which is charged with the duties of compiling and maintaining all of the information required by the ordinance, providing advice about the duties set forth in the ordinance, adopting rules and procedures for the implementation of the ordinance, conducting quarterly workshops relating to lobbying, filing quarterly and annual reports with the Board of Supervisors regarding the implementation of the ordinance, and assessing administrative penalties for a violations of the ordinance. The Ethics Commission has prepared a "Lobbyist Manual" to help lobbyists understand their obligations under the ordinance.

The Ethics Commission may impose administrative penalties of up to $5,000 per violation of the ordinance, or three times the amount not properly reported, or three times the amount given or received in excess of the gift limit, whichever is greater.

C. San Jose Ordinance

The San Jose lobbyist ordinance (Exhibit D to this staff report) is significantly less complex than the Los Angeles and San Francisco ordinances. The ordinance does not have multiple types of "lobbyists" and less information is required to be disclosed. The ordinance provides that no person shall act as a local governmental lobbyist unless they have registered as such with the City Clerk. A person is a local governmental lobbyist if (1) they receive $2,000 or more a month for the purpose of influencing any governmental, legislative or administrative action of the city or (2) if his or her principal duties as an employee are to communicate directly or through his or her agents with any public official, officer or designated employee for the purpose of influencing any governmental, legislative or administrative action of the city.

At the time of registering, a lobbyist must file with the city clerk, the name and address of each client. When the lobbyist�s services are engaged by a new client, the lobbyist shall file that information within 15 days. Thus, under this ordinance, a registered lobbyist could engage in lobbying activities on behalf of a new client for 15 days before actually having to disclose that they were hired by such client. Lobbyists are required to re-register annually and resubmit all required information. There are no quarterly reports required as in the Los Angeles and San Francisco ordinances. The ordinance does not apply to "any employee whose lobbying efforts are in behalf of an employer, if influencing the actions of governmental agencies is not a regular part of his or her employment". The ordinance has a few other exemptions, including any attorney, architect or civil engineer whose attempts to influence governmental action are limited to (1) publicly appearing at a public meeting, public hearing, or other official proceeding open to the public; (2) preparing or submitting documents in connection with the governmental action for use at a public meeting; and (3) contacts with city employees directly relating to (1) and (2) above.

San Jose also has an Ethics Board charged with the duty of monitoring compliance with all ethics ordinances, including the lobbyist registration ordinance. The lobbyist registration ordinance provides that upon the request of any city officer or "designated employee", the City Clerk shall issue an order to show cause to any unregistered person. The order shall specify a time and place where such person shall appear to provide evidence satisfactory to the Ethics Board that he or she has complied with the registration requirement. If the Ethics Board determines that such person is subject to registration and he or she fails to register within 7 days, he or she shall be barred from appearing before the City Council except at a public hearing on his or her own behalf. This "debarment" shall be in effect for three months from the date of such determination or until registration, whichever is later.

Note: The City of Oakland is currently considering the adoption of a lobbyist registration ordinance. While the Oakland City Council staff reports for this ordinance state that the Oakland draft is based on San Jose�s ordinance, Oakland has modified the San Jose ordinance to require quarterly reports requiring disclosure of the actions the lobbyist sought to influence, the individual with whom the lobbyist communicated, and the amount of compensation received in the previous quarter.

D. City of Malibu

The City of Malibu�s lobbyist ordinance (Exhibit E to this staff report) is short and simple. The ordinance defines lobbyist as any individual or entity employed, retained or engaged for compensation to communicate with or appear before any elective or appointive official or any employee for the purpose of influencing any legislative or administrative action. There is no minimum compensation threshold or number of contacts needed to qualify as a lobbyist.

The ordinance provides that prior to acting as a lobbyist in the City of Malibu, a lobbyist shall register with the City Clerk by filing a written statement containing the following information: (a) the name of the entity by whom the lobbyist is employed or engaged for compensation to perform lobbying services; and, (b) the legislative or administrative action of the City as to which the lobbyist has been engaged. Lobbyists are only required to register once, paying a one-time $35 fee, and are not required to renew their registration. A lobbyist must file an amended registration statement reflecting any changed circumstances within 10 days of the changes. If a lobbyist who has not registered as such appears at a public meeting of any elected or appointed body in order to make a presentation on behalf of a client, the lobbyist will be permitted to make the presentation upon stating the required information on the record and paying the registration fee to the City Clerk or secretary of the body and subsequently filing the required written statement with the City Clerk.

There are no listed exemptions and therefore, the ordinance would appear to cover a very broad range of "lobbying" activities. For example, it is not clear from the language of the ordinance at what point, if any, an employee of a company who performs other duties for the company, but also appears at the planning counter or at planning board meetings to "lobby" for a particular result (e.g. vice-president in charge of real estate for a grocery store appearing before the council on the grocery store�s application for a conditional use permit) would have to file as a lobbyist. One could argue that they are employed to communicate with the city. The Malibu City Clerk informed me that as a general rule, they interpret the ordinance such that an employee appearing before the city to urge a particular course of action for their employer would not be covered by the ordinance. She said, however, that they would interpret the ordinance to cover those employees of a company who functioned as "in-house" lobbyists, such as, for example, a vice-president of community relations for a cable company.

There are currently approximately 30 registered lobbyists in the City of Malibu. Since lobbyists are not required to file termination statements or renew their registration annually, this number includes some people who are no longer lobbying in Malibu. The City Clerk said that there have been no new registrations in over a year. The lobbyist registration forms are filed in the City Clerk�s Office. The forms are retained, but they are not reviewed or forwarded to anyone. The City Clerk said that if someone comes to a Council meeting and they appear to be an unregistered lobbyist, that she will send them a registration form, but that there is no other oversight or enforcement.

E. City of West Hollywood

The City of West Hollywood�s lobbyist registration ordinance (Exhibit F to this staff report) is pretty similar to Malibu�s, with an almost identical definition of "lobbyist". However, West Hollywood requires annual registration (with an annual $10 registration fee). Interestingly, the West Hollywood ordinance provides that a lobbyist shall be deemed to be registered with the City Clerk if he or she has appeared at a public meeting and has stated the required information for the record. The City Clerk stated that the registration forms are filed with his office annually, but that there is no enforcement, verification or oversight over the implementation of the ordinance.

Note: The City of Fresno�s ordinance (Exhibit G to this staff report) is similar to the City of West Hollywood�s in that it is a very brief ordinance requiring annual registration of lobbyists. However, Fresno�s ordinance only applies to attempting to influence a matter that is or will eventually be before the Council. Also, Fresno�s ordinance exempts certain people, including "a person who is an employee of any business entity when representing such business entity for the sole purpose of promoting the interest of such business entity unless such employee is engaged primarily in lobbying services for such business entity."

F. State of California Lobbyist Regulations

The State of California has an extensive set of regulations for lobbyists who attempt to influence State legislative or administrative action. A lobbyist is an individual who is compensated for directly communicating with an elective state official, agency official or legislative official, when trying to influence legislative or administrative action and who is also either (1) an "in-house" lobbyist who spends at least one-third of their time in direct communication with elective state officials, agency officials or legislative officials or (2) a lobbyist who lobbies for clients and who receives $2,000 or more in a calendar month for direct communications with elective state officials, agency officials or legislative officials. Under the state regulations, only the compensation that an individual receives while engaging in direct communication with an official is counted to determine if the individual qualifies as a lobbyist. Preparation work for the purpose of influencing legislative or administrative action and payments for travel do not count.

Lobbyists are required to file annual statements and quarterly disclosure reports, with very detailed information about the lobbyist�s clients and the state agencies to be lobbied and detailed descriptions of all monetary contributions of $25 or more to state candidates or state officials. There are all sorts of other regulations applicable to lobbyists, many related to gifts and "activity expenses"⁷.

As extensive as the regulations are, so are the exceptions. Indeed, the definition of "lobbying" does not include trying to obtain a permit, license, grant, or contract at a state agency. Nor does lobbying include providing administrative testimony.

G. Summary

Some local governments have found it desirable to enact lobbyist registration ordinances. Except for Malibu and West Hollywood, the above-described municipal lobbyist ordinances were adopted by cities that are among the 8 largest cities in California. The lobbyist ordinances of Los Angeles, San Diego, San Francisco and the State of California are very complex and in most cases are overseen by some sort of ethics commission (or in the case of the state lobbyist ordinance, it is overseen by the Fair Political Practices Commission). These ordinances have numerous definitions and categories of lobbyists and detailed lists of items to be disclosed. Despite the complexity of these ordinances, they appear to mostly be mechanisms to generate reports on contacts and gifts after such contacts and gifts have already taken place.

In contrast to Los Angeles, San Diego and San Francisco�s ordinances, the lobbyist ordinances of the cities of San Jose, Fresno, Malibu and West Hollywood are fairly simple ordinances requiring those persons who are employed as lobbyists to register with the City Clerk.

This office is not aware of any ongoing problems that need to be addressed by a lobbyist ordinance. However, if the Council believes that a lobbyist registration ordinance is desirable, this office has prepared a draft ordinance for Council consideration. A lengthy and complex lobbyist ordinance like the cities of Los Angeles, San Francisco and San Diego have, does not appear to be necessary or advisable for the City of Burbank. As explained above, these ordinances require lobbyists to file fairly extensive reports and require a tremendous amount of oversight by city staff and/or some sort of ethics board. Therefore, this office prepared the draft ordinance modeled after the less complex ordinances of San Jose, Fresno, Malibu and West Hollywood.

The draft ordinance provides for annual registration of persons employed to communicate with or appear before City officials and/or employees for the purpose of influencing any legislative or administrative action. There is no monetary threshold or minimum number of contacts that must be reached prior to a person being classified as a lobbyist. In addition to annual registration, a lobbyist must file an amended registration statement prior to engaging in any lobbying activity for a new client. There are a few exceptions in the ordinance including an exception for an employee who engages in lobbying activity on behalf of an employer, if influencing governmental action is not a such employee�s primary job duty. [Note that this represents a revision to the draft of the ordinance sent out to various persons in the community. The previous draft provided that an employee was exempt if influencing governmental action was not a regular part of his or her employment.] Similarly, an owner or officer of a business entity will be exempt from the ordinance if their lobbying efforts are on behalf of the business entity, unless such person is engaged primarily in lobbying services for such business entity. [This exemption was not in the draft ordinance sent out to various persons in the community, but rather was added later.] Finally, the draft ordinance provides that the lobbyist registration records will be maintained by the City Clerk and will be open to the public.

H. Comments on Draft Ordinance

As stated above, this office sent out a copy of the draft lobbyist registration ordinance to certain persons in the community who might have an interest in the matter. In response, this office received written comments from several persons. Jack O�Neill, Vice President Facilities, NBC, had numerous comments on the ordinance. First of all, he stated he did not see the need for the ordinance. He found the definition of lobbyist to be vague and was troubled that he could fall within the definition of lobbyist, since he does not consider himself to be a lobbyist. The draft Mr. O�Neill received exempted persons who lobby on behalf of an employer if lobbying is not a regular part of their job duties. Mr. O�Neill questioned the meaning of "regular". Mr. O�Neill also stated that the ordinance really doesn�t accomplish anything. He further stated that he did not think that his employer would allow him to register as a lobbyist and stated that if the ordinance is adopted, it will have a negative impact on the relationship between the City of Burbank and NBC.

Lisa Rawlins at Warner Bros. stated that she supported Mr. O�Neill�s comments. She added that one of the great advantages of doing business in Burbank is the accessibility and helpfulness of City staff and thought that the ordinance could create unnecessary walls.

Mee Lee, suggested that the ordinance list the specific activities that fall within the definition of lobbying rather than having a general definition of lobbying. She also suggested that we establish a compensation threshold--in other words people will only be considered lobbyists if they make a certain amount of income in a calendar quarter from lobbying activities in the City.

Paul Krueger of M. David Paul Development, wanted clarification regarding whether the employees of M. David Paul would be exempt from the ordinance if they were representing the interests of the company. Under the attached draft ordinance, an employee representing his or her employer would be exempt from the ordinance, unless the employee is primarily a lobbyist.

Michael Cusumano questioned whether a principal in a business would be required to register as a lobbyist if appearing on behalf of his or her business. Since this situation seems to be very similar to an employee appearing on behalf of his or her employer, this office modified the attached draft ordinance to specifically exempt such a person.

Dan Slater, of the law firm Rutan & Tucker, also had a number of comments. In general, he recommends that the City model the definition of lobbyist and lobbying after the State lobbyist registration scheme and provide exemptions similar to those found in State law. For example, he suggests exempting a person seeking to obtain a permit, license, grant or contract on behalf of their employer. He also commented that the exemption for an employee who did not perform lobbying activities as a regular part of their job duties was problematic since the draft ordinance does not contain a definition of "regular" part. He pointed out that the State law has a "time test" for in-house lobbyists and they are subject to the State lobbyist regulations only if they spend at least one-third of their time in direct communication with qualifying officials. Finally, he also suggests additional exemptions for attorneys and for consultants providing technical or scientific advice on behalf of clients.

Note that this office also received a couple of phone calls from other persons who had concerns about the ordinance, but who did not submit written comments.

I. Conclusion

As stated above, this office is not aware of any ongoing problems that need to be addressed by a lobbyist ordinance. However, if the Council wishes to adopt a lobbyist registration ordinance, this office recommends either adoption of the attached draft ordinance or requests that the Council provide further direction regarding the desired ordinance.

¹ This office reviewed the municipal codes of the following 28 cities: Los Angeles, San Francisco, San Jose, San Diego, Fresno, Oakland, Malibu, West Hollywood, Glendale, Pasadena, Long Beach, Santa Monica, Torrance, Sacramento, Riverside, Santa Ana, Orange, Berkeley, Agoura Hills, Manhattan Beach, Hermosa Beach, Redondo Beach, Modesto, Menlo Park, Beverly Hills, Culver City, and Ontario. Only Los Angeles, San Francisco, San Jose, San Diego, Fresno, Malibu and West Hollywood have lobbyist ordinances.

² "Municipal legislation" includes any legislative or administrative matter proposed or pending before any agency, except ministerial actions.

³ activity expense is defined as "any payment, including any gift, made to or directly benefiting any City official or member of his or her immediate family, made by a lobbyist, lobbying firm, or lobbyist employer".

⁴ A "contact" is an oral or written communication made for the purpose of influencing local legislative or administrative action.