September 20, 2001
Vernon M. Billy
Director, Governmental Relations
San Francisco Unified School District
555 Franklin Street
San Francisco, CA 94102
Dear Mr. Billy:
You requested the Ethics Commission's advice regarding whether an employee of the San Francisco Unified School District ("School District" or "District") who contacts local City officers must register as a lobbyist with the Ethics Commission.
The Ethics Commission provides two kinds of advice: written formal opinions and informal advice. S.F. Charter Section C3.699-12. Written formal opinions are available to individuals who request advice about their responsibilities under local laws. Formal opinions provide the requester immunity from subsequent enforcement action if the material facts are as stated in the request for advice, and if the District Attorney and City Attorney concur in the advice. See id. Informal advice does not provide similar protection. See id.
Because you seek advice regarding specific actions that you may take in the future, the Commission is treating your question as a request for a formal opinion.
You asked the Ethics Commission to consider the following questions:
As an employee of the San Francisco Unified School District responsible for contacting the Board of Supervisors and City agencies, are you subject to the disclosure and reporting requirements of the San Francisco Regulation of Lobbyists Ordinance ("Lobbyist Ordinance" or "Ordinance")? As an organization that contacts the Board of Supervisors and other City agencies, is the School District subject to the same requirements?
Summary of Advice
No. Neither you nor the School District meets the definition of a "lobbyist" as set forth in the Lobbyist Ordinance. Therefore, neither you nor the School District is required to register or file reports as a lobbyist with the San Francisco Ethics Commission.
You informed the Ethics Commission that you are employed as the new director of governmental relations for the School District, and that in this capacity, you may periodically be required to contact members of the Board of Supervisors and various city agencies. You have explained that you are an employee of the School District. You do not perform services for the District on an independent contractor basis but only in your capacity as an employee. In a telephone conversation with staff, you stated that the purpose of your contacts with City officials would be to influence various types of legislative or administrative action, e.g., City ordinances or budget processes.
A. The Lobbyist Ordinance
The Lobbyist Ordinance, San Francisco Campaign and Governmental Conduct Code § 2.100, et seq., requires individuals and entities that qualify as lobbyists to register with the Ethics Commission and to disclose periodically certain information about contacts with, and efforts to influence decisions by, City officers.
Under the Ordinance, there are three types of lobbyists: business and organization lobbyists, contract lobbyists, and expenditure lobbyists.
A business and organization lobbyist is an entity whose employees or members, as a regular part of their employment or duties, are compensated to influence local legislative or administrative action on the business or organization's behalf and have at least 25 contacts with City officers within any two consecutive calendar months. Id., § 2.105(i)(2).
A contract lobbyist is a person who contracts for economic consideration to contact City officers on behalf of another person and who either receives (or becomes entitled to receive) at least $3,200 in economic consideration within any three consecutive calendar months to influence local legislative or administrative action, or has at least 25 contacts with City officers within any two consecutive calendar months. Id., § 2.105(i)(1).
An expenditure lobbyist is a person who makes payments totaling $3,200 or more in value within any three consecutive calendar months to influence local legislative or administrative action. Id.,
Within ten days after a person or entity qualifies as a lobbyist, that person or entity must register with the Ethics Commission. Id., § 2.110(a); Ethics Commission Regulation 2.110(a)-1.
B. The School District Does Not Qualify as a Business and Organization Lobbyist
Where an individual is an employee of a business or organization whose duties include contacting City officials for the purpose of influencing local administrative or legislative action, the relevant question is whether the employer is a business and organization lobbyist subject to the reporting and disclosure requirements of the Ordinance. Thus, the preliminary question is whether the School District qualifies as a lobbyist based upon your communications with City officials to influence local legislative or administrative action on its behalf. The District may qualify as a "business and organization lobbyist" if (1) it compensates its members or employees to influence local legislative or administrative action, and (2) its members or employees make 25 contacts with City officials within a two-month period. The facts that you present indicate clearly that the District satisfies the first criterion; however, as discussed below, the District cannot satisfy the second criterion, because communications by the District's members or employees in their official capacity are exempt from the definition of "contact" under the Ordinance.
The Lobbyist Ordinance defines a "contact" as an oral or written communication "for the purpose of influencing or attempting to influence local legislative or administrative action." Id.,
§ 2.105(d). Several kinds of communications are exempt from the definition of "contact." One exception is for communications made by a "public official acting in the public official's official capacity." Id., § 2.105(d)(1)(A). A "public official" includes "an elected or appointed official or employee, or officially designated representative of the United States, the State of California, or any political subdivision thereof." Id. As an employee of the School District, which is a political subdivision of the State of California, any communications by you with City officials on the School District's behalf are exempt communications, and do not constitute "contacts" within the meaning of the Ordinance.
Because communications made by you as an employee do not qualify as "contacts," the "25 contacts" threshold can never be met. Accordingly, the School District is not a business and organization lobbyist under the Ordinance.
C. You Do Not Qualify as a Contract Lobbyist
You have explained to the Ethics Commission that you are a regular employee of the School District, not an independent contractor. As such, by definition, you are not a contract lobbyist. Because of your employee-employer relationship, and because your communications with City officials are based solely on that relationship, you do not "contract for economic consideration to contact" City officers within the meaning of the Ordinance. Therefore, you do not qualify as an individual contract lobbyist who must register and file periodic reports.
Please note that this advice applies solely to the facts you provided to the Commission. Should those facts change, particularly as to your employment relationship with the District, please feel free to contact us for further advice.
D. Neither You Nor the School District Qualifies as an Expenditure Lobbyist
As set forth above, an "expenditure lobbyist" is a person who makes payments to influence local legislative or administrative action totaling $3200 or more within three consecutive calendar months. You have informed staff that you do not make payments to influence local legislative or administrative action; you also indicate that to your knowledge, the School District does not make such payments either. If neither you nor the School District makes such payments, neither of you is an expenditure lobbyist.
Based upon the information you provided, neither you nor the School District qualifies as a lobbyist who is subject to the reporting and filing obligations of the Lobbyist Ordinance.
I hope you find this letter responsive to your inquiry. Please contact me at (415) 581-2300 if you have any additional questions.
By: Mabel Ng
Deputy Executive Director
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