August 12, 2003
Sutton & Partners, PC
731 Sansome Street 5th Floor
San Francisco, CA 94111
Dear Mr. Sutton:
You requested the Ethics Commission’s advice regarding the registration and filing obligations, under the Lobbyist Ordinance, S.F. Campaign and Governmental Conduct Code sections 2.100 et seq., of certain entities that provide consulting services.
The Ethics Commission provides two kinds of advice: written formal opinions and informal advice. S.F. Charter § 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. Id. Informal advice does not provide similar protection. Id.
Because your letter seeks general advice and does not pertain to particular persons or events, the Commission is treating your letter as a request for informal advice.
Questions Presented and Discussion
1. Whether firms that are retained to do preliminary research and strategy are required to register as lobbyists.
Your first question involves whether entities that have been retained by clients to provide preliminary research or strategy regarding a project for which lobbying may later be involved must register under the Lobbyist Ordinance. You provide the example of a potential City contractor that hires a consulting firm to help it decide whether it should respond to a Request for Proposal (RFP) for a City contract. In your hypothetical, the consulting firm obtains a copy of the RFP, researches how the City obtained similar services in the past, and gathers information from the relevant City department about the bidding process. In addition, at some point in the future, the consulting firm may contact a City officer to garner his or her support for the client’s bid, although the timing of this contact is not known or fully contemplated when the client first hires the consulting firm. You add that the client may decide not to pursue the RFP, in which case the consulting firm will never contact a City official on the client’s behalf.
Under the Lobbyist Ordinance, a contract lobbyist is any person who contracts for economic consideration to contact any officer of the City on behalf of any other person, and who
(1) receives or becomes entitled to receive at least $3,200 in economic consideration within any three consecutive calendar months in exchange for lobbyist services; or (2) has at least 25 separate contacts with City officers within any two consecutive calendar months. S.F. Campaign and Governmental Conduct Code § 2.105(i)(1)(A). Lobbyist services are services rendered to influence or attempt to influence local legislative or administrative action, including but not limited to contacts with officers of the City. Id., § 2.105(j).
A person who does not contract for economic consideration to contact a City officer on behalf of another person does not meet the threshold definition of contract lobbyist under the Ordinance. In adopting the Ordinance, the Board of Supervisors sought to impose reasonable registration and disclosure requirements on lobbyists in order to create a public record about lobbyists’ efforts to influence decision-making regarding local legislative and administrative matters. Id., § 1.200. It follows that when no effort is made to influence decision-making regarding local legislative or administrative matters, the registration and reporting requirements of the Ordinance are not implicated. Thus, consulting firms that are retained to do preliminary research and strategy and that do not contact City officers on behalf of their clients are not required to register under the Ordinance. However, if the consulting firms actually contract or begin to engage in attempts to influence local legislative or administrative action, they must register as lobbyists once they meet the thresholds set forth in the Ordinance.
2. Whether an existing contract lobbyist must register a client for whom it is conducting preliminary research and strategy.
Your next question concerns the responsibilities of an entity that has already registered as a contract lobbyist and subsequently engages in preliminary research and strategy for a new client. You asked whether the lobbyist must file a client authorization statement on behalf of a new client who hires the lobbyist to conduct a preliminary research project or provide strategy as outlined in the hypothetical situation above. Under the Ordinance, if the lobbyist is retained by a client after the date of initial registration, the lobbyist must file a client authorization statement before providing any lobbyist services to the client and before receiving any economic consideration from the client in exchange for lobbyist services, and in any event no later than 15 days from being retained by the client. Id., § 2.110(f).
As with your first hypothetical, the issue is whether the entity has engaged in lobbyist services within the meaning of the Ordinance. If the lobbyist never undertakes any action to influence or attempt to influence local legislative or administrative action on behalf of the new client, the lobbyist is not engaged in providing lobbyist services for the client. Id., § 2.105(j). Accordingly, the lobbyist is not required to file a client authorization form regarding the new client. As soon as the nature of the relationship changes such that the lobbyist will be required to engage in lobbyist services for the new client, the lobbyist must register the client within the requisite time period for registering new clients.
I hope that his information is helpful. Please feel free to contact Deputy Executive Director Mabel Ng if you have further questions.
By: Mabel Ng
Deputy Executive Director
Under certain circumstances, contacts with individuals other than City officers are considered contacts with City officers for purposes of the Ordinance. If a lobbyist communicates with City staff for the purpose of influencing local legislative or administrative action, and the communication is intended or reasonably could be expected to be conveyed to a City officer, the communication is deemed to be a contact with the officer. See City Attorney’s letter to John Taylor, dated November 15, 1993.