HomeMy WebLinkAbout04 - Introduction of Ordinance Establishing Lobbyist Registration, Reporting and Disclosure RequirementsQ �EwPpRT
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z NEWPORT BEACH
<,FORN'P City Council Staff Report
January 28, 2020
Agenda Item No. 4
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Leilani I. Brown, City Clerk - 949-644-3005,
(brown@newportbeachca.gov
Aaron C. Harp, City Attorney - 949-644-3131,
aharp@newportbachca.gov
PREPARED BY: Aaron C, Harp, City Attorney
aharp@newportbeachca.gov
PHONE: 949-644-3131
TITLE: Ordinance No. 2020-3: Introduction of Ordinance Establishing
Lobbyist Registration, Reporting and Disclosure Requirements
ABSTRACT:
On April 9, 2019, the City Council adopted Resolution No. 2019-33 forming an Ad Hoc
Committee on Election Reform ("Committee") to determine whether the provisions of the
Newport Beach Municipal Code ("NBMC") should be modified or updated. After several
Committee meetings and two public meetings, Mayor O'Neill, Mayor Pro Tem Avery and
Council Member Brenner are recommending that the City Council adopt an ordinance
establishing lobbyist registration, reporting and disclosure requirements.
RECOMMENDATION:
a) Determine this action is exempt from the California Environmental Quality Act
("CEQA") pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines
because this action will not result in a physical change to the environment, directly or
indirectly; and
b) Introduce Ordinance No. 2020-2, An Ordinance of the City Council of the City of
Newport Beach, California, Amending Section 1.12.020, Subsection J, and Adding
Chapter 1.28 to Title 1 of the Newport Beach Municipal Code to Increase
Transparency in Government Operations and Establish Lobbyist Registration,
Reporting and Disclosure Requirements.
FUNDING REQUIREMENTS:
There is no fiscal impact related to the adoption of these ordinances.
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Introduction of Ordinance Establishing Lobbyist Registration
Reporting and Disclosure Requirements
January 28, 2020
Page 2
DISCUSSION:
On April 9, 2019, the City Council adopted Resolution No. 2019-33 forming an Ad Hoc
Committee on Election Reform ("Committee") to determine whether the provisions of the
Newport Beach Municipal Code ("NBMC") should be modified or updated. Among other
things, the Committee was asked by the City Council to analyze whether the City of
Newport Beach ("City") should enact an ordinance establishing lobbyist registration,
reporting and disclosure requirements.
After several Committee meetings, the Committee members posted proposed ordinance
language on the City website on September 16, 2019. The Committee members then
hosted a public meeting on October 14, 2019. After discussing written and oral
comments, the Committee submitted a revised proposal to the City Council for
consideration at the November 5, 2019 City Council meeting. After receiving additional
public comment at the City Council meetings on November 5 and 19, 2019, the City
Council decided another public meeting was warranted and that the proposed ordinance
should be brought back to first reading after the City received additional public input.
On January 6, 2020, Mayor O'Neill, Mayor Pro Tem Avery and Council Member Brenner,
who were the former members of the Committee, which had expired, held a public forum
to discuss the proposed ordinance. At the meeting, the public raised concerns about:
(1) the requirement to register with the Orange County Campaign Finance and Ethics
Commission rather than the City Clerk; (2) whether persons associated with businesses
should have to register if they are lobbying regarding issues related to the particular
business; (3) whether lobbyists should be required to disclose campaign contributions;
(4) whether quarterly activity reports should be filed; and (5) whether more significant
fines should be imposed for violations of the ordinance. After receiving public input, City
staff worked with the former Committee members to revise the proposed ordinance to
address many of these concerns and a copy of the revised ordinance was placed on the
City website on January 10, 2020. The proposed ordinance now provides as follows:
• Registration: All lobbyists' who engage in lobbying activities will be required
to register with the City Clerk (rather than Orange County Campaign
Finance and Ethics Commission) within ten (10) days of qualifying as a
lobbyist and within ten (10) days of the annual anniversary of the lobbyist's
initial registration, if the lobbyist continues to qualify as a lobbyist.2
A lobbyist is defined as any person who receives compensation of five hundred dollars ($500.00) or more
in consideration in any calendar month, other than reimbursement for reasonable travel expenses, for
engaging in lobbying activities. The term "lobbying activities" means influencing or attempting to influence
a City representative, by means of oral, written, or electronic communication, in regards to any legislative,
quasi-judicial or administrative action or decision to: (1) adopt an ordinance, resolution, regulation or policy;
(2) grant or deny any permit, license or other entitlement of use; (3) award of a contract or grant; or (4)
initiate, defend, appeal or take any other action related to litigation.
2 The definition of lobbyist was revised to exclude business if they are lobbying regarding issues related to
the business, as well as architects and civil engineers who are representing clients in public proceedings.
4-2
Introduction of Ordinance Establishing Lobbyist Registration
Reporting and Disclosure Requirements
January 28, 2020
Page 3
• Registration From: The lobbyist registration form will be made available on
the City Clerk's webpage and requires the lobbyist to provide: (1) the full
name, business address and telephone number of the lobbyist, the
lobbyist's employees who are engaging in lobbying activities, and the
lobbyist's clients; (2) the specific matter for which they will be providing
lobbying services; and (3) the date and amount of all campaign
contributions3 to any candidate or candidate's controlled committee that the
lobbyist has made within the past twelve (12) months. In addition, the
lobbyist would be required to amend the registration form within ten (10)
days if there is a change in this information. To encourage compliance with
this ordinance and to help the City accurately determine the appropriate
cost, no registration fee would be required the first year.
• Identification of Clients: Lobbyists would be required to identify their clients
when appearing at public meetings, as well as when contacting City
representatives.
• Prohibited Acts: Lobbyists would be prohibited from intentionally deceiving
City representatives, representing they can control the vote or action of a
City representative, or doing anything to place a City representative under
personal obligation to the lobbyist or the lobbyist's client.
• Penalties: Violations of the ordinance would result in the City Clerk posting
on the City's website the name of the lobbyists who have paid fines for
violating the ordinance. Also, lobbyists who unintentionally violate the
ordinance would pay fines of up to fifty dollars ($50.00) for the first violation;
five hundred dollars ($500.00) for the second violation within one year from
the date of a prior violation; and one thousand dollars ($1,000.00) for a third
violation, or any subsequent violation, within one year from the date of the
prior violations.4 In addition, any person who knowingly violates the
ordinance would be subject to civil penalties of up to five thousand dollars
($5,000.00) for each violation.
The former Committee members are unanimously recommending that the City Council
move forward with adoption of this proposed ordinance. A redline showing the changes
since November 2019 and a clean copy of the proposed ordinance are attached hereto
as Attachments A and B.
3 The requirement to disclose campaign contributions was added at the request of community members.
4 The proposed fines for a second violation were increased from one hundred dollars ($100.00) to five
hundred dollars ($500.00) and from two hundred dollars ($200.00) to one thousand dollars ($1,000) for a
third violation.
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Introduction of Ordinance Establishing Lobbyist Registration
Reporting and Disclosure Requirements
January 28, 2020
Page 4
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has
no potential for resulting in physical change to the environment, directly or indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A — Redline of Chapter 1.28 of Title 1 of the Newport Beach Municipal Code
Attachment B — Ordinance No. 2020-3
ATTACHMENT A
Chapter 1.28
LOBBYIST REGISTRATION AND REPORTING
Sections:
1.28.010 Purpose and Findings.
1.28.020 Definitions.
1.28.030 Exemptions.
1.28.040 Lobbyist Registration and Annual Reporting.
1.28.050 Identification of Clients.
1.28.060 Prohibited cts.
1.28.070 Enforcement.
1.28.010 Purpose and Findings.
The City Council of the City of Newport Beach finds and declares as follows:
A. City government functions to serve the needs of all citizens.
B. The citizens, staff and City Council of the City ought to know the identity of
persons engaged in compensated lobbying activities aimed at influencing decisions by
City government and which interests such persons represent.
C. Public disclosure of the financing of lobbyists and those who employ their
services helps maintain citizen confidence in the integrity of City government.
D. It is in the public interest to ensure that lobbyists do not misrepresent facts, their
positions, or attempt to deceive a City representative through false communications; do
not place a City representative under personal obligation to themselves or their clients;
and do not represent that they can control the actions of any City representative.
E. It is in the public interest to adopt this chapter to ensure adequate and effective
disclosure of information about efforts to lobby City government.
1.28.020 Definitions.
For purposes of this chapter, the following definitions shall apply:
A. "City representative" means the Mayor, Mayor Pro Tem, members of the City
Council, members of all City Boards, Commissions and Committees, the City Manager,
Assistant City Manager, Department Directors, Deputy Department Directors, the Police
GID
Redline of Chapter 1.28
Page 2 of 6
Chief, the Assistant Police Chief, the Fire Chief, the Assistant Fire Chief, the City
Attorney, Assistant City Attorney, the City Clerk, and the Zoning Administrator.
SB. "Influence" and "Influencing" means contacting, either directly or
indirectly, for the purpose of promoting, supporting, modifying, opposing, causing the
delay or abandonment of conduct, or otherwise intentionally affecting the official actions
of a City representative, by any means, including, but not limited to providing, preparing,
processing, or submitting information, incentives, statistics, studies or analyses.
Cs. "Lobbyist" means anyep rsoniRdividual who receives compensation of five
hundred dollars ($500.00) or more in consideration in any calendar month, other than
reimbursement for reasonable travel expenses, for engaging in lobbying activities
who is employed by his or her employer and reGeives Gempensation of five hurldred
rin�j($500 nn) or more M GeMpensatiOn in any GaTondar mrin her thaR
reombursemeRt for reasonable travel experlses, for engaging OR lobbyiRg . A
lobbyist includes any person that engages in lobbying activities on behalf of another
person pursuant to any form of contingency compensation agreement.
D€. "Lobbying activities" means influencing or attempting to influence a City
representative, by means of oral, written, or electronic communication, in regards to any
legislative, quasi-judicial or administrative action or decision to: (1) adopt an ordinance,
resolution, regulation or policy; (2) grant or deny any permit, license or other entitlement
of use; (3) award of a contract or grant; or (4) decide to initiate, defend, appeal or take
any other action related to litigation.
GE. "Person" means any individual and any form of business entity including, but not
limited to, a domestic or foreign corporation, association, syndicate, joint stock
corporation, partnership of every kind, club, business or trust, society, or limited liability
company.
1.28.030 Exemptions.
The following persons are exempt from the requirements of this chapter unless
otherwise specified:
MO
Redline of Chapter 1.28
Page 3 of 6
A. A public official or public employee acting in his or her official capacity.
B. An attorney, licensed to practice law in the state of California, with regard to his
or her representation of a party or potential party to pending or actual litigation, or to a
pending or actual administrative enforcement proceeding, brought by or against the
City, or City agent, officer, or employee.
C. A person who owns, publishes or is employed by a newspaper, radio station,
television station or other media outlet that is engaged in the business of broadcasting
of news items, editorials, or commentary, which directly or indirectly urges governmental
action.
D. A person hired by the City, to the extent the lobbying activities directly relate to
the work the person was hired to perform for the City.
E. A person who is communicating with a City representative concerning a
ministerial action.
F. A person who meets with a City representative solely to lodge "whistleblower"
complaints relating to improper governmental activity such as gross mismanagement,
waste of funds, an abuse of authority, or a substantial and specific danger to public
health or safety.
G. A person who meets with the City Manager, City Attorney, City Clerk, Assistant
City Manager, Assistant City Attorney, Department Directors, Deputy Department
Directors, the Police Chief, the Assistant Police Chief, the Fire Chief, or the Assistant
Fire Chief, regarding any claim or litigation matter, the resolution of any dispute, or
potential dispute, or negotiation of any agreement where the City will be a party to the
agreement.
H. An expert witness retained to provide opinions or testimony at an official City
proceeding.
Any person who is not compensated for engaging in lobbying activities.
J. Any employee, officer, or board member of an association for a residential
common interest development of five or more dwelling units, which is wholly located
within the City, when addressing, in his or her capacity as an employee, officer, or board
member of such association, an issue impacting the association or its members.
HN
Redline of Chapter 1.28
Page 4 of 6
K. Any regular employee, officer, or board member of a business entity when
addressing, in his or her capacity as an employee, officer, or board member of such
business entity, an issue impacting the business entity.
L. Any state licensed architect or engineer whose attempts to influence an
legislative, quasi-judicial or administrative action or decision are limited to:
1. Publicly appearing at a public meeting, public hearing, or other official
proceeding open to the public; or
2. Preparing or submitting documents or writings in connection with the
action or decision for use at a public meeting, public hearing, or other official proceeding
open to the public.
1.28.040 Lobbyist Registration and Annual Reporting.
A. Within ten (10) days of qualifying as a lobbyist and within ten (10) days of the
annual anniversary of the lobbyist's initial registration, if the lobbyist continues to qualify
as a lobbyist, Aany lobbyist who engages in lobbying activities shall
register with the City Clerk^mm rRbar.
Pavina all filina fees, which shall be set by resolution of the Citv Council
and
2. Filing a lobbying registration form, as provided by the City Clerk and made
available on the City Clerk' s webpage, which shall include, at a minimum, a
written statement containing the following information, certified as true under
penalty of perjury
a. The full name, business address and telephone number of the
lobbyist, and, if the lobbyist is a business entity or other organization, the
full name, business address and telephone number of each person
employed by or otherwise associated with the business entity or
organization who will be engaging in lobbying activities;
b. The full name, business address and telephone number of the
Person by whom the lobbyist has been employed, retained or engaged by
to perform lobbying activities;
Redline of Chapter 1.28
Page 5 of 6
C. The legislative, quasi-judicial or administrative action or decision
with respect to which the lobbyist has been employed, retained or
engaged; and
d. The date and amount of all campaign contributions to any
candidate or candidate's controlled committee that the lobbyist has made
within the past twelve (12) months., le the ec8E;E;a yGOMplefed
registration form supplied by the Corn Sinn a id nasi all filing foes
reg . 1 by the County of Orarnge•
1 Within ten (10) days of qualifying
as a lobbyist; enrl
7 WithiR te n (10) clays of the aRR
al enniVeFGarY of the
lebbyist's and/or
lebbyiRg e
e
B. An amendment to the registration form must be completed and filed by the
lobbyist andler lebbying firm with the ^r rnossmenCity Clerk within ten (10) days if the
lobbyist andler lobbying firm knows, or should have known, of any change in the
accuracy of the information reported on the registration form.
1.28.050 Identification of Clients.
A To extent tene,ise permitted by lawUnless otherwise excused by law, each
lobbyist or lobbying firm who appears before the City Council or City board, commission
or committee to engage in lobbying activities shall identify himself or herself and the
client(s) he or she represents upon addressing the body.
B. Any lobbyist or lebbying form who makes an oral lobbying contact with a City
representative shall, at the time of the initial lobbying contact with each City
representative, identify himself or herself as a registered lobbyist and identify the
client on whose behalf the lobbying contact is made.
C. Any lobbyist er lebbying firm who makes an initial written lobbying contact
(including an electronic communication) with a City representative and/or City employee
shall identify the client(s) on whose behalf the lobbying contact is made and identify
himself or herself as a registered lobbyist.
I •
Redline of Chapter 1.28
Page 6 of 6
1.28.060 Prohibited Acts.
A. Do any act, or refrain from doing any act, with the express purpose and intent of
placing any City representative under personal obligation to such lobbyist er lebbyiRg
4rmor the lobbyist's client.
B. Intentionally Odeceive any City representative with regard to any material fact
pertinent to any pending or proposed legislative, administrative, or quasi-judicial action.
C. Represent, either directly or indirectly, orally or in writing, that that p8FS,,n he or
she can control or obtain the vote or action of any City representative.
1.28.070 Enforcement.
A. Negligent and unintentional violations of this chapter shall be punishable in
accordance with Chapter 1.05 of this Code. Administrative fines for negligent and
unintentional violations of this chapter shall be assessed in the following amounts:
1. A fine not exceeding fifty dollars ($50.00) for a first violation;
2. A fine not exceeding enefive hundred dollars ($51-00.00) for a second
violation within one year from the date of a prior violation; and
3. A fine not exceeding one thousandtwo hURdred dollars ($1,0200.00) for a
third violation, or any subsequent violation, within one year from the date of the
prior violations.
The City Clerk shall post on the City website and make available to the public a list of all
lobbyist andi F lebb ling firms who have paid fines for violating the provisions of this
chapter within the previous two (2) years.
B. Any person who knowingly and intentionally violates the provisions of this
chapter shall be liable in a civil action brought by the Office of the City Attorney. Any
violation of the provisions of this chapter may result in a civil penalty no greater than five
thousand dollars ($5,000.00) for each violation.
4-10
ATTACHMENT B
ORDINANCE NO. 2020-3
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, AMENDING
SECTION 1.12.020 SUBSECTION J, AND ADDING
CHAPTER 1.28 TO TITLE 1 OF THE NEWPORT BEACH
MUNICIPAL CODE TO INCREASE TRANSPARENCY IN
GOVERNMENT OPERATIONS AND ESTABLISH
LOBBYIST REGISTRATION, REPORTING AND
DISCLOSURE REQUIREMENTS
WHEREAS, all actions and deliberations by public agencies should, to the
greatest extent possible, be conducted openly;
WHEREAS, an informed public and transparency in decision-making is essential
to democracy;
WHEREAS, on April 9, 2019, the City Council adopted Resolution No. 2019-33
forming an Ad Hoc Committee on Election Reform ("Committee") to determine whether
the provisions of the Newport Beach Municipal Code ("NBMC") should be modified or
updated,
WHEREAS, the Committee has recommended the City Council amend Section
1.12.020 subsection J, and add Chapter 1.28 to Title 1 of the NBMC to increase
transparency in government operations by establishing lobbyist registration, reporting
and disclosure requirements;
WHEREAS, it is the goal and intent of this ordinance, to ensure that citizens of
Newport Beach have timely access to information and an opportunity to address the
various legislative bodies of the City prior to governmental decisions being made;
WHEREAS, the citizens, staff and City Council of the City ought to know the
identity of persons engaged in compensated lobbying activities aimed at influencing
decisions by City government and which interests such persons represent; and
WHEREAS, public disclosure of the financing of lobbyists and those who employ
their services helps maintain citizen confidence in the integrity of City government.
NOW, THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
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Ordinance No. 2020 -
Page 2 of 8
Section 1: Section 1.12.020 subsection J of Chapter 1.12 of Title 1 of the
Newport Beach Municipal Code is hereby amended to add Subsection J to read as
follows:
J. The City Clerk shall have the power to issue administrative citations for
violations of Chapter 1.28.
Section 2: Chapter 1.28 is hereby added to Title 1 of the Newport Beach
Municipal Code to read as follows:
Chapter 1.28
LOBBYIST REGISTRATION AND REPORTING
Sections:
1.28.010
Purpose and Findings.
1.28.020
Definitions.
1.28.030
Exemptions.
1.28.040
Lobbyist Registration and Annual Reporting.
1.28.050
Identification of Clients.
1.28.060
Prohibited Acts.
1.28.070
Enforcement.
1.28.010 Purpose and Findings.
The City Council of the City of Newport Beach finds and declares as follows:
A. City government functions to serve the needs of all citizens.
B. The citizens, staff and City Council of the City ought to know the identity of
persons engaged in compensated lobbying activities aimed at influencing decisions by
City government and which interests such persons represent.
C. Public disclosure of the financing of lobbyists and those who employ their
services helps maintain citizen confidence in the integrity of City government.
D. It is in the public interest to ensure that lobbyists do not misrepresent facts, their
positions, or attempt to deceive a City representative through false communications; do
not place a City representative under personal obligation to themselves or their clients;
and do not represent that they can control the actions of any City representative.
E. It is in the public interest to adopt this chapter to ensure adequate and effective
disclosure of information about efforts to lobby City government.
4-12
Ordinance No. 2020 -
Page 3 of 8
1.28.020 Definitions.
For purposes of this chapter, the following definitions shall apply:
A. "City representative" means the Mayor, Mayor Pro Tem, members of the City
Council, members of all City Boards, Commissions and Committees, the City Manager,
Assistant City Manager, Department Directors, Deputy Department Directors, the Police
Chief, the Assistant Police Chief, the Fire Chief, the Assistant Fire Chief, the City
Attorney, Assistant City Attorney, the City Clerk, and the Zoning Administrator.
B. "Influence" and "Influencing" means contacting, either directly or indirectly, for
the purpose of promoting, supporting, modifying, opposing, causing the delay or
abandonment of conduct, or otherwise intentionally affecting the official actions of a City
representative, by any means, including, but not limited to providing, preparing,
processing, or submitting information, incentives, statistics, studies or analyses.
C. "Lobbyist' means any person who receives compensation of five hundred dollars
($500.00) or more in consideration in any calendar month, other than reimbursement for
reasonable travel expenses, for engaging in lobbying activities. A lobbyist includes any
person that engages in lobbying activities on behalf of another person pursuant to any
form of contingency compensation agreement.
D. "Lobbying activities" means influencing or attempting to influence a City
representative, by means of oral, written, or electronic communication, in regards to any
legislative, quasi-judicial or administrative action or decision to: (1) adopt an ordinance,
resolution, regulation or policy; (2) grant or deny any permit, license or other entitlement
of use; (3) award of a contract or grant; or (4) decide to initiate, defend, appeal or take
any other action related to litigation.
E. "Person" means any individual and any form of business entity including, but not
limited to, a domestic or foreign corporation, association, syndicate, joint stock
corporation, partnership of every kind, club, business or trust, society, or limited liability
company.
1.28.030 Exemptions.
The following persons are exempt from the requirements of this chapter unless
otherwise specified:
A. A public official or public employee acting in his or her official capacity.
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Ordinance No. 2020 -
Page 4 of 8
B. An attorney, licensed to practice law in the state of California, with regard to his
or her representation of a party or potential parry to pending or actual litigation, or to a
pending or actual administrative enforcement proceeding, brought by or against the
City, or City agent, officer, or employee.
C. A person who owns, publishes or is employed by a newspaper, radio station,
television station or other media outlet that is engaged in the business of broadcasting
of news items, editorials, or commentary, which directly or indirectly urges governmental
action.
D. A person hired by the City, to the extent the lobbying activities directly relate to
the work the person was hired to perform for the City.
E. A person who is communicating with a City representative concerning a
ministerial action.
F. A person who meets with a City representative solely to lodge "whistleblower"
complaints relating to improper governmental activity such as gross mismanagement,
waste of funds, an abuse of authority, or a substantial and specific danger to public
health or safety.
G. A person who meets with the City Manager, City Attorney, City Clerk, Assistant
City Manager, Assistant City Attorney, Department Directors, Deputy Department
Directors, the Police Chief, the Assistant Police Chief, the Fire Chief, or the Assistant
Fire Chief, regarding any claim or litigation matter, the resolution of any dispute, or
potential dispute, or negotiation of any agreement where the City will be a party to the
agreement.
H. An expert witness retained to provide opinions or testimony at an official City
proceeding.
Any person who is not compensated for engaging in lobbying activities.
J. Any employee, officer, or board member of an association for a residential
common interest development of five or more dwelling units, which is wholly located
within the City, when addressing, in his or her capacity as an employee, officer, or board
member of such association, an issue impacting the association or its members.
K. Any regular employee, officer, or board member of a business entity when
addressing, in his or her capacity as an employee, officer, or board member of such
business entity, an issue impacting the business entity.
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Ordinance No. 2020 -
Page 5 of 8
L. Any state licensed architect or engineer whose attempts to influence any
legislative, quasi-judicial or administrative action or decision are limited to:
1. Publicly appearing at a public meeting, public hearing, or other official
proceeding open to the public, or
2. Preparing or submitting documents or writings in connection with the
action or decision for use at a public meeting, public hearing, or other official proceeding
open to the public.
1.28.040 Lobbyist Registration and Annual Reporting.
A. Within ten (10) days of qualifying as a lobbyist and within ten (10) days of the
annual anniversary of the lobbyist's initial registration, if the lobbyist continues to qualify
as a lobbyist, any lobbyist who engages in lobbying activities shall register with the City
Clerk by:
1. Paying all filing fees, which shall be set by resolution of the City Council;
and
2. Filing a lobbying registration form, as provided by the City Clerk and made
available on the City Clerk's webpage, which shall include, at a minimum, a
written statement containing the following information, certified as true under
penalty of perjury:
a. The full name, business address and telephone number of the
lobbyist, and, if the lobbyist is a business entity or other organization, the
full name, business address and telephone number of each person
employed by or otherwise associated with the business entity or
organization who will be engaging in lobbying activities;
b. The full name, business address and telephone number of the
person by whom the lobbyist has been employed, retained or engaged by
to perform lobbying activities;
C. The legislative, quasi-judicial or administrative action or decision
with respect to which the lobbyist has been employed, retained or
engaged; and
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Ordinance No. 2020 -
Page 6 of 8
d. The date and amount of all campaign contributions to any
candidate or candidate's controlled committee that the lobbyist has made
within the past twelve (12) months.
B. An amendment to the registration form must be completed and filed by the
lobbyist with the City Clerk within ten (10) days if the lobbyist knows, or should have
known, of any change in the accuracy of the information reported on the registration
form.
1.28.050 Identification of Clients.
A. Unless otherwise excused by law, each lobbyist who appears before the City
Council or City board, commission or committee to engage in lobbying activities shall
identify himself or herself and the client(s) he or she represents upon addressing the
body.
B. Any lobbyist who makes an oral lobbying contact with a City representative shall,
at the time of the initial lobbying contact with each City representative, identify himself or
herself as a registered lobbyist and identify the client(s) on whose behalf the lobbying
contact is made.
C. Any lobbyist who makes an initial written lobbying contact (including an electronic
communication) with a City representative and/or City employee shall identify the
client(s) on whose behalf the lobbying contact is made and identify himself or herself as
a registered lobbyist.
1.28.060 Prohibited Acts.
No lobbyist shall:
A. Do any act, or refrain from doing any act, with the express purpose and intent of
placing any City representative under personal obligation to such lobbyist or the
lobbyist's client.
B. Intentionally deceive any City representative with regard to any material fact
pertinent to any pending or proposed legislative, administrative, or quasi-judicial action.
C. Represent, either directly or indirectly, orally or in writing, that he or she can
control or obtain the vote or action of any City representative.
4-16
Ordinance No. 2020 -
Page 7 of 8
1.28.070 Enforcement.
A. Negligent and unintentional violations of this chapter shall be punishable in
accordance with Chapter 1.05 of this Code. Administrative fines for negligent and
unintentional violations of this chapter shall be assessed in the following amounts:
1. A fine not exceeding fifty dollars ($50.00) for a first violation;
2. A fine not exceeding five hundred dollars ($500.00) for a second violation
within one year from the date of a prior violation, and
3. A fine not exceeding one thousand dollars ($1,000.00) for a third violation,
or any subsequent violation, within one year from the date of the prior violations.
The City Clerk shall post on the City website and make available to the public a list of all
lobbyist who have paid fines for violating the provisions of this chapter within the
previous two (2) years.
B. Any person who knowingly and intentionally violates the provisions of this
chapter shall be liable in a civil action brought by the Office of the City Attorney. Any
violation of the provisions of this chapter may result in a civil penalty no greater than five
thousand dollars ($5,000.00) for each violation.
Section 3: The recitals provided in this ordinance are true and correct and are
incorporated herein by this reference.
Section 4: If any section, subsection, sentence, clause or phrase of this
ordinance is for any reason held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this ordinance. The
City Council hereby declares that it would have passed this ordinance and each section,
subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses or phrases be declared invalid or
unconstitutional.
Section 5: The City Council finds the introduction and adoption of this
ordinance is not subject to the California Environmental Quality Act ("CEQA") pursuant
to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable
indirect physical change in the environment) and 15060(c)(3) (the activity is not a
project as defined in Section 15378) of the CEQA Guidelines, California Code of
Regulations, Title 14, Division 6, Chapter 3, because it has no potential for resulting in
physical change to the environment, directly or indirectly.
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Ordinance No. 2020 -
Page 8 of 8
Section 6: Except as expressly modified in this ordinance, all other sections,
subsections, terms, clauses and phrases set forth in the Newport Beach Municipal Code
shall remain unchanged and shall be in full force and effect.
Section 7: The Mayor shall sign and the City Clerk shall attest to the passage
of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be
published pursuant to City Charter Section 414. This ordinance shall take effect thirty
(30) calendar days after its adoption.
This ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach held on the 28th day of January, 2020, and adopted on the 11th day
of February, 2020, by the following vote, to -wit -
AYES:
NAYS:
ABSENT:
WILL O'NEILL, MAYOR
►_raA*30
LEILANI I. BROWN, CITY CLERK
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
C-
-
AAR N C. HARP, CI ATTORNEY
4-18
ATTACHMENT C
January 22, 2020, Lobbyist Ordinance Comments
These comments on "LobbyistOrdinanceclean 2020-01-10.pdf' are from:
Jim Mosher ( iimmosherCcDyahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229)
A quick review of the revised Lobbyist Ordinance that has beenop sted suggests it may still need
some work.
Some problems I notice:
1. The new requirement for reporting campaign contributions is useful, especially since the
City's online records are not searchable by donor. However, I think the requirement needs
to be confined to reporting contributions to City candidates. (In my opinion, a ban on
making contributions for the benefit of persons one lobbies would be even better)
2. Unlike with many municipal lobbying ordinances, I see no clear mechanism for terminating
lobbyist status.
3. Likewise, I see no clear requirement for how or for how long the information collected will
be made publicly accessible. Including something like the promises in existing NBMC
Section 1.26.040 would be reassuring.
4. Although this seems a problem shared with many municipal lobbying ordinances, the
definition of what triggers the registration requirement, and when, is, on reflection,
extremely ambiguous.
For example, saying you need to register within 10 days of becoming a person who has
received $500 or more in "any" calendar month for lobbying activities may at first sound
very clear, but it does not, among other things, explain with precision when the 10 days
starts (at the end of the first month in which a $500+ payment is received?) or which prior
or future months are relevant when one considers if one still "qualifies" and needs to re-
register on the anniversary date. Nor does it explain if, once registered, a lobbyist forever
after has to comply with the self -identification requirements of proposed Section 1.28.050,
or only in those months in which $500+ will be received (which would seem to require
some clairvoyance on the part of the lobbyist).
Of the many California municipal lobbying ordinances that could be reviewed for
comparison, Beverly Hills (Title 1, Chapter 9, Article 1) seems instructive to me. Lobbyist
status there is triggered not by physical receipt of money on any particular date, but rather
by the start of the paid lobbying activity, or by receipt of an engagement letter, whichever
is sooner, with the threshold compensation — received, in-kind or merely anticipated --
being a very nominal $50 (and with no particular time period specified).
It might be noted that Beverly Hills has a fairly clean and accessible website for displaying
the information it collects. And it enforces its regulations by potentially banning violators
for up to four years — with one lobbyist currently on an initial 6 -month suspension.
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January 22, 2020, lobbyist ordinance comments - Jim Mosher Page 2 of 4
Some specific possible changes follow:
Fifth Whereas:
"WHEREAS, it is the goal and intent of this ordinance, to ensure that ^it�of Newport Beach
decision makers retain haeme timely access to information while improving the public's
knowledge of who that information is coming from
various legislative bodies of the City prier to governmental deGisions being made;"
Alternatively, I would delete this fifth Whereas entirely.
As currently written it does not seem related to the ordinance in its current form. While
public access to previously unavailable information is one of its goals, the "timeliness" of
that access does not seem a major focus. And it is hard to see how the ordinance is in
any way related to ensuring citizens "an opportunity to address the various legislative
bodies of the City prior to governmental decisions being made." Far from enhancing any
citizen's opportunity, it restricts some. In short, the proposed statement of intent makes
the ordinance that follows, if read with those expectations, quite baffling.
Last Whereas:
"WHEREAS, public disclosure of the financing o paid lobbyists and those who employ their
services helps maintain citizen confidence in the integrity of City government."
As written, I am expecting disclosure of how lobbyists are financed and how those who
employ them are financed. But the ordinance as written does not seem focused on
disclosing any details of lobbyist financing, beyond its mere existence. And, unless
employed by a lobbying firm, it does nothing to disclose how "those who employ their
services" are financed.
1.28.020 Definitions:
Insert something like this and renumber the subsections that follow:
"A. "Campaign contribution" means a contribution, in cash or kind, to a candidate for a
City elective office (namely, the City Council), or the candidate's controlled committee."
I assume this was the intent, but as written the ordinance (proposed Subsection
1.28.040.A.2.d) requires disclosure of "The date and amount of all campaign contributions
to any candidate or candidate's controlled committee that the lobbyist has made within the
past twelve (12) months." Such a sweeping requirement to disclose contributions to
candidates, possibly running for office in other states or even countries, although it may
be interesting to the public, would likely be found unconstitutional. It would normally need
to be limited to candidates for whom contributions raise a possible perception of corrupt
purpose.
Note: In the above revision, I was tempted to say "City of Newport Beach elective office,"
however, the ordinance as drafted makes many references to "City" and City officers
without explaining what city it refers to. I assume the ordinance is relying on the definition
of "City" in existing NBMC Sec. 1.08.120. However, if so, I am not sure why proposed
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January 22, 2020, lobbyist ordinance comments - Jim Mosher Page 3 of 4
Subsection 1.28.020.E defines "Person," because "Person" is already defined (somewhat
differently) in existing NBMC Sec. 1.08.120.
Revise "Lobbyist" definition (after re -numbering) to include something like:
"C. "Lobbyist" means any person who receives compensation of five hundred dollars ($500.00) or
more in consideration in any calendar month, other than reimbursement for reasonable travel
expenses, for engaging in lobbying activities. A lobbyist includes any person that engages in
lobbying activities on behalf of another person pursuant to any form of contingency compensation
agreement. In the event of such an agreement, the maximum possible compensation is
regarded as having been received at the time of the agreement, whether that amount is
subsequently received, or not."
Note: This suggestion attempts to clarify how contingent compensation is counted with
reference to the $500 per calendar month threshold, which seems to trigger.
It does not address the more fundamental ambiguities of the definition, including:
1. Is a person only a lobbyist during months in which they receive compensation?
2. What if the compensation is not contingent, but is agreed to be paid at some future
date? Is that person not a lobbyist?
3. Is the $500 intended to refer to compensation received from a single client or from
all clients in the month?
I think it would be wise to define lobbyists as persons engaged in compensated lobbying
without attempting to specify either the amount or details of how the compensation is
received.
As to contingent compensation agreements, I would much prefer to see a ban (adding
them to proposed "Section 1.28.060 Prohibited Acts"), as many other cities have. Despite
its obvious ethical issues, compensation contingent on success has been justified in legal
representation on the theory that it gives voice to plaintiffs who would otherwise lack the
wherewithal to sue a transgressor. In the event of success, the fees, in effect, become
part of the punishment levied on the transgressor.
The applicability of that rationale to compensation -contingent -on -success lobbying
contracts is far from clear to me. They would seem to involve all the bad possibilities
(proposals advanced on behalf of indifferent clients out of pure speculation by advocates
motivated to deceive for personal gain) with none of the good (encouraging advocates to
seek justice on behalf of indigent clients with no certainty of personal reward).
The only possibility I can see is where someone is being hassled by the City and wants to
sign a contingent agreement for someone to try to reverse the decision. Even though they
will have to pay the lobbyist if they win, they might be inspired to contest something they
otherwise would not, and the cost might be less than if they did nothing.
1.28.030 Exemptions
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January 22, 2020, lobbyist ordinance comments - Jim Mosher Page 4 of 4
"The following persons are exempt from the requirements of this chapter unless otherwise
specified:"
I could be missing something, but this strikes me as surplusage, and I would delete it.
While some may find comfort in seeing this stated, every word in an ordinance is
supposed to add meaning to it.
"Exception I" adds nothing I can detect to the previous definition of "lobbyist" (which
excludes not only those who are not compensated, but all those who receive less than
$500 in a calendar month), nor does not it create any "exception" to that definition that I
can express.
Its presence does open speculation as to whether there are persons (possibly in the $1 to
$499 per month range?) who do not qualify as lobbyists yet somehow are subject to the
chapter.
1.28.070 Enforcement
This contains a typo that should be corrected:
"The City Clerk shall post on the City website and make available to the public a list of all
lebbyi-st lobbyists who have paid fines for violating the provisions of this chapter within the
previous two (2) years."
4-22