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SR 03-08-2022 7B City Council Report City Council Meeting: March 8, 2022 Agenda Item: 7.B 1 of 9 To: Mayor and City Council From: Joseph Lawrence, Interim City Attorney, City Attorney's Office, Administration Subject: Introduction and First Reading of an Ordinance Amending Santa Monica Municipal Code Sections 4.85.010 and 4.85.015 Related to Lobbying Activity and Participation of Lobbyists on City of Santa Monica Boards and Commissions Recommended Action Staff recommends that Council introduce for first reading the attached ordinance, which does the following: 1. Amends Santa Monica Municipal Code Section 4.85.010 to define “lobbying activity”; 2. Creates Section 4.85.015 to prohibit any individual from serving on a City board, commission, task force, or advisory board if that individual is currently registered as a lobbyist in the City of Santa Monica or registered as a lobbyist in the two years prior to appointment; and, 3. Provides certain other options concerning when lobbying activities occur. Executive Summary At its July 13, 2021 meeting, Council directed staff to return with a proposed ordinance, similar to that in place in Beverly Hills, and in particular that: (1) more precisely defines what constitutes a lobbyist/legislative advocate; (2) precludes any individual who in the prior two years has been acting as a lobbyist/legislative advocate from being appointed to a board, commission, or task force; and (3) precludes any member of a board, commission, or task force from simultaneously acting as a lobbyist/legislative advocate. Based on Council’s direction staff reviewed lobbying ordinances in similar jurisdictions and undertook a legal review on various lobbying laws in effect throughout the state. Staff recommends adding a definition of ‘lobbying activity’ to Section 4.85.010 that will 7.B Packet Pg. 1713 2 of 9 further describe actions by an individual that constitute lobbying. Staff also recommends creating Section 4.85.015 to prohibit any individual from serving on a City board, commission, task force, or advisory board if that individual is currently registered as a lobbyist in the City of Santa Monica or registered as a lobbyist in the two years prior to appointment. Background In 2016, Council adopted Ordinance No. 2511 (CCS). Before it was adopted, the ordinance was debated at several Council meetings over two years and many months in 2015 and 2016. It underwent several revisions before being adopted. Some versions of the law were deemed too elaborate and complex; other versions were considered too simple and threadbare. The version of the law that was finally adopted was a compromise and modelled after one in effect in the City of West Hollywood. It was viewed then as perhaps a first step, a work in progress. The City’s current law requires lobbyists to register with the City Clerk’s office. All lobbyists must register no later than ten days after qualifying as a lo bbyist, and any changes to the registration information must be reported within ten days of the change. The ordinance includes a list of exemptions that are intended to ensure that the ordinance is narrowly tailored to achieve its purpose of transparency without impermissibly burdening First Amendment rights. During the Council’s July 13, 2021 meeting, Council directed staff to return with some limited amendments the City’s lobbying law. The Council looked in particular to the ordinance in place in Beverly Hills, and requested that, like Beverly Hills’ law, Santa Monica’s law: (1) more precisely define what constitutes a lobbyist/legislative advocate; (2) preclude any individual who in the prior two years has been acting as a lobbyist/legislative advocate from being appointed to a board, commission, or task force; and (3) preclude any member of a board, commission, or task force from simultaneously acting as a lobbyist/legislative advocate. Discussion 7.B Packet Pg. 1714 3 of 9 Addition of a ‘Lobbying Activity’ Definition to the Santa Monica Lobbying Ordinance As defined in Section 4.85.010, a lobbyist is any individual who receives economic consideration as the employee, representative, or contractor of a person or entity, other than the City of Santa Monica, for communicating with any official or employee of the City for the purpose of influencing a legislative or administrative action. “Lobbyist” does not include City contractors and those seeking City contracts through bids and proposals. Where Santa Monica’s Lobbying Ordinance differs from some other jurisdictions is that some other jurisdictions separately and more comprehensively define what constitutes lobbying activities. This largely stems from the City’s law being originally modelled after the City of West Hollywood’s law. For instance, in the City of Los Angeles, lobbying activities includes: the following and similar compensated conduct when that conduct is related to a direct communication to influence any municipal legislation: 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 City of Beverly Hills uses the term “legislative advocate” instead of lobbyist. In Beverly Hills “legislative advocacy” includes: the following and similar conduct for compensation when the conduct is related to attempting to influence Municipal legislation: A. Engaging in, either personally or through an agent, written, electronic, or oral direct communication with a City 7.B Packet Pg. 1715 4 of 9 official; B. Drafting ordinances, resolutions, or regulations; C. Attempting to influence the position of any third party on Municipal legislation or an issue relating to Municipal legislation by any means, including, but not limited to, engaging in community or media relations activities; D. Advising clients regarding strategy for legislative advocacy. In contrast, the City of West Hollywood defines a “lobbyist” as: any individual who is employed, retained or contracts for economic consideration to communicate with any elective official or any officer or employee of the City of West Hollywood for the purpose of influencing a legislative or administrative action. This, of course, is intentionally very similar to the City’s law. In keeping with the Council’s direction from July 2021, Staff recommends adding a “lobbying activity” definition to the Santa Monica Lobbying Ordinance that aligns with the definition Beverly Hills uses for “legislative advocacy”. Staff does not believe that Santa Monica must adopt the terms “legislative advocate” or “legislative advocacy” as the legislative advocate role is generally encompassed in the term “lobbyist”. Section 4.85.010 would be amended as follows: 4.85.010 Definitions. “Lobbyist” means any individual who engages in Lobbying Activity. receives economic consideration as the employee, representative or contractor of a person or entity other than the City of Santa Monica for communicating with any official or employee of the City for the purpose of influencing City action. For purposes of this Chapter, “Lobbyist” does not include City contractors and those seeking City contracts through bids and proposals. 7.B Packet Pg. 1716 5 of 9 Lobbying Activity includes the following and similar conduct for compensation when the conduct is related to attempting to influence City action: A. Engaging in or directing, either personally or through an employee, contractor, agent or controlled person, corporation, association or business entity of any kind, any written, electronic, or oral communication with a City Official; B. Drafting proposed ordinances, resolutions, or regulations; C. Attempting to influence the position of any third party on City legislation or an issue relating to any City legislation, proceeding, administrative or other matter by any means, including, but not limited to, engaging in community or media relations activities; D. Advising clients regarding strategy for legislative or other advocacy. “Official” means any person who is: (a) Members of the City Council; (b) Appointed by the City Council to serve on a board or commission and, the City Manager and City Clerk; (c) A City employee appointed to serve as director of a City department; and (d) Any person who is required to file a Statement of Economic Interest. Prohibiting Lobbyists from Serving on City Boards, Commissions, Task Forces, and Advisory Boards At its July 13, 2021 meeting, Council also directed staff to propose an ordinance precluding any individual who in the prior two years has been acting as a lobbyist/legislative advocate from being appointed to a board, commission, or task force, and that precludes any member of a board, commission, or task force from simultaneously acting as a lobbyist/legislative advocate. Other jurisdictions prohibit locally-registered lobbyists from serving on boards and commissions. Examples include the City of Los Angeles (Los Angeles City Charter Section 501), the City of Beverly Hills (Beverly Hills Municipal Code Section 2-2-104(D), and the State of California (Elections Code Section 21553, prohibiting members of the Redistricting Commission from serving as a local lobbyist in the State of California). 7.B Packet Pg. 1717 6 of 9 Staff recommends creating Section 4.85.015 to prohibit any individual from serving on a City board, commission, task force, or advisory board if that individual registered as a lobbyist in the two years prior to appointment, and prohibit that person from functioning as a Lobbyist while serving on a City board, commission, task force, or advisory board. Section 4.85.015 Prohibition on Lobbyists Serving on City Boards, Commissions, Task Forces, or Advisory Boards. Any person appointed to a City board, commission, task force, or advisory board shall not have been a Lobbyist for at least two (2) years prior to the start of the term and once appointed, shall not function as a Lobbyist while serving on a City board, commission, task force, or advisory board. Any City board, commission, task force, or advisory board member who is a Lobbyist at the time this ordinance amendment takes effect shall immediately vacate her or his position. Currently, there is only one member of a City board who is registered as a Lobbyist in the City. The addition of the ‘lobbying activity’ definition to the Lobbying Ordinance may trigger additional lobbying registrations by current board, commission, task force, or advisory board members. Additional Option Although not requested during its July 2021 discussion, the Council may wish to include within the definition of “lobbying activity” the concept of a so-called “expenditure lobbyist”. Some other local laws, such as the one in Beverly Hills, include this, while the City of West Hollywood, for instance, does not. Beverly Hills has a definition of “expenditure lobbyist” as follows: EXPENDITURE LOBBYIST: Any person, other than any government entity, or officer or employee of a government entity acting in an official capacity, who advises regarding, or makes, payments or incurs expenditures of five thousand dollars ($5,000.00) or more during any calendar year for directing or guiding 7.B Packet Pg. 1718 7 of 9 public relations, media relations, advertising, public outreach, research, investigation, reports, analyses, or studies with the intent of soliciting, requesting or urging, directly or indirectly, other persons to communicate directly with a City official in order to influence Municipal legislation. Expenditure lobbyist shall not include: a) a person who pays compensation to a legislative advocate or who pays compensation to another representative who appears at a hearing on Municipal legislation, b) a person who pays dues to a membership organization that is ongoing in nature and whose membership services do not consist exclusively of legislative advocacy, c) an organization who makes payments to distribute communications to its members, and d) a person engaged in publication or broadcasting of news items, editorials, or commentary, provided that the person is not compensated to take a specific position. City of Beverly Hills Municipal Code Section 1-9-102. Similarly in the City of Long Beach, an “Expenditure Lobbyist” is: A person who makes payments or incurs expenditures of five thousand dollars ($5,000.00) or more during any calendar year in connection with carrying out public relations, advertising or similar activities with the intent of soliciting or urging, directly or indirectly, other persons to communicate directly with any City official in order to attempt to influence legislative or administrative action. The five thousand dollars ($5,000.00) threshold shall not include: a. Compensation paid to contract lobbyists or employees for lobbying; or b. Dues payments, donations, or other economic consideration paid to an organization, regardless of whether the dues payments, donations or other economic consideration are used in whole or in part to lobby. City of Long Beach Municipal Code Section 2.0.020(K)(3.) If the Council wishes to include this concept in the City’s lobbying ordinance, it too can be incorporated within the definition of “lobbying activity”, such that “lobbying activity” would be defined as described above: 7.B Packet Pg. 1719 8 of 9 4.85.010 Definitions Lobbying Activity includes the following and similar conduct for compensation when the conduct is related to attempting to influence City action: A. Engaging in or directing, either personally or through an employee, contractor, agent or controlled person, including corporation of any kind, any written, electronic, or oral communication with a City Official; B. Drafting proposed ordinances, resolutions, or regulations; C. Attempting to influence the position of any third party on City legislation or an issue relating to City legislation by any means, including, but not limited to, engaging in community or media relations activities; D. Advising clients regarding strategy for legislative advocacy; With the addition of, E. Advising regarding, directing, or making payments or incurring expenditures of five thousand dollars ($5,000.00) or more during any calendar year for the purpose of directing public relations, media relations, advertising, public outreach, research, investigation, reports, analyses, or studies with the intent of soliciting, requesting or urging, directly or indirectly, other persons to communicate directly with a City official in order to influence any City action, but does not include: paying compensation to any person to appear at any City hearing; paying dues to a membership organization that is ongoing in nature and whose membership services exclude the activities of a Lobbyist; paying an organization who makes payments to distribute communications to its members regarding City actions, or engaging in the publication or broadcasting of news items, editorials, or commentary, provided that the person is not compensated to take a specific position. Recommendation Introduce for first reading the amendments to Santa Monica Municipal Code Section 4.85.010 and 4.85.015, including determining whether to add within the definition of “lobbying activities” the concept of expenditure lobbyist as described. If the Council 7.B Packet Pg. 1720 9 of 9 wishes to consider further changes to the Lobbying Ordinance, Staff recommends that the Council schedule and conduct a study session on lobbying. Financial Impacts and Budget Actions None. Prepared By: Joseph Lawrence, Interim City Attorney Approved Forwarded to Council Attachments: A. ORD-ord-Lobbying 2022.03.08 B. Ordinance No. 2511- August 2016 (Web Link) 7.B Packet Pg. 1721 1 City Council Meeting: March 8, 2022 Santa Monica, California ORDINANCE NUMBER _________ (CCS) (City Council Series) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA AMENDING SANTA MONICA MUNICIPAL CODE SECTION 4.85.010 TO DEFINE ‘LOBBYING ACTIVITY’ AND CREATING SECTION 4.85.015 TO PROHIBIT ANY INDIVIDUAL FROM SERVING ON A CITY BOARD, COMMISSION, TASK FORCE, OR ADVISORY BOARD IF THAT INDIVIDUAL IS CURRENTLY REGISTERED AS A LOBBYIST IN THE CITY OF SANTA MONICA OR REGISTERED AS A LOBBYIST IN THE TWO YEARS PRIOR TO APPOINTMENT WHEREAS, in 2016, Council adopted Ordinance No. 2511 (CCS) requiring lobbyists to register with the City Clerk’s office.; and WHEREAS, all lobbyists must register no later than ten days after qualifying as a lobbyist, and any changes to the registration information must be reported within ten days of the change; and the ordinance includes a list of exemptions intended to ensure that the ordinance is narrowly tailored to achieve its purpose of transparency without impermissibly burdening First Amendment rights; and WHEREAS, at its July 13, 2021 meeting, Council directed staff to return with a proposed ordinance, similar to that in place in other municipalities that: (1) more precisely defines what constitutes a lobbyist/legislative advocate; (2) precludes any individual who in the prior two years has been acting as a lobbyist/legislative advocate from being appointed to a board, commission, or task force; and (3) precludes any 7.B.a Packet Pg. 1722 Attachment: ORD-ord-Lobbying 2022.03.08 (5014 : Amend Lobbyist Ordinance) 2 member of a board, commission, or task force from simultaneously acting as a lobbyist/legislative advocate; and WHEREAS, this ordinance addressed the items in Council’s July 13, 2021 direction to staff. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Santa Monica Municipal Code Section 4.85.010 is hereby amended as follows: 4.85.010 Definitions. “Lobbyist” means any individual who engages in Lobbying Activity. receives economic consideration as the employee, representative or contractor of a person or entity other than the City of Santa Monica for communicating with any official or employee of the City for the purpose of influencing City action. For purposes of this Chapter, “Lobbyist” does not include City contractors and those seeking City contracts through bids and proposals. “Lobbying Activity” includes the following and similar conduct for compensation when the conduct is related to attempting to influence City action: A. Engaging in, either personally or through an employee, contractor, agent, or controlled person, corporation, association or business entity of any kind, written, electronic, or oral direct communication with a City Official; B. Drafting ordinances, resolutions, or regulations; or 7.B.a Packet Pg. 1723 Attachment: ORD-ord-Lobbying 2022.03.08 (5014 : Amend Lobbyist Ordinance) 3 C. Attempting to influence the position of any third party on City legislation or an issue relating to any City legislation, proceeding, administrative or other matter by any means, including, but not limited to, engaging in community or media relations activities; D. Advising clients regarding strategy for legislative or other advocacy. “Official” means any person who is: (a) Members of the City Council; (b) Appointed by the City Council to serve on a board or commission and, the City Manager and City Clerk; (c) A City employee appointed to serve as director of a City department; and (d) Any person who is required to file a Statement of Economic Interest. Section 2. Santa Monica Municipal Code Section 4.85.015 is hereby created as follows: Section 4.85.015 Prohibition on Lobbyists Serving on City Boards, Commissions, Task Forces, or Advisory Boards. Any person appointed to a City board, commission, task force, or advisory board shall not have been a Lobbyist for at least two (2) years prior to the start of the term and once appointed, shall not function as a Lobbyist while serving on a City board, commission, task force, or advisory board. Any City board, commission, task force, or advisory board member who is a Lobbyist at the time this ordinance amendment takes effect shall immediately vacate her or his position. 7.B.a Packet Pg. 1724 Attachment: ORD-ord-Lobbying 2022.03.08 (5014 : Amend Lobbyist Ordinance) 4 Section 3. Any provision of the Santa Monica Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no further, is hereby repealed or modified to that extent necessary to affect the provisions of this Ordinance. Section 4. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional. Section 5. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within 15 days after its adoption. This Ordinance shall take effect 30 days from its adoption. APPROVED AS TO FORM: _________________________ JOSEPH LAWRENCE Interim City Attorney 7.B.a Packet Pg. 1725 Attachment: ORD-ord-Lobbying 2022.03.08 (5014 : Amend Lobbyist Ordinance)