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ADVISORY OPINION 1987-9
ISSUE

Does the representation of a client who applies to the New York City Art Commission for approval of a piece of art work to be placed on public property, constitute "lobbying" or "lobbying activity" under N.Y.C. Ad. Code sec. 3-211(c)?

OPINION*
Subchapter 2 Chapter 2 of Title 3 of New York City Administrative Code Section 3-211(a) defines a lobbyist as "any person or organization retained, employed, or designated by any client to engage in lobbying." "Lobbying" or "lobbying activity" is defined as "any attempt to influence any determination of a board or commission other than a determination in an adjudicatory proceeding." Ad. Code Secs. 3-211(c), 3-211(c)(2)(iv). Thus, those persons who attempt to influence the determinations of boards and commissions are engaged in lobbying, with the exception of those whose efforts are confined to adjudicatory proceedings, and who are therefore excluded from the Lobbying Law's requirement of registration and prohibition of contingent fees. Ad. Code Sec. 3-211, et seq.

Accordingly, to determine whether a proceeding is adjudicatory under the provisions of the Lobbying Law, the following factors must be applied:

(1) Does the board or commission conducting the proceeding have clearly limited discretion in reaching a determination, in other words, is it limited by law to consideration of certain delineated criteria or a few narrow questions? Legislative bodies, which by more traditional notions, are the primary "targets" for lobbyists, and lawfully may come to their decisions so long as there exists any rational basis for doing so.

(2) Does the proceeding determine the legal rights, duties, or privileges of at most, a few individuals?

(3) Is participation in the proceeding limited by law to those with a clearly defined interest? This criterion, analogous to standing, constitutes a common-sense distinction between judicial and legislative proceedings. Any citizen, no matter how removed from an issue from a "standing "perspective, may seek legislative action or otherwise participate in the legislative process.

(4) Does the proceeding have any unique characteristics supporting a final determination that it is or is not adjudicatory?

The Art Commission approves the purchase, erection, and placement of works of art and other structures upon or over property of the City (except for purchases of structures which do not exceed two hundred fifty thousand dollars). This body also supervises maintenance and placement of works of art already belonging to the City. Charter Sec. 854. Any failure by the Commission to act within sixty days after a matter is submitted for action waives the requirement that approval be obtained. Charter Secs. 855, 856. Finally, the Commission has general advisory oversight over all works of art belonging to the City, and maintains a register of such works. Charter Sec, 857.

In applying the adjudicatory test, the Charter provides no explicit standards which govern the Art Commission's determinations, and research discloses no cases which discuss their nature. No individual "rights" are being determined, and no individual has a right to participate in Art Commission decision-making. For these reasons, determinations by the Art Commission are non-adjudicatory, with the exception of the evaluation and approval by the Commission of newsstand designs, since the Commission must base its decision on promulgated guidelines established by the community planning commission. Ad. Code sec. 20-231 subd. H. Therefore, those who attempt to influence determinations of the Art Commission, (except determinations involving the approval of newsstand designs), must register as lobbyists with the City Clerk.

CARLOS CUEVAS City Clerk of the City of New York
KATHERINE E. TIMON Counsel
TIMOTHY MCFARLAND Assistant Counsel

*Based upon a law department memorandum dated may 6, 1987 by David Goldenberg, esq. and Spencer Fisher, esq. Division of Legal Counsel.

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