ADVISORY OPINION 2011-1
An organization provides special education services for disabled students on behalf of two New York City agencies. The organization maintains that payment for the services rendered by the organization is past due from one of the agencies. At the organization’s behest, its lobbyist contacts a Deputy Mayor, who oversees the agency that is delinquent in its payment to the organization, in an attempt to collect such past due payments. During this conversation, the lobbyist informs the Deputy Mayor of the financial difficulty the organization is encountering as a result of the delay in payment.
Whether the attempt to collect payment from a New York City agency by an organization’s lobbyist communicating with a Deputy Mayor as outlined above constitutes "lobbying" or a "lobbying activity" pursuant to the New York City Administrative Code ("Administrative Code") §3-211 et seq.?
The Administrative Code, in relevant part, defines "lobbying" or "lobbying activities" as any attempt to influence:
(iii) any determination made by an elected city official or an officer or employee of the city with respect to the procurement of goods, services or construction, including the preparation of contract specifications, or the solicitation, award or administration of a contract, or with respect to the solicitation, award or administration of a grant, loan, or agreement involving the disbursement of public monies. Ad. Code §3-211(c)(1)(iii).
The communications with a Deputy Mayor about payment for services rendered constitute lobbying if the communications are an attempt to influence "any determination made by . . . an officer or employee of the city . . . with respect to . . . the administration of a contract . . ." and are not covered by any of the exceptions to the definition of "lobbying." Id. The facts described above indicate that the lobbyist contacted the Deputy Mayor, an officer of the City, in an effort to influence a determination regarding payment to the organization on whose behalf the lobbyist was working.
There is an exception from the definition of "lobbying activities" for contractors or prospective contractors who communicate with city contracting officers or employees "in the regular course of . . . the administration of a contract . . . ." Ad. Code §3-211(c)(3)(vi)(A). This exception, however, does not apply to the lobbyist’s communications with the Deputy Mayor for two reasons. First, the exception requires that the communications be "made by such contractors or prospective contractors personally, or through . . . persons who provide technical or professional services . . . on behalf of such contractor [or] prospective contractor . . . ." Ad. Code §3-211(c)(3)(vi)(A)(3).
The lobbyist in this instance is neither a contractor nor a person who provides technical or professional services. The contractor is the organization providing services for the City agencies and not the lobbyist for the organization. Section 3-211 defines "technical services" as being limited to advice and analysis "directly applying any engineering, scientific, or other similar technical discipline" and "professional services" as being limited to advice and analysis "directly applying any legal, accounting or other similar professional discipline" relating to specific aspects of the procurement process. Ad. Code §3-211(c)(3)(vi)(B)(1) and (2). Neither definition includes lobbying among the disciplines intended to be covered. Thus, the lobbyist’s communications with the Deputy Mayor is not included within the exception described in subparagraph (vi) because it does not apply to communications by lobbyists. Second, the exception in subparagraph (vi) only applies to communications ". . . with or [ ] before city contracting officers or employees . . . ." Ad. Code §3-211(c)(3)(vi)(A). The definition of "city contracting officers or employees" does not include elected officials, their deputies or "any person not duly authorized to enter into and administer contracts and make determinations with respect thereto[.]" Ad. Code §3-211(c)(3)(vi)(B)(3). Since the lobbyist contacted the Deputy Mayor, a deputy to an elected official, who by the foregoing definition is not a "city contracting employee," such communications cannot be covered under the exception contained in Administrative Code §3-211(c)(3)(vi). Therefore, contact with the Deputy Mayor, under these circumstances, constitutes a lobbying activity under the Administrative Code.
It is the determination of the City Clerk that the attempt by an organization’s lobbyist to influence the Deputy Mayor to effectuate payment owed pursuant to a contract by a New York City agency to such organization constitutes "lobbying" or a "lobbying activity" as defined by the Administrative Code.
MICHAEL MCSWEENEY, City Clerk of the City of New York
PATRICK SYNMOIE, Counsel to the City Clerk
JAIME LYNN ECKL, Deputy Counsel to the City Clerk