JCOPE AO 16-01 – Consultants and Grassroots Lobbying

In late January, JCOPE approved what has proven to be the most high-profile and controversial advisory opinion in this history of lobbying regulation in New York State.

Advisory Opinion 16-01 addresses “Lobbying Act reporting obligations for a party compensated for consulting services in connection with lobbying activity,” specifically addressing “grassroots lobbying,” “door opening,” and consultants who attend meetings.  I’ll cover each in turn.

It’s important to remember that the the normal rules relating to the state’s lobbying threshold apply — a person or entity is only required to register with JCOPE as a lobbyist if the if they expend, incur or receive more than $5,000 in a calendar year for lobbying activity.

Grassroots Lobbying

In my view, the most significant impact of AO 16-01 will be on people who have been engaging in “grassroots lobbying” activity, but did jmnot know that it is subject to JCOPE regulation.

There has been a great deal of media attention on this aspect of AO 16-01 (see some examples here, here and here), especially the finding that someone who communicates with the media in an attempt to influence an editorial may be subject to the Lobbying Act.  The takeaway is that public relations professionals who work on matters that (directly or indirectly) involve communicating with public officials may be engaged in lobbying activities, and thus may have to register with JCOPE and report their compensation, expenses and the subject of their lobbying activity.  (This FAQ provides more detail.)

‘Door Opening’

A consultant who makes ‘preliminary contact’ with a public official is engaged in lobbying activity if the contact is intended to enable or facilitate the ultimate advocacy. This means that someone who does not participate in any “substantive” discussions on an issue may be engaging in lobbying activity if they make an introduction between a covered official and his or her client. (This FAQ provides more detail.)

Consultants Who Attend Meetings

A consultant who has an direct interaction with a public official may be required to register as a lobbyist.  (This FAQ provides more detail.)