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Anaheim, CA 92805
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CITY COUNCIL AGENDA REPORT
City of Anaheim
OFFICE OF CITY ATTORNEY
DATE: SEPTEMBER 12, 2023
FROM: OFFICES OF THE CITY ATTORNEY AND CITY CLERK
SUBJECT: LOBBYING ORDINANCE HISTORY AND POTENTIAL
MODIFICATIONS
ATTACHMENTS (Y/N): YES ITEM # 10
GOVERNMENT CODE § 84308 APPLIES: NO
REQUESTED ACTION:
Discuss and provide direction to staff on (1) potential modifications to the lobbyist provisions of Anaheim’s Sunshine Ordinance, and (2) the publication of Council and City Manager calendars.
DISCUSSION:
At the August 29, 2023 Council meeting, City Council approved a priority list of reforms stemming from the recommendations in the JL Group investigative report, and a calendar of when these items were to be brought forward for City Council discussion and action. The City’s Lobbying Policy was calendared for September 12, 2023, to include discussion and action on (but not limited to) the following: the definition of a lobbyist; internal reporting by Department Heads, City Manager’s Office and City Council, and the calendars of City Council and City Manager’s Office.
At the request of Mayor Ashleigh Aitken, the following is a summary of the City’s current lobbying provisions and a comparison of those provisions with similar ordinances adopted in other jurisdictions. This summary is intended to aid Council in its discussion of potential modifications to the lobbying regulations so that it can provide direction to staff.
THE CURRENT LOBBYING PROVISIONS
A. Adoption of the Sunshine Ordinance (2017)
In 2017, at the request of then-Council Member Jose Moreno, the City Council added Chapter 1.11 (Sunshine Ordinance) to the Anaheim Municipal Code (“AMC”). Among other things, that ordinance established a lobbyist registration requirement and process.
All persons involved in lobbying activities in the City of Anaheim are required to register with the City Clerk within fifteen (15) days of engaging in those activities, and to file a report with the City Clerk on a quarterly basis detailing their lobbying activities (including who at the City they had contact with and the administrative action the Lobbying Ordinance Discussion
September 12, 2023
contact pertained to). The City Clerk is authorized to impose a fine (in an amount set by City Council resolution, which is currently $50) on lobbyists who fail to comply with these provisions. In addition, the Ordinance tasks the City Clerk with preparing an annual report to the City Council outlining the activities of registered lobbyists, as well as a list of any fines assessed or notices issued to those lobbyists.
In addition to requiring lobbyists to register, the Ordinance prevents City employees and lobbyists from moving seamlessly (revolving) between the two roles. These regulations expand upon certain existing state law provisions that seek to encourage community confidence in the integrity of City government and operations.
B. Amendment of the Lobbying Provisions to Add Criminal Penalties (2022) In 2022, at the request of then-Council Member Avelino Valencia, Chapter 1.11 was amended in several respects. As relevant to the lobbying provisions, AMC 1.11.070 was amended to make certain violations of the lobbying regulations a misdemeanor.
Specifically, if a person knowingly or intentionally (1) acts as a lobbyist in the City without having registered as required by the Code, (2) fails to file a report of lobbying activity as required by the Code, (3) files a false or inaccurate report or a report that omits material information required to be disclosed, or (4) conceals or diverts compensation for lobbying activity in order to avoid the requirements of the Code, they may be charged with a misdemeanor and subject to a maximum of six (6) months in jail and a fine of $1,000. In addition, if convicted, the person will be banned from acting as a lobbyist or otherwise attempting to influence municipal legislation for compensation for one year after that conviction, and three years if convicted of a second violation.
These modifications to the lobbying provisions drew a distinction between inadvertent violations of the Code (such filing a report late), which remain subject to a fine, and intentionally committing more serious violations, which may be charged as a crime.
C. Definitions and Exemptions in the Ordinance
The Sunshine Ordinance was crafted after staff and then-Council Member Moreno reviewed numerous similar ordinances adopted by other government agencies. The definitions and exemptions were cobbled from state law and other City and County ordinances, with the input and direction of Council Member Moreno. These provisions are repeated here, for ease of reference in the event the Council wants to modify any of them.
The Ordinance defines "Lobby" and "Lobbying" as performing services, for compensation, for the purpose of influencing legislative or administrative action. In addition, it defines a "Lobbyist" as an individual or entity who receives or becomes entitled to receive five hundred dollars ($500) or more in consideration in a calendar month, other than reimbursement for reasonable travel expenses, to communicate, directly or through agents, with any elective or appointed official of the City, member of the City Executive Team, or Legislative Body, board or commission of the City, for the purpose of influencing legislative or administrative action of the City of Anaheim or any regional agency in which Anaheim has a voting role.
Lobbying Ordinance Discussion
September 12, 2023
AMC section 1.11.070.090 sets forth the exemptions to the lobbying requirements. The exemptions were crafted to remove from the ambit of the Ordinance individuals who might be engaged in what is technically lobbying activity (attempting to influence governmental action), but are not being specifically paid to do so. Section 1.11.070.090 provides that the lobbying requirements do not apply:
1. To a public official acting in his or her official capacity;
2. To any newspaper or other regularly published periodical, radio or television station (including any individual who owns, publishes, or is employed by any such newspaper, periodical, radio or television station) which in the ordinary course of business publishes news items, editorials or other comments, or paid advertisements, which directly or indirectly urge action upon municipal legislation, if such newspaper, periodical, radio or television station or individual engages in no further or other activities in connection with action upon such municipal legislation;
3. To a person invited by the City Council or any of its committees, or by any board or commission, or any committee of a board or commission, or by any officer or employee of the City charged by law with the duty of conducting a hearing and making a decision as to a pending or proposed matter, for the purpose of giving testimony to aid the body or person extending the invitation;
4. To a person applying for a grading permit or for a permit relating to the construction, alteration, demolition or moving of a building, or to a person filing a parcel map or subdivision tract map; provided, however, that if a person meets the definition of a Lobbyist and takes an appeal, or represents a person taking an appeal, pursuant to any procedure or authority provided by law from an administrative determination made with respect to such an application or map, they shall be required to register as provided in this section upon taking the appeal or any action relating to the appeal;
5. To a person who is a professional licensed by a state licensing organization, including, but not limited to, attorneys, architects and engineers; provided however, that the exemption for attorneys shall only apply if the attorney is engaged in the practice of law with respect to the subject of the employment; or
6. To a regular employee of an organization communicating to the City during the course of his or her employment on behalf of his or her employer.
Lobbying Ordinance Discussion
September 12, 2023
OTHER CITIES’ ORDINANCES
Mayor Aitken requested that certain other California cities’ lobbyist provisions be considered as part of the Council’s discussion regarding any future revisions to Anaheim’s current ordinance. They are summarized below.
A. City of Sacramento
The Sacramento Lobbyist Ordinance was first passed in 2003. In 2021, the Ordinance was amended to mandate electronic filing of reports and to make other administrative changes.
Sacramento puts “lobbyists” into 3 separate categories: (1) Contract Lobbyist (person who lobbies on behalf of a client for compensation), (2) Business or Organization Lobbyist (in-house lobbyists who spend at least 100 hours within a 3 month period lobbying Sacramento), and (3) Expenditure Lobbyist (person who spends at least $5,000 per year on public relations/advertising with the intent of soliciting or urging other persons to communicate directly with any city official in order to attempt to influence legislative or administrative action).
Of these defined lobbyists, only the “Contract Lobbyist” is regulated in Anaheim.
However, in Sacramento, a Contract Lobbyist qualifies as such if the person receives $3,200 or more for engaging in lobbying during any consecutive three-month period. In Anaheim, the threshold is $500 per calendar month.
Unlike Anaheim’s Ordinance, Sacramento’s Lobbyist Ordinance excludes from the definition of “Lobbyist” those whose communications with the city are limited to any public meeting held by the city, as well as persons whose communications relate to collective bargaining agreements between Sacramento and its bargaining units.
In Sacramento, any person subject to the registration and reporting requirements who fails to register or report is subject to a non-registration or late-reporting penalty of $25 per day, up to a maximum of $500, from the date of written notification of non- compliance until the date of compliance. Furthermore, anyone who knowingly or willfully violates the registration or disclosure rules can be charged with a misdemeanor.
The city attorney is also authorized to seek injunctive relief in the courts to enjoin violations of or to compel compliance with, Sacramento’s Ordinance, with the prevailing party entitled to attorneys’ fees. No person convicted of a violation of Sacramento’s Ordinance may act as a lobbyist or otherwise attempt to influence municipal legislation for compensation for one year after such conviction.
B. City of Oakland
The City of Oakland first adopted its Lobbyist Ordinance in 2002. Similar to Anaheim, it regulates lobbyists who are compensated by clients to communicate with City officials to influence any proposed or pending governmental, legislative or administrative action. In Oakland the threshold payment to qualify as a lobbyist is $1,000 per calendar month, compared to Anaheim’s threshold of $500 per calendar Lobbying Ordinance Discussion
September 12, 2023
month. Unlike Anaheim, it also regulates those whose duties as an employee or director of an organization or business entity include communicating with City officials or employees to influence any governmental action. Oakland does not regulate “expenditure lobbyists” as Sacramento does.
Similar to Sacramento, Oakland excludes from the definition of lobbyist those designated representatives of employee organizations engaged in collective bargaining negotiations regarding employment terms and agreements. The other exclusions are similar to Anaheim’s.
Oakland’s Ordinance requires lobbyists to report any contributions made to a City officeholder or candidate, as well as anytime the lobbyist employs any City officeholder, candidate, City employee or their immediate family member.
There are a series of acts that Oakland lobbyists are prohibited from engaging in, such as (1) any action that places a City official or employee under personal obligation to the lobbyist, (2) attempting to deceive a City official or employee regarding facts about a government action, (3) causing or influencing a government action for the purpose of creating future lobbying business for the lobbyist, (4) attempting to create a false appearance of public favor or disfavor of any government action, (5) representing that they can control or obtain the vote or action of any City officer or employee, and (6) making payments to, or incurring expenses for, any officeholder, candidate, employee, or family member thereof, that exceed $240 in any single calendar year.
Oakland has an Ethics Commission that may impose administrative penalties of up to $1,000 for each violation of the Ordinance. Also, any person who knowingly or willfully violates Oakland’s Ordinance is guilty of a misdemeanor and any person convicted of such a misdemeanor cannot act as a lobbyist, advise a client, or otherwise attempt to influence a government action for compensation for one year after the conviction.
C. City of San Diego
San Diego has a very extensive and detailed lobbyist program. Like Sacramento, it covers three types of defined lobbyists: (1) lobbying firms, (2) organization lobbyists, and (3) expenditure lobbyists. A lobbying firm is a firm that has clients that pay the firm to contact a city official in an attempt to influence a municipal decision on behalf of a client. San Diego has no payment threshold. Any paid contact with a city official triggers application of the lobbyist ordinance. Organization lobbyists are those who own or work for a business or organization, including a non-profit or charitable organization, and who lobby on behalf of their business or employer with 10 or more lobbying contacts within any 60 calendar day period. Similar to Sacramento, an “expenditure lobbyist” is any person or entity that makes expenditures for public relations, or similar activities designed to influence one or more municipal decisions, to the extent that such payments total $5,000 or more within a calendar quarter.
San Diego does not exempt labor organizations per se, but does exclude from the definition of lobbying activities that involve establishing a memorandum of Lobbying Ordinance Discussion
September 12, 2023
understanding between the City and a bargaining unit, for example. San Diego makes other exemptions, mostly technical or similar to Anaheim’s, but does exclude appearing as a speaker at, or providing written statements that become part of the record of, a public hearing.
San Diego prohibits lobbyists from engaging in certain acts, similar to those prohibited by Oakland. However, the gift restriction is more stringent: no more than $10 worth of gifts can be given within one calendar month to a city official (compared to Oakland’s $240/year).
San Diego’s Ethics Commission has initial enforcement authority over San Diego’s Ordinance, and is given the power to investigate any potential violations and pursue administrative penalties against violators. Furthermore, violations of San Diego’s Ordinance may be prosecuted as misdemeanors and the City may also seek injunctive relief and civil penalties in court. Also, if any lobbying entity fails to file any required registration form or quarterly disclosure report after any deadline, that lobbying entity shall be liable to the City in the amount of $10 per calendar day after the deadline until the report is filed, up to a maximum amount of $100.
The following charts compare some of the key provisions of the lobbyists ordinances in Sacramento, Oakland, San Diego and Anaheim.
COMPARISON OF LOBBYING LAWS - DEFINITION/TYPE OF LOBBYIST ANAHEIM SACRAMENTO1 OAKLAND2 SAN DEIGO3
Contract
Lobbyist
Receives or
becomes entitled to
receive, $500 or
more in a calendar
month, other than
reimbursement for
reasonable travel
expenses
Receives or has
entered into an
agreement for
compensation of
$3,200 or more during
any consecutive three-
month period.
Receives, or is
entitled to
receive, $1,000 or
more in
compensation in a
single calendar
month, other than
reimbursement
for reasonable
travel expenses
Receives or becomes
entitled to receive any
amount of monetary
or in-kind
compensation
Business or
Organization
Lobbyist
Not Covered Any business or
organization, whose
owners, officers, or
employees carry out
lobbying on its behalf,
in an aggregate
amount of 100 hours or
more within any three-
month period, whether
or not such officers or
employees are
specifically
compensated to
engage in lobbying
Duties as a paid
employee, officer,
or director of any
corporation,
organization, or
association
include
communication
with any public
official for the
purpose of
influencing an
action by the City
Any business or
organization, including
any non-profit entity,
that provides
compensation to one
or more employees
for the purpose of
lobbying on behalf of
the business or
organization and who
have a total of 10 or
more separate
contacts within 60
consecutive calendar
days.
Lobbying Ordinance Discussion
September 12, 2023
COMPARISON OF LOBBYING LAWS - DEFINITION/TYPE OF LOBBYIST (cont’d) ANAHEIM SACRAMENTO1 OAKLAND2 SAN DEIGO3
Expenditure
Lobbyist
Not Covered A person who makes
payments or incurs
expenditures of $5,000
or more during any
calendar year to
influence legislative or
administrative action
Not Covered Any person who makes
expenditures designed
to influence one or
more municipal
decisions, to the extent
that such payments
total $5,000 or more
within a calendar
quarter
COMPARISON OF LOBBYING - FEES
ANAHEIM SACRAMENTO OAKLAND SAN DEIGO
Fees Initial Registration:
$100
Initial/Annual
Registration:
Contract Lobbyists:
$100, and a one time
$25 fee for each client
Business or
Organization Lobbyists:
$100.
Expenditure Lobbyists:
$100
None Initial/Annual
Registration:
Lobbying Firms:
$191.94 per owner,
officer and/or
employee; Client:
$40.23 per client
Organizational
Lobbyist: $191.94
Expenditure Lobbyist:
Registration is not
required
COMPARISON OF LOBBYING LAWS - DISCLOSURE REQUIREMENT
ANAHEIM SACRAMENTO OAKLAND SAN DEIGO
Campaign
Contributions
Yes Yes, $100 or more N/A Yes, $100 or more
Campaign
Fundraising
N/A N/A A lobbyist must
report any person
or organization
that they ask to
make a campaign
contribution to a
City officeholder
or candidate. A
lobbyist must
report the request
even if it does not
result in a
contribution
Yes if $1,000 or more
raised; include name of
candidate, date &
description of activity,
and approximate
amount raised
Lobbying Ordinance Discussion
September 12, 2023
COMPARISON OF LOBBYING LAWS -ENFORCEMENT
ANAHEIM SACRAMENTO OAKLAND SAN DEIGO
Enforcement
Entity
N/A City Attorney is
authorized to seek
injunctive relief in
the courts or to
compel compliance
Public Ethics
Commission –
Investigative
power; subpoena
power
Enforcement
Authority –
investigative powers
Administrative
Penalties
Failure to file report
- $50
Failure to file
registration or
report - $25 per
day, up to a
maximum of $500,
from the date of
written notification
of non-compliance
Administrative
penalties of up to
$1,000 for each
violation
Failure to file
registration or report -
$10 per calendar day
after the deadline
until the report is
filed, up to a
maximum amount of
$100
Criminal
Penalties
Any person or
entity that
knowingly or
intentionally (1)
acts as a lobbyist in
the City without
having registered as
required by the
Code, (2) fails to file
a report of lobbying
activity as required
by the Code, (3)
files a false or
inaccurate report or
a report that omits
material
information
required to be
disclosed, or (4)
conceals or diverts
compensation for
lobbying activity in
order to avoid the
requirements of the
Code is guilty of a
misdemeanor and
subject to a
maximum of six (6)
months in jail and a
fine of $1,000
Any person who
knowingly or
willfully violates or
causes any other
person to violate
any provision is
guilty of a
misdemeanor
Any person who
knowingly or
willfully violates
the Act is guilty of
a misdemeanor
Violations may be
prosecuted as
misdemeanors subject
to the fines and
custody
Practice
Restrictions
One year after
conviction; Three
years after second
conviction
One year after
conviction
One year after
conviction
N/A
Lobbying Ordinance Discussion
September 12, 2023
IMPACT ON BUDGET:
This is an informational report which will have no budgetary impact.
Respectfully submitted, Respectfully submitted,
Robert Fabela Theresa Bass
City Attorney City Clerk
Attachments:
1. Lobbyist Ordinance – Anaheim
2. Lobbyist Ordinance – Sacramento
3. Lobbyist Ordinance – Oakland
4. Lobbyist Ordinance – San Diego