FREQUENTLY
ASKED QUESTIONS
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WHEN
IS A PERSON ENGAGED IN LOBBYING ACTIVITY? |
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Currently,
San Jose Municipal Code Section 12.12.170 defines "Lobbying
activity" as influencing or attempting to influence a City
Official or City Official-Elect with regard to a legislative or
administrative action of the City or Redevelopment Agency.
(a)
In order to "influence", the individual must "contact"
a City Official or City Official-Elect.
(b)
A "contact" is meeting with a City Official or City
Official-Elect (either in-person or by phone), or sending (either
personally or through an agent) a direct communication. A direct
communication may be an email, letter, tape or video.
(c)
The purpose of the "contact must be to promote, support,
modify, oppose, cause the delay or abandonment of conduct, or
otherwise affect an official action.
(d)
The method of influencing may be any means including, but not
limited to providing, preparing, processing or submitting information,
incentives, statistics, studies or analyses.
The
time spent on researching or preparing a report to use at the meeting
with the City Official would not be counted as “lobbying activity.”
The time, however, preparing the email or letter (including drafts),
should be counted because the email or letter is being used to urge
an official action instead of meeting face to face.
The
time spent by any individual to submit a completed application is
not generally considered “lobbying activity.” For example,
submitting plans or reports for a permit as part of the application,
meeting with City staff that are not City Officials, or submitting
other information in response to a request by City staff is not
“lobbying activity.” Similarly, time interacting with
a Department Head at a public hearing, such as a Director’s
Hearing, would not be considered “lobbying activity.”
On the other hand, if the individual initiates contact with a Department
Head outside of a public hearing, for the purpose of influencing
his or her decision, that contact time, unless otherwise exempt
under San José Municipal Code Section 12.12.020, is “lobbying
activity.”
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WHEN
IS A PERSON NOT ENGAGED IN LOBBYING ACTIVITY? |
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The following persons are exempt from the lobbying ordinance:
(a)
Uncompensated members of the board of directors of nonprofit organizations;
(b)
Members of neighborhood associations, Neighborhood Advisory Committees
or Project Area Committees;
(c)
Compensated officers or employees of Section 501(c)(3) tax exempt
nonprofit organizations; and
(d)
Business owners who meet the criteria under Section 12.12.020.D.
The
following activities are exempt from the lobbying ordinance:
(a) Public officials acting in their official
capacity;
(b) A person engaged solely in publication or broadcasting
of news items, editorials, or commentary which directly or indirectly
urges governmental action;
(c) A person hired by and performing work on behalf of
the City or Agency;
(d) Preparing environmental review documents for approval
by the City;
(e) Giving testimony or attending a meeting such as a
task force or department committee to provide information or assistance
pursuant to an invitation from the City or Agency;
(f) Appearing at a public meeting or preparing documents
for use at a public meeting or other official proceeding;
(g) Participating in a competitive bid process;
(h) Lodging a complaint relating to improper governmental
activity (“whistleblower”);
(i) Meeting with the City Clerk or City Attorney regarding
a claim or litigation matter, negotiation of any agreements where
the City is a party or the requirements or interpretations of
the lobbyist ordinance;
(j) A person whose communications relate solely to collective
bargaining agreement or memorandum of agreement between the City
and a recognized employee organization;
(k) Participating in a proceeding before the Civil Service
Commission;
(l)A person whose communications are solely related to
the administration of an existing agreement between the person
and the City or Agency.
To
the extent that time is spent on any of the above activity, that
time should not be counted as “lobbying activity.”
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WHO
QUALIFIES AS A LOBBYIST? |
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A
person may meet the description of one or more of three types of
lobbyists depending on the circumstances.
(a)
A “Contract Lobbyist” is a person (either an entity
or an individual) with a client who compensates the person to
engage in lobbying activity on their behalf. The compensation
must be $1,000 or more in any consecutive three months and can
be for any services as long as one of those services is lobbying
activity.
(b)
An “In-House Lobbyist” is an entity including
a sole proprietorship whose owners, officers, and employees are
compensated by the entity to engage in lobbying activity on its
behalf and whose collective time totals ten (10) hours or more
in any consecutive twelve (12) month period. An owner is deemed
to be compensated based on his or her financial interest in the
entity.
The time
an officer or employee spends on lobbying activity for his or
her employer and/or personal initiative which is not compensated
would not be attributed to the 10 hour threshold.
(c)
An “Expenditure Lobbyist” is any person that pays
or incurs a cost in the amount of $5,000 or more in a calendar
year for a public relations campaign, advertising or similar activity
to solicit and urge others to lobby. All payments or expenditures
in the calendar year from the person should be aggregated to determine
whether the collective amount is $5,000 or more.
This form
of indirect lobbying excludes compensation paid to Contract Lobbyists
or In-House Lobbyists for lobbying activity and dues and donations
paid to an organization.
If you meet
the descriptions for any of the three types of lobbyists listed
above, you are required to register with the City of San José
as a lobbyist.
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WHO
ARE CITY OFFICIALS? |
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“City
Officials” are any member of the City Council or Redevelopment
Agency Board, certain board and commission members, and select high
ranking employees of the City.
(a)
The Mayor and Councilmembers;
(b) The Chair and Members of the Redevelopment Agency
Board;
(c) Council Appointees;
(d) The Mayor and Councilmembers’ staff (except
administrative staff);
(e) Members of the Planning Commission, Appeals Hearing
Board, and Civil Service Commission;
(f) City Manager, Assistant City Manager and Deputy City
Managers;
(g) Redevelopment Agency Director and his or her Assistants
and Deputies;
(h) City Department and Agency Division Heads; and
(i) City representative to any joint powers authority
to which the City is a party.
A
list of these individuals is posted by the Office of the City
Clerk on their website. This list may be subject to change. Any
questions regarding specific individuals not on the list should
be directed to the Office of the City Clerk.
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WHAT
IS THE CONTINGENT COMPENSATION PROHIBITION AND
DISCLOSURE REQUIREMENT? |
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Prohibition
Accepting payment for lobbying services dependent on governmental
result is prohibited. The prohibition applies to any arrangements
on or after August 1, 2007. Amendments to preexisting agreements
after August 1, 2007 would be prohibited to the extent it substantively
changes a contingent compensation arrangement or provides for contingent
compensation.
Disclosure
Disclosure is required of any payment for non-lobbying services
dependent on governmental result. The disclosure applies to any
arrangement whether it is made before or after August 1, 2007 if
it is the subject of ongoing lobbying activity. A lobbyist must
file Form
D at least one business day before contacting a City Official
on a matter for which he or she is receiving contingent compensation.
If the person is not yet required to register as a lobbyist, the
disclosure can be made at the time he or she is required to register.
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HOW
DO I REGISTER? |
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No later
than ten (10) days after qualifying as a lobbyist, a person must
register with the Office of the City Clerk by filing a City
of San José Lobbyist Report. A person that meets the
threshold requirements of one or more categories (i.e. Contract
Lobbyist, In-House Lobbyist, or Expenditure Lobbyist) is only required
to register once.
Once you
are registered, you are required to file a report each calendar
quarter. The reports are due no later than April 15, July 15, October
15, and January 15 for the prior calendar quarter.
The registration
must be renewed (Form
E) by January 15 of each year unless a declaration attesting
to the termination of lobbying activity is filed with the Office
of the City Clerk by January 15.
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ARE
THERE ADDITIONAL FORMS THAT MUST BE FILED ALONG WITH
THE
LOBBYIST REPORT? |
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If in addition
to the lobbying activity, you have other qualifying activity required
to be disclosed under Section 12.12.420, you must file
Schedule A, Schedule
B or Schedule
C whichever is applicable. Qualifying activity may include,
but not be limited to, contributions, independent expenditures,
fundraising, donations, or activity expenditures.
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WHERE
CAN I OBTAIN THE NECESSARY FORMS? |
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Additional
forms are available on the Office of the City Clerk’s website
for adding and terminating clients, registration renewal, disclosure
of contingent compensation, and other disclosures. All Lobbyist
forms are available for download in Adobe format from the Office
of the City Clerk’s website. Forms can also be obtained
in person from the Office of the City Clerk located at San José
City Hall, 200 East Santa Clara Street, San José, CA 95113.
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WHAT
DOES
SIGNING
THE
vERIFICATION
FORM MEAN? |
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Signing the verification statement establishes that:
1)
The person signing is an agent of the Lobbyist and has authority
to file the report on behalf of the Lobbyist:
2)
The person signing has reviewed the requirements of the Lobbying
Ordinance (Chapter 12.12 of the San Jose Municipal Code); and
3)
The person signing has reviewed the report and to
the best of their knowledge believes that the information
in the report is true.
The person
signing may still sign the verification even in instances where
he or she collects the information from other individuals provided
he or she does not have knowledge that the information is false
or incomplete. The Lobbyist is expected to make a reasonable good
faith effort to file a complete and accurate report. The Lobbying
Ordinance requires that Lobbyists maintain records to support the
information submitted in the report. These records may be subject
to review as part of random audits, investigation and/or enforcement
action.
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ARE
THERE ANY FEES AND PENALTIES? |
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The following fees in effect are set forth in the City of
San José’s Schedule of Fees as amended:
Annual
Registration or Renewal Fee $350
(If the person is registering for the first time after June 30 of
the year – the fee is pro-rated to $175.)
Client
Fee $60
This fee is only for clients who have compensated the lobbyist more
than $500. Please read the answer to the following question, "When
Would a Contract Lobbyist be Required to Pay a Client Fee?",
for additional information.
Penalty
for Delinquent Registration or Renewal Fee
An assessment in the amount of 5% of the unpaid fees will be added
to the delinquent fees until the assessment totals 100% of the unpaid
fees or until the registration fees and the fines are paid in full,
whichever is less.
Penalty
for Delinquent Quarterly Reports $50/day
A penalty of $50 will be assessed for each day the quarterly report
is delinquent.
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When
would a contract lobbyist be required to pay a "client
fee" ? |
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A client is any
person who compensates the Contract Lobbyist for representation.
Compensation could be for services already performed or to be provided
in the future and does not need to have been paid to count as compensation.
A "client
fee" is only due when the client compensates the Contract Lobbyist
$500 for lobbying services. A "client fee" must be paid
each year the client remains a client. If the Contract Lobbyist
is not currently providing lobbying services to the client, the
Contract Lobbyist may file Client
Notice of Termination. If the client has been terminated with
respect to ongoing lobbying services, the Contract Lobbyist would
not be required to pay a client fee until the Contract Lobbyist
is compensated $500 for lobbying services. In other words, if a
client was terminated, the Contract Lobbyist has a new $500 threshold
before a "client fee" is due.
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HOW
IS THE LOBBYING ORDINANCE ENFORCED? |
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The lobbying
ordinance may be enforced in the following ways:
(a)
The City Attorney may investigate complaints of violations
and seek judicial or injunctive relief from the courts;
(b)
The City Attorney or City Clerk may put lobbyists on
notice of a potential violation; or
(c)
Any person may file a complaint with the City Clerk alleging a
violation of this Chapter with the Elections Commission.
(d)
A City Official may request that the City Clerk issue an order
to show cause to any unregistered person. The person will have
an opportunity to be heard before the Elections Commission. If
the Commission finds that the person must register and the person
fails to do so within 7 days, he or she may be temporarily barred
from appearing before the City Council or Redevelopment Agency
Board
A violation
of the lobbying ordinance may also result in civil penalties of
up to $5,000 or the amount of the compensation received for the
lobbying activity.
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HOW
CAN I RECEIVE UPDATES OR ATTEND WORKSHOPS REGARDING THE
REQUIREMENTS
OF THE LOBBYING ORDINANCE? |
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The Office
of the City Clerk oversees compliance with the lobbying ordinance.
A lobbyist is required to attend a training workshop at least once
every three (3) years. Periodic workshops are scheduled each year
and registered and potential lobbyists may receive regular updates
via electronic mail. To be added to our Lobbyist email list, send
a request to the Office of the City clerk as listed below.
Questions
and requests for information regarding the Lobbyist registration
process should be directed to the Office of the City Clerk at (408)
535-1260 or e-mail cityclerk@sanjoseca.gov
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