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(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 Jose as a lobbyist.
(a) Compensated officers or employees of a nonprofit organization with tax exempt status under Section 501(c)(3) of the Internal Revenue Code whose attempts to influence governmental action are on behalf of the organization.
(b) Uncompensated members or uncompensated members of the board of directors of nonprofit organizations. For the purpose of this exemption, the term “nonprofit organization” has been interpreted to be any entity which would qualify under the Federal Internal Revenue Code as a nonprofit
(a) The Mayor and Councilmembers;
(b) The Chair and Members of the Successor 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) Successor Agency Executive Director and his or her Assistants and Deputies;
(h) City Department Heads; and
(i) City representative to any joint powers authority to which the City is a party.
Under Section 12.12.800, before taking any legislative or administrative action, the Mayor, each member of the City Council, the Chair and each member of the Board of Directors of the Successor Agency to the San José Redevelopment Agency, and each member of the Planning Commission, Civil Service Commission, or Appeals Hearing Board must disclose all scheduled meetings and all scheduled telephone conversations with a registered lobbyist that involves lobbying activity about the action. The disclosure may be made orally at the meeting before discussion of the action on the meeting agenda. The oral disclosure must identify the registered lobbyists, the date(s) of the scheduled meetings and the scheduled telephone conversations, and the substance of the communication. This section does not limit any disclosure obligations that may be required by the San Jose Municipal Code or City policy.
(a) In order to “influence”, the individual must “contact,” directly or indirectly, a City Official or City Official Elect. These are select high ranking officials under Section 12.12.120 and on a list posted by the Office of the City Clerk.
(b) A “contact” can be a meeting with a City Official or City Official Elect (either in person or by teleconference), 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 in any way. This includes any campaign contributions; independent expenditures; fundraising activity; donations; payments received for consultant and other services; and activity expenses that a lobbyist may make in a calendar week for or on behalf of a City Official or City Official Elect.
(d) The method of influencing may also be by any means including, but not limited to providing, preparing, processing, or submitting information, incentives, statistics, studies or analyses.
Under this definition of “lobbying activity”, 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 in the stead of meeting face to face.
Although one of the purposes of the picnic may be to build a better relationship with Members of the City Council in order to lobby more effectively in the future, the Lobbyist is only required to account for the 15 minute conversation discussing the governmental action as “lobbying activity”. The cost of the picnic which directly benefits each Member of the City Council and his or her immediate family including spouse or domestic partner, must be reported as an activity expense under Section 12.12.420.H.
Contact information disclosed on the registration and weekly reports must include a brief description of the item(s) of legislative or administrative action the lobbyist is seeking to influence and the number of contacts.
In the above scenario, these will be reported as three (3) contacts.
(a) Uncompensated members or 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 Successor 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 Successor 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 or proceedings before the Civil Service Commission; and
(k) A person whose communications are solely related to the administration of an existing agreement between the person and the City or Successor Agency.
To the extent that time is spent on any of the above activity, that time should not be counted as “lobbying activity.”
Once you are registered, you are required to file a report each calendar week you engage in lobbying activity. A “calendar week” begins at 12:00 a.m. on Monday and ends at 11:59 p.m. on the following Sunday. Weekly reports must be filed with the City Clerk by 5:00 p.m. on Monday for the prior calendar week. If Monday is a holiday, the weekly report must be filed by 5:00 p.m. the next business day.
The registration must be renewed by January 15 of each year unless a termination of lobbying activity on the City of San Jose Lobbyist Reporting Form, along with a Notice of Client Termination if a Contract Lobbyist, is filed with the Office of the City Clerk by January 15.
Additional forms are available on the Office of the City Clerk’s website for adding and terminating clients, registration renewal, and disclosure of contingent compensation.
A lobbyist who meets the thresholds for one or more categories need only file one registration and weekly reports but should provide information for all application categories. Thus, when a lobbyist is both a contract lobbyist and an in-house lobbyist for themselves, the lobbyist will file only 1 lobbyist registration form and file only 1 registration fee, but will complete both the contract and in-house lobbyist portions of the clerk’s forms. The lobbyist will pay for the additional client fees for their external clients (as a contract lobbyist), but will not pay any client fee for itself (as an in-house lobbyist).
Answer: Yes. Section 12.12.440.C provides that after the registration or registration renewal, the new client fee must be paid with the weekly report immediately following the week when the lobbyist is compensated and the compensation is greater than $500. In addition, the fee for each client must be paid on an annual basis with the registration or registration renewal.
When the Contract Lobbyist actually receives compensation, that compensation must be disclosed in a weekly report for the week compensation was received, even if the Contract Lobbyist had no lobbying activity during that week.
Answer: Section 12.12.420.D and E require reporting of fundraising activity and donations that actually resulted on Schedule A, Contributions, Expenditures, Fundraising and Donations. There are no disclosure requirements if no donations or contributions actually resulted.
Answer: Section 12.12.400 provides that if a Lobbyist has terminated all lobbying activities then an annual registration renewal is not required. On the second page of the Lobbyist Reporting Form, the Lobbyist should check the box “Termination of Registration” and specify the effective date when all lobbying activity ceased.
If the Contract Lobbyist resumes lobbying activity on August 1, he must re-register if or once he is compensated by a client, $1,000 or more in any three consecutive months for services that include lobbying activity. The lobbying activity on August 1 will also need to be reported in the registration report. Any subsequent lobbying activity will also need to be reported in a weekly report.
Specifically, the disclosure would require the person engaged in lobbying activity to identify the name and address of the source of the compensation, and include a brief description of the legislative or administrative action the person is seeking to influence. In many instances, the precise compensation may be difficult to determine because it may be based on the final sale price of a development, specific legislative or administrative actions, and/or future conditions (e.g. financing or acquisition). As such, disclosure would require either (1) a range of the known compensation up to and over $400,000, or (2) a brief description of how compensation will be calculated and other conditions that would need to be met before the lobbyist is entitle to payment.
Contingent Compensation for Lobbying ActivityCompensation for lobbying activity is prohibited when the compensation is directly dependent on the result of legislative or administrative actions that are the subject of the lobbying activity.
The prohibition and disclosure requirements do not apply to contingent compensation to a lobbyist for non-lobbying activity such as the practice of law or compensation completely independent of the governmental action.
Section 12.12.300.A: “A person may not accept compensation for lobbying activity when the compensation is directly dependent on the result of legislative or administrative action(s) that are the subject of the lobbying activity.”
Lobbyist A enters into an agreement where he or she is paid $100,000 for lobbying services on approval of PD Zoning for a development project. This compensation would be prohibited,
Section 12.12.300.B: “A person may not accept compensation for engaging in lobbying activity when the compensation depends on both:
1. The result of legislative or administrative action(s) that are the subject of the lobbying activity, and2. Additional condition(s) or event(s) which are not the subject of the lobbying activity.”
Lobbyist B enters into an agreement where he or she is paid $200,000 for lobbying services after approval of PD Zoning for a residential development project and sale of the first house. This compensation would be prohibited.Section 12.12.300.C: “A person engaged in lobbying activity may accept compensation for services, other than lobbying activity, when the compensation directly depends on the result of legislative or administrative action(s) that are the subject of the lobbying activity.”
Lobbyist C is a civil engineering firm that engages in lobbying activity. Lobbyist C prepares surveys for a proposed project and payment for the survey work is on approval of the project. This compensation must be disclosed.
Lobbyist C is a civil engineering firm that engages in lobbying activity. Lobbyist C will not secure an agreement to provide engineering services for the build out of the project unless the project is approved. This compensation must be disclosed.
Section 12.12.300.D: “A person engaged in lobbying activity may accept compensation for services, other than lobbying activity, when the compensation depends on both: 1. The result of legislative or administrative actions that are the subject of thelobbying activity, and2. Additional condition(s) or event(s) which are not the subject of the lobbying activity.”
Lobbyist D is a real estate broker who engages in lobbying activity. Lobbyist D provides brokerage services and will not be paid for the brokerage services until after the project is approved and the real estate transaction closes. This compensation must be disclosed.
The June 8, 2007 Council memo and the June 18, 2007 Council memo explain more in detail Section 12.12.300 regarding contingent compensation.
(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 lobbyist 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 Successor Agency Board
A violation of the City’s Lobbying Ordinance may also result in civil penalties of up to $5,000 or the amount of the compensation received for the lobbying activity.