Is a client paying you to contact the City? You May Need to Register as a Lobbyist

You may have a close friend in high political office.  In fact, you are so close that you have his personal email address.   Does sending an email to your friend to ask for job-related assistance make you a lobbyist?  Most likely, yes. 

You Might Be Unwittingly Engaging in Lobbying Activity . . .

In 2017, a number of close friends of then-Mayor Rahm Emanuel learned the lobbying registration lesson the hard way.  A former Obama campaign official and current Uber executive sent an email to Mayor Emanuel’s personal email address asking Emanuel if he could have the City of Chicago ease up on regulations related to Uber. Five months later the Uber Executive registered as a lobbyist.  By then, it was too late.  Chicago’s Board of Ethics found him guilty of an ethics violation and determined that his single email to Emanuel warranted a $90,000 fine against him personally and a $2,000 fine for Uber.

In another case, a big firm attorney and part-time house music DJ sent one email to Emanuel asking for Emanuel’s assistance because he feared a construction matter could interfere with a music event planned in the City. The attorney was a friend and Emanuel had recently appointed his wife to fill a vacant aldermanic position. This attorney was found to have violated Chicago’s ethics rules for trying to influence Mayor Emanuel without first registering as a lobbyist. 

Avoid Ethical Hot Water When You Advocate for Your Clients

As we see from the above examples, even the slightest contacts with a city official may trigger an ethics violation.  In short, if you contact city officials for help on behalf of your clients, you may be engaging in lobbying activity and exposing yourself to fines and other penalties. 

This article discusses the basics of the lobbyist rule in Chicago, the exemptions to the rule, and what you can do to avoid substantial fines and penalties for acting as an unregistered lobbyist.

Who Is a Lobbyist in Chicago?

Under Chicago Ordinance 2-156-010, a lobbyist is any person who, for compensation or on behalf of someone other than himself, “undertakes to influence any legislative or administrative action.”  “Legislative action” includes introducing, sponsoring, or taking other official action with regard to ordinances, appointments, or other matters pending in the City Council.  “Administrative action” includes a decision on, or the making of, any rule, regulation or action by the executive branch of the City. 

Accordingly, if you are an attorney who is advocating on behalf of a client for a particular change in the law, or for city business requiring executive action, then you may very well be engaging in lobbying activity.  Moreover, if you are doing such advocacy but have not registered as a lobbyist, you leave yourself open to a possible ethics violation, which can be both professionally embarrassing and costly.

How Stiff Could the Penalties Be for Acting as an Unregistered Lobbyist?

Failing to register as a lobbyist can result in a financial penalty of $1,000 for each day that an individual fails to register after the requirement is invoked.  That kind of penalty can add up fast.

Even worse, failing to register can also result in revocation of any permit or license you obtain for your client due to your lobbying activity.  Specifically, Chicago Ordinance 2-156-510 states:

Any contracts negotiated, entered into, or performed in violation of any of the provisions of [Chicago’s ethics laws] shall be voidable as to the city, including any contract entered into with any person who has retained or employed a non-registered lobbyist in violation of Section 2-156-305 for the purpose of, negotiating, soliciting or otherwise seeking the contract. Any permit, license, ruling determination or other official action of a City agency applied for or in any other manner sought, obtained or undertaken in violation of any of the provisions of [Chicago’s ethics laws] shall be invalid and without any force or effect whatsoever. 

Chicago not only has one of the most expansive views of what a lobbyist is and what constitutes lobbying activity, but the consequences for running afoul of the lobbying law are severe.  In addition to fines, any permit or license is voidable due to a failure to register. 

While you may not consider yourself a lobbyist, under Chicago law you may be acting in such a way that you are in fact engaged in lobbying activity.  A lobbyist can be a lawyer, realtor, accountant, consultant, PR advisor or other.  Simply stated, being a “lobbyist” has nothing to do with whether you call yourself a lobbyist.  Rather, it has everything to do with the types of activities in which you are engaged. 

 What Are the Lobbyist Exceptions?

Even though Chicago casts a wide net in defining what constitutes lobbying activity, there are some important exceptions.  Merely submitting a permit or license application is not considered lobbying.  Also, responding to a City request for information (RFI), request for quotation (RFQ), or request for proposal (RFP) is not lobbying activity.  Engaging in journalism and certain adjudicative activities also does not fall under the lobbying activities umbrella.

As you may expect, there is a bit of gray area around activities related to obtaining an award of a government contract.  Generally speaking, sales and marketing efforts in connection with the award of a City contract are not in and of themselves “lobbying activities.”  So, if you are engaged in such efforts to obtain a government contract, then you are not required to register as a lobbyist. 

The reason for that general principle is because lobbyist registration and reporting requirements are more focused on people who seek to influence government actions that have a broad impact, like the creation of laws and regulations, rather than specific work contracts. That said, those who are seeking certain government contracts are still constrained by other ethics rules related to the giving and acceptance of gifts, the prohibitions on improper influence, and the prohibitions on bribery.  

How Do I Register as a Lobbyist?

If you are engaging in lobbying activity, then you are required to register as a lobbyist and also file quarterly lobbying reports that specify:

• Your lobbying clients;
• Your compensation from those clients related to your lobbying activity;
• The City agency that you lobbied;
• The administrative or legislative action related to your lobbying activity;
• Any expenditures paid for your lobbying; and
• Certain gifts and political contributions made during the quarter.

Conclusion

Many professionals may be engaging in lobbying activities for clients and not even realize it.  When you reach out to a City official on behalf of a client to effectuate a particular change, you need to consider whether you must register as a lobbyist in order to legally do such work. 

As an alternative – one which would give you complete peace of mind – you can hire a registered lobbyist to help you.  Having a registered lobbyist in your corner will allow you to understand what exactly constitutes lobbying in your particular field and serve as your lobbyist for certain projects.  Further, your clients will benefit from a registered lobbyist’s expertise. 

The information in this blog post is provided for informational purposes only and is not intended to be legal advice. You should not make a decision whether or not to contact an attorney based upon the information in this blog post. No attorney-client relationship is formed nor should any such relationship be implied. If you require legal advice, please consult with an attorney licensed to practice in your jurisdiction.