Press Conference on Ethics Reform today

Only City Council members and authorized staff are allowed to post on this message board.
Leslie Pool
Posts: 231
Joined: Mon Jan 12, 2015 3:22 pm

Press Conference on Ethics Reform today

Post by Leslie Pool »

All, as you're probably aware, many in Austin are concerned over the City's campaign finance and ethics rules. Both the City's Commission on Ethics Review and the League of Women Voters, as well as many other parties, have been working on updating and enhancing these rules. A press conference is set at 10 a.m. today in the Media Room on the changes to lobbyist registration rules that I will lay out in the Audit & Finance Committee meeting on Wednesday. I will step off the dais around that time to attend, and any who are interested are very welcome to join me.

Council in June approved an eFiling ordinance and gave the needed go-ahead for staff to work on software changes to make that happen. I look forward to working with the Mayor and my fellow council members, the public, and the lobby community to pass the best lobby registration law in the country and bring improved transparency and accountability to Austin government.

Here's an overview and the text of the draft resolution ::

Austinites have a right to transparent and accountable government, including the right to know who is being paid appreciably to attempt to influence city decisions. Citizens, whether paid or not, have a right to petition their government, but the public also has a right to know who is being paid by whom on what matters to influence their government. We want Austin to be the best City in the US; part of that entails having the best ethics and accountability laws.

Our current Austin lobbyist reporting law is in need of reform: it is outdated, unclear, and not enforced. The Statesman and others have shown that a number of people who are compensated significantly to influence city government—who are clearly lobbyists in anyone’s definition- fail to register or disclose their lobbying activities. The resolution I will introduce tomorrow in the Austin and Finance Committee will require these persons to come out of the shadows, register, and disclose their activities.

These reforms modernize and clarify the city’s lobbyist law, which has not been overhauled in 40 years. These reasonable reforms are based primarily on Texas’ state law provisions, which are clearer and more comprehensive than the city’s laws.

A few key resolution reform highlights:

1. Eliminate the incidental lobbying exception. Currently, if a person lobbies for pay for their regular employer, and they decide that the lobbying is incidental to their employment, they are exempt. Incidental has no definition. So, if a lobbyist spends 49% of their time lobbying the City, and their job pays them $200,000 a year, are they lobbying incidentally? I propose to replace this amorphous term with a specific monetary compensation threshold of $2000 a quarter and clearer definitions.

2. Eliminate the underling official exception. Current law provides that lobbying includes only seeking to influence the council, the city manager, and major department heads. But in the real world, lobbyists spend much of their time trying to influence mid-management and other staff who have a huge impact on many city decision. I propose following state law, which doesn’t focus on the title of the city official being lobbied, but whether they have a role in deciding a discretionary decision.

3. Clarify who must register and who need not. There are three major clarifications on who must register: 1)a person has to be compensated at least $2000 a quarter to lobby; 2) they must be seeking a discretionary, appealable decision from the staff, not a ministerial decision; and 3) lobbying is directly communication outside of a public hearing. So for example, building craftsman do not have to register because building technical code issues (life and safety issues such as plumbing and electrical) isn’t considered discretionary.

4. Improved reporting, following state law. The resolutions now would require reporting : 1) compensation of the lobbyist by client within ranges; 2) the persons assisting the lobbyists’ preparation; 3)detailed expenditure reporting; 4) a specific description of the matter being lobbied on; and 5) electronic filing of reports, posted on the internet in a searchable, downloadable database. Professional lobbyists report these items at the state level; they can report in a city of 900,000 people.

5. Various measures to enhance enforcement, which is a major problem in this area as in many others in the city.
........................

RESOLUTION NO.

WHEREAS, Austinites have a fundamental constitutional right to petition and to seek changes to their city government;

WHEREAS, Austinites have a right to and need for disclosure of the activities of all persons paid appreciably to seek to influence the decisions of their government;

WHEREAS, comprehensive, timely and accessible disclosure of persons compensated appreciably to influence government promotes government transparency and public faith in the City of Austin’s government; and

WHEREAS, the City of Austin’s current lobbying ordinances, Chapter 4-8, Regulation of Lobbyists, are outdated, ambiguous, and contain numerous gaps in transparency; and

WHEREAS, a number of individuals who appear to be paid appreciably to influence through direct communications Austin city employees on discretionary municipal matters are currently not registering and reporting as lobbyists; and

WHEREAS, individuals should be required to register and report as lobbyists in Austin who satisfy all of these criteria: 1) they are compensated; 2) over a specified minimum threshold amount; 3) to influence; 4) through direct communications: 5) a city employee; 6) on a discretionary; 7) municipal matter.

WHEREAS, Austin’s lobbyist laws, unlike Texas’ state laws, do not require lobbyist to disclose essential information, such as the amounts they are paid, the specific matters they are lobbying on, details of their expenditures, or the names and pay of the persons assisting them; and

WHEREAS, the City’s enforcement of Austin’s lobbyist laws has not been effective; and

WHEREAS, the State of Texas’ more modern and effective lobbying laws (Tex. Gov. Code, Chapter 305) and regulations (1 Tex. Admin. Code, Chapter 34) provide guidance for improving Austin’s laws, as referenced below; and

WHEREAS, consideration by the Audit and Finance Committee of revisions described in general terms below to Chapter 4-8 will provide an opportunity for the City of Austin to make substantial improvements to its lobbyist disclosure laws:

1) Eliminate incidental employment as a lobbyist exception to the definition of “compensation” and “expenditures” for lobbying in Austin City Code, Section 4-8-2(2), (3).

2) Encompass all city employees and agents within the scope of city personnel who may be subject to being lobbied on a discretionary matter, by redefining “city official” in Austin City Code, Section 4-8-2(1), to include all city employees, consultants, agents and representatives. Similarly, revise the Austin lobby law’s applicability in Austin City Code, Section 4-8-3 to include all city employees. See Tex. Gov. Code Section 305.002(4), (7)

3) Amend “municipal question” in Austin City Code, Section 4-8-2 (9) to explicitly require the city officials’ decision or action to be discretionary. Include specifically in the definition of municipal question both municipal legislation and administrative action of a discretionary nature that are subject to any action or decision by a city official and that is pending or may in the future be subject to a discretionary action or decision. See Tex. Gov. Code, Section 305.002 (1), (6). A matter is considered discretionary per se if it can be appealed to a city commission, city board, or to the council, or if it is an administrative variance or alternative compliance in the Land Development Code (Titles 25 and 30). Decisions on building permits and site plans are discretionary per se. However, technical decisions, whether appealable or not, in Chapter 25-12 (the Technical Code) are considered non-discretionary.

Subject to the above, discretionary excludes the non-discretionary day-to-day, routine application, administration, and execution of city programs and policies such as routine, non-discretionary permitting and design approval matters in connection with a specific project or development. See City of Houston Code, Section 18-71 (administrative action, municipal legislation); City of Dallas Code, Section 12A-15.2(12).

Define “municipal legislation” as (1) An ordinance, resolution, motion, amendment, nomination, or any other matter pending before the city council, council committee, city-created entity, or city commission; or (2) Any matter that is or may be the subject of action by the city council, council committee, city-created entity, or city commission, including drafting, placing on the agenda, consideration, passage, defeat, approval, timing or tactics, or countersignature of the matter. See City of Houston Code, Section 18-71 (municipal legislation)

Define “administrative action” as rulemaking, licensing, or any other matter that is or may be the subject of decision or action by a city official, including the proposal, consideration, or approval of the matter. See City of Houston Code, Section 18-71 (administrative action).


4) Raise the lobbyist registration compensation thresholds in Austin City Code, Section 4-8-4 to $2000 a quarter from $200 a quarter and the expenditure threshold to $500 from $200. Add a subsection in Section 4-8-4 specifying that a person who meets a threshold in this section is required to register if the person, as part of his regular employment, communicates directly with a city official to influence a municipal question, whether or not the person receives any compensation or reimbursement for the communication in addition to their salary for that employment. See Tex. Gov. Code 305.003(b).


Require the registrant to make a reasonable allocation of compensation, between compensation for lobby activity and compensation for other activities, for all reported persons. See 1 Tex. Admin. Code 34.43(c). Require the Ethics Review Commission to recommend to the Council for consideration every four years a modification in the registration compensation and expenditure thresholds to maintain a substantially equivalent threshold after 4 years of cost of living and other relevant changes.


5) Increase the current lobbyist registration fee of $300 to $350 to reflect the cost of living, in Austin City Code, Section 4-8-6(C). Tie the fee to the cost-of-living index and having it revised automatically every year in increments of $10 at the time of the City budget’s adoption. Lower the registration fee for regular employees of 501(c)(3) nonprofit organizations, that are not retained or compensated by others to lobby, to $50 a year.


6) Require lobbyist reports, pursuant to Austin City Code, Section 4-8-7(A), to include lobbyist compensation ranges for each client. See Tex. Gov. Code, Section 305.005(g). In addition, the Code in Section 4-8-6 (A) should include the following information on lobbyist preparers or aides: their name, compensation, client, and specific subject matter. Tex. Gov. Code, Section 305.005(f)(5).


7) Require all lobbyist registration forms and reports to be filed in an electronic format that allows for a downloadable, searchable database, which will be placed with 2 business days on the City website with common queries for publicly accessibility, such as total compensation for a particular lobbyist, all clients of a particular lobbyist, and all lobbyists and their compensation for a particular municipal matter or client.


8) Require in Austin City Code, Section 4-8-6(A)(3) more detailed reporting of the specific municipal matters lobbied on so that the lobbyist reports contain a description by each client of every real property (an address or legal description) and/or a description of each subject matter being lobbied. Require the City Clerk to develop checkoff boxes for a comprehensive list of specific subject matter descriptions. See Tex. Gov. Code, Section 305.005(f)(4).


9) Require lobbyists to update their city registration forms within 5 business days when a new client or new municipal matter is added. See Tex. Gov. Code, Section 305.0065. Change Austin City Code, Sections 4-8-2(2) and 4-8-6 to have lobbyist registration or amended registration triggered simply by the first day of direct communication with a city official, rather than under current law, which is triggered by the latter of their first day of direct communication or entering into a lobby contract.


10) Include lobbying preparation by lobbyists and their assistants for directly communicating to the definition of “compensation” in Austin City Code, Section 4-8-2(2) for lobbying. See 1 Texas Administrative Code Sections 34.3, 34.63.

11) Redefine lobbying in Austin City Code, Section 4-8-2 (6) to include “communicating directly” or communicating through intermediaries with city officials. See Tex. Gov. Code Section 305.002(2).

12) Eliminate the overbroad dispute exception to lobbying in Section 4-8-5(7) and add additional exceptions, such as for lobbyist assistants that do not directly communicate with city officials and are reported by the lobbyist (See 1 T.A.C 34.63), and for a person whose only lobbying communication is public testimony at a public hearing regardless of whether they are compensated. See Tex. Gov. Code, Section 305.004 (2). Add an exception for persons who are appointed to city boards and commissions and their sole activities relate directly to that public service. Tex. Gov. Code, Section 305.0041(a)(4).




13) Require all registered lobbyists, by amending Austin City Code Section 4-8-9, at the beginning of all their direct communications with city employees to state their name and the client(s) for whom they are lobbying.


14) Amend the Austin lobby law to explicitly subject all lobby filings to state perjury and false statement penal provisions, by amending Austin City Code, Sections 4-8-6 (A) and 4-8-7 (A). Amend City Code Section 4-8-11 to provide that each and every failure to properly register, file or disclose information under Chapter 4-8 is a separate violation and is subject to a separate Class C Misdemeanor.


15) Mandate in Section 4-8-11 that lobbyists that violate the City lobby law after two prior adjudicated violation occurrences shall be banned from lobbying the City of Austin for 60 to 365 days for each subsequent adjudicated occurrence.


16) Require the City Auditor, rather than the City Clerk, pursuant to Austin City Code, Section 4-8-7 (E), to facially review all lobbyist registration and activity report forms for timeliness and completeness within 30 days. Require all findings of possible violations to be forwarded by the City Auditor to the Ethics Review Commission within 10 business days.


17) Change Austin City Code, Section 2-7, Article 3, to require that complaints for alleged violations of Austin City Code, Article 4-8, that the Ethics Review Commission shall hold only a preliminary hearing, and not a final hearing, and that the Commission be required to refer all complaints for which there is a reasonable basis to believe that there may be a possible violation for municipal prosecution. Require an Ethics Review Commissioner to fully recuse themselves from any decision or participation in any lobbyist or ethics complaint before the Commission involving an alleged violation by the Council member that nominated them.


18) Require, in Section 4-8-7, the City Auditor to annually conduct a complete audit at random of a sufficiently large sample of lobby registrants to be representative, but not less than 5% of registrants, to ensure registrants’ filings are in compliance. All possible violations shall be referred to the Ethics Review Commission within 14 days.


19) Delineate the expenditure categories more specifically. Tex. Gov. Code, Section 305.006(b). Require itemization for specific items over $50.


20) Add narrow and limited exclusions to the definition of compensation in Section 4-8-2(2), similar to those provided by Texas State Law, including for activities directly related to service on appointed city boards and commissions. Tex. Gov. Code Section 305.0041(a)(4); 1 Tex. Adm. Code 34.5


21) Add additional minor clarifying language as appropriate to modernize Chapter 4-8.

NOW, THEREFORE, BE IT RESOLVED BY THE AUDIT AND FINANCE COMMITTEE OF THE CITY OF AUSTIN:

The City Manager is directed to provide a draft ordinance in accordance with this resolution within 30 days, and provide comment and recommendation for review and consideration by the Audit and Finance Committee.

FURTHER, BE IT RESOLVED:
The City Manager is directed to analyze and report back to the Audit and Finance Committee within 60 days alternative approaches to ensure the diligent and independent City prosecution of alleged lobbyist law violations.



ADOPTED: ________ , 2015 ATTEST: ________________________
Jannette S. Goodall
City Clerk
Leslie Pool
Mayor Pro Tem
Council Member, District 7