Posted Thursday, October 20th, 2011 by Jonathan Peters
Fla. Mayor Says Reporters, Columnists Are Lobbyists Under Ethics Code; I Say He’s Wrong
-------------Mayor Richard Kaplan--------------
Finally, my parents can be proud of me. No longer do they have to tell their friends that I practice law or teach or write. They can say I’m a lobbyist, all because of Richard Kaplan, the mayor of Lauderhill, Fla.
Kaplan said last week that reporters and columnists are lobbyists. Specifically, he refused to speak with a reporter unless she filed for public inspection “whatever is required as a lobbyist.”
He cited the county’s new ethics code, which goes into effect in January and requires lobbyists to complete contact logs listing every elected official with whom they communicate. Under the code, Kaplan said, reporters and columnists qualify as lobbyists.
The purpose of the ethics code is to limit influence peddling. It restricts lobbying by elected officials and their family members, it bans gifts from lobbyists and expands disclosure requirements, and it creates a special office to investigate government wrongdoing.
To see if Kaplan’s right, let’s look at the code.
Here’s its definition of “lobbying” and “lobbying activities”:
[A] communication, by any means, from a lobbyist to a covered individual regarding any item that will foreseeably be decided by a final decision-making authority, which communication seeks to influence, convince, or persuade the covered individual to support or oppose the item.
And here’s its definition of “lobbyist”:
[A] person who is retained, with or without compensation, for the purpose of lobbying, or a person who is employed by another person or entity, on a full-time or part-time basis, principally to lobby on behalf of that other person or entity.
Mashing them together, then, a lobbyist is a “person who is retained … for the purpose of” communicating with public officials about public business, with the intent “to influence, convince, or persuade” the official to take a certain action.
First, columnists in the broadest sense often want “to influence, convince, or persuade” public officials to do things. Some are employed for that very reason—to poke the bear. But in general they’re not doing so by communicating with the public official. They’re doing so by communicating with the public at large. Any direct communication between the columnist and official is incidental.
Second, reporters worthy of the title don’t “seek to influence, convince, or persuade.” They try to uncover the best obtainable version of the truth, as Bob Woodward once said, and then report it accurately, fairly and without bias. That’s the most any reporter can do in a world without perfect information. Reporters are objective, not advocative.
Third, the idea that a reporter or columnist would have to file something to talk with a public official raises First Amendment questions. It conjures images of licensing, the Colonial-era scheme the government used to control access to printing presses. Which, in turn, controlled who could be reporters and columnists. David Bralow, assistant general counsel of the Tribune Company, which owns the South Florida Sun-Sentinel, made that point here.
It might not hurt for the county to revisit the code to clarify a few terms, but by my reading reporters and columnists don’t qualify as lobbyists. And even if they did, the First Amendment wouldn’t tolerate it.
My parents will be so disappointed.
Jonathan Peters is a lawyer and the Frank Martin Fellow at the Missouri School of Journalism, where he’s working on his Ph.D. and specializing in the First Amendment. He’s written on legal issues for a variety of news media, most recently Wired and PBS. He can be reached at jonathan.w.peters@gmail.com
Dear Mr. Peters,
I read with interest your article in the Harvard Law and Policy Review about me. I understand your points, but I think you went a bit too far and assumed some issues that caused you to come to a different conclusion than I did. Plus many have concerns were over how the law it to be interpreted without any guidance be given.
As an example, you stated, “First, columnists in the broadest sense often want “to influence, convince, or persuade” public officials to do things. Some are employed for that very reason—to poke the bear. But in general they’re not doing so by communicating with the public official. They’re doing so by communicating with the public at large. Any direct communication between the columnist and official is incidental.”
In your statement you included the words “direct communication,” and if the Ethics Code had said that I would have agreed with you. I believe the law should have, but it doesn’t. Instead the code says, “communication, by any means” and does not specify direct or indirect. That gives a difference meaning then you assumed. Also, you stated that “in general,” and therefore your statement implies that maybe sometimes the opposite is true. So therefore it is possible that someone could conclude they are lobbyist.
You did not answer as to whether editors that write the editorials are lobbyist. The answer could be similar to columnist.
As to reporters, I agree it is a more difficult argument, but since the newspaper editors (assuming they are declared lobbyist) base their published opinions on their reporters research, they may be considered as working together and assisting the editors to lobby. Otherwise, this may create a loophole on how to avoid being considered a lobbyist, by using a third party.
You should also know that Florida has some of the strictest interpretations of codes applying to elected officials. Our sunshine law is the toughest in the nation, and courts have repeatedly ruled that they should be interpreted liberally for the good of public policy.
My point is that the law is uncertain in this area, and the burden is on the elected official. If they are wrong, they are held accountable, and the newspapers would be the first to make sure everyone knows.
Your point about the 1st amendment is a very good one. I thought of that myself. The problem is that that would be a defense to charges of violation of the ethics law. Is that something you personally would want to be the test case for? Public figures normally don’t.
You would find it interesting that since this matter has come up, it has cause many to question whether or not it is correct. It has created some doubt. I have been informed that there could be validity in what I stated, and therefore concerns, including among other lawyers research this.
My concern is that I don’t want to be a test case. But if I am, maybe you would defend me pro bono.
Hope this puts a little more light on the matter.
Mayor Richard J Kaplan
Mayor Kaplan,
I’ll address your main points below:
(1) “In your statement you included the words ‘direct communication,’ and if the Ethics Code had said that I would have agreed with you.”
I read the language “from a lobbyist to a covered individual” to mean direct, rather than indirect, communication between the sender and receiver, and I read the language “by any means” as a reference to the mode of communication, like speaking or writing. Reading them together that way made the most sense to me, given the intent of the law.
(2) “My point is that the law is uncertain in this area, and the burden is on the elected official. If they are wrong, they are held accountable, and the newspapers would be the first to make sure everyone knows … My concern is that I don’t want to be a test case.”
I sympathize with you, and I realize that few public officials want to be test cases for anything, let alone ethics violations. But the burden is in the right place. Where else would it be? Public officials assume burdens that others do not, by virtue of their power and public responsibilities. And the newspaper’s responsibility is to report accurately and fairly about public issues. That includes any charges that a mayor violated an ethics code.
However, if that happens and there’s reason to believe the ethics code is unconstitutional (e.g., on First Amendment grounds), the newspaper has a responsibility to tell that side of the story, too. It’s not enough for the newspaper to focus on the mayor. Of course, the practice here can deviate from the principle, but this is the way things should work. It’s the way our system of government is set up.
Although I don’t envy your situation, I’m confident you can talk with reporters and columnists and editorial writers (I put them in a big box with columnists) without violating the ethics code. And yet it wouldn’t hurt for the county to revisit the code to clarify a few terms. The more clarity, the better. In any case, I’ll continue to follow this issue, and feel free to contact me if I can be of help.
Jonathan