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Are Some Attorneys and Expediters Lobbyists? Yes

Chicago’s ordinance on lobbying is so broad, there is a lot of uncertainty surrounding whether someone is acting as an attorney, a different type of consultant, or is engaging in activities on behalf of a client that the City of Chicago’s Board of Ethics might consider “lobbying activity.”

In our last article on lobbying regulations, we focused on the fundamentals of who may be considered a lobbyist, whether you might be engaging in lobbying activity without even knowing it, and the penalties that may result if you are found to have engaged in lobbying without first having registered.    

In this article, we continue the lobbying discussion, this time at a more granular level  on two very specific types of activities that may or may not be considered lobbying by Chicago’s Board of Ethics.  In particular, we will discuss whether representing your client in a mediation or arbitration against the City could be considered “lobbying” under Chicago’s broad definition of the term.  In addition, we will delve into the world of the expediter, and whether routine business for an expediter might also be considered “lobbying.”

If, after reading this article, you want to learn more about the nuances of Chicago’s lobbying ordinance, we invite you to call us at 1818 – An Advocacy Group

Could Engaging in Arbitration or Mediation Be Considered Lobbying?

While you might be surprised to think that arbitration or mediation would ever present a concern about lobbying, it was enough of a concern for one law firm to go as far as to ask the Chicago Board of Ethics for an advisory opinion.  The firm wanted to be certain that contractually required mediation or arbitration against the City of Chicago was not considered lobbying.  The result of the inquiry became Board Case No. 10058.A, the advisory opinion that discusses the question in some detail.

The Board’s decision hinged on the definition of “lobbyist” itself.  Section 2-156-010(p) of the lobbying ordinance provides that a “lobbyist” is any person who, on behalf of any person other than himself, or as any part of his duties as an employee of another, undertakes to influence any legislative or administrative action . . . The term “lobbyist” shall include, but not be limited to, any attorney, accountant, or consultant engaged in the [activities listed in the definition]; provided, however, that an attorney shall not be considered a lobbyist while representing clients in a formal adversarial hearing.

The Board went on to note that a “formal adversarial hearing,” according to Black’s Law Dictionary, is a hearing that involves a dispute between parties, and that has established procedural rules, customs, and practices. 

Both mediations and arbitrations involve disputes.  As you likely know, mediation is the process in which parties in litigation attempt to reach a settlement with the assistance of an objective, third-party mediator.  Arbitration, which may follow when mediation does not resolve the matter, is a quasi-trial like proceeding in which each party presents its respective side of a dispute.  Mediations and arbitrations also follow a set of specific rules.  The specific rules for mediations are set by the mediator and mediation organization.  Arbitrations are guided by the rules and procedures set forth by the organization conducting the arbitration, often the American Arbitration Association. 

Therefore, because mediations and arbitrations are hearings that (i) involve a dispute, and (ii) follow established procedural rules, then they are “formal adversarial hearings” that take the representing attorney out of the definition of lobbyist. Representing a client in an arbitration or mediation against City government is generally not considered lobbying activity, and therefore falls outside Chicago’s lobbying ordinance.

Are Expediters Lobbyists?

For those who may be unfamiliar, an “expediter” is a person who seeks to obtain  and expedite building permits from Chicago’s Department of Buildings, or other agencies, on behalf of clients.  They are people who, for a fee, will look after a particular construction project to make sure all of the necessary approvals are obtained, and obtained in a timely fashion.  As you may surmise, expediters have frequent contact with City government officials, and there are many opportunities for an expediter to try to influence an official in connection with construction projects. 

Not surprisingly, then, the issue of expediters became the topic of a Board of Ethics advisory opinion, Advisory Opinion Case No. 2013.A.  The Board was clear to delineate as clearly as possible which of those activities that are, and are not, considered lobbying.

In short, the touchstone inquiry is whether the expediter is “attempting to influence non-ministerial administrative action.”  The Board ultimately decided that expediters would not be considered lobbyists if they are engaged in the following activities:

  • Preparing and submitting permit applications.
  • Monitoring the progress of these applications through Plan Examiners’ reviews of the plans submitted as part of an application.
  • Meeting with Plan Examiners and other Department of Buildings personnel to clarify what needs to be corrected in the plans in order to conform with building code requirements.
  • Acting as a contact person in the event of emergency, if listed on the permit as the “contact person.”
  • Inquiring as to the status of permit applications.

On the other hand, expediters would be considered lobbyists if they engaged in the following activities:

  • Attempting, in any way, to persuade Department of Buildings personnel to expedite permit processing, or advocating, in any way, that a request for expedited permit processing be approved by Department of Buildings personnel.
  • Attempting, in any way, to persuade Plan Examiners or other Department of Buildings personnel to adopt a particular interpretation of the building code or attempting to influence their decision to approve a particular set of plans submitted as part of an application.
  • Attempting, in any way, to persuade Aldermen, employees of the Mayor’s office, or any other City employee or official to intercede in, promote or influence the permit application process in any of the following ways: a) requesting expedited permit processing; b) attempting to persuade Plan Examiners or other Department of Buildings personnel to adopt a particular interpretation of the building code; c) attempting to influence the decision of Plan Examiners or other Department of Buildings personnel to approve a particular set of plans submitted as part of an application.

As you can see, the concept of persuasion is what tips the balance in favor of finding an expediter to be a lobbyist.  With regard to the first list of activities, they are all “information providing and monitoring-type” activities.  Preparing applications and checking on status has the air of someone just waiting for the government to do its job. 

The second list of activities, however, implicates an expediter’s ability to influence or persuade the government to do its job more quickly, in a particular way, or in a way that helps his or her client. 

Therefore, the advisory opinion articulates that important line between providing the government with necessary information about a project on the one hand, and influencing the government to act in a certain way on the other.  If you are an expediter who seeks to persuade, then be sure to register as a lobbyist.  

Conclusion

The penalties for lobbying in the City of Chicago without registering as a lobbyist can be severe and even include revocation of the permit or action you were trying to obtain for your client. 

You can, however, avoid the uncertainty of not knowing whether you are engaging in lobbying activity by having a registered lobbyist at your side to help you.  We welcome you to call 1818 – An Advocacy Group to help you with your lobbying efforts.  We are professional, experienced, qualified, and registered lobbyists. 

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.

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