November
2015
October 20,4,2015
Dear
Adler and
and Austin
Austin City
CityCouncil
CouncilMembers,
Members,
Dear Mayor
Mayor Adler
The design, development, and building community, as reflected by our signatures below, have
The design, development, and building community, who are tasked with compliance with the Austin City ordijoined together to review the proposed changes to the lobbying ordinance. As the professional
nances and codes, have joined together to review the proposed changes to the lobbying ordinance, and would like
community tasked with compliance with City ordinances and codes, these groups, representing
to share with
you our concerns
with
the current
proposal.
thousands
of professionals,
have
serious
concerns
with the proposal.
The draft lobbying
resolution
review byResolution
the Ethics Committee
seeksconsidered
to require anyone
who speaks to city staff
Attached
is our analysis
of theinproposed
currently being
by the Ethics
on
a
“discretionary”
matter
to
register
as
a
lobbyist.
Hundreds
of
design
professionals,
craftsmen,
and adminisCommission and Audit and Finance Committee. All large Texas cities, including, Dallas,
trators
must
interact
and
communicate
with
City
staff
in
order
to
do
their
job,
as
it
is
nearly
impossible
to take a
Houston, San Antonio, Corpus Christi, Laredo and El Paso, and the State, limit the lobbying
public
(City,
County,
State,
or
Federal)
or
private
project
through
the
City
of
Austin
permitting
system
without
registration and reporting requirements through a combination of threshold applicability
speaking to City
staff at length.
Having
those professionals
register
as lobbyists
wouldexclusions
not provide
requirements,
a limited
definition
of lobbying
and lobbying
activities,
and explicit
ofany community
benefits
or morecommunications
transparency. Innecessary
fact, such for
information
about who
is working
withforth
city in
staff
the
day-to-day
the plan approval
process.
As set
theon a project is readily
analysis,
notthe
only
doesonthe
Resolution
not contain
any such limitations, it also wholly
available to
public
theproposed
city’s AMANDA
database
website.
misrepresents the substance of other municipal ordinances and falsely implies that the suggested
changes
supported
by the language
of those
ordinances.
We have are
reviewed
the lobbying
ordinances
of large
and growing municipalities both in Texas and across the
country. None of these cities, nor the state, have adopted the broad and far-reaching definition of lobbying and
The
proposed
wouldproposed.
not serve the intended purpose of promoting Austinites’ ability to
lobbyists
that isResolution
currently being
monitor true lobbying activities or improve the City of Austin’s ability to enforce a lobbying
ordinance.
it wouldmay
require
thousands
of and
professionals
to register
andresolution
report their
Additionally,Moreover,
because lobbyists
not sit
on boards
commissions,
the draft
willdayban Austin’s
to-day
communications
with
City
staff
as
"lobbying,"
and
would
automatically
and
by
operation
design professionals from civic service. Austin has dozens of boards and commissions that depend on the profesof law disqualify those individuals from serving on any City boards and commissions, not only
sional resources of volunteer architects, landscape architects, engineers, interior designers, surveyors, and a long
for the time period that they are registered, but for three years thereafter.
list of other professionals who have answered the call of civic service. Trained and experienced professionals help
navigate
theproposes
rising complexity
of a growing
educating
our community
on complex
topics
Our
group
specific changes
to theAustin
currentbylobbying
ordinance
which would
eliminate
theincluding land
code
and
permitting,
urban
planning,
sustainability,
resilience,
and
design
for
public
health.
Our
current
ethics
incidental exemption and thereby provide more transparency and accountability to the current
rules
for
boards
and
commissions,
when
effectively
enforced,
already
prohibit
any
conflicts
of
interest
by
design
ordinance, but would preserve the ability of professionals to engage in the interactive process
professionals
on boards
and commissions.
with
City staffserving
necessary
for permitting
and plan approval. Our draft Resolution, and draft
redline of the current ordinance reflecting our proposed changes, is attached.
We will continue to engage during each step in this process, and would like to meet and discuss ethics reform
options centered on healthy, transparent processes for both individuals and groups to participate meaningfully in
Sincerely,
public policy. We thank you in advance for meeting with our collaborative group.
Sincerely,

Stuart Sampley, AIA, President
American Institute of Architects Austin (AIA Austin)

Steven Spears, PLA, AICP, Central Texas Chair
American Society of Landscape Architects (ASLA)

Tony Buonodono, PE, PMP, Stakeholder Committee Chair
American Society of Civil Engineers, Austin Branch (ASCE)

Walter Elias, President
Home Builders Association of Greater Austin (HBA)

Josh Tompkins, President
Associated Builders & Contractors, Austin (ABC)

Phil Thoden, CAE, President and CEO, Austin Chapter
Associated General Contractors (AGC) General Contractors

Amy Casto, Executive Director
American Council of Engineering Companies Texas (ACEC)

Michele Yule, Executive Director
Greater Austin Contractors & Engineers Association (ACEA)

Ward Tisdale, President
Real Estate Council of Austin (RECA)

Jonathan L. Poole, Ph.D, PE, President, Austin Chapter
Structural Engineers Association of Texas (SEAoT)

Brian Everett, PE, President, Travis Chapter
Texas Society of Professional Engineers (TSPE)

 A COALITION OF DESIGN, ENGINEERING, BUILDING, AND DEVELOPMENT
PROFESSIONALS, AS SET FORTH BELOW, PROVIDES THE FOLLOWING
COMMENTS, IN RED, TO THE PROPOSED RESOLUTION ADVOCATING
AMENDMENTS TO AUSTIN’S LOBBYING ORDINANCE
American Institute of Architects Austin
American Society of Landscape Architects Central Texas
Associated Builders & Contractors, Austin
Associated General Contractors, Austin Chapter
American Council of Engineering Companies Texas
Greater Austin Contractors and Engineers Association
American Society of Civil Engineers, Austin Branch
Home Builders Association of Greater Austin
Real Estate Council of Austin
Structural Engineers Association of Texas, Austin Chapter
Texas Society of Professional Engineers, Travis Chapter

COALITION COMMENTS TO THE PROPOSED RESOLUTION
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
• The current Austin lobbying ordinance is similar to, and in fact more
inclusive than, the lobbying ordinances of Texas’ ten largest municipalities.
• As set forth below, the Proposed Resolution misstates, misquotes, and
wholly misrepresents the substance of the lobbying ordinances of both
other Texas municipalities and the state. The Proposed Resolution seeks to
expand the reach of the lobbying statute far beyond any other municipal or
state lobbying law.
• The effect of the proposed changes would be to require hundreds, if not
thousands, of professionals who must communicate with City staff as part
of their duties to ensure compliance with Austin’s regulations and codes, to
register as lobbyists, and to disqualify such individuals from serving on any
Austin boards or commissions, where their expertise is essential to the
formulation and implementation of Austin’s policies on growth,
infrastructure, environmental protection, compatibility, roads, mass transit,
sustainability and affordability.
• Design professionals did not go to school to be, did not intend to be, and
are not paid to be “lobbyists.” The City of Austin permitting, platting and
plan approval process requires communications with City staff. It is a
dynamic, interactive process regarding the proper interpretation of and
application of Austin City Codes. This Proposed Resolution would label
such communications as lobbying, require onerous and costly registration
and reporting, and disqualify these professionals from civic service.
Flooding the City with lobbyist registration and reports not only fails to
increase transparency, it exposes these groups to selective enforcement and
potential use of ethics and criminal complaints as a tool by opposition
groups to advance their political agenda.

2

 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
• There is no support for this statement, which fails to identify any specific
individuals or groups who are not required to register, or fail to register,
under Austin’s current ordinance. More stringent enforcement of Austin’s
current lobbying ordinance would address the concerns raised by advocacy
groups.
• While this Coalition could support changes to the Austin lobbying
ordinance that promote transparency and faith in Austin’s city processes, it
is rightly concerned that the changes proposed in the Resolution will not
only fail to promote these goals, it will also result in an unworkable system
that will unduly hinder and delay the already difficult task of compliance
with Austin’s complex city codes and regulations, harm Austin’s
competitiveness, and deny Austin’s boards and commissions of badly
needed expertise.
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.
• While the Coalition generally agrees with this statement, the changes
proposed in the Resolution, including the elimination of the incidental
exemption and the broadening of the definition of City official and
municipal matter, expand the reach of the ordinance far beyond lobbying
activities and far beyond the reach of any other lobbying ordinance or
statute.
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
3

 • As set forth below, no other municipal statute requires the reporting of
compensation. Moreover, the current ordinance already requires the
disclosure of the registrant, the client, the municipal question on which they
will or have lobbied, and lobbying expenditures.
WHEREAS, the City’s enforcement of Austin’s lobbyist laws has not been
effective; and
• There is no support for this statement. There have been no reported issues
of improper influence or other violations that should have been addressed
under the current Austin lobbying ordinance.
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
• The Proposed Resolution misstates, misquotes, and wholly misrepresents
the substance of the state lobbying statute, which contains both minimum
thresholds and specific exemptions that are neither referenced or included
in the Proposed Resolution.
• Further, the state lobbying statute is not an appropriate model for a
municipal lobbying ordinance, for it fails to take into account the full range
of communications necessary for the day-to-day administration of a
growing municipality.
WHEREAS, consideration by the Audit and Finance Committee of revisions
described in general terms below (and in detail in the attached tracked amendments 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).

4

 • The incidental exemption in the Austin ordinance is similar to the
exemptions found in the Dallas, San Antonio, Laredo, Corpus Christi and
El Paso ordinances. The El Paso language tracks the Austin language, and
the others similarly state that “compensation” does not include payments
made to an individual regularly employed by a person if:
(1) the payment ordinarily would be made regardless of whether the
individual engaged in lobbying activities; and
(2) lobbying activities are not part of the individual's regular
responsibilities to the person making the payment.
See Dallas City Code § 12A-15.2(3)(B), (6)(B); San Antonio City
Code § 2-62 (c), (d); Laredo City Code § 2-356; Corpus Christi
City Code § 2-316B(c); see also El Paso City Code § 2.94.020
(same incidental exemption as Austin).
• The Texas lobbying statute does not contain the same exemption as the
municipalities, but has an hours threshold that accomplishes the same
purpose:
(b-3) Subsection (a)(2) does not require a person to register [as a
lobbyist] if the person spends not more than 26 hours, or another
amount of time determined by the commission, for which the person
is compensated or reimbursed during the calendar quarter engaging
in activity, including preparatory activity as defined by the
commission, to communicate directly with a member of the
legislative or executive branch to influence legislation or
administrative action. Tex. Gov’t Code § 305.002 (b-3).
• Eliminating the incidental requirement in the Austin ordinance, without
exemptions for communications necessary to the platting, permitting and
plan approval process, would require hundreds, if not thousands, of design
engineering and development professionals to register as lobbyists.
• Labeling design professionals and others as lobbyists would also
automatically disqualify them from serving on any City boards or
commissions during the time they are registered and for three years after:
A person who is registered or is required to register as a lobbyist
under Chapter 4-8 (Regulation of Lobbyists) or who is employed by
a person registered or required to register under that chapter is not
eligible to serve on a board until the expiration of three years after

5

 the date that the person ceases to be registered, required to be
registered, or employed by a person registered or required to
register. Austin City Code, § 2-1-21.
A “board” is defined as “a permanent advisory or decision-making
body described in Article 2 (Boards) and includes a commission,
committee, council, or agency.” § 2-1-2(A).
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)
• No other large municipality in Texas does this; all have definitions of city
official that are limited to high level staffers. See Dallas City Code §§ 12A-15.2(1), (10); Houston City Code §§ 18-71, 72; San Antonio City Code
§ 2-62(a); El Paso City Code § 2.92.0; Corpus Christi City Code § 2316B(a); Laredo City Code § 2-356.
• Unlike Austin, most large municipalities further limit the definition of
lobbying activities by specifically exempting permitting, platting and plan
approval communications: “The term [administrative action] does not
include the day-to-day application, administration, and execution of city
programs, policies, and procedures such as permitting, platting, plan
approval, and technical matters related to or in connection with a specific
project or development.” Houston Code Section 18-71; Dallas City Code §
12A-15.2(12)1
• The state lobbying statute also contains exemptions from the definition of
“lobbying” that include the following:

1

See also San Antonio City Code § 2-62(k) (excluding the “day-to-day application, administration or execution of
city programs, policies, ordinances, resolutions or practices, including matters that may be approved
administratively without consideration by a board, a commission or the city council”); Laredo City Code § 2-356
(same); Corpus Christi City Code § 2-316B(e) (excluding the “day-to-day application, administration or execution
of city programs and policies”).

6

 (2)

preparation or submission of an application or other written
document that merely provides information required by law,
statute, rule, regulation, order, or subpoena, or that responds
to a document prepared by a state agency;

(3)

communicating for the purpose of achieving compliance with
existing laws, rules, policies, and procedures, including
communications to show qualification for an exception of
general applicability that is available under existing laws,
rules, policies, and procedures;

1. Tex. Admin. Code § 34.5 (“Certain Compensation Excluded”).
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).
• Tex. Gov. Code Section 305.002 (1) actually states that “administrative
action” includes “any other matter that may be the subject of action by a
state agency or executive branch office…”
• Tex. Gov. Code Section 305.002(6) actually states that “legislation”
includes “any matter that may be the subject of action by either house or by
legislative committee….”
• The term “discretionary” is not used in any part of the Texas statute,
and is only used in the San Antonio, Houston and Dallas codes as
follows:
MUNICIPAL QUESTION means a public policy issue of a
discretionary nature that is pending before, or that may be the
subject of action by,2 the city council or any city board or
commission…The term does not include the day-to-day
2

The Dallas code uses “pending or impending” rather than “pending before, or that may be the subject
of”

7

 application, administration, and execution of city programs
and policies such as permitting, platting and design approval
matters related to or in connection with a specific project or
development.3
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 nondiscretionary.
• These distinctions are not made in any other municipal code, nor in the
state statute.
• This expands the reach of the ordinance beyond that of any other large
Texas municipality, or the state. The other large Texas municipalities all
contain an incidental exemption excluding compensation if lobbying
activities are not a part of the individual’s regular responsibilities, and/or
specific exemptions for permitting, platting and design approval matters.
Similarly, the state statute, which is not an appropriate model for a
municipal ordinance, contains an hours threshold and a specific exemptions
for “communicating for the purpose of achieving compliance with existing
laws, rules, policies, and procedures, including communications to show
qualification for an exception of general applicability that is available under
existing laws, rules, policies, and procedures.”
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
3

The San Antonio code exception states: “The term ‘municipal question’ does not include the day-to-day
application administration, and execution of existing City programs, policies, ordinances, resolutions or
practices, including matters that may be approved administratively without consideration by a board, a
commission, or the City Council. The term ‘municipal question’ does include all discretionary matters
before the Board of Adjustment, the Planning Commission and all advisory committees and
subcommittees thereof. “

8

 project or development. See City of Houston Code, Section 18-71 (administrative action,
municipal legislation); City of Dallas Code, Section 12A-15.2(12).
• The Houston and Dallas Codes actually state:
“The term does not include the day-to-day application,
administration, and execution of city programs, policies, and
procedures such as permitting, platting, plan approval, and technical
matters related to or in connection with a specific project or
development.”
• Thus the Resolution does not reference the fact that it made the following
changes to the Houston (and Dallas) Code language:
The term does not include excludes the non-discretionary day-to-day
application, administration, and execution of city programs, policies,
and procedures such as routine, non-discretionary permitting and
design approval platting, plan approval, and technical matters related
to or in connection with a specific project or development.
(emphasis added to reflect differences from Proposal)
• These changes to the definitions, as worded, expose the City to a void-forvagueness Constitutional challenge, for it is difficult, if not impossible, for
City employees or Austin citizens to determine whether communications
will meet this “discretionary” v. “non-discretionary” standard. There is a
constitutional requirement of definiteness for any law that carries criminal
penalties—requiring that the law give “a person of ordinary intelligence fair
notice that his contemplated conduct is forbidden.”4 A law “which either
forbids or requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and differ as to
its application, violates the first essential element of due process of law.”5
Define “municipal legislation” as (1) An ordinance, resolution, motion, amendment,
nomination, or any other matter pending before the city council, council committee, citycreated 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,
4
5

U.S. v. Harriss, 347 U.S. 612, 617 (1954).
Connally v. General Constr., 269 U.S. 385, 391 (1926).

9

 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)
• The actual language of Houston Code Section 18-71 is as follows:
Municipal legislation means
(1) An ordinance, resolution, motion, amendment, nomination, or any
other matter pending before the city council, council committee, citycreated entity, or city commission; or
(2) Any matter that is or may be the subject of action by the city council
or a 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.
(emphasis added to reflect differences from Proposal)
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).
• The actual language of Houston Code Section 18-71 is as follows:
Administrative action means rulemaking, licensing, or any other matter
that may be the subject of action by a city official, city department or
other city agency, including the proposal, consideration, or approval of
the matter. The term does not include the day-to-day application,
administration, and execution of city programs, policies, and procedures
such as permitting, platting, plan approval, and technical matters related
to or in connection with a specific project or development.” (emphasis
added to reflect difference from Proposal).
• The Proposed Resolution therefore completely omits the explicit
exclusion that is key to the Houston definition.

10

 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.
• It is not clear from this language or the other proposed changes whether the
proposed $2,000 threshold is a total compensation threshold, or only
applies to compensation received from a particular client.
• All design professionals must communicate with city employees to get a
permit, plat or design plan approved. Further, the proposal defines “City
official” as any non-ministerial city employee, removes the incidental
exemption, and requires professionals to allocate a portion of their fees
and/or salary to these communications. Finally, under the proposal
communications regarding any proposed decision on an administrative
variance, alternative compliance in the Land Development Code, building
permits or site plans (which are considered “discretionary per se”) are
considered lobbying.

11

 • As a result, even with a higher compensation threshold, this would require
virtually all design professionals to register as lobbyists, especially if the
$2,000 threshold is intended to apply to total compensation in a quarter,
from one or more clients.
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.
• Raising the fee and tying it to the cost of living, rather than the cost of
administering the ordinance, violates the First Amendment. “Legislative
lobbying is an activity protected by the First Amendment, and a state may
only charge a fee as a precondition for lobbying where that fee is
‘calculated to defray the expense’ of lobbying regulation.”6
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).
• No other large Texas municipality requires any reporting of compensation.
See Dallas City Code § 12A-15; Houston City Code § 18-74; San Antonio
6

The ACLU of Illinois v. White, 692 F.Supp.2d 986, 992 (N.D.Ill. 2010) (finding that the State Secretary
did not meet its affirmative burden to “establish [a] reasonable fit” between the $1,000 lobbying
registration fee and the cost of administering the act”); see also Moffett v. Killian, 360 F.Supp. 228 (D.
Conn. 1973) ($35 registration fee held unconstitutional because “it is clear that the sums received by the
State…which were paid into the State’s general fund, were far in excess of the amounts actually needed to
administer the registration provisions”); Fidanque v. State, 969 P.2d 376 (Or. 1998) (striking $50
registration fee because the language of the statute did not tie the fee to the costs associated with
registering lobbyists).

12

 City Code § 2-65(e); Laredo City Code § 2-360; Corpus Christi City Code
§ 2-316C; El Paso City Code § 2.94.070.
• The state requires reporting of compensation in ranges, but excludes from
lobbying “communicating for the purpose of achieving compliance with
existing laws, rules, policies, and procedures, including communications to
show qualification for an exception of general applicability that is available
under existing laws, rules, policies, and procedures.” 1. Tex. Admin. Code §
34.5 (“Certain Compensation Excluded”).
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).
• Tex. Gov. Code 305.005(f)(4) actually states that a registrant must report:
“the subject matter of the legislation or of the administrative action that is
the subject of the registrant’s direct communication.”
• No mention is made in the state statute of a requirement to report a
description of the real property.

13

 • No other municipal code specifically requires the reporting of a description
of real property involved in any communications with any City employee
or agent.
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.
• Tex. Gov. Code Section 305.0065, titled “AMENDED REGISTRATION
DURING LEGISLATIVE SESSION” actually states that it requires
amended registration “only during the period beginning on the date a
regular legislative session convenes and continuing through the date of final
adjournment.”
• This requirement for updating forms when a new “municipal matter” is
added would require continual updating of registration or activity forms
rather than the quarterly reporting now required. No other large Texas
municipality requires anything more than quarterly reports. See Dallas
Code § 12A-15.6; Houston Code §18-75; San Antonio Code § 2-66;
Laredo City Code § 2-360; Corpus Christi City Code § 2-316C; El Paso
City Code § 2.94.070.
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 48¬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).
14

 • Tex. Gov. Code 305.002(2) actually states:
“ ‘Communicates directly with’ or any variation of the phrase means
contact in person or by telephone, telegraph, letter, facsimile,
electronic mail, or other electronic means of communication.”
• The Texas statute does not reference or include communicating “through
intermediaries” as is implied by the Resolution.
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.
• Section 4-8-9 already requires that each person or registrant appearing
before the council or an official body identified in 4-8-3 (Applicability) to
“orally identify himself and the person or interest the person represents
before beginning the person’s address.”
• Given the proposed expansion of the ordinance to potentially apply to
virtually any communication with any City staff, this proposal raises
serious confidentiality concerns. If future development prospects know that
even the most basic discussions about the applicability and operation of
Austin’s codes and ordinances must be publicly reported as “lobbying,”
they may choose to avoid Austin altogether.

15

 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.
• Given the proposed expansion of the ordinance to potentially apply to
virtually any communication with any City staff, the increased penalties
and enforcement proposals expose Austin’s citizens and design
professionals to selective enforcement and the use of ethics and criminal
complaints as a tool by opposition groups to advance their agenda.
15)

Mandate in Section 4-9-11 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.
• Given the proposed expansion of the ordinance to potentially apply to
virtually any communication with any City staff, this not only exposes
Austin’s citizens and professionals to selective enforcement and improper
use of the ordinance, it additionally could result in banning professionals
from communications that are a necessary part of their work in providing
engineering, architectural, construction and development services to clients.
16)

Require 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

16

 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 CITY COUNCIL OF THE CITY OF AUSTIN:
The City Manager is directed to provide a legal review of the draft ordinance in
Exhibit A, attached, implementing the above considerations within 60 days, and provide

17

 comment and recommendation for review and consideration by the Audit and Finance
Committee.
• A draft ordinance has not been circulated or available for review by the
public. In the interest of transparency, the public should have the
opportunity to review and comment on a draft ordinance prior to it being
proposed to the Committee.
FURTHER, BE IT RESOLVED: The City Manager is directed to analyze and
report back to the Audit and Finance Committee within 90 days alternative approaches to
ensure the diligent and independent City prosecution of alleged lobbyist law violations.
ADOPTED: ______________, 2015

ATTEST: ___________________________
Jannette S. Goodall
City Clerk

18

 RESOLUTION NO.
WHEREAS, Austinites have a right to a lobbying ordinance that promotes the goals of
transparency and faith in our city officials and processes; and
WHEREAS, the Austin lobbying ordinance should provide clear guidelines to all
citizens regarding what type of interactions with city officials require registration and
reporting as a lobbyist, and should reflect standards that promote consistent compliance
and enforcement;
NOW, THEREFORE, the Audit and Finance Committee is directed to review and
consider potential changes to the Austin lobbying ordinance, which should include a full
review of the ordinances of other large Texas municipalities, and the State, and as part of
such review should specifically consider the following recommendations:
1)
Eliminate the “incidental employment exclusion” in the definition of
“compensation” and “expenditure” and replace it with a more objective and verifiable
standard, such as an hours requirement as used in the State statute, in order to promote
compliance with the registration and reporting requirements;
2)
Consider whether changes need to be made to the definitions of “lobbying” and
“municipal question” in order to fully capture lobbying activities that should be tracked
and reported to the community, so as to allow our citizens access to information
regarding lobbying activities; and
3)
Add language excluding day-to-day communications regarding platting,
permitting and plan approval, similar to the language found in the ordinance of all other
large Texas municipalities, from the definition of lobbying, in order to ensure that the
City of Austin can track and report true lobbying activities to its citizens while preserving
the ability of citizens to engage in the dynamic and interactive process with City staff that
is necessary for compliance with City laws and codes.
NOW, THEREFORE, BE IT RESOLVED BY THE AUDIT AND FINANCE
COMMITTEE OF THE CITY OF AUSTIN:
The City Manager is directed to analyze the issues raised above and report back to the
Audit and Finance Committee within 90 days.

  
 
CHAPTER 4-8. - REGULATION OF LOBBYISTS.  

 
§ 4-8-1 - PURPOSE.  
The council declares that the operation of responsible democratic government requires that the
fullest opportunity be afforded to the people to petition their government for the redress of grievances and
to express freely to any city officials their opinions on pending municipal questions and on current issues;
and that to preserve and maintain the integrity of the governmental decision-making process in the city, it
is necessary that the identity, expenditures, and activities of certain persons who engage in efforts to
influence a City official on matters within their official jurisdictions, either by direct communication to the
official, or by solicitation of others to engage in such efforts, be publicly and regularly disclosed.

Source: 1992 Code Section 8-16-1; Ord. 031023-12; Ord. 031211-11.
§ 4-8-2 - DEFINITIONS.  
In this chapter:
(1) CITY OFFICIAL means the mayor, a councilmember, or a member of the City staff or a board,
commission, and committee described in Section 4-8-3 (Applicability).
(2) COMPENSATION means money, service, facility or other thing of value or financial benefit that
is received or is to be received in return for or in connection with services rendered or to be
rendered. Compensation shall not include compensation paid to an individual regularly
employed by a person if the compensation paid to the individual is ordinarily paid regardless of
whether the individual engages in lobbying activities and lobbying activities are an incidental
part of the individual's regular responsibilities to the person paying the compensation.
Compensation shall not include the financial gain that an person may realize as a result of the
determination of a municipal question, unless that gain is in the form of a contingent fee.
Compensation shall be considered received on the date on which the contract or agreement for
the compensation is made or on the date lobbying commences, whichever is later.
(3) EXPENDITURE means a payment, distribution, loan, advance, reimbursement, deposit or gift of
money or anything of value, including a contract, promise or agreement to make an
expenditure, regardless of whether the promise or agreement is legally enforceable.
Expenditure shall not include an expenditure paid to an individual regularly employed by a
person if the expenditure paid to the individual is ordinarily paid regardless of whether the
individual engages in lobbying activities and lobbying activities are an incidental part of the
individual's regular responsibilities to the person paying the expenditure.
(4) GIFT means a payment, subscription, advance, forbearance, rendering or deposit of money,
services or anything of value, unless consideration of equal or greater value is received. Gift
shall not include a political contribution otherwise reported as required by law, a commercially
reasonable loan made in the ordinary course of business, ordinary social contacts, ordinary
business meetings (including meals), or a gift received from a member of a person's immediate
family or from a relative within the third degree of consanguinity of a person or of the person's
spouse, or from the spouse of an relative described in this subsection.
(5) IMMEDIATE FAMILY means a spouse residing in the person's household and dependent
children.
(6) LOBBY or LOBBYING means the solicitation of a City official, by private interview, postal or
telephonic communications, or any other means other than public expression at a meeting of

 

 

Page 1 

  
 
City officials open to the public under Chapter 551 (Open Meetings Act) of the Texas
Government Code, directly or indirectly by a person in an effort to influence or persuade the City
official to favor or oppose, recommend or not recommend, vote for or against, or to take action
or refrain from taking action on a municipal question. The term lobby or lobbying shall not
include a mere request for information or an inquiry about a municipal question, matters, or a
procedure or communication to a City official which is incidental to other employment not for
purpose of lobbying.
(7) LOBBY EMPLOYER means a person who compensates another person to lobby on a municipal
question of interest to the person.
(8) LOBBYING ENTITY means a corporation, association, firm, partnership, committee, club,
organization or group of persons who are voluntarily acting in concert that is compensated by a
lobby employer to lobby.
(9) MUNICIPAL QUESTION means a proposed or proposal for an ordinance, resolution, motion,
recommendation, report, regulation, policy, appointment, sanction, and bid, including the
development of specifications, an award, grant, or contract for more than $2,000. The term does
not include the day-to-day application, administration, and execution of city programs, policies,
and procedures such as permitting, platting, plan approval, and technical matters related to or in
connection with a specific project or development.
(10) PERSON means an individual, corporation, association, firm, partnership, committee, club,
organization, or group of persons who are voluntarily acting in concert.
(11) REGISTRANT means a person required to register under Section 4-8-4 (Persons Required to
Register).
(12) SUBSTANTIAL ECONOMIC INTEREST means holding stock worth $5,000 or more in, or five
percent or more ownership of any business, corporation, partnership, proprietorship, firm,
enterprise, franchise, association, organization, or other legal entity which is not publicly traded.

Source: 1992 Code Section 8-16-2; Ord. 031023-12; Ord. 031211-11.
§ 4-8-3 - APPLICABILITY.  
This chapter applies to a person who lobbies the mayor, a council member, their aides, a member of
a board governed by Chapter 2-1 of the Code, a member of a board, task force, or other bodies
established by council and listed by the city clerk in accordance with Section 2-1-3(C) of the Code, and
the following city staff: the city manager, an assistant city manager, their aides, the city attorney, an
assistant city attorney, a department or assistant department director, and, where no assistant
department director serves, the first principal assistant of the department.

Source: Ord. 20101209-003.
§ 4-8-4 - PERSONS REQUIRED TO REGISTER.  
Excepted as provided in Section 4-8-5 (Exceptions), a person must register with the city clerk if the
person:
(1) receives compensation of $200 or more in a calendar quarter for lobbying;
(2) receives reimbursement of $200 or more in a calendar quarter for lobbying;
(3) expends $200 or more in a calendar quarter for lobbying; or
(4) lobbies as the agent or employee of a person who:
(a) receives compensation of $200 or more in a calendar quarter for lobbying;

 

 

Page 2 

  
 
(b) receives reimbursement of $200 or more in a calendar quarter for lobbying; or
(c)

expends $200 or more in a calendar quarter for lobbying.

Source: 1992 Code Section 8-16-4; Ord. 031023-12; Ord. 031211-11.
§ 4-8-5 - EXCEPTIONS.  
The following persons are not required to register under this chapter:
(1) a person who spends not more than 26 hours for which the person is compensated or
reimbursed during the calendar quarter engaging in activity, including preparatory activity, in
activities that constitute lobbying.
(2) A person who owns, publishes or is employed by a newspaper, another regularly published
periodical, a radio station, a television station, a wire service or another bona fide news medium
that in the ordinary course of business disseminates news, letters to the editor, editorial or other
comment or paid advertisement that directly or indirectly oppose or promote municipal
questions if the person does not engage in further or other activities that require registration
under this chapter and does not represent another person in connection with influencing
municipal questions. This subsection does not exempt a person whose relation to the news
media is only incidental to a lobbying effort or when a position taken or advocated by a media
outlet directly impacts, affects, or seeks to influence a municipal question in which the media
outlet has a direct or indirect financial interest.
3)

A person whose only activity is to encourage or solicit a member, employee, or stockholder of
an entity by whom the person is reimbursed, employed, or retained to communicate directly with
one or more City official to influence a municipal question.

(4) A person whose only activity to influence legislation or administrative action is attendance at a
meeting or entertainment event attended by one or more City officials if the cost of the meeting
or entertainment event is not paid, in whole or in part, by the person or anyone on whose behalf
the person is lobbying.
(5) A governmental entity, its officers and employees, provided they are solely engaged in matters
of governmental interest concerning their respective governmental bodies and the City.
(6) A person whose only expenditure is the cost of photocopies of City documents or the cost of
purchasing council or board and commission agendas.
(7) A person who does not know and has no reason to know whether a municipal question is
pending at the time of contact with a City official. This subsection shall not apply if the existence
of a municipal question is discovered during contact with a City official and the person then
engages in additional lobbying of the same or other City officials.
(8) A person whose contact with a City official is made solely as part of the process of resolution of
a dispute between a person or the City and another person, provided that the contact is solely
with City officials who do not vote on or have final authority over a municipal question involved.
(9) A lobbying entity if each registrant who lobbies as an agent of the lobbying entity reports, in
cooperation with the lobbying entity, the lobby expenditures made by the lobbying entity that
were effected by the registrant.
(10) A lobby employer who would only be required to register under Section 4-8-4 (Persons
Required to Register) because of an expenditure to compensate a registrant to lobby on a
municipal question of interest to the lobby employer.

Source: 1992 Code Section 8-16-5; Ord. 031023-12; Ord. 031211-11.

 

 

Page 3 

  
 
§ 4-8-6 - REGISTRATION.  
(A) Each registrant shall file annually with the city clerk a registration form signed under oath not later
than two working days after becoming a lobbyist. If the registrant is not an individual, an authorized
officer or agent of the registrant shall sign the form. A registrant must file a registration form for each
person from whom he receives compensation or reimbursement. The registration shall be on a form
prescribed by the city clerk and shall include:
(1) the registrant's full name and permanent street address;
(2) the name and address and nature of business of each lobby employer on whose behalf the
registrant will lobby;
(3) the municipal question on which the registrant will lobby; and
(4) if the registrant is the agent or employee of a lobbying entity, the name, address, and nature of
business of the lobbying entity.
(B) Each registrant shall file a notice of termination within 30 days after the registrant ceases the activity
that required registration; however, this will not relieve the registrant of the reporting requirement of
Section 4-8-7 (Activity Reports) for that reporting period.
(C) At the time of registering, a registrant shall pay to the City and the city clerk shall collect an annual
registration fee of $300. All lobbyist registration fees shall be deposited into a separate account
within the general fund, which account shall be used to offset the costs of administering the City's
lobbying ordinance, the costs of handling disclosure filings, and the costs of administering Chapter 22 of the Code (Campaign Finance).
(D)

A registrant must file a registration required by this section and an activity report required by
Section 4-8-7 electronically as determined by the city clerk.

(E) The city clerk shall post the registrations required by this section, activity reports required by Section
4-8-7, no later than the next business day after the date that the city clerk receives the registration or
the report.

Source: 1992 Code Section 8-16-6; Ord. 031023-12; Ord. 031211-11; Ord. 20120426-087; Ord.
No. 20120927-091, Pt. 1, 10-8-12.
§ 4-8-7 - ACTIVITY REPORTS.  
(A) Each registrant shall file with the city clerk between the first and tenth day of April, July, October and
January a report signed under oath concerning the registrant's lobbying activities during the previous
calendar quarter. If this registrant is not an individual, an authorized officer or agent of the registrant
shall sign the form. A registrant must file an activity report for each person from whom the registrant
receives compensation or reimbursement. The report shall be on a form prescribed by the city clerk
and shall include:
(1) a complete and current statement of the information required to be supplied pursuant to Section
4-8-6 (Registration);
(2) total expenditures on lobbying broken down into the following categories, provided that each
expenditure of $500 or more shall be itemized by the date, name and address of the recipient,
amount and purpose:
(a) office expenses;
(b) advertising and publications;
(c)

 

compensation to other than a full-time employee;

 

Page 4 

  
 
(d) reimbursement to others;
(e) personal sustenance, lodging and travel, if reimbursed; and
(f)

other expenses;

(3) each expenditure, gift or honorarium of $100 or more made by the registrant or anyone acting
on behalf of the registrant to benefit a City official shall be itemized by date, beneficiary, amount
and circumstances of the transaction; also, the aggregate of all expenditures under this
paragraph that are less than $100;
(4) each business entity in which the registrant knows or should know that a City official is a
proprietor, partner, director, officer, manager, employer, employee, or has a substantial
economic interest and with which the registrant has engaged in an exchange of money, goods,
services, or anything of value if the total of the exchanges is $500 or more in a calendar quarter
shall be identified by its name and address, the official, the date, amount and nature of each
exchange under this paragraph; and
(5) the mayor, a councilmember, or their immediate family who are employed by the registrant shall
be identified by name and nature of employment.
(B) Each registrant shall obtain and preserve all accounts, bills, receipts, books, papers, and documents
necessary to substantiate the activity reports required to be made under this section for two years
from the date of filing of the report containing the items.
(C) Each person about whose activities a registrant is required to report by Subsection (A) of this section
shall provide a full account of the activities to the registrant at least five days before such registrant's
report is due to be filed.
(D) All reports filed under this chapter are public records and shall be made available for public
inspection during regular business hours.
(E) The city clerk shall review each report for compliance and maintain a record of all registrations and
activity reports. Complaints of violations of this chapter will be forwarded to the city clerk for review. If
investigation determines a violation may have occurred, the complaint will be forwarded to the city
attorney for appropriate action.
(F) No quarterly activity report will be required if there is no activity during the preceding quarter and
there are no other changes to items required to be reported.

Source: 1992 Code Section 8-16-7; Ord. 031023-12; Ord. 031211-11.
§ 4-8-8 - RESTRICTED ACTIVITIES.  
(A) No person who lobbies or engages another person to lobby, nor any other person acting on behalf of
the persons shall give to a City official or immediate family gifts that exceed $100 in value in the
aggregate in any calendar year.
(B) No person who lobbies or engages another person to lobby, nor any other person acting on behalf of
such persons shall knowingly or willfully make any false or misleading statement or
misrepresentation of the facts to a City official, or knowing a document to contain a false statement,
cause a copy of the document to be received by a City official without notifying the official in writing
of the truth.
(C) No person shall retain or accept employment to lobby on a contingent fee basis or in any manner
engage in lobbying activities on a contingent fee arrangement. This restriction shall not apply to a
person whose compensation is to be paid upon events other than the passage or defeat of a
municipal question and whose contact with a City officer on a municipal question is incidental to the
primary purpose (which is for other than lobbying) of the person's employment, provided that a
contingent fee is a standard and customary method of payment for the employment of the person.

 

 

Page 5 

  
 

Source: 1992 Code Section 8-16-8; Ord. 031023-12; Ord. 031211-11.
§ 4-8-9 - APPEARANCE.  
Each person or registrant appearing before the council or an official body identified in Section 4-8-3
(Applicability) shall complete a speaker identification card prior to that appearance and orally identify
himself and the person or interest the person represents before beginning the person's address.

Source: 1992 Code Section 8-16-9; Ord. 031023-12; Ord. 031211-11.
§ 4-8-10 - TIMELINESS OF FILING REGISTRATIONS AND REPORTS.  
A registration or report filed by first-class United States mail or by common or contract carrier is
timely if:
(1) it is properly addressed with postage or handling charges prepaid; and
(2) it bears a post office cancellation mark or a receipt mark from a common or contract carrier
indicating a time within the applicable filing period or before the applicable filing deadline, or if
the person required to file furnishes satisfactory proof that it was deposited in the mail or with a
common or contract carrier within that period or before that deadline.

Source: 1992 Code Section 8-16-10; Ord. 031023-12; Ord. 031211-11.
§ 4-8-11 - PENALTY.  
A person who lobbies in violation of a provision of this chapter, or who shall knowingly obstruct or
prevent compliance with this chapter, or who shall fail to meet the reporting provisions of this chapter
shall be guilty of a Class C misdemeanor.

Source: 1992 Code Section 8-16-99; Ord. 031023-12; Ord. 031211-11.

 

 

Page 6