SAN JOSE, CITY OF v. S.C. (SMITH) (To be called and continued to the December 2016 calendar.)Petitioners’ Request for Judicial NoticeCal.March 30, 2015No. S218066 IN THE SUPREME COURT OF CALIFORNIA CITY OF SAN JOSE,et al., Defendants and Petitioners, - SUPREME COURT v. | FILED SUPERIOR COURT OF THE STATE OF CALIFORNIA, MAR 30 2015 Respondent. Frank A. McGuire Clerk TED SMITH, Deputy Plaintiff and Real Party in Interest CITY OF SAN JOSE DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE AND DECLARATION OF MARGO LASKOWSKA IN SUPPORT THEREOF 1188536.doc After a Decision by the Court of Appeal Sixth Appellate District Case No. H039498 Superior Court, Santa Clara County, Case No. 1-09-CV-150427 RICHARD DOYLE,City Attorney (88625) NORA FRIMANN,Assistant City Attorney (93249) MARGO LASKOWSKA,Senior Deputy City Attorney (187252) Office of the City Attorney 200 East Santa ClaraStreet, 16 Floor San José, California 95113-1905 Telephone Number: (408) 535-1900 Facsimile Number: (408) 998-3131 E-Mail Address: cao.main@sanjoseca.gov Attorneys for CITY OF SAN JOSE, SAN JOSE REDEVELOPMENT AGENCY, HARRY MAVROGENES,in his official capacity as Executive Director of the San José Redevelopment Agency, Mayor CHUCK REED,in his official capacity as Mayorofthe City of San José, and Council members PETE CONSTANT, ASH KALRA, SAM LICCARDO, PIERLUIGI OLIVERIO, MADISON NGUYEN, ROSE HERRERA, JUDY CHIRCO, KANSEN CHU, NORA CAMPOS,and NANCYPYLE,in their official capacities as Council membersfor the City of San José. NOTICE OF MOTION AND MOTION TO THE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE SUPREME COURTOF THE STATE OF CALIFORNIA: Under Rule 8.252 ofthe California Rules of Court and Evidence Code Section 459, Defendants City of San Joseet al. (“City”) respectfully bring this motion requesting the Court to take judicial notice of San Jose Lobbying Ordinance. This document provides background for the City’s answerbrief on the merits. MEMORANDUM OF POINTS AND AUTHORITIES Evidence Code Section 459 permits a reviewing court to take judicial notice of any matter specified in Evidence Code Section 452, which in turn allows a court to take judicial notice of regulationsandlegislative enactments issued by or underauthority of any public entity in the United States. (Evid. Code §452(b).) The City requests the Court to take judicial notice of San Jose Municipal Lobbying Ordinance,effective August 1, 2007, that regulates lobbying activities in the City, including San Jose Municipal Code Section 12.12.800 that addresses disclosure by Councilmembers of communications with registered lobbyists, and requires disclosure of all scheduled meetings and telephone conversations with a registered lobbyist about any legislative or administrative action to be taken bythe Council, before such action is taken. (Exhibit A to Declaration of Margo Laskowskain Support of City Defendants’ Request for Judicial Notice.) Neither the trial court nor the court of appeal took judicial notice of this Ordinance, but it is relevant to the case because Petitioner Smith argues that his interpretation of the California Public Records Act is needed in order to obtain disclosure of communications between Councilmembers and lobbyists in Councilmembers’ personal e-mail accounts and telephone accounts. In fact, since 2007, the Lobbying Ordinance has already required them to disclose details of such communications. Whetheror not the Court adopts Smith’s interpretation of the CPRA, information about any communications between a registered lobbyist and a Councilmember, a memberof the San Jose Planning Commission, Civil Service Commission, or Appeals Hearing Board must be made public in San Jose. Therefore, the City Defendants respectfully request the Court to take judicial notice of the City’s Lobbying Ordinance. Respectfully submitted, RICHARD DOYLE,City Attorney Dated: March 27, 2015 By: Meue hinetorrok MARG@O LASKOWSKA Sr. Deputy City Attorney Attorneys for Defendants CITY OF SAN JOSE,et al. DECLARATION OF MARGO LASKOWSKA IN SUPOPORT OF THE CITYDEFENDANTS’ REQUEST FOR JUDICIAL NOTICE: I, Margo Laskowska, declare as follows: 1. I am an attorney duly licensed to practice Jaw in all courts in the State of California and I am a Senior Deputy City Attorney for the San Jose City Attorney’s Office, counsel for the City Defendants herein. 2. Attached here as Exhibit A is a true and correct copy of City of San Jose Ordinance No. 28074. 3. This document provides background for the City Defendants’ brief on the merits. I declare under penalty of perjury under the lawsofthe State of California that the foregoing is true and correct and that this declaration was executed on the twenty-seventh day of March, 2015 at San Jose, California. Monte loatornts MARGO LASKOWSKA PROOF OF SERVICE CASE NAME: CITY OF SAN JOSE v. SUPERIOR COURT (TED SMITH) SUPREME COURT OF CALIFORNIA CASE NO.: 8218066 (Court of Appeals, Sixth District Case No.: H039498) (Superior Court, County of Santa Clara Case No.: 1-09-CV-150427) I, the undersigned declare as follows: I am citizen of the United States, over 18 years of age, employed in Santa Clara County, and not a party to the within action. My business address is 200 East Santa Clara Street, San Jose, California 95113-1905, and is located in the county where the service described below occurred. On March 27, 2015, I caused to be served the within: CITY OF SAN JOSE DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE AND DECLARATION OF MARGO LASKOWSKA IN SUPPORT THEREOF ><] by MAIL, with a copy of this declaration, by depositing them into a sealed envelope, with postage fully prepaid, and causing the envelope to be deposited for collection and mailing on the date indicated above. I further declare that I am readily familiar with the business’ practice for collection and processing of correspondence for mailing with the United States Postal Service. Said correspondence would be deposited with the United States Postal Service that same day in the ordinary course of business. Addressed as follows: James McManis, Esq. Attorneys for Plaintiff and Matthew Schechter, Esq. Real Party in Interest Christine Peek, Esq. TED SMITH Jennifer Murakami, Esq. One (1) Copy McMANIS FAULKNE A Professional Corporation ih 50 West San FernandoStreet, 10° Floor San Jose, California 95113 Phone Number: (408) 279-8700 Fax Number: (408) 279-3244 Clerk of the Court One (1) Copy Sixth District Court ofAppeal 333 West Santa Clara Street, Suite 1060 San Jose, California 95113 Phone Number: (408) 277-1004 Clerk ofthe Court One (1) Copy Superior Court of California County of Santa Clara 191 North First Street San Jose, California 95113 Phone Number: (408) 882-2100 ><] by OVERNIGHT DELIVERY, with a copy of this declaration, by depositing them into a sealed envelope/package, with delivery fees fully prepaid/provided for, and XxX causing the envelope/package to be delivered to an authorized courier or driver to receive the envelope/package designated by the express service carrier for next day delivery. I further declare that I am readily familiar with the business’ practice for collection and processing of correspondence for overnight delivery by an express courier service. Such correspondence would be deposited with the express service or delivered to the authorized express service courier/driver to receive an envelope/package for the express service that same day in the ordinary course of business. Addressedas follows: Supreme Court of California Original and Eight (8) Copies 350 McAllister Street, Room 1295 San Francisco, California 94102 Phone Number: (415) 865-7000 I declare under penalty of perjury underthe laws ofthe State of California that the foregoing is true and correct. Executed on March 27, 2015, at San Jose, California. REEFOleGea\) Christabel S. Cintsra Cruz, CITY OF SAN JOSE, CALIFORNIA Office of the City Clerk ’ 200 East Santa Clara Street San José, California 95113 Telephone (408) 535-1260 FAX (408) 292-6207 eA STATE OF CALIFORNIA ) COUNTY OF SANTA CLARA) CITY OF SAN JOSE ) |, Lee Price, City Clerk & Ex-Officio Clerk of the Council of and for the City of San Jose, in said County of Santa Clara, and State of California, do hereby certify that “Ordinance No. 28074”, the original copy of which is attached hereto, was passed for publication oftitle on the 19” day ofJune, 2007, was published in accordance with the provisions of the Charter of the City of San Jose, and was givenfinal reading and adopted on the 26" day ofJune, 2007, by the following vote: © AYES: CAMPOS, CHIRCO, CHU, CONSTANT, CORTESE, LICCARDO, NGUYEN, OLIVERIO, PYLE, WILLIAMS; REED NOES: NONE ABSENT: NONE DISQUALIFIED: NONE VACANT: ~ NONE Said ordinanceis effective as of July 27, 2007. IN WITNESS WHEREOF,! have hereunto set my hand andaffixed the corporate seal of the City of San Jose, this 237 day ofJuly, 2007. i (only (SEAL) Brite PUA LEE PRICE, MMC CITY CLERK & EX-OFFICIO CLERK OF THE CITY COUNCIL BY: BARBARA CONLY,Assistant City Clerk 07/23/07csd RD:RT:ERD Ord. No. 28074 6/22/07 ORDINANCE NO.28074 AN ORDINANCE OF THE CITY OF SAN JOSE AMENDING TITLE 12 OF THE SAN JOSE MUNICIPAL CODE TO AMEND CHAPTERS 12.10 AND 12.12 TO: INCREASE THE REVOLVING DOOR PROHIBITION TO TWO YEARS; AMENDTHE DEFINITION OF A LOBBYIST; CREATE EXEMPTIONS TO THE REQUIREMENTS OF THE LOBBYIST ORDINANCE; PROHIBIT OR REQUIRE DISCLOSURE OF COMPENSATION CONTINGENT ON THE RESULT OF A PROPOSED GOVERNMENT ACTION; REQUIRE MORE SPECIFIC DISCLOSURES IN THE LOBBYIST QUARTERLY REPORT; IMPOSE INTEREST ON THE QUARTERLY REPORT LATE FILING FEE; ADD A NEW PART TO REQUIRE OFFICIALS TO DISCLOSE CONTACTS WITH LOBBYISTS; AND MAKE OTHER TECHNICAL AND CLARIFYING CHANGES WHEREAS,theCity of San José has paramountinterests in ensuring fair and impartial governmental decisions,identifying the true voice of those who exert political pressure on government decisions, reducing corruption and the appearanceof corruption in the decision-making process, promoting integrity in public office, enhancing transparency and public confidence in City government, and protecting eachcitizen's right to representation; and _ WHEREAS,the City Council finds that restricting former officials and designated employees from unfairly profiting from or otherwise trading upon the contacts, associations and special knowledge they acquired during their tenure meets the City’s stated interests; and WHEREAS,the City Council finds that prohibiting or requiring disclosure of compensation contingent on the result of a proposed governmental action meets the City’s stated interests; and T-1996.002\422293_3 1 Council Agenda: 6-26-07 ttem No.: 2.26 RD:RT:ERD Ord. No. 28074 6/22/07 WHEREAS,the City Council finds that broadening the definition of lobbyist, and imposing reasonable registration and disclosure requirements on lobbyists meets the City’s stated interests; and WHEREAS,the City Council finds that requiring elected officials to disclose contacts with registered lobbyists related to a legislative or administrative action before voting on the action meets the City’s stated interests; NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF SAN JOSE: : SECTION 1. Chapter 12.10 of Title 12 of the San José Municipal Code is amendedin its entirety, to be numbered, entitled and to read as follows: CHAPTER 12.10 REVOLVING DOOR RESTRICTIONS 12.10.010 Purpose The purposesof this Chapterare: A. To assure the independence, impartiality and integrity of City and Agency officials and designated employees in making governmental decisions and taking governmental actions. B. To prevent such formerofficials and designated employees from using their positions with the City or Agency for personal gain. C. To preventprivate for-profit business entities from obtaining a real or perceived unfair advantage in dealing with the City or Agency byhiring formerofficials and designated employees. T-1996.002\4222933 2 Council Agenda: 6-26-07 Item No.: 2.26 RD:RT:ERD ~ Ord. No. 28074 6/22/07 12.10.020 Definitions - For purposesof this Chapter, the terms below have the following meaning: A. “Agency Official” means the chairperson and membersof the Board of Directors of the Redevelopment Agencyof the City of San José. “City Official” means the Mayor and City Councilmembers. “Commission” meansany body created by the City Council or Agency Board whose members are requiredto file statements of economic interest pursuant to the Political Reform Act of 1974 as amended (Gov. Code §§ 81000ef seq.). “Employee” has the same meaning asset outin Title 20 of the Code of Federal Regulations § 404,1007(b). “Nonprofit organization” means an entity which would qualify as such underthe Federal Internal Revenue Code and has engaged in programsor projects which have received financial or other formal support from the City Council or Redevelopment Agencyboard within the pastfive years. “Transitional services” means services involving technical or specialized knowledge required to complete a project or to provide temporary consulting services to the City or the Agency. “Work” means any activity for which compensation is received from any source, including compensation received as an independent contractor. Work includes the supervision or direction of others performing work, except as provided in Section 12.10.050. Work for the City or Agencyalso includes any action of any sort whatsoevertaken in one's official capacity. Service by a City or Agency Official or designated employee on any typeof board, committee or similar body T-1996.002\422293_3 3 Council Agenda: 6-26-07 Item No.: 2.2¢ RD:RT:ERD Ord. No. 28074 6/22/07 as a representative of the City or Agency is deemedto be workfor the City or Agency. 12.10.030 Prohibitions for Former Officials and Designated Employees No City or Agency Official or designated employee, for two (2) years after terminating City or Agencyoffice or employment, may: A. Work on anylegislative or administrative matter on which the official or employee worked on behalf of the City or Agency during the twelve (12) months prior to termination of service, or which waswithin the former City or Agency Official’s or designated employee’s area of job responsibility. “Work on anylegislative or administrative matter” includes, but is not limited to, providing advice or recommending any action with regard to a City or Agencylegislative or ‘administrative matter such as a project involving land use, development, or public works. Legislative matters include City Council, Agency Board and City board or commission actions related to ordinances, resolutions, agreements, permits orlicenses. Represent anyone else on any matter, whether or not for compensation, before the City Council, Redevelopment Agency Board, any commission thereof, any individual memberof the City Council, Redevelopment Agency Board, or commission, or any staff of the City orAgency. Receive. any gift or payment which would be prohibited under Chapter 12.08 from any person whowas,in any way, involved in or affected by the work ofthe official or employee during the twelve (12) months prior to the termination of service. T-1996.002\422293_3 4 Council Agenda: 6-26-07 {tem No.: 2.26 RD:RT-ERD . Ord. No, 28074 6/22/07 12.10.040 Prohibition for Former Commission Members No memberof a commission may,for two (2) years after leaving the commission, represent anyoneelse, whetheror not for compensation, before the commission on which the former member served. No otherprovisions of this Chapter apply to persons serving on a commission whoare not otherwise City or Agency Officials or designated employees. 12.10.050 Exceptions The following persons are not subject to the prohibitions of Section 12.10.030: A. An employee or volunteer of a nonprofit organization, as defined in Section 12.10.020.E.; B. An employeeorofficial of a government entity; C. An independent contractor of the City or Agency whereit has been determined that it is in the best interest of the City or Agency to retain the former official or employee to provide transitional services. Such determination will be made by the person or body authorized to enter into such a contract. In such event, the City or Agencywill contract directly with the formerofficial or employee. The rate of compensation for such services must not exceed the formerofficial's or employee's rate of pay, including benefits, at the time City or Agency service terminated. T-1996.002\4222933 5 Council Agenda: 6-26-07 Item No.: 2.2¢ RD:RT:ERD Ord. No. 28074 6/22/07 12.10.060 Applicability A. The provisions of thisChapter will not prevent a former City or Agency Official or designated employee from testifying as a percipient witness in any legal proceeding. The provisions of this Chapterwill not prevent a former City or Agency Official or designated employee from working as a supervisor of a person or persons performing work that would be prohibited by this Chapter, so long as the supervisor is screenedfrom any personalparticipation in the work and receives no part of the fee therefrom. 12.10.070 Waiver The City Council or Redevelopment Agency Board of Directors may waive the prohibitions of Section 12.10.0390if the Council or Board finds that such waiveris in the bestinterest of fhe City or Agency and that such waiveris consistent with the purposes of this Chapter as set forth in Section 12.10.010. 12.10.080 Enforcement A. The City Attorney may conduct inquiries or investigate complaints of violations of this Chapter. The City Attorney may seekjudicial relief to enjoin violations of or to compel compliance with the provisions of this Chapter. A City or AgencyOfficial, designated employee or person whois subject to the provisions of this Chaptermay request a formal written opinion from the City Attorney and may reasonably rely on such advice in order to comply with the requirements of this Chapter. Before such opinion is rendered, such official or employee mustfully cooperate with the City Attorney in disclosing facts and information in order to prepare the formal opinion. T-1996.002\4222933 6 Council Agenda: 6-26-07 Item No.: 2.2¢ RD:RT:ERD Ord. No. 28074 6/22/07 : C. Any person mayfile a complaint alleging aviolation of this Chapter with the Elections Commission through the Office of the City Clerk. D. The City Attorney may put persons on notice of a potential violation of the requirements of this Chapter, whetheror not a complaintis filed with the Elections Commission. 12.10.090 Penalties Violations of this Chapter may result in civil penalties ofup to Five Thousand Dollars ($5,000) for each violation. The City of San Jose or the Redevelopment Agency are entitled to recover from any former City or Agency Official or designated employee the monetary value of any compensation or thing of value provided to such person in violation of the provisions of this Chapter. 12.10.100 Severability If any section, subsection, sentence, clause, or phrase of this Chapter heretofore or hereafter adopted by the City Council of the City of San José is for any reason held to be invalid or unconstitutional by a decision of any court of competentjurisdiction, such decision shall not affect the validity of the remaining portion of the Chapter. Each and every section, subsection, sentence, clause or phrase of this Chapter is severable from all other sections, subsections, sentences, clauses or phrases. SECTION 2. Chapter 12.12 of Title 12 of the San José Municipal Code is amendedin its entirety to be numbered, entitled and to read as follows: T-1996.002\4222933 7 Council Agenda: 6-26-07 [tern No.: 2.26 RD:RT:-ERD Ord. No. 28074 6/22/07 CHAPTER 12.12 SAN JOSE MUNICIPAL LOBBYING Part 1 Title, Purpose, Application, and Exemptions 12.12.010 Title,Purpose, and Application A. This Chapter will be known as the San José Municipal Lobbying Ordinance. B. The purposes of this Chapterare: 1. To guarantee to the residents of the City that theCity of San José (City) continues the highest ethical work environmentfor the residents of the City and the City’s elected officials and employees. 2. In the spirit of open and transparent government,to allow the public to know andbetter understand the relationship betweenits electedofficials, lobbyists, and lobbyist's clients. 3. To enhance public confidence and trust with respect to lobbyist activities and City practices. 4, To ensure that the requirements of this Chapter and their implementation are responsive to the goal of making it easy to do businesswith the City. 5. To bring aboutclarity and certainty about applicable provisions among stakeholders. 6. To establish a policy that sets clear standards of conduct. T-1996.002\422293_3 8 Council Agenda: 6-26-07 Item No.: 2.26 RD:RT:ERD Ord. No. 28074 6/22/07 7. To maintain the citizen’s constitutional right to petition government for redress of grievances and notto limit the public’s accessto their elected officials. C. Any person who engagesin lobbying activity must comply with the provisions of this Chapter. 12.12.020 Exemptions The following persons are exempt from the requirements of this Chapter unless otherwise specified: A. A public official acting in his or herofficial capacity. B. A person engagedsolely in publication or broadcasting of newsitems,editorials, or commentary which directly or indirectly urges governmental action. C. A person hired by the City or Agency for work performed on behalf of the City or Agency, or a person who prepares documents for approval by the City under the California Environmental Quality Act of 1970, as amended andTitle 21 of the San Jose Municipal Code, or a person who has been specifically invited by the City Council or Redevelopment Agency Board or any committee thereof, or by any board or commission, or any committee of a board or commission, or by any officer or employee of the City or the Redevelopment Agency charged by law with the duty of conducting a hearing or making a decision, for the purpose of giving testimony in aid of the body or person extending theinvitation or invited to attend a meeting such as a City or Agency task force or department committee meeting to provide information or assistance requested by City or Agencystaff. D. The ownerof a business whose attempts to influence governmental action are on behalf of the business and: T-1996.002\422293_3 9 Council Agenda: 6-26-07 Item No.: 2.2¢ RD:RT:ERD 6/22/07 Ord. No. 28074 The owneror business has not madeorsolicited contributions for the elected official contacted, or a candidate or independent expenditure committee at the behest of the elected official contacted, in an amount over one thousanddollars ($1,000) within the last twelve (12) months in a City election; The owneror business hasnot retained a person to engagein lobbying activity on behalf of the owneror business; or Officers or employeesof the business have not engagedin lobbying activity on behalf of the owneror business. For the purpose of this Section, an “owner”is anyindividual with greater than a fifty percent (50%) interest in the business. This exemption applies only to the threshold for becoming an In-House Lobbyist as defined under Section 42.12.180.B. An ownerof a business who meets this exemption is subject to the requirements of this Chapterif he or she meets the definition of Contract Lobbyist or Expenditure Lobbyist as defined under Sections 12.12.180.A and 12.12.180.C, respectively. E. A person whoseattempts to influence governmental actionarelimited to: Publicly appearing at a public meeting, public hearing, or other official proceeding open to the public; and/or 2. Preparing, processing or submitting documenisor writings in connection with the governmental! action for use at a public meeting, public hearing, or otherofficial proceeding openfo the public. F. Any person whosesoleactivity includes one or moreof the following: T-1996.002\422293_3 10 | Council Agenda: 6-26-07 Item Ne.: 2.2¢ RD:RT:ERD Ord. No. 28074 6/22/07 1. to submit a bid on a competitively bid contract; 2. to submit a written response to a request for proposals or qualifications; . 3. to participate in an oral interview for a request for proposals or qualifications; or 4. to negotiate the terms of an agreement with the City or AgencyOfficial authorized to negotiate such an agreement. A person who meets with City Officials solely to lodge “whistleblower” complaints relating to improper governmental activity such as gross mismanagement, waste of funds, an abuseof authority, or a substantial and specific dangerto public health or safety. A person who meeiswith the City Attorney or City Clerk regarding any claim or litigation matter, negotiation of any agreements where the City is a party or the requirementsor interpretation of this Chapter. Uncompensated members or uncompensated membersof the board of directors of non-profit organizations. Members of neighborhood associations, Neighborhood Advisory Committees or Project Area Committees. Persons whose communications are solely related to: 1. The establishment, amendment, administration, implementation or interpretation of a collective bargaining agreement or a memorandum of T-1996.002\422293_3 11 Council Agenda: 6-26-07 Item No.: 2.2¢ RD:RT:ERD Ord. No. 28074 6/22/07 agreementbetween the City and a recognized employee organization. 2. Management decisions as to the working conditions of represented employeesthatclearly relate to the terms of a collective bargaining agreement or memorandum of agreement between the City and a recognized employee organization. 3. Proceedings before the City of San José Civil Service Commission. L. A person whose communications with City Officials are solely in connection with the administration of an existing contract or agreement between the person and the City or Redevelopment Agency. M. Compensated officers or employees of a nonprofit organization with tax exempt status under Section 501(c)(3) of the Internal Revenue Code whose attempts to influence governmentalaction are on behalf of the organization. 12.12.030 Severability If any section, subsection, sentence, clause,or phraseof this Chapter heretofore or hereafter adopted by the City Council of the City of San José is for any reasonheld to be invalid or unconstitutional by a decision of any court of competentjurisdiction, such decision shall not affect the validity of the remaining portion of the Chapter. Each and every section, subsection, sentence, clause or phrase of this Chapter is severable from all other sections, subsections, sentences, clauses or phrases. T-1996.002\422293_3 12 Council Agenda: 6-26-07 Item No.: 2.2¢ RD:RT:ERD Ord. No. 28074 6/22/07 Part 2 Definitions 12.12.100 Definitions For purposesofthis Chapter, the following definitions are applicable. Other terms used and not defined in this Chapter have the meaningsset forth in this Title, and terms used and notdefined in this Title have the meanings setforth in the California Political Reform Act of 1974, as amended. 12.12.110 At the Behest “At the behest” meansat the specific direction of, or at the personal request or suggestion of, or with the express prior consentof, any elective City Official, City Official-Elect or candidate for elective City office. 12.12.120 City Official “City Official” includes the Mayor and Membersof the City Council; any appointee of the City Council; Mayoral or Council staff member; Redevelopment Agency Board Member; members of the Planning Commission, Appeals Hearing Board, Civil Service Commission; any City representative to any joint powers authority to which the City is a party; the City Managerandhis or her Assistant City Manager and Deputy City Managers; the Executive Director of the Agency andhis or her Assistant and Deputies; City department heads; and Agencydivision heads. 42,12.130 City Official-Elect “City Official-Elect” means a person whohas beenelected to a City office but has not yet been swornin to office. T-4996.002\422293_3 13 Council Agenda: 6-26-07 Item No.: 2.26 RD:RT:ERD Ord. No. 28074 6/22/07 12.12.140 Client “Client” means the person who compensatesa lobbyist for representation. 12.12.150 Contact or Contacting “Contact or contacting” means attendance at a meeting with a City Official or City Official-Elect, or any direct communication with a City Official or City Official-Elect, whetheroral, electronic or in writing, including, but not limited to communication through an agent, associate or employee, for the purpose of engaging in lobbying activity. 12.12.160 Compensated or Compensation “Compensated or Compensation” means any economic consideration for services renderedor to be renderedin the future, including, without limitation, payment, distribution transfer, loan advance, deposit, other rendering of money, property, services or anything else of value. 12.12.170 Lobbying Activity “Lobbying Activity” means influencing or attempting to influence a City Official or City Official-Elect with regard to a legislative or administrative action of the City or Redevelopment Agency. A. “Influencing” means contacting, either directly or indirectly, for the purpose of promoting, supporting, modifying, opposing, causing the delay or abandonment of conduct, or otherwise intentionally affecting the official actions of the City Official or City Official-Elect, by any means,including, but notlimited to providing, preparing, processing, or submitting information, incentives, statistics, studies or analyses. T-1996.002\4222933 14 Council Agenda: 6-26-07 Item No.: 2.2¢ RD:RT:ERD Ord. No. 28074 6/22/07 B. “Legislative action’ meansthe drafting, introduction, consideration, modification, enactmentor defeat of any resolution, ordinance, amendmentthereto, report, nomination or other action of the Mayor, City Council, Redevelopment Agencyof the City, or City board or commission,or task force or any joint powers authority of which the City is a party. “Administrative action” means the proposal, drafting, development, consideration, advocacy, recommendation, adoption, anendment or approval of any rule, regulation, agreement, contract, permit, license or hiring action. 12.12.180 Lobbyist “Lobbyist", unless exempt under Section 12.12.020 means: A. Contract Lobbyist: Any person, whether an entity or individual, that engagesin lobbying activity on behalf of one or more clients (acting individually or through agents, associates, employees or contractors) and who hasreceived or has entered into an agreement for compensation of one thousanddollars ($1,000) or more for any services whichinclude engaging in lobbying during any consecutive three (3) month period. In-House Lobbyist: Any person,including a business, corporation, association, political action committee, or any other organizationif its owners, Officers, or employees have engaged in lobbying activity on its behalf and whose aggregate time engaging in lobbying activity total ten (10) hours or more in a consecutive twelve (12) month period. Expenditure Lobbyist: A person who makes payments or incurs expendituresin the aggregate amountof five thousand dollars ($5,000) or more during any calendar yearin connection with carrying out public relations, advertising or similar activities with the intent of soliciting or urging, directly or indirectly, other T-1996.002\4222933 15 Council Agenda: 6-26-07 Item No.: 2.2¢ RD:RT-ERD . Ord. No. 28074 6/22/07 persons to communicate directly with any City Official in order to attempt to influence a legislative or administrative action. The five thousand dollars ($5,000) threshold does not include: 1. Compensation paid to Contract Lobbyists or In-House Lobbyists for lobbying activity; or 2. Dues, donations, or other economic consideration paid to an organization, regardless of whether the dues, donations or other economic consideration are used in wholeorin part for lobbying activity. 12.12.190 Lobbyist Fundraising Activity “Lobbyist Fundraising Activity” meanssoliciting a contribution; hosting or sponsoring a fundraising event; or hiring a fundraiser or contractor to conduct any event designed for political fundraising at which contributions for any City Official, candidate for elective City office or any controlled committee of an elected City Official or candidate for City office or for any political action committee, political party or candidate for elective office of a governmental organization are solicited, delivered or made. 12.12.200 Person “Person” meansanyindividual, business entity, trust, corporation, association, committee, or any other organization or group of persons acting in concert. T-1996.002\4222933 16 Council Agenda: 6-26-07 Item No.: 2.2¢ RD:RT:ERD Ord, No. 28074 6/22/07 Part 3 Contingent Compensation to Lobbyists 12.12.300 Contingent Compensation A. A person may not accept compensation for lobbying activity when the compensationis directly dependent on the result of legisiative or administrative action(s) that are the subject of the lobbying activity. B. Aperson may not accept compensation for engaging in lobbying activity when the compensation depends on both: 1. The result of legislative or administrative action(s) that are the subject of the lobbying activity; and 2. Additional condition(s) or event(s) that are not the subject of the lobbying activity. C. Aperson engagedin lobbying activity may accept compensation for services, other than lobbying activity, when the compensation directly depends on the resuit of legislative or administrative action(s) that are the subject of the lobbying activity. D. A person engagedin lobbying activity may accept compensation for services, other than lobbying activity, when the compensation depends on both: 1. The result oflegislative or administrative actions that are the subject of the lobbying activity; and 2. Additional condition(s) or event(s) that are not the subject of the lobbying activity. T-1996.00214222933 | 17 Council Agenda: 6-26-07 item No.: 2.2¢ RD:RT:ERD 6/22/07 Ord. No. 28074 12.12.310 Disclosure of Contingent Compensation A. A person engagedin lobbying activity must disclose any agreement, arrangement, or understanding regarding compensation for services set forth in Section 12.12.300.C and D. | B, Except as provided in Subsection C, a person engagedin lobbying activity must file with the City Clerk at least one (1) business day before any lobbying activity, the following information: 1. Name,address, and telephone numberof the person engagedin lobbying activity. Nameand address of the source of compensation. _ Abrief description of the legislative or administrative action the person engaged in lobbying activity is seeking to influence. If compensation can becalculated at the time of the disclosure, the compensationwithin the following ranges: ($0-$500), ($501-$1,000), ($1,001- $10,000), ($10,001-$100,000), ($100,001-$200,000), ($200,001-$300,000), ($300,001-$400,000), and (over $400,000). If compensation cannot be calculated at the time of the disclosure, a brief description of the basis for determining the compensation, and any legislative or administrative action(s) and/or additional condition(s) or event(s) that must occur before the person engagedin lobbying activity is entitled to receive compensation. T-1996.002\422293_3 18 Council Agenda: 6-26-07 Item No.: 2.26 RD:RT:-ERD , Ord. No. 28074 6/22/07 C. Aperson engagedin lobbying activity that is not yet required to register as a lobbyist as defined under Section 12.12.180 mayfile the disclosure form concurrent with the registration report. 12.12.320 Separate Written Agreements A person engagedin lobbying activity may have separate written agreements for lobbying activity and other services related to the same project orissue. 12.12.330 Exemptions Sections 12.12.300 and 12.12.310 do not apply to compensation for services by an attorney licensed to practice law in the State of California who represents a party or potential party in pending oractuallitigationor administrative enforcement proceeding brought by or against the City. Part 4 Requirements 12.12.400 Registration with City Clerk A. A Lobbyist is required to register with the City Clerk no jater than ten (10) days after qualifying as a lobbyist as defined in this Chapter. A Lobbyist who meets the threshold requirements of one or more of the categories (Contract Lobbyist, In-House Lobbyist, or Expenditure Lobbyist) is only required to register once.- B. A Lobbyist must renew the registration by January 15 of each year. T-1996.002\4222933 19 Council Agenda: 6-26-07 Item No.: 2.2¢ RD:RT:ERD Ord. No. 28074 6/22/07 C. The annualregistration renewal will not be required if a declaration attesting to the termination of lobbying activity within the City has beenfiled with the City Clerk no tater than January 15. | 12.12.410 Lobbyist Registration Report A. A Lobbyist who meets the threshold requirements of one or more of the categories (Contract Lobbyist, In-House Lobbyist, or Expenditure Lobbyist) must fill out one registration report with all the applicable information including the following: 1. Name. 2. Business address. 3. Telephone and fax numbers. 4, Namesofall ownersif the Lobbyistis a sole proprietorship or partnership of fewer thanfive (5) persons. 5. Namesofthe officers and agentfor service of process,if any,if the Lobbyist is a corporation. 6. If applicable, a description of the nature of, the business, corporation, association, committee or any other organization in sufficient detail to inform the readerofits nature and purpose. B. All Contract Lobbyists must alsoprovide the following information for each client: 1. Name, business address, telephone numberof each client; T-1 996,0021422293.3 20 Council Agenda: 6-26-07 Item No.: 2.26 RD:RT:ERD Ord. No. 28074 6/22/07 2. Nature of each client's business; 3. A brief description of the legislative or administrative action(s) the lobbyist . seeks to influence on behalf of each client; and 4, Nameof each person employedor retained by the lobbyist to engagein lobbyist activity on behalf of each client. C. All In-House Lobbyists must also provide the following information: 1. Namesof each owner,officer and employee conducting lobbying activities on its behalf; and 2. A brief description of the legislative or administrative action(s) the lobbyist seeksto influence. D. All Expenditure Lobbyists must also provide the following information: 1. Namesof all owners, officers and employees conducting lobbying activities; and 2. A brief description of the legislative or administrative action(s) the lobbyist “ seeksto influence. 12.12.420 Additional Required Information and Disclosures The lobbyistregistration report must also contain the following information: A. Campaign andofficeholder contributions that a lobbyist made, delivered or acted as an intermediary for, to an elected City Official or candidate for City Office made during the preceding calendar quarter. A personis an “intermediary”for a T-1996.00214222933 ; 21 Council Agenda: 6-28-07 : item No.: 2.20 RD:RT:ERD - Ord. No. 28074 6/22/07 contribution if the recipient of the contribution would consider that person to be the contributor without the disclosure of the identity of the true source of the contribution. Also, a lobbyist acts as an “intermediary”if the lobbyist makes a contribution on behaif of another person, and that other person is acknowledged as the contributor, and the lobbyist is reimbursed for the contribution. Campaign andofficeholder contributions madeat the behestof an elected City Official or candidate to any other elected public official or candidate for public office during the preceding calendar quarter. All Independent Expenditures madefor or on behaif of a City Official or candidate for City office made during the preceding calendar quarter. Fundraising Activity for any City Official, candidate for elective City office or any controlled committee of the elected City Official or candidate for City office orfor any political action committee, political party or candidate for elective office of a governmentalorganization madeat the behest of a City Official during the preceding calendar quarter. Required information and disclosures must include the name of the City Official, candidate, committee or party on whose behalf the lobbyist engagedin fundraising activities, or delivered or acted as intermediary for one or more contributions. The information and disclosures must also include the nameof the City Official requesting the Fundraising Activity, the date of the Fundraising Activity, the nameof the contributors and the amountof contributions raised, delivered and/or made in connection with which the lobbyist acted as an intermediary. Donations to for profit or nonprofit organizations made at the behestof a City Official or candidate for elective City office of any contribution or payment of more than one thousanddollars ($1,000) in the aggregate made during the preceding calendar quarter. . F-1996.002\4222933 22 Council Agenda: 6-26-07 Item No.: 2.26 RD:RT:ERD _ Ord. No. 28074 6/22/07 Payments received for.services as a consultant or in any other capacity for services rendered to any City department or Redevelopment Agency, City Official, or any City Official-elect, their controlled committees or officeholder committees. Contacts made with City Officials or City Officials-Elect during the preceding calendar quarterfor the purpose ofinfluencing or attempting to influence legislative or administrative action. Contact information must include a brief description of the item(s) of legislative or administrative action the lobbyistis seeking to influence and the numberof contacts in the following ranges: (1), (2-5), (6-10)or(11 or more). Activity expenses such as paymentsthat directly benefit any City Official, City Official-Elect or memberof his or her immediate family or domestic partner made during the preceding calendar quarter. Activity expenses include gifts as defined by Chapter 12.08, honoraria, consulting fees, salaries and other forms of compensation, but do not include campaign contributions. 12.12.430 Quarterly Reports A. All lobbyists mustfile a quarterly report for every calendar quarter during which they retain that status with the City Clerk not later than fifteen (15) calendar days after the end of the qualifying quarter, whetheror not any lobbying activities have occurred during such period. Electronic reporting mayalso be permitted by the City Clerk. Each quarterly report mustcontain the sameinformation as required to be disclosed in the registration report, for those activities occurring in that quarter. If | a lobbyist has terminatedall lobbying activities during such quarter, the lobbyist mayfile a declaration of termination with the quarterly report. The final quarterly T-1996.002\4222933 . 23 Council Agenda: 6-26-07 tem No.: 2.2¢ RD:RT:ERD Ord. No. 28074 6/22/07 report mustinclude disclosure of any lobbying activities during the quarter of termination. Each quarterly report for Contract Lobbyists must indicate the total compensation promised or received from eachclientlisted duringthe reporting period for lobbying activity within the following ranges: ($0-500), ($501 - $1,000), ($1,001 - $10,000), ($10,001 - $400,000), ($100,001 - $200,000), ($200,001 - $300,000), ($300,007- $400,000),and (Over $400,001). Each quarterly report must indicate whether the lobbyist has any agreement, arrangement, or understanding regarding compensation for services set forth in - Section 12.12.300.C and for thoseactivities occurring in that quarter and _ identify the nameof the personthatfiled the disclosure form and the dateit was filed with the City Clerk. Quarterly reports mustbefiled by April 15, July 15, October 15 and January 15 for the prior calendar quarter, and are delinquent thereafter. Records pertaining to the registration and quarterly reports must be preserved by the lobbyist for inspection and audit by the City for a period offive (5) years from the date of production. 12.12.440 Fees A, All fees and interest referenced in this Section are set forth in the schedule of fees established by resolution of the City Council. All lobbyists are required to register, including Expenditure Lobbyists or. Contract Lobbyists that work for an In-House Lobbyist, and pay an annualregistration fee at the time of registration or registration renewal. {f the lobbyist registers forthe first time on orafter June 30 of a given year, the lobbyist may pay a reduced T-1996.002\4222933 24 Council Agenda: 6-26-07 . Item No.: 2.26 RD:RT:ERD ’ Ord. No. 28074 6/22/07 registration fee. If the fee is not paid at the time of registration or registration renewal, a late registration fee will be assessed on a daily basis until the registration fee is paid in full. In no eventwill the late registration fee exceed one hundred percent (100%) of the unpaid registration fee. C. Every Contract Lobbyist must pay a fee for eachclient for whom lobbying activity is undertaken for compensation and the compensation is greater than five hundred dollars ($500) perclient. The fee for each client must be paid on an annualbasis with the registration or registration renewal. After the registration or registration . renewal, the fee for any new client must be paid with the quarterly report immediately following the quarter when the lobbyist is compensated and the compensation is greaterthan five hundred dollars ($500). (Lobbyists for organizations representing a group of organizations or associations such as trade associations will not be assessed a fee for each client if the compensation to the lobbyist is derived from fees or dues memberspayfor their membership in the organization or association.) D. Anylobbyist whofails to file a quarterly report orfiles a quarterly report after the report is due under Section 12.12.430 will be assessed latefiling fee. Interest calculated on a monihly basis or a fraction thereof will accrue on thelate filing fee from the date the fee is due to the date the fee is paid. If more than onefeeis due,interest will accrue separately upon each fee. E. Failure to pay any fees andinterest assessed in this Section may be enforced as a personalobligation of the lobbyist. T-1996.002\4222933 25 Council Agenda: 6-26-07 Item No.: 2.26 RD:RT:-ERD Ord. No, 28074 6/22/07 Part 5 Prohibited Activities 12.12.500 Prohibited Activities No person engagedin lobbying activity may commit any of the following acts: A. Engagein any activity on behalf of a client or accept compensation for lobbying activity unless such lobbyist is registered and hasfiled the information required by this Chapter. Do anyact to place any City Official or immediate family memberof a City Official under his or her personalor financial obligation. Intentionally deceive or attempt to deceive a City Official as to any material fact whichis pertinent to any pending or proposedlegislative or administrative action. Contact any public official in the name of any non-existent person or in the name of any existing person except with the consentof such existing person. Represent, either directly or indirectly, orally or in writing that he or she can control or obtain the vote or action of any City Official. Perform servicesfor a client on a matter including anylegislative action or administrative action for a period of two (2) years after which the lobbyist had performed services on such matter-as a consultant for the City of San Jose or Redevelopment Agency. Contact any City or Agency employee, or members of an evaluation team or. panelfor a City or Redevelopment Agency Requestfor Proposal or Requestfor Qualifications concerning a City or Redevelopment Agency Request for Proposal T-1996.002\4222933 26 Council Agenda: 6-26-07 Item No.: 2.2¢ RD:RT:ERD Ord. No. 28074 6/22/07 or Requestfor Qualifications, other than a City or Agency designated contact person, during the period of time from the release to prospective proposers of the Request for Proposal or Requestfor Qualification until a recommendationis made public by the City or Agency. Part 6 Compliance, Training, and Enforcement 42.12.600 Compliance and Training A. The City Clerk oversees compliance with this Chapter, including the creation of all forms and explanatory materials. B. A training workshopwill be established for elected City officers and lobbyists on City ethics ordinances and a codeofethics for lobbyists. The City Clerk establishes a program of required attendance on a regular basis not less than once every three (3) years. Training workshopswill be provided to newly elected City Officials. 12.12.610 Enforcement A. The City Attorney may investigate complaintsof violations of this Chapter. The City Attorney may seek judicial or injunctive relief in the courts to enjoin violations of or to compel compliancewith the provisions of this Chapter. B, Any person mayfile a complaint with the City Clerk alleging a violation of this Chapter with the Elections Commission. C. The City Attorney or the City Clerk may put lobbyists on notice of a potential violation of the requirements of this Chapter, whether or not a complaintis filed with the Elections Commission. T-1996.002\4222933 27 Council Agenda: 6-26-07 . Item No.: 2.2¢ RD:RT:ERD Ord. No. 28074 6/22/07 , 12.12.620 Noncompliance - Order to Show Cause A. Uponthe written request of any City Official, the City Clerk will issue an order to show cause to any unregistered person. B. Such order mustspecify a time and place where such person must appearto provide evidencesatisfactory to the Elections Commission that he or she has complied with the registration requirementor is exempt from registration. C. If the Elections Commission determines that such person is subject to registration and he orshefails to register within seven (7) days of that determination, such personwill be barred from appearing before City Council or the Redevelopment Agency Board except at a public hearing on his or her own behalf or on oral petition. Such debarmentwill be in effect for three (3) months from the date of such determination oruntil registration, whicheveris later. 12.12.630 Penalties . Eachviolation of this Chapter may result in civil penalties of up to five thousand dollars ($5,000) or the amountof the compensationreceived for the lobbying activity, whicheveris greater may be assessed by the Elections Commission or a court of law. Part 7 Prohibition for City Officials 12.12. 700 Prohibition for City Officials City Officials are prohibited from suggesting, advising or recommending that a person obtain the services of a lobbyist or recommend the nameofa particular lobbyist to facilitate favorable legislative or administrative action by the City or Redevelopment | T-1996.002\4222933 28 Council Agenda: 6-26-07 : Item No.: 2.2¢ i RD:RT:ERD Ord. No. 28074 6/22/07 Agency with regard to such person’s matter pending before the City or Redevelopment Agency. Part 8 Disclosure of Communications with Registered Lobbyists 12.12.800 Disclosure of Communicationswith Registered Lobbyists | Before taking any legislative or administrative action, the Mayor, each Memberofthe City Council, the Chair and each memberof the San José Redevelopment Agency Board of Directors, and each Memberof the Planning Commission, Civil Service Commission, or Appeals Hearing Board mustdisclose ail scheduled meetings and telephone conversations with a registered lobbyist about the action. The disclosure may be madeorally at the meeting before discussion of the action on the meeting agenda. Theoral disclosure mustidentify the registered lobbyists, the date(s) of the scheduled meetings and telephone conversations, and the substance of the communication. This section does notlimit any disclosure obligations that may be required by this Code orCity policy. SECTION 3. This Ordinance will be effective on August 1, 2007. T-1996.002\4222933 29 Council Agenda: 6-26-07 Item No.: 2.2¢ RD:RT:ERD Ord. No. 28074 6/22/07 - ADOPTEDthis 19" day of June, 2007, by the following vote: AYES: CAMPOS, CHIRCO, CHU, CONSTANT, CORTESE, LICCARDO, NGUYEN, OLIVERIO, PYLE, WILLIAMS; REED NOES: NONE ABSENT: NONE DISQUALIFIED: NONE 2 2) Q CHUCK REED Mayor -ATTES?: R AL LEEPRICE, MMc * City Clerk T-1996.002\4222933 30 Council Agenda: 6-26-07 Item No.: 2.26
