Council requires disclosure for spending over $20 but holds back from exposing violators to lawsuits

By Gary Walker

In a special meeting Tuesday night, the Santa Monica City Council adopted stricter reporting requirements for municipal lobbying activity but stopped short of making those who break the rules personally liable in court.

Lobbyists who get involved in city politics will now have to register and report basic information about their activities, clients, clients’ businesses, the decisions they seek to influence and much of what they spend in support of lobbying activities.

Financial reporting requirements include any lobbying expenditures or gifts to public officials in excess of $20.

The new rules define a lobbyist as “anyone who receives economic consideration for communicating with any official or employee of the city for the purpose of influencing a legislation or administrative action.”

Newly appointed Santa Monica City Clerk Denise Anderson-Warren estimated that the lobbying ordinance would take about six months to implement.

Under consideration since 2014, the disclosure requirements come at a time when several major development projects are in the works and many residents are voicing concern about an increase in lobbying activity intended to influence city decision-makers. It’s also an election year.

Mary Marlow, president of the watchdog group Santa Monica Transparency Project, said she was happy for the new restrictions but wished the council would have gone even further.

Marlow convinced council members to require that lobbyists disclose the names of officials they’ve had discussions with before public hearings, but she also wanted a “private right of action” provision that would have set up a mechanism for residents to sue those who violate reporting requirements.

“We also think the private right of action in the earlier version [the council considered] should be reinstated. That would allow any resident to enforce requirements of the law through civil action or either injunctive relief, damages or punitive damages,” Marlow said.

Santa Monica City Attorney Marsha Jones Moutrie reminded council members that city staff had dropped a private right of action provision from an earlier draft ordinance because some on the council said it could lead to “controversy and contentiousness in the community.”

During council discussion that culminated in a 6-0 vote to approve the lobbying ordinance (Councilwoman Pam O’Connor was absent), Councilwoman Gleam Davis came out strong against including a right of private action provision.

“I appreciate Ms. Marlow’s intention, but I won’t support the ordinance with
a private right of action. The fact of the matter is a private right of action can become vengeance,” said Davis, an attorney. “We’re talking here about people exercising their First Amendment rights. Starting out with a private right of action is just, I think, inviting the kind of contentiousness that we wanted to avoid.”

Councilwoman Sue Himmelrich, who brought concerns about lobbying before the council shortly after she was elected in 2014, disagreed with Davis about giving residents the right to challenge violations of the ordinance in court.

“I am actually in favor of a private right of action. I won’t insist on including it tonight, although there may be a time when it comes up again,” said Himmelrich, who is also an attorney.

Councilman Kevin McKeown also expressed support for considering a private right of action clause, and the council agreed to reconsider the question sometime in the future.

“I share Councilwoman Himmelrich’s concern about the private right of action. And should we find out, as well-intentioned as this ordinance is, that it isn’t being enforced, I will be coming back with an amendment to include a private right of action,” McKeown said.

The ordinance exempted Downtown Santa Monica Inc., the Santa Monica Travel & Tourism Bureau and the Santa Monica Pier Corp. from reporting requirements at Moutrie’s suggestion that those agencies often function as de facto arms of city government. Some contractors who work with the city on a regular and ongoing basis are also excluded.

Denise Barton, a Santa Monica resident who is typically at odds with city leaders, said during the meeting that punishment for violations of the ordinance should be stronger.

“In this ordinance you should be focusing on people trying to influence public officials. Violations should be more meaningful, and the public should be made aware of when there is a violation and what repercussion there will be,” Barton said.