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New provisions for anti-lobbying ordinance up for Council review

Thursday, November 10, 2011 by Josh Rosenblatt

Council will be considering amendments to the city’s anti-lobbying ordinance today but it remains to be seen if new language staff has written to accommodate the Ethics Review Commission’s concerns will solve the problems some Council members have with the ordinance.

At Tuesday’s Council work session, Council Member Laura Morrison wanted to make sure the amended ordinance clearly addresses who is and who is not considered a “respondent” to a solicitation or a “representative” acting on behalf of a respondent. Confusion over that issue plagued the recent social service contract bidding process.

“We got clear direction from legal,” Morrison said quoting a staff letter,“ ‘If a person or entity states that they are a citizen advocate, not a respondent’s representative, the person or entity may speak to a Council member or staff member publicly or privately regarding the solicitation.’”

“Is that kind of detailed direction going to be in the ordinance under your review of the commission recommendations?” she asked.

There was no answer to that question on Tuesday, but on Wednesday, city Purchasing Officer Byron Johnson released a memo detailing staff’s recommended amendments, written in response to questions raised by the Ethics Review Commission last week.

Echoing Morrison’s biggest concern, the commission had recommended that the ordinance “more clearly define who IS NOT a respondent to a solicitation, including who is NOT an ‘other representative acting on behalf of respondent.’” (Capitalizations and underlining theirs.) Johnson told Council Tuesday that addressing these definitions in the negative can be a “precarious” process.

“Defining what’s not in the box is a little bit harder to do than what’s in the box,” said Johnson. Instead, staff is recommending adding two new sections to the ordinance to help define who is a respondent or a representative.

The first states that a respondent’s “representative” would include a current employee, director, officer, or member of a respondent, or a person related “within the first degree of consanguinity or affinity” – meaning fathers, mothers, sons, daughters, and/or spouses — to one of those people. 

The second states that any person or entity “acting on a respondent’s behalf with the respondent’s request and consent” would be considered a representative.

The commission also recommended that the ordinance clarify who would have the power to void a contract awarded to a respondent that violated the anti-lobbying ordinance. Staff is recommending that either the purchasing officer or the director of the Contract and Land Management Department be authorized to void those contracts.

According to staff’s recommended language, “the director of purchasing officer shall take into account the needs of the municipality, including the time required to re-solicit the requirement and the availability of suitable alternate products” before voiding the contract. In addition, voiding the contract would not be subject to an appeal.

Staff also added language to address the commission’s worry that the prohibition against certain kinds of complaints made against the solicitation process is too broad. If accepted, the new language will allow a respondent to make complaints or suggestions about the contract process to a city employee as long as those complaints or suggestions don’t “constitute a representation.”

Under that rule, for example, one could complain that a solicitation has been left open for too short a time “to allow a cost effective and efficient response … by the vendor community” but not that a solicitation isn’t treating a particular respondent fairly.

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