JCOPE Ruling Could Hit Independents Hardest

April 1, 2016

[richard cummins/corbis]
[richard cummins/corbis]

By now, you may have read just enough about New York State’s Joint Commission on Public Ethics (JCOPE) proposed rules that you’re ready to start tuning the issue out. Don’t.

Rightly so, much of the media coverage has focused on the chill this may cast over the process of media relations and the PR profession’s response, which has been led by the larger firms. PRSA and other professional organizations, for their part, have weighed in heavily and repeatedly. (On March 8, PRSA, along with the PR Council and Arthur W. Page Society, filed a non-party affidavit in support of a suit led by BerlinRosen Public Affairs with the intended goal of encouraging JCOPE to reevaluate and revise or repeal Advisory Opinion No. 16-01.)

If you’re an independent consultant, then there is good reason to stay on top of this situation.

First, a little background: With Advisory Opinion No. 16-01, JCOPE proposes that consultants must report when they come in contact with reporters and journalists as part of their work to advocate on public policy issues. More to the point, the proposed rule states:

“Any attempt by a consultant to induce a third-party — whether the public or the press — to deliver the client’s lobbying message to a public official, would constitute lobbying under these rules.”

Mark McClennan, APR, PRSA’s 2016 National Chair and Advocacy Advisory Board Chair said, “JCOPE’s new interpretation of what it considers to be lobbying will do nothing to further the public’s trust in government, is ambiguous and could require a whole group of professionals who have no contact with lawmakers to register as lobbyists.”

An inevitable cloud

If you’re an independent consultant who works for clients on advocacy initiatives in New York State, then this means you will have to register as a lobbyist and follow all of JCOPE’s reporting and compliance guidelines when conducting your media relations efforts.

Aside from the inevitable cloud that shadows free and open exchange with journalists — particularly on issues where public policymaking is involved — this could affect independents financially, who have more limited resources than larger firms.

Specifically, you would have to retain more legal support to ensure you are completing all of the right forms and filing regular reports, that you are doing so properly and in compliance and that this is done in a timely manner. This adds to operating costs, time and is constrictive enough to inhibit business development and retention efforts. These costs will have to be incorporated into higher fees and may exacerbate efforts to attract and retain clients.

Should an independent be found in noncompliance on matters large or small, penalties could be significant. But perhaps most potentially damaging would be, ironically, the publicity surrounding a JCOPE-enforcement action — all for doing what is not only legal, but encouraged in the country’s other 49 states as a tenet for freedom of the press.

As any independent will tell you, something that causes a large firm to get the sniffles can be terminal for a solo practice. Nothing could demonstrate this more clearly than the proposed rule from JCOPE.

Read PRSA's full statement on the JCOPE decision and more about the non-party affidavit.

Tim O'Brien, APR

Tim O’Brien, APR, owns O’Brien Communications, an independent corporate communications practice in Pittsburgh, and hosts the “Shaping Opinion” podcast. Email: timobrien@timobrienpr.com. Twitter: @OBrienPR.


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