Maziarz cannot serve as a lobbyist until 2017, but is he doing so now?

George Maziarz served as a member of the New York State Senate for 20 years, from 1995 through December 31, 2014. During his time in office he was an active and aggressive legislator. He worked to provide assistance to Niagara Falls and the County of Niagara in obtaining funding and legislative changes.

Then in 2014, on the heels of the now-disbanded Moreland Commission, Senator Maziarz got himself into some legal problems linked to his election campaign account and how it was used. He spent tens of thousands of dollars of his campaign funds to hire attorneys to defend him. He declined to seek re-election in 2014.

And then nothing happened, or nothing seemed to have happened. There has been no announcement from state or federal investigators indicating that the review of Maziarz’s activities had turned up anything of substance. He was apparently vetted for appointment to a state commission. Rumors persist that the investigation was passed down to the Niagara County District Attorney and focuses on the activities of the senator’s former staffers.

The Niagara County DA’s office, however, developed its own problems unrelated to the Maziarz issue. The DA resigned and who knows where that leaves the investigation. There is an election coming up for that office, and the prime and perhaps only contender is married to a close political associate of Maziarz. (The candidate, Caroline Wojtaszek, has actually already been endorsed by the Democrats.) This blog wrote on April 4th about various Maziarz/Wojtaszek connections in Niagara County and how they might impact the DA race.

Back to Senator Maziarz. Stories continue to circulate about a possible executive appointment for him in the offices of the Western New York Off-Track Betting Corporation. In the meantime, Maziarz has secured some other work.

The Buffalo News reported on February 23rd that he is being retained as a consultant for the Niagara Falls Medical Center. The News story indicated that Maziarz would be assisting the hospital in seeking funding for its activities.

Niagara Falls Memorial Medical Center will be retaining former State Sen. George D. Maziarz as a consultant to seek out grant funding for the hospital, CEO Joseph A. Ruffolo said Friday.

The contract hasn’t been finalized, but Ruffolo said the veteran politician will be paid $2,000 to $3,000 a month. Ruffolo said the medical center board was told of the plan this month and approved it informally, without a vote. Ruffolo said he had the authority to hire Maziarz on his own.

“We’re not hiring George as an employee,” Ruffolo said. “We’re looking to retain him as a consultant to assist with economic development grants, workforce development grants, energy-efficiency grants and other potential funding sources.”

Ruffolo said Maziarz, who stepped down from the State Senate at the end of 2014 after almost 20 years in office, “has a good track record in those areas.” …

He said Memorial hopes to obtain money for workforce development and training in expanding medical fields such as health care coordinators and case managers, not only for Memorial employees but for students attending Niagara County Community College, Niagara University and certificate programs at the Orleans-Niagara Board of Cooperative Educational Services.

The Maziarz contract will run on a month-to-month basis, and the results will be reviewed periodically to see if they are satisfactory, Ruffolo said.

It appears that George Maziarz will be functioning like a lobbyist. Article 1-A, Section 1-c(a) of the New York State Legislative Law defines lobbyist as follows:

   (a) The term “lobbyist” shall mean every person or organization retained, employed or designated by any client to engage in lobbying…

The law goes on to define “lobbying” and “lobbying activities.”

But there is a problem with Maziarz lobbying, at least concerning legislative passage of any grants to NFMC at this time. Section 73(8)(iii) of the Public Officers Law states in part:

No person who has served as a member of the legislature shall

within a period of two years after the termination of such service

receive compensation for any services on behalf of any person, firm,

corporation or association to promote or oppose, directly or indirectly,

the passage of bills or resolutions by either house of the legislature.

  If the law is followed it means that Maziarz, who left the State Senate on December 31, 2014, cannot do any lobbying, at least concerning passage of any grants to NFMC, until January 1, 2017.

That may be why the Niagara Falls Medical Center retained Maziarz as a “consultant.” Consultants consult, whatever that means. Actually it means whatever the business or organization that retains the consultant wants the consultant to do. What Niagara Falls Medical Center wants consultant Maziarz to do is to assist the hospital in securing grants. Where those grants might be coming from is not mentioned in the News article, but it seems probable that Maziarz’s grant-seeking consultancy would be concentrated on New York State government, which he knows so well from his years as a senator.

So the Maziarz-NFMC consultant arrangement may be a convenient way around the legal prohibition against former state legislators lobbying the state legislature for at least two years following the day they leave the Legislature.

But there is one more little problem with the Maziarz-Niagara Falls Medical Center consulting arrangement. JCOPE, the agency tasked with enforcing lobbying activity, has reviewed the question of “consultants” who seem to, in effect, function as lobbyists. Advisory Opinion 16-1, issued by JCOPE on January 26, 2016, says this about the “consultant” as lobbyist question:

When a consultant (or other paid representative) contacts a public official on behalf of a client, for the purpose of enabling or otherwise facilitating lobbying activity, is that initial contact, i.e., the “door opening”, reportable under the Lobbying Act?

 JCOPE is cognizant and respectful of the fact that the scope of the Lobbying Act is limited to those circumstances enunciated in Section 1-c(c) of the Lobbying Act. However, advocacy has evolved, requiring JCOPE to address activities that are clearly within the ambit of the Lobbying Act, but not been previously considered.

JCOPE finds that reportable lobbying includes preliminary contact made with public officials to enable or facilitate the ultimate advocacy. This initial contact does not have to involve the substantive concerns of the client, but can simply be to schedule a future meeting for the client with the public official. It can also include a consultant introducing his client to a public official prior to a meeting.

While one may call himself a consultant, when that individual communicates with a public official (or her staff) on behalf of a client – for the purpose of enabling the client to explicitly advocate before the public official – the lobbying has begun. But for the access to the public official, the ensuing advocacy could not take place…

JCOPE finds that anyone who makes contact with a public official, including preliminary communications to facilitate or enable the eventual substantive advocacy, is engaging in lobbying.

A consultant must report these activities if he knows or has reason to know that lobbying will occur before the public official. The consultant cannot employ a “willful blindness” strategy in order to create plausible deniability as to any lobbying that follows.

[C]onsultants should not be barred from these practices – the Legislature clearly found lobbying to be part of a fundamental exercise of rights under the Constitution… To that end, a consultant who has direct interaction (as defined above) with a public official at any point in the reportable lobbying effort is subject to the Lobbying Act.

 So if former Senator Maziarz is being retained to “seek out grant funding for the hospital” specifically, he may well be engaged in the type of lobbying for the NFMC that is prohibited under the Public Officers Law, at least until January 1, 2017.

In reviewing this issue, it appears that former legislators may have a loophole in their two-year lobbying restriction that only prevents them from lobbying on state legislative action, not on grant opportunities from an existing appropriation to a state agency or other activities involving executive branch agencies.

Perhaps it is beyond the ability of JCOPE to monitor this type of getting-around-the-law activity that might occur throughout the state. But it seems there would be some burden of responsibility on the part of someone who served in the State Legislature, someone who would be aware of the serious investigation of improprieties that have occurred in Albany in recent years, to know the law and to respect the law. Many in Albany have violated the law, and others have come pretty close to doing so. People who get too close to the edge sometimes fall off.