MICHAEL K.

ROZEN
CHAIR

ROBERT COHEN
JAMES E. DERING
COLLEEN C. DIPIRRO
WILLIAM P. FISHER NEW YORK STATE PHONE: (518) 408-3976
DANIEL J. HORWITZ JOINT COMMISSION ON PUBLIC ETHICS FAX: (518) 408-3975
MARVIN E. JACOB
GARY J. LAVINE
JAMES W. McCARTHY 540 BROADWAY
DAVID J. McNAMARA ALBANY, NEW YORK 12207
GEORGE H. WEISSMAN www.jcope.ny.gov
JAMES A. YATES
MEMBERS

December 4, 2019
Via electronic mail

Katherine Sullivan, OT, LLC and

Katherine Sullivan, Individually
c/o David Grandeau, Esq.
12 Valleywood Drive
Niskayuna, NY 12309
grandeau@ix.netcom.com

Re: Guidance Letter to Katherine Sullivan

Dear Ms. Sullivan:

After attempting to administratively resolve this matter with you for more than one year,
on July 12, 2019, the New York State Joint Commission on Public Ethics (the “Commission”)
notified you of allegations concerning potential violations of Article 1-A of the Legislative law
(the “Lobbying Act”) relating to activities in which you and your limited liability company
(LLC) engaged that appeared to be grassroots lobbying requiring you and your LLC to register
and disclose information to the Commission.

Based upon the information the Commission has obtained, you and your LLC expended
more than $5,000 on digital billboard space and an airplane banner flown over Albany urging the
passage of the New York State Child Victims Act in 2018. As explained in more detail below, it
is well established that the Lobbying Act requires that money spent on grassroots lobbying
messages must be reported to the Commission. The record shows that the Commission gave you
every opportunity to address its concerns, repeatedly advising you of your obligations under the
Lobbying Act. Your refusal to comply with the law, indeed your outright contempt for the law
as demonstrated by your increasingly defiant and profane emails, supports a finding of a
knowing and willful failure to file required reports and could subject you to substantial civil and
criminal penalties. See Lobbying Act Sec. 1-c(c)(i) and 19 NYCRR Part 943.7(b).

Despite the fact that you and your LLC likely expended more than $5,000 on media
messages that constitute lobbying, the Commission has determined not to take any additional
action for the reasons discussed below.

Accordingly, the Commission is providing the following guidance so that you may
comply with the registration and reporting requirements of the Lobbying Act, should you choose
to engage in additional reportable lobbying activity in the future.
Katherine Sullivan
Page 2 of 5
December 4, 2019

Background

Based upon the information obtained by the Commission, the relevant facts are as
follows:

The Child Victims Act (CVA) was signed into law by Governor Andrew Cuomo on
February 14, 2019. The bill provides relief to childhood sexual abuse survivors in New York by
extending or eliminating entirely the statute of limitations for felony sexual offenses committed
against children. 1 In 2018, you began advocating for the passage of the CVA, citing your own
personal experiences as a victim of sexual assault.

In 2018, you or your LLC purchased space on five digital billboards from Lamar
Advertising Company bearing various messages urging the passage of the CVA. The billboards
are located in Connecticut, Massachusetts, and New York and played rotating images. The
billboards displayed various messages, some of which constituted grassroots lobbying
communications.2 According to records obtained by the Commission, over $14,000 was spent
for these billboards, some portion of which accrues to the Lobbying Act reporting threshold. See
Lobbying Act § 1-e.

Similarly, you or your LLC chartered an airplane to fly a banner over Albany on June 15,
2018. The banner read: “Katsullivan.org#NYPASSCVA#EWSFAIL #TIMESUP,” which also
constitutes a grassroots lobbying communication. The Commission has determined that the cost
of the airplane and banner was approximately $3,200.

In sum, the Commission has reason to believe that you and your LLC spent more than
$5,000 in reportable lobbying expenditures and thus may have been required to register as a
lobbyist.

On June 15, 2018, in an attempt to resolve the matter, the Commission began a series of
correspondences with you indicating that you may have engaged in lobbying activity exceeding
$5,000 in reportable expenses and that you may be required to file a Statement of Registration or,
alternately, should explain in writing why such registration is not required. These notices also
offered you assistance in filing the required disclosures.

However, as described below, you responded in such a manner that the Commission was
unable to resolve the matter either with you or your various representatives. Over the course of
more than thirty emails, in which you became increasingly profane, you refused to register for a
variety of reasons. The reasons you have given include: not understanding the requirements,3 not
believing that you are a lobbyist,4 not believing that you are lobbying,5 not having spent over
$5,000 in lobbying expenses,6 and your belief that the Commissioners are “fascists.”7 You
repeatedly asked to be fined.8 You referred to the Commission as “rapists” and referred to this

1
S.2440/A.2683
2
19 N.Y.C.R.R. 943.7
3
Email from Kat Sullivan, to JCOPE Staff (July 12, 2018, 6:51 PM)
4
Email from Kat Sullivan, to JCOPE Staff (July 12, 2018, 6:51 PM)
5
Email from Chase Sullivan, to JCOPE Staff (May 2, 2019, 9:09 AM)
6
Email from Kat Sullivan, to JCOPE Staff (June 11, 2019, 2:57 PM)
7
Email from Kat Sullivan, to JCOPE Staff (June 24, 2019 9:35 AM)
8
Email from Kat Sullivan, to JCOPE Staff (June 20, 2019 10:16 AM); Email from Kat Sullivan, to JCOPE Staff
(June 24, 2019 9:35 AM)
Katherine Sullivan
Page 3 of 5
December 4, 2019

registration process as an “a** raping” and stated that this registration process is “sh***ing down
your throat.”9 You created an online lobbyist profile in the JCOPE filing system under the name
“Kat Motherf***ing Sullivan”, listing the responsible party as “Motherf***ing pissed off
citizen…”10 You continue to send threatening, demeaning, and profane emails repeatedly to
specific Commissioners and Commission staff members calling them “f***ing stupid,” “A**
CLOWN,” and stating, “F*** YOU,”11 and “See you in f***ing court you
!@#%&*$#@!$:&$@.”12 You also wrote to specific staff members threatening that they will be
forced to resign.13

Given your responses and general unwillingness to engage in a good-faith conversation,

the Commission, having exhausted all administrative attempts to resolve the situation, was left
with no alternative but to issue you a 15-day letter. Accordingly, on July 12, 2019, the
Commission notified you, in writing, of the allegations against you and gave you a fifteen-day
period to submit a written response. Rather than providing a detailed response to the allegations
against you, you responded on July 18, 2019, that “the pro-rated amounts do not equate to the 5K
JCOPE goes on and on about” and that you “are not a lobbyist.”14

Analysis

The above-described lobbying expenditures implicate the Lobbying Act and the
Commission’s lobbying regulations. Lobbying Act Sections 1-e(a)(3), 1-h(a), and1-j(a) provide
in pertinent part:

§ 1-e (a)(3) [e]very lobbyist shall biennially file with the commission, on forms
provided by the commission, a statement of registration for each biennial period…;
provided, however, that the biennial filing of such statement of registration shall
not be required of any lobbyist who…in any year…does not expend, incur or
receive an amount in excess of five thousand dollars of reportable
compensation….for the purposes of lobbying…(4) [s]uch biennial filings shall be
completed on or before January first of the first year of a biennial cycle…by those
persons who have been retained, employed or designated as lobbyist on or before
December fifteenth of the previous calendar year and who reasonably anticipate
that in the coming year they will expend, incur or receive combined reportable
compensation and expenses in an amount in excess of …five thousand dollars…;
for those lobbyists retained, employed or designated after the previous December
fifteenth, and for those lobbyists who subsequent to their retainer, employment or
designation reasonably anticipate combined reportable compensation and expenses
in excess of such amount, such filing must be completed within fifteen days
thereafter, but in no event later than ten days after the actual incurring or receiving
of such reportable compensation and expenses;

§ 1-h (a) [a]ny lobbyist required to file a statement of registration pursuant to

section one-e of this article who in any lobbying year reasonably anticipates that
during the year such lobbyist will expend, incur or receive combined reportable

9
Email from Kat Sullivan, to JCOPE Commissioner (September 26, 2019, 4:06 PM)
10
JCOPE Online Lobbying Application Lobbyist Profile (created August 15, 2018)
11
Email from Kat Sullivan, to JCOPE Staff (June 24, 2019, 9:35 AM)
12
Email from Kat Sullivan, to JCOPE Staff (October 24, 2019, 8:47 PM)
13
Email from Kat Sullivan, to JCOPE Staff (October 24, 2019, 8:47 PM); Email from Kat Sullivan, to JCOPE Staff
(October 28, 2019, 4:38 PM)
14
Email from Kat Sullivan, to JCOPE Staff (July 18, 2019, 4:26 PM)
Katherine Sullivan
Page 4 of 5
December 4, 2019

compensation and expenses in an amount in excess of five thousand dollars, as

provided in paragraph five of subdivision (b) of this section, for the purpose of
lobbying, shall file with the commission a bi-monthly written report, on forms
supplied by the commission, by the fifteenth day next succeeding the end of the
reporting period in which the lobbyist was first required to file a statement of
registration;

§ 1-j (a) Semi-annual reports shall be filed by any client retaining, employing or
designating a lobbyist or lobbyists, whether or not any such lobbyist was required
to file a bi-monthly report, if such client reasonably anticipates that during the year
such client will expend or incur an amount in excess of five thousand dollars of
combined reportable compensation and expenses, as provided in paragraph five of
subdivision (c) of this section, for the purposes of lobbying.

Additionally, and of particular importance in this case, the Commission’s regulations at

Part 943 define “Lobbying or Lobbying Activity” to include both Direct and Grassroots
Lobbying. See 19 NYCRR Part 943.3(k). In fact, for more than two decades, the Commission
and its predecessors, starting with the Temporary Commission on Lobbying, have regulated
grassroots lobbying activity. See Advisory Opinion No. 36, NYS Temporary Commission on
Lobbying (June 22, 1982) (issued after a federal court upheld the disclosure of grassroots
lobbying under the New York Lobbying Act in Comm’n on Indep. Colls. and Univs. v. N.Y.
Temp. Comm’n on Regulation of Lobbying, 534 F. Supp. 489, 495-97 (N.D.N.Y. 1982)). The
longstanding precedent and the Commission’s regulations state that a communication that takes a
position on pending legislation or other covered governmental action and includes a “call to
action” (asking the public to contact public officials) is grassroots lobbying.15

As recently clarified in the Commission’s regulations, 19 NYCRR Part 943.7(b)(1),

Grassroots Lobbying means “an attempt to indirectly influence an action enumerated in section
1-c(c)(i)-(x) of the Lobbying Act through a Grassroots Lobbying Communication…”

A communication is considered a “Grassroots Lobbying Communication” when the message:

(i) References or otherwise implicates an action enumerated in section 1- c(c)(i)-(x) of

the Lobbying Act;
(ii) Takes a clear position on that action; and
(iii) Includes a Call to Action.

“Call to Action” is defined as:

(i) A solicitation, exhortation, or encouragement to the public, a segment of the public, or

an individual to: (1) directly contact a Public Official; or (2) solicit, exhort, or encourage
others to directly contact a Public Official. To qualify as a Call to Action, the
communication need not specify the form the contact must take;

(ii) The inclusion of an address, email address, website address, phone number or similar
contact information for a Public Official even if the communication does not specifically
exhort the public to contact the Public Official; or

15
19 N.Y.C.R.R. Part 943.7(b).
Katherine Sullivan
Page 5 of 5
December 4, 2019

(iii)The inclusion of a paper or electronic petition, text message, social media

communication, or similar material (or electronic link to such petition or material) for the
recipient to use to communicate with a Public Official even if the communication does
not specifically exhort the public to use such material.16

As such, you and your LLC may have knowingly and willfully violated the Lobbying Act
by incurring in excess of $5,000 in reportable grassroots lobbying expenses in 2018 and refusing
to submit a required statement of registration, bimonthly reports, and client semi-annual reports.

You have taken the position that you are simply a private citizen, using your own money
to encourage passage of the CVA. You have also repeatedly argued that you have a deeply
personal investment in the issues promoted by the CVA. While the Commission does not
disagree with these assertions and is sympathetic to your circumstances, the Commission cannot
take these facts into consideration. The Lobbying Act applies equally to all who lobby, and
when determining how or whether to enforce the law, the Commission must never factor in the
substance or merit of a lobbyist’s cause. Rather, the content of the communications,
(encouraging the passage of the CVA) and the amount of money spent (likely in excess of the
$5,000 threshold) is controlling.

Notwithstanding your conduct, in a case such as this, the Commission can act through
guidance and further regulatory clarification, or through continued investigation and
enforcement. The Commission has elected to issue this guidance letter and to review the
regulations in the coming months17; it will not be taking any further action against you regarding
your attempts to influence the CVA.

Please note that if you undertake any future activity covered by the Lobbying Act you
will again trigger the requirement to file a Statement of Registration, and potentially bi-monthly
reports or client semi-annual reports. Knowing and willful failure to meet these reporting
requirements can result in the Commission imposing civil penalties up to $25,000 or three times
the amount that went unreported, as well as potential criminal penalties.

Commission staff are available to answer any questions regarding the guidance provided
and the filing process.

Sincerely,

Monica Stamm
General Counsel

Cc: Government Justice Center

16
Id.
17
The Commission recognizes the importance of clarity in these authorities, noting that the Eighth Circuit Court of
Appeals recently took up a case en banc to determine whether of Missouri lobbying disclosure statute was
unconstitutionally vague (as well as on First Amendment grounds) (though finding that the statute, while broad, was
not ambiguous, much less unconstitutionally vague). Calzone v. Summers, et al., No. 17-2654 at 18, 2019 U.S. App.
LEXIS 32776 (8th Circuit). Notably, in the Eighth Circuit case, the plaintiff had not expended any money toward its
lobbying effort.