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HomeMy WebLinkAbout09-1002 ConfidentialOPINION OF THE COMMISSION Before: John J. Bolger, Vice Chair Donald M. McCurdy Raquel K. Bergen Nicholas A. Colafella Mark Volk DATE DECIDED: 9/22/09 DATE MAILED: 10/6/09 09 -1002 This Opinion is issued in response to your advisory request letters dated June 10, 2009, June 29, 2009, and July 17, 2009. I. ISSUE: Whether, pursuant to Pennsylvania's lobbying disclosure law ( "Lobbying Disclosure Law "), 65 Pa.C.S. § 13A01 et seq., a nonprofit corporation that supports A in Pennsylvania would be engaged in lobbying and would be required to register under the Lobbying Disclosure Law where the nonprofit corporation would "facilitate" an education program at various B facilities located in Pennsylvania to educate policymakers regarding A generally as well as the specific A underway at such B facilities. II. FACTUAL BASIS FOR DETERMINATION: You are Counsel for [name of corporation], a nonprofit corporation that supports A in Pennsylvania (hereinafter referred to as the Nonprofit "). You have requested a confidential advisory Opinion from this Commission regarding the registration requirements of the Lobbying Disclosure Law. Specifically, you ask whether the Nonprofit would be engaged in lobbying and would be required to register under the Lobbying Disclosure Law where the Nonprofit would "facilitate" an education program ( "the Program ") at various B facilities located in Pennsylvania ( "the B Facilities ") to educate policymakers regarding A generally as well as the specific A underway at the B Facilities. You have submitted facts that may be fairly summarized as follows. You state that the purpose of the Program would be to educate participants on the Confidential Opinion, 09 -1002 October 6, 2009 Page 2 nature of, uses for, and conduct of A. Invitees would include legislators, legislative staff, and staff from State agencies and departments. Although not expected, if a legislator would request to bring a member of his or her immediate family, that request would be honored. Depending upon the location, the Program would last a full day or half -day. The Program would include a series of presentations followed by a tour. You state that bus travel, breakfast, lunch, and a snack would be provided for those participating in a full day Program involving two of the B Facilities. At another location, lunch would be provided for a half -day Program, but it would be unlikely that transportation would be provided. The Nonprofit would handle the logistics for the Program. In conjunction with the B Facilities, the Nonprofit would publicize and invite participants to enroll in the Program. Invitees of the Nonprofit would include legislators, legislative staff, and staff from State agencies and departments. The Nonprofit would accept the RSVPs from participants in advance of the Program. The Nonprofit would arrange for the food and transportation and coordinate with the B Facilities to arrange the schedule and location for each iteration of the Program. The Nonprofit would be responsible for the costs of materials, transportation and food /beverages for the Program. An employee of the Nonprofit would visit the B Facilities in advance of the Program to train tour guides and assess logistics. The Nonprofit employee would also accompany the participants for each segment of the Program. During bus travel, the Nonprofit employee would play a video explaining the conduct and benefits of A to the participants. Following the Program, the Nonprofit would survey the participants to assess how well the Program was received. The survey would pose questions such as whether the Program was helpful, whether there were needs not met by the Program, whether there were questions that were unanswered, and whether the participants learned anything of which they were not previously aware or that was contrary to what they thought prior to the Program. Like the Nonprofit, the B Facilities would also invite individuals to participate in the Program, particularly legislators, legislative staff, and staff from State agencies and departments with whom they have relationships. Each of the B Facilities has government affairs personnel who have regular contact and relationships with legislative offices. The B Facilities would be responsible for the preparation of their presentations and tours. The B Facilities would conduct presentations on the nature of A generally, including regulation of the conduct thereof, A specifically at that B Facility, and the benefits from A. [Type of governmental requirements] for conducting A would be emphasized during one of the presentations. While the participants would be present at the B Facilities, the Program would be under the direction of the B Facilities. You state that the expenses of the B Facilities would likely include the salaries or other forms of compensation for their employees conducting the presentations or the tours at their facilities. The B Facilities would also bear the cost of their own efforts to promote the Program. You state that while the Nonprofit acknowledges that the particular forms of A relevant to the Program are politically charged, the Nonprofit has no interest or desire to engage political issues during the Program. You further state that the Nonprofit would not advocate for the participants to take any action. If specifically asked about a legislative or administrative action, the Nonprofit only would be willing to discuss background Confidential Opinion, 09 -1002 October 6, 2009 Page 3 information on the industry or the subject matter. You state that the information might be relevant to the legislative or administrative action but would not advocate for the support or opposition of the legislative or administrative action. The Nonprofit would not endorse or oppose the legislative or administrative action. You do not represent the B Facilities, and you acknowledge that you are unable to aver that the individuals acting on their behalf would decline to discuss any matters. You state that it is your understanding that the B Facilities would not advocate for the participants to take any legislative or administrative action. You state that the Nonprofit has already incurred expenses for the Program, but that its relevant expenses have not exceeded $2,500 during any quarter. You state that for purposes of the advisory request, this Commission should assume that the Nonprofit's expenses for the Program would exceed the aforesaid threshold. Based upon the above submitted facts, you ask whether the Nonprofit would be engaged in lobbying and would be required to register under the Lobbying Disclosure Law. By letter dated August 7, 2009, you were notified of the date, time and location of the executive meeting at which your request would be considered. On August 28, 2009, this Commission received your Memorandum of Law, in which you present the following points /arguments. You initially note that the Lobbying Disclosure Law defines the term "lobbying" as an effort to influence legislative action or administrative action in this Commonwealth." 65 Pa.C.S. § 13A03. Citing Bochetto, Opinion 09 -1001, you state, The Commission has advised that notwithstanding the examples of lobbying contained in the Act ... (i.e., direct and indirect communication), to constitute lobbying the activity must, as a threshold matter, be designed to influence legislative or administrative action." Memorandum of Law, at Note 1. You then offer your interpretations of the statutory definitions of the terms "legislative action," "legislation," and "administrative action," 65 Pa.C.S. § 13A03. In relation to the definition of the term, "legislation," you assert that the phrase any other matter" as contained within the definition is itself "defined" as "(i) draft legislation; and (ii) any bills resolutions, amendments and nominations pending or proposed by any State official or employee." Memorandum of Law, at 2. (We take administrative notice of the fact that the phrase any other matter" is not defined in either the Lobbying Disclosure Law or Regulations at 51 Pa. Code § 51.1 et seq. The definition of the term "legislation" in the Regulations provides some examples of what any other matter" includes, 51 Pa. Code § 51.1.) Based upon your interpretations, you argue that in order for the Program to constitute lobbying, it must be an effort to influence some specific, definite item falling within the definition of either "legislative action" or "administrative action." You contend that influencing State officials or employees alone does not constitute lobbying, and that lobbying is influencing governmental action, not governmental actors. You assert that the Program will not influence any governmental action. You state that the Program will provide general information about A to governmental actors, and that the participants will not be encouraged or discouraged as to taking any action or non - action with respect to any governmental action. You state that the Nonprofit organized the Program with the B Facilities to resolve a concern regarding the general knowledge of governmental actors about the A industry. You argue that the Program does not constitute lobbying. Confidential Opinion, 09 -1002 October 6, 2009 Page 4 At the executive meeting on September 22, 2009, you appeared together with Individual C, Executive Director of the Nonprofit, and offered commentary, which may be fairly summarized as follows. You expressed your view that the Program does not constitute lobbying. You asserted that the Program does not seek to influence action by attendees but seeks to increase general awareness. You noted that nonprofits are subject to limitations on lobbying, and that there are different definitions of lobbying at the State and Federal levels. Individual C stated that as an educational organization, the Nonprofit does not wish to be perceived as a lobbying organization. You and Individual C stated that if the Nonprofit would register under the Lobbying Disclosure Law, some sources might not fund the Nonprofit. Individual C acknowledged that the Nonprofit invites to the Program all State Senators and State Representatives and persons from agencies that would typically deal with matters of interest to the Nonprofit's members. The Nonprofit does not issue invitations to persons from agencies that would not take actions affecting the Nonprofit's members. III. DISCUSSION: It is initially noted that pursuant to Section 13A08(a) of the Lobbying Disclosure Law, 65 Pa.C.S. § 13A08(a), in conjunction with Sections 1107(10) and 1107(11) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, this Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. The following terms are defined in the Lobbying Disclosure Law as follows: § 13A03. Definitions. "Administrative action." Any of the following: (1) An agency's: (i) proposal, consideration, promulgation or rescission of a regulation; (ii) development or modification of a statement of policy; (iii) approval or rejection of a regulation; or (iv) procurement of supplies, services and construction under 62 Pa.C.S. (relating to procurement). Confidential Opinion, 09 -1002 October 6, 2009 Page 5 (2) The review, revision, approval or disapproval of a regulation under the act of June 25, 1982 (P.L.633, No.181), known as the Regulatory Review Act. (3) The Governor's approval or veto of legislation. (4) The nomination or appointment of an individual as an officer or employee of the Commonwealth. (5) (3) The proposal, consideration, promulgation or rescission of an executive order. "Direct communication." An effort, whether written, oral or by any other medium, made by a lobbyist or principal, directed to a State official or employee, the purpose or foreseeable effect of which is to influence legislative action or administrative action. The term may include personnel expenses and office expenses. "Indirect communication." An effort, whether written, oral or by any other medium, to encourage others, including the general public, to take action, the purpose or foreseeable effect of which is to directly influence legislative action or administrative action. (1) The term includes letter- writing campaigns, mailings, telephone banks, print and electronic media advertising, billboards, publications and educational campaigns on public issues. (2) The term does not include regularly published periodic newsletters primarily designed for and distributed to members of a bona fide association or charitable or fraternal nonprofit corporation. The term may include personnel expenses and office expenses. "Legislation." Bills, resolutions, amendments and nominations pending or proposed in either the Senate or the House of Representatives. The term includes any other matter which may become the subject of action by either chamber of the General Assembly. "Legislative action." An action taken by a State official or employee involving the preparation, research, drafting, introduction, consideration, modification, amendment, approval, passage, enactment, tabling, postponement, defeat or rejection of: (1) legislation; (2) legislative motions; (3) a veto by the Governor; or Confidential Opinion, 09 -1002 October 6, 2009 Page 6 (4) confirmation of appointments by the Governor or appointments to public boards or commissions by a member of the General Assembly. "Lobbying." An effort to influence legislative action or administrative action in this Commonwealth. The term includes: (1) direct or indirect communication; (2) office expenses; and (3) providing any gift, hospitality, transportation or lodging to a State official or employee for the purpose of advancing the interest of the lobbyist or principal. "Office expense." An expenditure for an office, equipment or supplies, utilized for lobbying. "Personnel expense." An expenditure for salaries or other forms of compensation, benefits, vehicle allowances, bonuses and reimbursable expenses paid to lobbyists, lobbying staff, research and monitoring staff, consultants, publications and public relations staff, technical staff, clerical and administrative support staff and includes individuals who engage in lobbying but are exempt from reporting under section 13A06 (relating to exemption from registration and reporting). For an individual for whom lobbying is incidental to regular employment, the term means a good faith prorated estimate based on the value of the time devoted to lobbying. "Principal." An individual, association, corporation, partnership, business trust or other entity: (1) on whose behalf a lobbying firm or lobbyist engages in lobbying; or (2) that engages in lobbying on the principal's own behalf. 65 Pa. C. S. § 13A03. The Regulations at 51 Pa. Code § 51.1 provide the following definition of the term "legislation ": Legislation — Bills, resolutions, amendments and nominations pending or proposed in either the Senate or the House of Representatives. The term includes any other matter which may become the subject of legislative action by either chamber of the General Assembly. Any other matter includes: (i) Draft legislation. (ii) Any bills, resolutions, amendments and nominations pending or proposed by any State official or employee. 51 Pa. Code § 51.1. The definition of the term "legislation" in the Regulations provides Confidential Opinion, 09 -1002 October 6, 2009 Page 7 some examples of what any other matter" includes, but it does not limit the broad, statutory definition of the term "legislation." 51 Pa. Code § 51.1. Based upon the submitted facts, you are advised that the Nonprofit would be engaged in lobbying and would be considered a principal subject to the registration and reporting requirements of the Lobbying Disclosure Law. This conclusion is based upon the following analysis. Lobbying is an effort to influence "legislative action" or "administrative action" as those terms are defined by the Lobbying Disclosure Law. Bochetto, Opinion 09 -1001. Each portion of the definition of the term "lobbying" supports that conclusion, based upon clear statutory language contained within the definition of "lobbying" as well as other related definitions. There is nothing in the statutory language to suggest that lobbying may only occur as to a "specific, definite item" as you contend. To the contrary, the term "indirect communication" specifically includes educational campaigns on public issues as one example of lobbying. The term "legislative action" is broadly defined to include even preparation, research, or drafting of legislation, and the term "legislation" is likewise broadly defined to include not only bills, resolutions, amendments and nominations that are pending or proposed, but also any other matter which may become the subject of action by either chamber of the General Assembly. Additionally, neither the Lobbying Disclosure Law nor the Regulations promulgated to implement that law include your suggested limited definition of the phrase any other matter," and we conclude that your suggested definition ignores the broad, plain meaning of the aforesaid statutory language. Therefore, we reject your argument that in order for the Program to constitute lobbying, it must be an effort to influence some "specific, definite item." We conclude that based upon the above statutory definitions, the facilitation of the Program by the Nonprofit would constitute lobbying because it would be an effort to influence legislative action or administrative action. Regardless of the claimed purpose of the Program, the Program would have the foreseeable effect of influencing legislative action or administrative action involving A. The specific activities of the Nonprofit to facilitate the Program would constitute lobbying because they would be an effort to influence legislative action or administrative action through the Program. Specifically, the Nonprofit would invite legislators, legislative staff, and staff from State agencies and departments to the Program, arrange for the food and transportation for participants, and pay the costs of materials, transportation and food /beverages for the Program. A Nonprofit employee would accompany the participants for each segment of the Program. During bus travel, the Nonprofit employee would play a video explaining the conduct and benefits of A to the participants. There is no doubt that such activities would constitute lobbying. Additionally, depending upon the content of the survey, the survey of participants might also constitute lobbying. Based upon the submitted facts, the Nonprofit would be a principal engaging in lobbying on its own behalf. To qualify as a principal, the Nonprofit need not have any particular stake in the matters for which it lobbies. Suroviec, Opinion 07 -1003. Likewise, the fact that others might benefit from the Nonprofit's lobbying activities does not mean that the Nonprofit is not engaging in lobbying activities on its own behalf. Id. Under the submitted facts, the Nonprofit's expenses for the Program would exceed $2,500 in a quarter such that the Nonprofit would not qualify for exemption under Section 13A06 of the Lobbying Disclosure Law, 65 Pa.C.S. § 13A06. Therefore, the Nonprofit as a principal engaged in lobbying would be required to register and report under the Lobbying Disclosure Law. The request for an advisory Opinion has only been addressed under the Lobbying Confidential Opinion, 09 -1002 October 6, 2009 Page 8 Disclosure Law and, derivatively, the Ethics Act to the extent applicable. IV. CONCLUSION: Pursuant to Pennsylvania's lobbying disclosure law ( "Lobbying Disclosure Law"), 65 Pa.C.S. § 13A01 et seq., [name of corporation], a nonprofit corporation that supports A in Pennsylvania (hereinafter referred to as the Nonprofit "), would be engaged in lobbying and would be required to register and report as a principal under the Lobbying Disclosure Law where: (1) the Nonprofit would "facilitate" an education program at various B facilities located in Pennsylvania to educate policymakers regarding A generally as well as the specific A underway at such B facilities; (2) such facilitation would include inviting legislators, legislative staff, and staff from State agencies and departments to the program, arranging for the food and transportation for participants, paying the costs of materials, transportation and food /beverages for the program, having an employee of the Nonprofit accompany the participants for each segment of the program, playing a video during bus travel explaining the conduct and benefits of A to the participants, and conducting a survey of participants; and (3) the Nonprofit's expenses for the program would exceed $2,500 in a quarter. Pursuant to Section 13A08(a) of the Lobbying Disclosure Law, 65 Pa.C.S. § 13A08(a), a requester who truthfully discloses all material facts in a request for an advisory and who acts in good faith based upon a written Opinion of this Commission issued to the requester shall not be held liable for a violation of the Lobbying Disclosure Law. The protection afforded for reliance upon this Opinion will remain in effect until such time as any regulation, statutory enactment, or ruling precludes further reliance upon this Opinion. This letter is a public record and will be made available as such. Finally, a party may request this Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). By the Commission, John J. Bolger Vice Chair Chair Louis W. Fryman did not participate in this matter.