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HomeMy WebLinkAbout009-SL Pickle In Re: Donald R. Pickle, Jr., : File Docket: 11-014-L Respondent : X-ref: Order No. 009-SL : Date Decided: 1/31/12 : Date Mailed: 2/1/12 Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Raquel K. Bergen Nicholas A. Colafella Mark Volk This is a final adjudication of the State Ethics Commission as to the alleged delinquency and/or deficiency of registration statement(s) and/or expense report(s) required to be filed pursuant to Pennsylvania’s lobbying disclosure law, 65 Pa.C.S. § 13A01 et seq., hereinafter referred to as the “Lobbying Disclosure Law.” The Investigative Division initiated these proceedings by filing with the State Ethics Commission and serving upon Respondent Donald R. Pickle, Jr. (hereinafter also referred to as “Pickle” and “Respondent”) a Notice of Alleged Noncompliance. A Stipulation of Findings and a Consent Agreement waiving an evidentiary hearing were subsequently submitted by the parties to the Commission for consideration. The Stipulated Findings are set forth as the Findings in this Order. The Consent Agreement has been approved. I.ALLEGED NONCOMPLIANCE: That Respondent, in his capacity as a registered Lobbyist with the Pennsylvania Department of State pursuant [to] the Pennsylvania Lobbying Disclosure Law (65 Pa.C.S. § 13A04), failed to submit a photograph and failed to pay the requisite registration fee of $100.00, as required under Sections 13A04 and 13A10 of the Lobbying Disclosure Law, 65 Pa.C.S. §§ 13A04, 13A10(a). II.FINDINGS: 1. Respondent is Donald R. Pickle, Jr., and is a registered lobbyist as that term is defined by the Pennsylvania Lobbying Disclosure Law (“Lobbying Disclosure Law”), Act 134 of 2006, 65 Pa.C.S. § 13A01, et seq. a. Respondent initiated a lobbyist registration statement for the time period January 1, 2009 – December 31, 2010, with the Department of State on January 24, 2010, and was assigned lobbying registration number L20335. b. Respondent indicated that he commenced lobbying activities on January 22, 2010. c. In filing his lobbyist registration, Respondent identified his registered mailing address as: 32 West Walnut Street Pickle, 11-014-L Page 2 Marietta, PA 17547 d. In completing his lobbyist registration statement, Respondent consented to receive service of notices as well as other official mailings or process at the address listed above. 2. Section 13A04 of the Lobbying Disclosure Law sets forth the following requirements for the contents of registration forms filed by lobbyists: § 13A04. Registration. (a) General rule.-- Unless excluded under section 13A06 (relating to exemption from registration and reporting), a lobbyist, lobbying firm or a principal must register with the department within ten days of acting in any capacity as a lobbyist, lobbying firm or principal. Registration shall be biennial and shall begin January 1, 2007. . . . (c) Lobbyist.-- A lobbyist who is required to register under subsection (a) shall file a single registration statement setting forth the following information with the department: (1) Name. (2) Permanent business address. (3) Daytime telephone number. (4) E-mail address, if available. (5) A recent photograph of the lobbyist. (6) Name, permanent business address, daytime telephone number and registration number when available of each principal for whom the lobbyist will engage in lobbying. (7) Name and registration number when available of any lobbying firm with which the lobbyist has a relationship involving economic consideration. (8) Name, registration number and acronym of any affiliated political action committees. (9) Name, registration number and acronym of any candidate political committee of which the lobbyist is an officer who must be included in a registration statement under section 1624(b)(2) and (3) of the act of June 3, 1937 (P.L. 1333, No. 320), known as the Pennsylvania Election Code. 65 Pa.C.S. § 13A04(a), (c). Pickle, 11-014-L Page 3 Section 13A10 of the Lobbying Disclosure Law sets forth the requirements with regard to registration fees: § 13A10. Registration fees; fund established; system; regulations. (a) Registration fees.-- At the time of registration, a person required to be registered under this chapter shall pay a biennial registration fee of $100 to the department. 65 Pa.C.S. § 13A10(a). The regulations promulgated under the Lobbying Disclosure Law provide as follows in relation to the content of registration statements: § 53.1. Biennial filing fee. (a) Under section 13A10(a) of the act (relating to registration fees; fund established; system; regulations), a principal, lobbying firm or lobbyist required to be registered under the act shall pay a biennial filing fee of $100 to the Department, made payable to the “Commonwealth of Pennsylvania.” (1) The biennial filing fee shall be tendered to the Department with the filing of the principal’s, lobbying firm’s or lobbyist’s first registration statement in each registration period. However, if the Department receives the filing fee within 5 calendar days of the filing of a registration statement, the registration will not be considered delinquent, in compliance with § 51.4 (relating to delinquency). (2) The biennial filing fee will be a flat fee for the registration period in which paid. A registrant will not be required to pay more than one biennial filing fee in any given biennial registration period, unless a registrant terminates and attempts to reregister during the same biennial registration period. (3) A separate biennial filing fee shall be paid for each principal, lobbying firm or lobbyist required to be registered, even if employed by a firm, association, corporation, partnership, business trust or business entity that is also required to register and that has paid or will pay the fee. (4) The biennial filing fee is nonrefundable and nontransferable. (5) Filing fees expire at the end of each registration period, regardless of when paid. Pickle, 11-014-L Page 4 (b) The failure to pay a biennial filing fee as required by the act and this section will constitute a failure to register as required by the act. (c) Money received from biennial filing fees will be deposited in the Fund. 51 Pa. Code § 53.1. The regulations promulgated under the Lobbying Disclosure Law provide as follows in relation to the filing of a photograph by a lobbyist: § 53.4. Lobbyist registration. (d) A lobbyist shall register by filing a registration statement with the Department on a form prescribed by the Department, as required under § 51.7(a) (relating to forms, records and Department publications), which includes and discloses at least the following information: . . . (2) A recent passport-sized (approximately 2 inches x 2 inches) photograph of the lobbyist, the specifications of which will be determined by the Department and published on its web site. 51 Pa. Code § 53.4(d)(2). 3. The Lobbying Disclosure Regulations provide as follows in relation to deficiencies: a. A registration statement, expense report or notice of termination required to be filed under section 13A04 or 13A05 (relating to registration; and reporting) is deficient if one or more of the following exist: 1. It does not fully and accurately include and disclose all that is required by the act and this part. 2. It includes a false statement. 3. It is illegible. 4. The filer fails to use the appropriate form prescribed by the Department. 5. The filer fails to date the registration statement, expense report or notice of termination. 6. The filer fails to sign the expense report under oath or affirmation as set forth in § 51.9 (relating to signing and designation of certain filings). b. The filing of a deficient registration statement constitutes a failure to register as required by the act. Pickle, 11-014-L Page 5 c. The filing of a deficient expense report constitutes a failure to report as required by the act. d. The filing of a deficient notice of termination shall be ineffective. e. A deficient registration statement, expense report or notice of termination continues to be deficient until it is amended to fully and accurately disclose all of the information that is required to be disclosed by the act and this part. 51 Pa. Code § 51.5. The regulations further provide that a lobbyist, lobbying firm, or principal will not be considered registered until the completed registration statement, the biennial filing fee, and a photograph of the lobbyist (if applicable), in proper form as required by the Law, are received by the Pennsylvania Department of State. See, 51 Pa. Code §§ 53.2(h), 53.3(h), 53.4(j). 4. By Warning Notice letter dated July 28, 2011, Respondent was served with Notice in accordance with Section 13A09 of the Lobbying Disclosure Law and Section 63.4(1) of the Lobbying Disclosure Regulations of the specific allegations that Respondent filed a deficient registration statement with the Pennsylvania Department of State when, as a lobbyist, Respondent failed to provide the requisite registration fee of $100 and failed to submit a photograph to the Department of State. 5. Said Warning Notice letter set forth the nature of the alleged noncompliance and the administrative and criminal penalties for failing to file. 6. Said Warning Notice letter provided Respondent an opportunity to cure the alleged noncompliance and avoid the institution of these proceedings as to alleged noncompliance by providing the requisite registration fee of $100 and submitting a photograph to the Department of State within thirty (30) days from the mailing date of the Warning Notice letter. 7. The thirty-day deadline set forth in the Warning Notice letter to Respondent had expired prior to Respondent complying with the specific requirements of the Lobbying Disclosure Law. 8. On October 5, 2011, the Acting Chief of the Division of Campaign Finance and Lobbying Disclosure for the Pennsylvania Department of State executed an affidavit regarding Respondent and affirmed/verified that upon a complete and thorough search, Respondent has failed to pay the $100.00 registration fee and submit a photograph as required per his 2009-2010 lobbyist registration statement. 9. The Lobbying Disclosure Law provides for civil and criminal penalties for failing to comply with the registration statement filing and quarterly expense reporting requirements thereof. Specifically, the Lobbying Disclosure Law provides that: a. Negligent failure to register or report, as required by the Law, is punishable by an administrative penalty not exceeding $50.00 for each late day. 65 Pa.C.S. § 13A09(c)(1). 10. For purposes of this Consent Agreement only, the delinquent period was calculated Pickle, 11-014-L Page 6 from the date of the July 28, 2011, Warning Notice letter to October 31, 2011, said period being 95 days. Pickle, 11-014-L Page 7 III. DISCUSSION: In the instant matter, the alleged noncompliance is that Respondent, as a lobbyist who filed a lobbyist registration statement to be registered with the Pennsylvania Department of State (“Department of State”) pursuant to the Lobbying Disclosure Law, 65 Pa.C.S. § 13A04, for lobbying activities that commenced on January 22, 2010, failed to submit a photograph and pay the requisite registration fee of $100.00 as required under Sections 13A04 and 13A10 of the Lobbying Disclosure Law, 65 Pa.C.S. §§ 13A04, 13A10(a). We initially take administrative notice that per the web site of the Disciplinary Board of the Supreme Court of Pennsylvania, Respondent is not a licensed attorney in this Commonwealth. As noted above, the parties have submitted a Consent Agreement and Stipulation of Findings. The parties' Stipulated Findings are set forth above as the Findings of this Commission. The relevant provisions of the Lobbying Disclosure Law are set forth in the Fact Findings above. Certain relevant provisions of the Lobbying Disclosure Regulations, 51 Pa. Code § 51.1 et seq., are also set forth in the Fact Findings. We shall now summarize the relevant facts as contained in the parties’ Stipulation of Findings. On January 24, 2010, Respondent initiated with the Department of State a lobbyist registration statement for the time period of January 1, 2009 – December 31, 2010. Respondent was assigned lobbying registration number “L20335.” Respondent indicated on the lobbyist registration statement that he commenced lobbying activities on January 22, 2010. By Warning Notice letter dated July 28, 2011, Respondent was served with notice in accordance with Section 63.4(1) of the Lobbying Disclosure Regulations, 51 Pa. Code § 63.4(1), of specific allegations that Respondent had filed a deficient registration statement with the Department of State by failing to provide the requisite registration fee of $100.00 and failing to submit a photograph to the Department of State. The Warning Notice letter provided Respondent an opportunity to cure the alleged noncompliance and avoid the institution of these proceedings by providing the requisite registration fee of $100.00 and submitting a photograph to the Department of State within 30 days of the mailing date of the Warning Notice letter. As of October 5, 2011, Respondent had failed to pay the $100.00 registration fee and submit a photograph as required per his 2009-2010 lobbyist registration statement. A registration statement is deficient if it does not include all that is required by the Lobbying Disclosure Law and the Lobbying Disclosure Regulations. 51 Pa. Code § 51.5(a)(1). The filing of a deficient registration statement constitutes a failure to register as required by the Lobbying Disclosure Law. 51 Pa. Code § 51.5(b). A lobbyist’s failure to submit a photograph or to pay a biennial filing fee as required by the Lobbying Disclosure Law and the Lobbying Disclosure Regulations constitutes a failure to register as required by the Lobbying Disclosure Law. 51 Pa. Code § 51.10(b)(2). Negligent failure to register or report as required by the Lobbying Disclosure Law is punishable by an administrative penalty of up to $50.00 for each late day. 65 Pa.C.S. § 13A09(c)(1). Per the Consent Agreement and Stipulation of Findings, the parties are in agreement that Respondent was deficient in filing his lobbyist registration statement by a total of 95 days. Having highlighted the Stipulated Findings and issues before us, we shall now apply the Lobbying Disclosure Law to determine the proper disposition of this case. Pickle, 11-014-L Page 8 The parties' Consent Agreement sets forth a proposed resolution of the allegations as follows: 3. The Investigative Division will recommend the following conclusions in relation to the above deficiencies: a. That Respondent , in his capacity as a registered Lobbyist with the Pennsylvania Department of State pursuant to the Pennsylvania Lobbying Disclosure Law (65 Pa.C.S. §13A04), failed to submit a photograph and pay the requisite registration fee of $100.00, as required under Sections 13A04 and 13A10 of the Lobbying Disclosure Law, 65 Pa.C.S. §§ 13A04, 13A10(a). b. That the transgressions of the Lobbying Disclosure Law outlined in paragraph (a) above are deemed to be negligent in nature. c. Respondent was deficient in filing his Lobbyist Registration Statement by a total of 95 days, calculated as set forth below: i. On July 28, 2011, a Warning Notice regarding the deficient Lobbyist Registration Statement was sent to Respondent via First Class United States Mail; ii. Respondent did not file the outstanding photograph and registration fee within the stated thirty-day cure period; iii. For purposes of this Consent Agreement only, the delinquent period was calculated from the date of the July 28, 2011, Warning Notice letter to October 31, 2011, said period being 95 days. 4. Respondent agrees to pay an administrative penalty, by way of certified check or money order, in the amount of $475.00 (95 days x $5.00 per diem) in settlement of this matter, payable to the Commonwealth of Pennsylvania, and forwarded to the Pennsylvania State Ethics Commission upon execution of this agreement. a. Said settlement payment (certified check or money order) is to be held by the Investigative Division until such time as the Commission accepts this Consent Agreement and issues a Final Order. Upon issuance of the Final Order of this matter by the Commission, the Investigative Division will submit said settlement payment for deposit into the Treasury of the Commonwealth. 5. To the extent he has not already done so, Respondent agrees Pickle, 11-014-L Page 9 to pay the $100.00 registration fee and submit a photograph as required under Sections 13A04 and 13A10 of the Lobbying Disclosure Law, 65 Pa. C.S. §§ 13A04, 13A10(a). 6. The Investigative Division will recommend that the State Ethics Commission take no further action in this matter; impose no further sanctions and make no specific recommendations to any law enforcement or other authority to take action in this matter as to Respondent. Such, however, does not prohibit the Commission from initiating appropriate enforcement actions in the event of Respondent’s failure to comply with this agreement or the Commission’s Order or cooperating with any other authority who may so choose to review this matter further. Consent Agreement, at 1-2. In considering the Consent Agreement, we agree with the parties that Respondent failed to properly file a lobbyist registration statement for lobbying that commenced January 22, 2010, when he failed to pay the requisite registration fee of $100.00 and failed to submit a photograph of himself in compliance with Sections 13A04 and 13A10 of the Lobbying Disclosure Law, 65 Pa.C.S. §§ 13A04, 13A10; see also, 51 Pa. Code §§ 53.1(a), 53.4(d)(2). Accordingly, we hold that Respondent, in his capacity as a lobbyist who filed a lobbyist registration statement to be registered with the Pennsylvania Department of State pursuant to the Lobbying Disclosure Law, 65 Pa.C.S. § 13A04, for lobbying activities that commenced on January 22, 2010,failed to submit a photograph and pay the requisite registration fee of $100.00 as required under Sections 13A04 and 13A10 of the Lobbying Disclosure Law, 65 Pa.C.S. §§ 13A04, 13A10(a). We shall accept the recommendation of the parties for a determination that the transgression(s) of the Lobbying Disclosure Law outlined immediately above are deemed to be negligent in nature. The parties have agreed that Respondent was deficient in filing his lobbyist registration statement by a total of 95 days. As part of the Consent Agreement, Respondent agreed to pay an administrative penalty, by way of certified check or money order, in the amount of $475.00 (95 days x $5.00 per day) in settlement of this matter, payable to the Commonwealth of Pennsylvania and forwarded to this Commission upon execution of the Consent Agreement. The Consent Agreement provided that said settlement payment would be held by the Investigative Division until this Commission would accept the Consent Agreement and issue a final Order, whereupon the Investigative Division would submit said settlement payment for deposit into the Treasury of the Commonwealth. To the extent he had not already done so, Respondent further agreed to pay the $100.00 registration fee and submit a photograph as required under Sections 13A04 and 13A10 of the Lobbying Disclosure Law, 65 Pa.C.S. §§ 13A04, 13A10(a). We determine that the Consent Agreement submitted by the parties sets forth a proper disposition for this case, based upon our review as reflected in the above analysis and the totality of the facts and circumstances. Accordingly, we approve the Consent Agreement that has been submitted by the parties. Pickle, 11-014-L Page 10 This Commission hereby levies one administrative penalty against Respondent Donald R. Pickle, Jr., in the amount of $475.00 for the aforesaid deficiency in filing his lobbyist registration statement. We take administrative notice that Respondent has already made payment of the administrative penalty in the amount of $ 475.00 through this Commission to the Commonwealth of Pennsylvania, as per the Consent Agreement. Respondent is directed to pay the $100.00 registration fee and submit a photograph as required under Sections 13A04 and 13A10 of the Lobbying Disclosure Law, 65 Pa.C.S. §§ 13A04, 13A10(a), to the extent he has not already done so. IV.CONCLUSIONS OF LAW: 1. Respondent Donald R. Pickle, Jr. (“Pickle”), in his capacity as a lobbyist who filed a lobbyist registration statement to be registered with the Pennsylvania Department of State pursuant to Pennsylvania’s lobbying disclosure law (“Lobbying Disclosure Law”), 65 Pa.C.S. § 13A04, for lobbying activities that commenced on January 22, 2010, failed to submit a photograph and pay the requisite registration fee of $100.00 as required under Sections 13A04 and 13A10 of the Lobbying Disclosure Law, 65 Pa.C.S. §§ 13A04, 13A10(a). 2. The transgression(s) of the Lobbying Disclosure Law outlined in paragraph 1 immediately above are deemed to be negligent in nature. 3. The prerequisite service of a warning notice in accordance with Section 63.4(1) of the Lobbying Disclosure Regulations, 51 Pa. Code § 63.4(1), was satisfied. 4. Based upon the totality of the circumstances in this case, the imposition of an administrative penalty in the amount of $475.00 (95 days x $5.00 per day) is warranted. In Re: Donald R. Pickle, Jr., : File Docket: 11-014-L Respondent : Date Decided: 1/31/12 : Date Mailed: 2/1/12 ORDER NO. 009-SL 1. Donald R. Pickle, Jr. (“Pickle”), in his capacity as a lobbyist who filed a lobbyist registration statement to be registered with the Pennsylvania Department of State pursuant to Pennsylvania’s lobbying disclosure law (“Lobbying Disclosure Law”), 65 Pa.C.S. § 13A04, for lobbying activities that commenced on January 22, 2010, failed to submit a photograph and pay the requisite registration fee of $100.00 as required under Sections 13A04 and 13A10 of the Lobbying Disclosure Law, 65 Pa.C.S. §§ 13A04, 13A10(a). 2. The transgression(s) of the Lobbying Disclosure Law outlined in paragraph 1 immediately above are deemed to be negligent in nature. 3. This Commission hereby levies one administrative penalty against Pickle in the amount of $475.00 (95 days x $5.00 per day) for the aforesaid deficiency in filing his lobbyist registration statement, which administrative penalty Pickle has paid. 4. Pickle is directed to pay the $100.00 registration fee and submit a photograph as required under Sections 13A04 and 13A10 of the Lobbying Disclosure Law, 65 Pa.C.S. §§ 13A04, 13A10(a), to the extent he has not already done so. BY THE COMMISSION, ___________________________ Louis W. Fryman, Chair