HomeMy WebLinkAbout017-SL McElhatton
In Re: Daniel McElhatton, : File Docket: 11-010-L
Respondent : X-ref: Order No. 017-SL
: Date Decided: 1/31/12
: Date Mailed: 2/8/12
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 Daniel McElhatton (hereinafter also referred to
as “McElhatton” and “Respondent”) a Notice of Alleged Noncompliance. The Respondent
did not file an Answer, Appeal, or other Request for Hearing.A Stipulation of Findings and
a Consent Agreement 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 as required under Section 13A04 of
the Lobbying Disclosure Law, 65 Pa.C.S. § 13A04.
II.FINDINGS:
1. Respondent is Daniel McElhatton 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, 2011 – December 31, 2012, with the Department of State on
January 12, 2011, and was assigned lobbying registration number L26199.
b. Respondent indicated that he commenced lobbying activities on January 12,
2011.
c. Despite the requirements set forth in the Lobbying Disclosure Law,
specifically, Section 13A04(c), Respondent purports that he was unaware of
his requirement to file a recent photograph with his lobbyist registration
statement.
McElhatton, 11-010-L
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i. Despite the representation in the lobbyist registration statement,
Respondent asserts he did not engage in any lobbying activities in
2011.
d. In filing his lobbyist registration, Respondent identified his registered mailing
address as:
1023 N. Randolph Street
Philadelphia, PA 19123
e. 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.
McElhatton, 11-010-L
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(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).
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
McElhatton, 11-010-L
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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.
(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.
McElhatton, 11-010-L
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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.
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 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 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 submit a photograph as required per his 2011-
2012 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
McElhatton, 11-010-L
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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 is calculated
from July 28, 2011, the date the Warning Notice letter was sent, to December 13,
2011, the date Petitioner submitted his photograph to the Investigative Division of
the State Ethics Commission, said period being 139 days.
III. DISCUSSION:
In the instant matter, the alleged noncompliance is that Respondent, as a lobbyist
who filed a lobbyist registration statement with the Pennsylvania Department of State
(“Department of State”) on January 12, 2011, to be registered as a lobbyist pursuant to the
Lobbying Disclosure Law, 65 Pa.C.S. § 13A04, failed to submit a photograph as required
under Section 13A04 of the Lobbying Disclosure Law, 65 Pa.C.S. § 13A04.
We initially note that Respondent is not an attorney at law.
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 12, 2011, Respondent initiated with the Department of State a lobbyist
registration statement for the time period of January 1, 2011 – December 31, 2012.
Respondent was assigned lobbying registration number “L26199.” Respondent indicated
on the lobbyist registration statement that he commenced lobbying activities on January
12, 2011.
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 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 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 submit a photograph as required per his
2011-2012 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 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
McElhatton, 11-010-L
Page 7
deficient/delinquent in filing his photograph for his 2011-2012 lobbyist registration
statement by a total of 139 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.
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 as
required under Section 13A04 of the Lobbying
Disclosure Law, 65 Pa.C.S. § 13A04.
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 photograph by a
total of 139 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 (Respondent states that he did alert
Counsel that this was no longer his address and
requested after a phone call that he be able to
submit a photograph and avoid any action);
ii. Respondent did not file the outstanding
photograph within the stated thirty-day cure
period;
iii. For purposes of this Consent Agreement only,
the delinquent period is calculated from July 28,
2011, the date the Warning Notice letter was
mailed to December 13, 2011, the date
Respondent submitted his photograph to the
Investigative Division of the State Ethics
Commission, said period being 139 days.
4. Respondent agrees to pay an administrative penalty, by way of
certified check or money order, in the amount of $695.00 (139
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
McElhatton, 11-010-L
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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. On December 13, 2011, Respondent submitted a photograph
as required under Section 13A04 of the Lobbying Disclosure
Law, 65 Pa. C.S. § 13A04.
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 2-3.
In considering the Consent Agreement, we agree with the parties that Respondent
failed to submit a photograph as required by Section 13A04 of the Lobbying Disclosure
Law, 65 Pa.C.S. § 13A04, in relation to the lobbyist registration statement that Respondent
filed with the Department of State on January 12, 2011. See also, 51 Pa. Code §
53.4(d)(2).
Accordingly, we hold that Respondent, in his capacity as a lobbyist who filed a
lobbyist registration statement with the Department of State on January 12, 2011, to be
registered as a lobbyist pursuant to the Lobbying Disclosure Law, 65 Pa.C.S. § 13A04,
failed to submit a photograph as required under Section 13A04 of the Lobbying Disclosure
Law, 65 Pa.C.S. § 13A04. 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.
On December 13, 2011, Respondent submitted a photograph as required under
Section 13A04 of the Lobbying Disclosure Law, 65 Pa.C.S. § 13A04. The parties have
agreed that Respondent was deficient/delinquent in filing his photograph for his 2011-2012
lobbyist registration statement by a total of 139 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 $695.00 (139 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.
McElhatton, 11-010-L
Page 9
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.
This Commission hereby levies one administrative penalty against Respondent
Daniel McElhatton in the amount of $695.00 for the aforesaid deficiency/delinquency in
filing a photograph as required per his 2011-2012 lobbyist registration statement. We take
administrative notice that Respondent has already made payment of the administrative
penalty in the amount of $ 695.00 through this Commission to the Commonwealth of
Pennsylvania, as per the Consent Agreement.
In that Respondent has already made payment of the aforesaid administrative
penalty in the amount of $ 695.00 in accordance with the Consent Agreement of the
parties, and has now submitted a photograph of himself for the 2011-2012 registration
period, no further action is required in this case, and this case is closed .
IV.CONCLUSIONS OF LAW:
1. Respondent Daniel McElhatton (“McElhatton”), in his capacity as a lobbyist who
filed a lobbyist registration statement with the Pennsylvania Department of State on
January 12, 2011, to be registered as a lobbyist pursuant to Pennsylvania’s
lobbying disclosure law (“Lobbying Disclosure Law”), 65 Pa.C.S. § 13A04, failed to
submit a photograph as required under Section 13A04 of the Lobbying Disclosure
Law, 65 Pa.C.S. § 13A04.
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 $695.00 (139 days x $5.00 per day) is
warranted.
In Re: Daniel McElhatton, : File Docket: 11-010-L
Respondent : Date Decided: 1/31/12
: Date Mailed: 2/8/12
ORDER NO. 017-SL
1. Daniel McElhatton (“McElhatton”), in his capacity as a lobbyist who filed a lobbyist
registration statement with the Pennsylvania Department of State on January 12,
2011, to be registered as a lobbyist pursuant to Pennsylvania’s lobbying disclosure
law (“Lobbying Disclosure Law”), 65 Pa.C.S. § 13A04, failed to submit a photograph
as required under Section 13A04 of the Lobbying Disclosure Law, 65 Pa.C.S. §
13A04.
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 McElhatton in
the amount of $695.00 (139 days x $5.00 per day) for the aforesaid
deficiency/delinquency in filing a photograph as required per his 2011-2012 lobbyist
registration statement, which administrative penalty McElhatton has paid .
4. In that McElhatton has already made payment of the aforesaid administrative
penalty in the amount of $ 695.00 in accordance with the Consent Agreement of the
parties, and has now submitted a photograph of himself for the 2011-2012
registration period, no further action is required in this case, and this case is closed .
BY THE COMMISSION,
___________________________
Louis W. Fryman, Chair