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HomeMy WebLinkAbout113-SL Somerset Regional Water ResourcesIn Re: Somerset Regional Water Resources, File Docket: 16 -002 -L Respondent X -ref. Order No. 113 -SL Date Decided: 6/23/16 Date Mailed: 7/8/16 Before: Nicholas A. Colafella, Chair Mark R. Corrigan, Vice Chair Roger Nick Kathryn Streeter Lewis Maria Feeley Melanie DePalma This is a final adjudication of the State Ethics Commission as to the alleged delinquency and /or deficiency of expense report(s) required to be filed pursuant to Pennsylvania's lobbying disclosure law, 65 Pa.C.S. § 13A01 et sec ., 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 Somerset Regional Water Resources (hereinafter also referred to as "Respondent ") a Notice of Alleged Noncompliance. The Respondent did not file an Answer, Appeal, or other Request for Hearing. The record is complete. The Findings in this Order are derived from the Notice of Alleged Noncompliance filed by the Investigative Division. ALLEGED NONCOMPLIANCE: That Respondent, in its capacity as a principal registered with the Pennsylvania Department of State pursuant to the Pennsylvania Lobbying Disclosure Law (65 Pa.C.S. § 13A04), negligently failed to timely file a quarterly expense report pursuant to 65 Pa.C.S. § 13A05, for the third (3rd) quarter of 2015. II. FINDINGS: Respondent is Somerset Regional Water Resources ( "Respondent ") and is a registered principal as that term is defined by the Pennsylvania Lobbying Disclosure Law ( "Lobbying Disclosure Law "), Act 134 of 2006, 65 Pa.C.S. § 13A01, et seg. Respondent initially registered as a principal with the Department of State on May 9, 2013, for the registration period January 1, 2013, through December 31. 2014. Respondent's registration statement indicates that lobbying commenced on May 1, 2013. Respondent filed a principal registration statement with the Pennsylvania Department of State for the registration period January 1, 2015, through December 31, 2016. Somerset Regional Water Resources, 16 -002 -L Page 2 a. By registering with the Department of State, Respondent consented to receive service of notices, other official mailings, or process at the address listed on the registration statement. b. Respondent was assigned the principal registration number "P41990." C. In filing its principal registration, Respondent identified its registered mailing address as: 138 East Union Street Somerset, PA 15501 3. The Lobbying Disclosure Law, specifically 65 Pa.C.S. § 13A04, states the following regarding the registration of an entity as a principal: § 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. b. Principals and lobbying firms. -- A principal or lobbying firm required to register under subsection (a) shall file a single registration statement setting forth the following information with the department- i. Name. ii. Permanent address. iii. Daytime telephone number. iv. E -mail address, if available. V. Name and nature of business. vi. Name, registration number and acronym of any affiliated political action committees. vii. Name and permanent business address of each individual who will for economic consideration engage in lobbying on behalf of the principal or lobbying firm. viii. Registration number when available. d. Amendments.-- 1. If there is a change of information required for the registration statement under subsection (b)(1) or (2) or (c), an amended registration statement shall be filed with the department within 14 days after the change occurs. 2. When there is a change in information required for the registration statement under subsection (b)(3), an amended registration statement shall be filed with the department within 14 days of the end of the year in which the change occurs. Somerset Regional Water Resources, 16 -002 -L Page 3 65 Pa.C.S. § 13A04(a), (b)(1), (d). 4. In addition to the Lobbying Disclosure Law, the duly promulgated Regulations provide further information in relation to registration periods and reporting periods: § 51.3. Registration periods and reporting periods. a. Registration under section 13A04 of the act (relating to registration) shall be biennial. The first registration period which commenced January 1, 2007, continues through December 31, 2008. Subsequent registrations shall commence on January 1 of each odd numbered year. 51 Pa. Code § 51.3(a). 5. Section 13A05 of the Lobbying Disclosure Law sets forth, in part, the following requirements for the contents of quarterly reporting forms filed by principals. § 13A05. Reporting (a) General rule. -- A registered principal shall, under oath or affirmation, file quarterly expense reports with the department no laterthan 30 days afterthe last day of the quarter. (b) Content. -- (1) Each expense report must list the names and registration numbers when available of all lobbyists by whom lobbying is conducted on behalf of the principal and the general subject matter or issue being lobbied. (2) Each expense report shall include the total costs of all lobbying for the period. The total shall include all office expenses, personnel expenses, expenditures related to gifts, hospitality, transportation and lodging to State officials or employees, and any other lobbying costs. The total amount reported under this paragraph shall be allocated in its entirety among the following categories: The costs for gifts, hospitality, transportation and lodging given to or provided to State officials or employees or their imme -diate families. The costs for direct communication. The costs for indirect communication. (iv) Expenses required to be reported under this subsection shall be allocated to one of the three categories listed under this section and shall not be included in more than one category. 65 Pa.C.S. § 13A05(a), (b)(1) -(2). 6. In addition to the Lobbying Disclosure Law, the duly promulgated Regulations provide further instructions in relation to registration periods and reporting periods: Somerset Regional Water Resources, 16 -002 -L Page 4 § 51.3. Registration periods and reporting periods. (b) Reporting under section 13A05 of the act (relating to reporting) shall be quarterly within each calendar year: for January through March; April through June; July through September; and October through December. Quarterly expense reports shall be filed on or before the 30th day after the quarterly reporting period ends. 51 Pa. Code § 51.3(b). 7. As a principal, Respondent is required to file, under oath or affirmation, quarterly expense reports with the Department of State no later than thirty (30) days afterthe last day of the quarter. 8. Section 13A05 of the Lobbying Disclosure Law additionally sets forth the threshold with regard to reporting expenditures: (d) Thresholds for reporting. -- An expense report required under this section shall be filed when total expenses for lobbying exceed $2,500 for a registered principal in a reporting period. In a reporting period in which total expenses are $2,500 or less, a statement to that effect shall be filed. 65 Pa.C.S. § 13A05(d). 9. Section 13A03 of the Lobbying Disclosure Law defines the following terms: "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. "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 (4) confirmation of appointments by the Governor or appointments to public boards or commissions by a member of the General Assembly. "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. "Direct communication." An effort, whether written, oral or by any other medium, made by a lobbyist or principal, directed to a State official or Somerset Regional Water Resources, 16 -002 -L Page 5 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. 65 Pa.C.S. § 13A03. 10. As a registered principal, Respondent [is required to file either a quarterly expense report or a statement of failure to meet the reporting threshold for each quarter it is registered as a principal, by no later than the 30th day after each quarterly reporting period has ended. 65 Pa.C.S. § 13A05(a), (d); 51 Pa. Code § 55.1(d)]. a. Respondent filed quarterly expense reports from the second (2nd) quarter of 2013 through the second (2nd) quarter of 2015. Respondent filed a quarterly expense report for the second (2n ) quarter of 2015 on July 28, 2015. b. Respondent did not file a third (3rd) quarter 2015 expense report by the filing deadline of October 30, 2015. 11. The Regulations promulgated under the Lobbying Disclosure Law specifically provide the following in relation to a delinquent filing: § 51.4. Delinquency. (a) A registration statement or report required to be filed undersection 13A04 or 13A05 of the act (relating to registration; and reporting) is delinquent if not received by the Department on the date due as follows: (1) Hard copy filings must be received by 5 p.m. in the office. For quarterly expense reports, from 5 p.m. until 12 a.m. midnight, a hard copy filing may be filed with the Department's designee. The filing location and the Department's designee will be on the Department's web site. (2) Electronic filings may be filed until 12 a.m. midnight. (b) A failure to timely file a registration statement, a quarterly expense report, a separate expense report, a notice of termination or an amendment to one of these filings constitutes a failure to register or report as required by the act; delinquency continues until the filing is received by the Department in proper form. 51 Pa. Code § 51.4(a) -(b). 12. [In relation] to the filing requirements of quarterly expense reports, the Regulations read, in part: § 55.1. Quarterly expense reports. (a) A quarterly expense report is required to be filed as set forth in this section when the total lobbying expenses of a registered principal, registered lobbying firm or registered lobbyist lobbying on the principal's behalf, together, exceed $2,500 in a quarterly reporting period. The threshold of $2,500 includes any economic consideration paid by a principal to a lobbying firm or lobbyist for lobbying. Individuals exempt under section Somerset Regional Water Resources, 16 -002 -L Page 6 13A06 of the act (relating to exemption from registration and reporting) need not register or report. (b) For a quarterly reporting period in which the total lobbying expenses of a registered principal, registered lobbying firm or registered lobbyist lobbying on the principal's behalf, together, are $2,500 or less, a statement to that effect shall be filed with the Department by checking the appropriate block on the quarterly expense report form. (d) The principal shall file a quarterly expense report or statement of failure to meet the reporting threshold on or before the 30th day after the quarterly reporting period ends. (g) A quarterly expense report of a principal required to be registered under the act must include at least the following information: (3) The total costs of all lobbying for the period. The total must include all office expenses, personnel expenses, expenditures related to gifts, hospitality, transportation and lodging to State officials or employees, and any other lobbying costs. (i) The total amount reported under this paragraph shall be allocated in its entirety among the following categories: (A) The costs for gifts, hospitality transportation and lodging given to or provided to State officials or employees or their immediate families. (B) The costs for direct communication. (C) The costs for indirect communication. (ii) Registrants shall use a good faith effort to allocate expenses required to be reported under this subsection to one of the three categories listed herein. A given expense may not be included in more than one category.... 51 Pa. Code § 55.1(a), (b), (d), (g)(3)(i) -(ii). 13. By Warning Notice letter dated December 2, 2015, 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 specificRIlegations that Respondent failed to file a quarterly expense report for the third (3r ) quarterof 2015. a. Said Warning Notice was mailed to: 138 East Union Street Somerset, PA 15501 Somerset Regional Water Resources, 16 -002 -L Page 7 b. This is the same address as listed on Respondent's principal registration statement. C. By submitting the principal registration statement, Respondent consented to receipt of service of notices, other official mailings or process, at the address listed on the registration statement. (See, Paragraph 2(a) above). 14. Said Warning Notice letter set forth the nature of the alleged noncompliance and the administrative and criminal penalties for failing to file. 15. 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 filing a quarterly expense report for the time period covering the third (3r) quarter of 2015 with the Department of State within thirty (30) days from the mailing date of the Warning Notice letter. 16. The Chief of the Division of Campaign Finance and Lobbying Disclosure — Department of State conducted a search of the Department of State's records, and, as of February 12, 2016, no third (3r ) quarter 2015 expense report was found to have been filed with the Department of State for Somerset Regional Water Resources. 17. 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). b. The total amount of the administrative penalty that may be levied after hearing by a majority vote of all of the Commission Members shall not be limited by any other provision of law. 65 Pa.C.S. § 13A09(c)(2). C. Any person that fails to comply with the requirements of the Lobbying Disclosure Law, after notice [of noncompliance and after a hearing if one is requested,] may be prohibited from lobbying for economic consideration for up to five (5) years [in accordance with 65 Pa.C.S. § 13A09(e)(4). 65 Pa.C.S. §§ 13A09(d), (e)(4)]. d. A person that intentionally fails to register or report as required by the law commits a misdemeanor of the second degree. 65 Pa.C.S. § 13A09(e)(1). e. A registrant who files a report under the law with knowledge that the report contains a false statement or is incomplete commits a misdemeanor of the second degree. 65 Pa.C.S. § 13A09(e)(2). Except as set forth in paragraph (d) or (e) above, a person that intentionally violates [the Lobbying Disclosure Law] commits a misdemeanor of the third degree. In addition to any other penalties imposed under [the Lobbying Disclosure Law], the court may impose a fine not to exceed $25,000 against a principal who is found guilty under [Section 13A09(e)(3) of the Lobbying Disclosure Law]. Somerset Regional Water Resources, 16 -002 -L Page 8 g. In addition to any criminal penalties imposed under [the Lobbying Disclosure Law], the Commission may prohibit a person from lobbying for economic consideration for up to five years for conduct which constitutes an offense under [Section 13A09(e) of the Lobbying Disclosure Law]. Criminal prosecution or conviction is not required for imposition of [such prohibition]. The Commission shall not impose [such prohibition] unless the person has been afforded the opportunity for a hearing, which shall be conducted by the Commission in accordance with sections 1107(14) and 1108(e) [of the Public Official and Employee Ethics Act, 65 Pa.C.S. §§ 1107(14) and 1108(e)]. 18. As of the date of the filing of the instant Notice of Alleged Noncompliance [February 16, 2016], Respondent's expense report was a total of 109 days delinquent. a. Respondent's third (3rd) quarter 2015 Expense Report was 109 days delinquent [as of February 16, 2016] (October 30, 2015 - February 16, 2016). 1. The third quarter expense report period closed October 30, 2015. See, 65 Pa.C.S. § 13A03 Definitions - "Reporting period." 2. Expense reports were to be filed within thirty (30) days of September 30, 2015, that date being October 30, 2015. See, 65 Pa.C.S. § 13A05(a). 3. The first day on which Respondent's third (3rd) quarter 2015 Expense Report was delinquent was October 31, 2015. 19. Respondent's third (3rd) quarter 2015 Expense Report continues to be delinquent, as it has not yet been filed with the Department of State. 20. The thirty -day deadline set forth in the said Warning Notice letter to Respondent has expired and Respondent has failed to comply with the specific requirements of the Lobbying Disclosure Law. 21. The Commission may impose a maxjmum administrative penalty of $50.00 per day for each day Respondent's third (3r ) quarter 2015 Expense Report has remained delinquent, calculated from October 31, 2015, the first day the quarterly expense report was delinquent, through the date Respondent files the outstanding quarterly expense report with the Department of State. 22. [In addition to its authority to impose an administrative penalty for negligent failure to register or report as required by the Lobbying Disclosure Law, 65 Pa.C.S. § 13A09(c), this Commission has authority to prohibit a respondent that has intentionally violated the Lobbying Disclosure Law from lobbying for economic consideration for up to five years, pursuant to 65 Pa.C.S. § 13A09(e)(4). a. The procedures for imposing a prohibition against lobbying for economic consideration are set forth at 51 Pa. Code Chapter 65. b. The instant proceeding is limited to an alleged negligent failure to timely file a quarterly expense report for the third quarter of 2015.] 23. There are no mitigating circumstances concerning Respondent's failure to file the outstanding quarterly expense report. Somerset Regional Water Resources, 16 -002 -L Page 9 III. DISCUSSION: In the instant matter, the alleged noncompliance is that Respondent, as a principal registered with the Pennsylvania Department of State ( "Department of State ") pursuant to the Lobbying Disclosure Law, negligently failed to timely file a quarterly expense report pursuant to 65 Pa.C.S. § 13A05 for the third quarter of 2015. 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. Respondent initially registered as a principal with the Department of State on May 9, 2013, for the registration period January 1, 2013, through December 31, 2014. Respondent's registration statement indicated that lobbying commenced on May 1, 2013. Respondent registered as a principal with the Department of State for the registration period January 1, 2015, through December 31, 2016. Respondent was assigned the principal registration number "P41990." Pursuant to Section 13A05 of the Lobbying Disclosure Law, 65 Pa.C.S. § 13A05, and Section 51.3 of the Lobbying Disclosure Regulations, 51 Pa. Code § 51.3, expense reports are filed on a quarterly basis. When a registered principal's total expenses for lobbying exceed $2,500 for a reporting period /quarter, the principal is required to file a quarterly expense report with the Department of State by no later than 30 days after the last day of such quarter. For a reporting period in which total expenses are $2,500 or less, a statement to that effect must be filed by the principal. Thus, a registered principal must file either a quarterly expense report or a statement of failure to meet the reporting threshold by no later than the 30th day after each quarterly reporting period ends. 51 Pa. Code § 55.1(d). Having registered for the registration period January 1, 2015, through December 31, 2016, Respondent was required to file a quarterly expense report for the third quarter of 2015. Respondent failed to file a quarterly expense report for the third quarter of 2015 by the filing deadline. Failure to timely file a quarterly expense report constitutes a failure to report as required by the Lobbying Disclosure Law, and the delinquency continues until the filing is received by the Department of State in proper form. 51 Pa. Code § 51.4(b). By Warning Notice letter dated December 2, 2015, Respondent was served with notice of the alleged noncompliance in accordance with Section 63.4(1) of the Lobbying Disclosure Regulations, 51 Pa. Code § 63.4(1). The Warning Notice letter provided Respondent an opportunity to cure the alleged noncompliance and avoid the institution of these proceedings by filing a quarterly expense report for the third quarter of 2015 with the Department of State within thirty (30) days of the mailing date of the Warning Notice letter. As of February 12, 2016, no third quarter 2015 expense report was found to have been filed with the Department of State for Respondent. Somerset Regional Water Resources, 16 -002 -L Page 10 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). An application of Section 13A09(a), (c) of the Lobbying Disclosure Law to this case establishes that this Commission has the discretion to impose a maximum administrative penalty against the Respondent for failing to timely file its quarterly expense report for the third quarter of 2015. 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. Respondent did not cure its noncompliance with the Lobbying Disclosure Law within the 30 -day cure period. The Investigative Division then instituted formal proceedings against the Respondent by filing with the State Ethics Commission and serving upon Respondent a Notice of Alleged Noncompliance. Respondent did not file an Answer, Appeal, or other Request for Hearing as to the Notice of Alleged Noncompliance. There is nothing of record that would constitute a defense or excuse for Respondent's failure to comply with the Lobbying Disclosure Law. Accordingly, we hold that Respondent Somerset Regional Water Resources as a registered principal failed to timely file a quarterly expense report with the Department of State for the third quarter of 2015 as required by Section 13A05 of the Lobbying Disclosure Law. We determine that the transgression of the Lobbying Disclosure Law outlined immediately above was negligent in nature. There is no basis in the record for imposing less than a maximum administrative penalty against Respondent. The Regulations promulgated under the Lobbying Disclosure Law specifically provide the following in relation to the calculation of an administrative penalty for a late or deficient filing: § 63.6. Administrative penalties for late or deficient filings. (2) An administrative penalty will be calculated from the first day the registration statement or report is delinquent or deficient, through the date a complete and accurate registration statement or report is filed or the Commission decides the matter. whichever occurs first. 51 Pa. Code § 63.6(2). Expense reports for the third quarter of 2015 were to be filed within thirty (30) days of September 30, 2015, that date being October 30, 2015. See, 65 Pa.C.S. § 13A05(a). The first day on which Respondent's third quarter 2015 Expense Report was delinquent was October 31, 2015. As of the date of our decision in this matter, the total number of days Respondent's third quarter 2015 Expense Report has been delinquent is 237. Pursuant to Section 13A09(c) of the Lobbying Disclosure Law, 65 Pa.C.S. § 13A09(c), this Commission hereby levies one maximum administrative penalty against Respondent Somerset Regional Water Resources in the amount of $50 per day for each of the 237 days its quarterly expense report for the third quarter of 2015 has been delinquent, Somerset Regional Water Resources, 16 -002 -L Page 11 such that the administrative penalty imposed against Respondent is in the total amount of $11,850.00 ($50 per day x 237 days = $11,850.00). Respondent Somerset Regional Water Resources is directed to pay the aforesaid administrative penalty in the amount of $11,850.00 by way of certified check or money order in the amount of $11,850.00 payable to the Commongealth of Pennsylvania and forwarded to this Commission by no later than the thirtieth (30t ) day after the mailing date of this adjudication and Order. Respondent Somerset Regional Water Resources is further directed to file an accurate and complete quarterly expense report for the third quarter of 2015 with the Department of State by no later than the thirtieth (30th ) day after the mailing date of this adjudication and Order. Noncompliance will result in the Commission initiating appropriate enforcement action(s). IV. CONCLUSIONS OF LAW: As a principal registered with the Pennsylvania Department of State ( "Department of State ") under principal registration number "P41990," Somerset Regional Water Resources has been subject to the reporting requirements of Section 13A05 of Pennsylvania's lobbying disclosure law ( "Lobbying Disclosure Law "), 65 Pa.C.S. § 13A05. 2. Somerset Regional Water Resources, in its capacity as a principal registered with the Department of State, failed to timely file a quarterly expense report with the Department of State for the third quarter of 2015 as required by Section 13A05 of the Lobbying Disclosure Law, 65 Pa.C.S. § 13A05. 3. The transgression(s) of the Lobbying Disclosure Law outlined in paragraph 2 immediately above are deemed to be negligent in nature. 4. 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. 5. Based upon the totality of the circumstances in this case, the imposition of an administrative penalty in the amount of $11,850.00 ($50 per day x 237 days) is warranted. In Re: Somerset Regional Water Resources, File Docket: 16 -002 -L Respondent Date Decided: 6/23/16 Date Mailed: 7/8/16 ORDER NO. 113 -SL Somerset Regional Water Resources, in its capacity as a principal registered with the Pennsylvania Department of State ( "Department of State ") under principal registration number "P41990," failed to timely file a quarterly expense report with the Department of State for the third quarter of 2015 as required by Section 13A05 of Pennsylvania's lobbying disclosure law ( "Lobbying Disclosure Law "), 65 Pa.C.S. § 13A05. 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 maximum administrative penalty against Somerset Regional Water Resources in the amount of $50 per day for each of the 237 days its quarterly expense report for the third quarter of 2015 has been delinquent, such that the administrative penalty imposed against Somerset Regional Water Resources is in the total amount of $11,850.00 ($50 per day x 237 days = $11,850.00). 4. Somerset Regional Water Resources is directed to pay the aforesaid administrative penalty in the amount of $11,850.00 by way of certified check or money order in the amount of $11,850.00 payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission by no later than the thirtieth (30th) day after the mailing date of this Order. 5. Somerset Regional Water Resources is directed to file an accurate and complete quarterly expense report for the third quarter of 2015 with the Department of State by no later than the thirtieth (30th) day after the mailing date of this Order. 6. Noncompliance with Paragraph 4 or 5 of this Order will result in the Commission initiating appropriate enforcement action(s). BY THE COMMISSION, Nicholas A. Colafella, Chair