HomeMy WebLinkAbout18-1001 ConfidentialBefore: Nicholas A. Colafella, Chair
Mark R. Corrigan, Vice Chair
Roger Nick
Melanie DePalma
Monique Myatt Galloway
Michael A. Schwartz
Shelley Y. Simms
DATE DECIDED: 10/23/18
DATE MAILED: 1118118
To the Requester:
18 -1001
This Opinion is issued in response to your advisory request letter dated August 14,
2018.
ISSUE:
Whether Pennsylvania's lobbying disclosure law ( "Lobbying Disclosure Law "), 65
Pa.C.S. § 13A01 et she ., would continue to apply to an individual ( "Individual ") who is a
registered lobbyist and/or to a registered lobbying firm (the "Firm ") of which the Individual is
[type of owner where, as of December 31, 2018: (1) the Individual will cease operations of
the Firm and the Firm will cease to exist except for any matters incidental to completing its
wind down; (2) the Individual will no longer, either personally or through the Firm, collect
any fees or reimbursement of expenses directly or indirectly from any principal; and (3) the
Individual states that "on behalf of" registered principals, he will continue to engage in the
types of activities that fall within the definition of the term "lobbying" but will not incur any
lobbying- related expenses or make any lobbying - related expenditures that in the aggregate
would exceed the reporting threshold of Section 13A05(d) of the Lobbying Disclosure Law,
65 Pa.C.S. § 13A05(d), in any quarter.
II. FACTUAL BASIS FOR DETERMINATION:
You are currently a registered lobbyist and [type of owner] of [name of firm] (the
"Firm "), which is a registered lobbying firm in Pennsylvania.
As of December 31, 2018 ( "the Effective Date "): (1) you will cease operations of the
Firm and the Firm will cease to exist except for any matters incidental to completing its
wind down; (2) you will no longer, either personally or through the Firm, collect any fees or
reimbursement of expenses directly or indirectly from any principal; and (3) ou state that
"on behalf of" registered principals, you will continue to engage in the types Uactivities that
fall within the definition of the term "lobbying"—including but not limited to direct
communication and indirect communication as to legislators and Executive Branch
officials --but will not incur any lobbying- related expenses or make any lobbying - related
expenditures that in the aggregate would exceed the reporting threshold of Section
Confidential Opinion, 18 -1001
November 8,
Page 2
13A05(d) of the Lobbying Disclosure Law, 65 Pa.C.S. § 13A05(d), in any quarter.
You pose the following questions:
(1) Whether you would be required to register as a lobbyist following the
Effective Date;
(2) Whether the Firm would be required to register as a lobbying firm following
the Effective Date;
(3) If the responses to the two questions above are in the negative, whether you
may allow the biennial registrations of you and the Firm to expire as of the
Effective Date by not renewing them; and
(4) Whether unreimbursed incidental personal expenses that you would incur,
including but not limited to gasoline, tolls, meals for yourself only, and
cellphone service would count towards the registration threshold of the
Lobbying Disclosure Law.
By letter dated September 5, 2018, you were notified of the date, time and location
of the executive meeting at which your request would be considered.
At the executive meeting on October 23, 2018, you appeared in order to address the
Commission and answer any questions of the Commissioners. You confirmed that your
proposed activities would be on a purely volunteer basis and would always be on behalf of
registered principals and not on your own behalf. It was unclear from your October 23,
2018, resentation whether you were going to interact with State officials or employees
(see, definition of "State official or employee," 65 Pa.C.S. § 13A03). In issuing this Opinion
in response to your advisory request letter, we are assuming that you are seeking advice
based on your potential interaction with State officials or employees.
DISCUSSION:
It is initially noted that pursuant to Section 13AQ8(a) of the Lobbying Disclosure Law,
65 Pa.C.S. § 13A08(a), in conjunction with Sections 1107(10) and 110711) 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.
As a registered loboyist in Pennsylvania, you are currently subject to the
prohibitions, restrictions, and requirements imposed upon lobbyists by the Lobbying
Disclosure Law.
As a registered lobbying firm in Pennsylvania, the Firm is currently subject to the
prohibitions, restrictions, and requirements imposed upon lobbying firms by the Lobbying
Disclosure Law.
The following terms pertinent to your request are defined in the Lobbying Disclosure
Law as follows:
§ 13A03. Definitions.
Confidential Opinion, 18 -1001
November 8,
Page 3
"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) roviding any gift, hospitality, transportation or lodging
Fo a State official or employee for the purpose of
advancing the interest of the lobbyist or principal.
"Lobbying firm." An entity that engages in lobbying for
economic consideration on behalf of a principal other than the
entity itself.
"Lobbyist." Any individual, association, corporation,
partnership, business trust or other entity that engages in
lobbying on behalf of a principal for economic consideration.
The term includes an attorney at law while engaged in
lobbying.
"Economic consideration." Anything of value offered or
received. The term includes compensation and reimbursement
for expenses.
"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. § 13AO.
The Lobbying Disclosure Regulations include the following definitions relevant to
your inquiry:
§ 51.1. Definitions.
Lobbying-
(i) An effort to influence legislative action or administrative
action in this Commonwealth.
(ii) The term includes the following:
(A) Direct or indirect communications.
(B) Office expenses.
(C ) Providing any gift, hospitality, transportation or lodging to
a State official or employee for the purpose of advancing the
interest of the lobbyist, lobbying firm or principal.
Confidential Opinion, 18 -1001
November 8, 2018
Page 4
Lobbying firm—An entity that engages in lobbying for
economic consideration on behalf of a principal other than the
entity itself.
Lobbyist —An individual, association, corporation, partnership,
business trust or other entity that engages in lobbying on
behalf of a principal for economic consideration. The term
includes an attorney at law while engaged in lobbying.
Membership in an association alone is not sufficient to make
an association member a lobbyist.
Economic consideration -
(i) The term includes anything of value offered or received.
(ii) The term includes compensation and reimbursement for
expenses.
Principal -
(i) An individual, association, corporation, partnership,
business trust or other entity, including a Commonwealth
agency or political subdivision on whose behalf a lobbying firm
or lobbyist engages in lobbying, or that engages in lobbying on
the principal's own behalf.
(ii) Membership in an association alone is not sufficient to
make an association member a principal.
51 Pa. Code § 51.1.
Section 13A04 of the Lobbying Disclosure Law, pertaining to registration, provides in
pertinent part as follows:
§ 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 electronically using the computerized
filing system developed by the department that is
consistent with the purposes of this chapter 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.
65 Pa.C.S. § 13A04(a).
Having set forth the relevant provisions of the Lobbying Disclosure Law and the
Lobbying Disclosure Regulations, we shall now address the specific questions that you
have posed.
In response to your first question, you are advised that based upon the submitted
facts, you would not be required to register as a lobbyist following the Effective Date
because you would not receive any economic consideration for lobbying. The lack of
economic consideration would exclude you from the statutory and regulatory definitions of
"lobbyist."
Confidential O inion, 18 -1001
November 8,
Page 5
In response to your second question, you are advised that based upon the
submitted facts, the Firm would not be required to register as a lobbying firm following the
Effective Date because the Firm would not receive any economic consideration for
lobbying. The lack of economic consideration would exclude the Firm from the statutory
and regulatory definitions of "lobbying firm."
In response to your third question, you are advised that all lobbyist, lobbying firm,
and principal registration statements automatically terminate at midnight on December 31
of even- numbered years. See, 51 Pa. Code § 51.3(a); cf., Kauffman, Opinion 16 -1001 at
5 -6. Unless previously terminated, your current registration aFe--current registration of
the Firm will automatically terminate at midnight on the Effective Date. Based upon the
submitted facts, you may allow the current biennial registrations of you and the Firm to
expirelterminate as of the Effective Date and not renew them. You and the Firm would be
required to fulfill any remaining responsibilities of a registered lobbyist/lobbying firm as to
all quarters during which youfthe Firm were, at any point in time, registered as such.
The response to your fourth question hinges upon who or what your activities would
be "on behalf of." We note that the Lobbying Disclosure Law and the Lobbying Disclosure
Regulations do not define the term "on behalf of." The Statutory Construction Act also
does not define the term, 1 Pa.C.S. § 1991, and there do not appear to be any applicable
Pennsylvania judicial decisions defining the term. We shall therefore consider the common
and approved use of the term see, 1 Pa.C.S, 1903). The term is defined in BLACK'S LAw
DICTIONARY as follows: "[O]n behalf of means in the name of, on the art of, as the agent
or representative of. "' BI_ACK's LAw DICTIONARY at 184 (10th ed. 2014
Thus, the response to your fourth question hinges upon whether factually, you would
be acting in the capacity of an authorized representative of the registered principals, with
such ongoing representation subject to their control, or whether you would be undertaking
lobbying efforts as your own and would be in control of your own activities.
Based upon the submitted facts, in response to your fourth question, you are
advised that unreimbursed incidental personal expenses that you would incur in an effort to
influence legislative action or administrative action in the Commonwealth of Pennsylvania,
including but not limited to gasoline, tolls, meals for yourself only, and cellphone service,
would not count towards the registration threshold for you because, based upon the
submitted facts, your activities would be undertaken in the capacity of an authorized
representative acting on behalf of the registered principals with such ongoing
representation subject to their control. Therefore, based upon the submitted facts, you
would be donating resources to such registered principals for their use /disposition.
This Opinion does not address reporting requirements of the registered principals in
that you have not established standing to request an advisory on their behalf.
The request for an advisory has only been addressed under the Lobbying
Disclosure Law and, derivatively, the Ethics Act to the extent applicable.
IV. CONCLUSION:
As a registered lobbyist in Pennsylvania, you are currently subject to the
prohibitions, restrictions, and requirements imposed upon lobbyists by Pennsylvania's
lobbying disclosure law ( "Lobbying Disclosure Law "), 65 Pa.C.S. § 13A01 et seg. As a
registered lobbying firm in Pennsylvania, the firm of which you are [type of owner), namely,
[name of firm] (the "Firm "), is currently subject to the prohibitions, restrictions, and
requirements imposed upon lobbying firms by the Lobbying Disclosure Law.
Based upon the submitted facts that as of December 31, 2018 ( "the Effective Date "):
(1) you will cease operations of the Firm and the Firm will cease to exist except for any
matters incidental to completing its wind down; (2) you will no longer, either personally or
Confidential Opinion, 18 -1001
N`ovem er ,
Page 6
through the Firm, collect any fees or reimbursement of expenses directly or indirectly from
any principal; and (3) you state that "on behalf of registered pprincipals, you will continue to
engage in the types of activities that fall within the definition of the term "lobbying"- -
including but not limited to direct communication and indirect communication as to
legislators and Executive Branch officials —but will not incur any lobbying-related expenses
or make any lobbying - related expenditures that in the aggregate would exceed the
reporting threshold of Section 13A05(d) of the Lobbying Disclosure Law, 65 Pa.C.S. §
13A05(d), in any quarter, you are advised as follows.
You would not be required to register as a lobbyist following the Effective Date
because you would not receive any economic consideration for lobbying. Likewise, the
Firm would not be required to register as a lobbying firm following the Effective Date
because the Firm would not receive any economic consideration for lobbying. All lobbyist,
lobbying firm, and principal registration statements automatically terminate at midnight on
December 31 of even - numbered years. See, 51 Pa. Code § 51.3(a); cf., Kauffman,
Opinion 16 -1001 at 5 -6. Unless previously terminated, your current registration and
current registration of the Firm will automatically terminate at midnight on the Effective
Date. Based upon the submitted facts, you may allow the current biennial registrations of
you and the Firm to expirefterminate as of the Effective Date and not renew them. You
and the Firm would be required to fulfill any remaining responsibilities of a registered
lobbyistllobbying firm as to all quarters during which youlthe Firm were, at any point in time,
registered as such.
Unreimbursed incidental personal expenses that you would incur in an effort to
influence legislative action or administrative action in the Commonwealth of Pennsylvania,
including but not limited to gasoline, tolls, meals for yourself only, and cellphone service,
would not count towards the registration threshold for you because, based upon the
submitted facts, your activities would be undertaken in the capacity of an authorized
representative acting on behalf of the registered principals with such ongoing
representation subject to their control. Therefore, based upon the submitted facts, you
would be donating resources to such registered principals for their use /disposition.
This Opinion does not address reporting requirements of there gistered principals in
that you have not established standing to request an advisory on their behalf.
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.
By the Commission,
R
Nic o s o afella
Chair