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OPINION OF THE COMMISSION
Before: Nicholas A. Colafella, Chair
Mark R. Corrigan, Vice Chair
Roger Nick
Melanie DePalma
Michael A. Schwartz
Shelley Y. Simms
DATE DECIDED. 5/7119
DATE MAILED: 5/28/19
19-007/19-1003
To thole Requester:
Barry M. Simpson, Esquire
Executive Director
Pennsylvania Bar Association
Dear Mr, Simpson-,
This Opinion is issued in response to your letters dated March 11 2019 and April 3,
2019, by which you requested an advisory opinion from the Pennsylvania §tate Ethics
Commission ("Commission").
I. ISSUE:
(1) Whether the Pennsylvania Bar Association ('PIBA") would transgress Section
11030 of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. §
1103 b , by offering free Continuing Legal Education "Cl-1E") credits to public
�
officials and public employees who either are or are not acuitymembers of such
classes;
(2) Whether offering CLE programs taught by public officials/public employees would
constitute "lobbying" as that term is definedin Pennsylvania's lobbying disclosure
law ("Lobbying 6isclosure Law"), 65 Pa.C.S. § 13A03;
(3) Whether, pursuant to the Lobbying Disclosure Law, PBA's provision of free tuition
for public officials/public employees to attend CLE programs would be reportable as
"gifts" on PBA's quarterly expense reports;
(4) Whether, pursuant to the Lobbying Disclosure Law, PBA's provision of free or
discounted transportation ortation or lodging to public officials/public employees would be
reportable as "gifts" on PBA's quarterly expense reports;
(5) Whether, pursuant to the Lobbying Disclosure Law, PBA's provision of any CLE-
related meals free -of -charge to public officials/public employees would be reportable
sim son 19-007/19-1003
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Page 2
as "hospitality" on PBA's quarterly expense reports; and
(6) Whether, pursuant to the Lobbying Disclosure Law, any other costs associated with
the CLE, including PBA staff time and expenses incurred in planning the CLE,
would need to be reported as either "direct communication" or "indirect
communication."
11. FACTUAL BASIS FOR DETERMINATION:
By letters dated March 11, 2019, and April 3, 2019, you have requested an advisory
opinion on behalf of PBA.
PBA is a 501 (c)(6) non-profit corporation and a principal registered pursuant to the
Lobbying Disclosure Law. As a result of the dissolution of the Pennsylvania Bar Institute (a
separate 501 (c)(3 non-profit corporation), PBA will soon be in providing statewide
continuing legal Oucation ("CLE") courses in diverse areas of the law and other topics.
PBA plans to invite persons who are "public officials" and "public employees," as those
terms are defined in the Ethics Act, 65 Pa.C.S. § 1102, to participate in the CLE programs
as faculty members to provide legal education.
You state that PBA's CLE faculty members would be eligible to receive the following
from/through PBA free -of -charge: (1) CLE credit(s) for their sessions, and sometimes
additional CLE credit(s) for sessions they attend but at which they are not presenting; (2)
hotel lodging for one or two days before or during the CLE event; (3 reimbursement of
travel costs including, but not limited to, cost of mileage and train ticke�s; and (4) meals on
the day of the CLE session at which they are presenting and sometimes on the night prior
to the CLE program.
Based upon the above submitted facts, you ask the following specific questions: (1)
whether PBA would transgress Section 1103(b) of the Ethics Act by offering free CLE
credits to public officials and public employees who either are or are not faculty members
of such classes; (2) whether offering CLE programs taught by public officials/public
employees would constitute "lobbying as that is defined in the Lobbying Disclosure
Law, 65 Pa.C.S. § 13A03; (3) whether, pursuant to the Lobbying Disclosure Law, PBA's
provision of free tuition for public officials/public employees to attend CLE programs would
e reportable as "gifts',on PBA's quarterly expense reports; (4 whether, pursuant to the
Lalabying Disclosure Law, PBA's provision of e or discounted �ransportation or lodging to
public officials/public employees would be able as "gifts" on PBA's quarterly expense
reports; (5) whether, pursuant to the Lobbying Disclosure Law, PBA's provision of any
CLE-relatted meals free -of -charge to public officials/public employees would be reportable
as "hospitality" on PBA's quarterly expense ports; and �6) whether, pursuant to the
associatedLobbying Disclosure any other costs with he CLE, including PBA staff
time an expenses incurred in planning the CLE, would need to be reported as either
,,
"direct communication" or indirect communication."
By letter dated April 10, 2019, you were notified of the date, time and location of the
public meeting at which your request would be considered.
111. DISCUSSION:
Itisinitiall noted that pursuant to Section 13AO8(a ofthel-obbyin Disclosure Law,
65 Pa.C.S. �13XO8(a), in conjunction with Sections 116(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
issuingthe advisory based upon the facts that the re nester has submitted, this
Commission does not engage in an independent investigation of the facts, nor does it
6 S'IM sion, 19-007/19-1003
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Page 3'
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 discloses
all of the material facts.
You have posed six specific questions to be addressed. Your first question —the
on
1 � question posed under the Ethics Act —is whether PBA would transgress Section
1 3 (b) of the Ethics Act by offering free CLE credits to public officials and public
employees who either are or are not faculty members of such classes.
The Ethics Act defines the terms "public official" and "public employee' as follows:
§ 1102. Definitions
"Public official." Any person elected by the public or elected or
appointed by a governmental body or an appointed official in the
executive, leTislative or judicial branch of this Commonwealth or any
political sub subdivision thereof, provided that it shall not include members
of advisory boards that have no authority to expend public funds other
than reimbursement for personal expense or to otherwise exercise the
power of the State or any political subdivision thereof.
"Public employee." Any individual employed by the Commonwealth
or a political subdivision who is responsible for taking or
recommending official action of a nonministerial nature with regard to:
I ) contracting or procurement',
2) administering or monitoring grants or subsidies;
3 planning or zoning;
4 inspecting, licensing, regulating or auditing any person; or
5 any other activity where the official action has an economic
impact of greater than a de minimis nature on the interests of
any person.
The term shall not include individuals who are employed by this
Commonwealth or any political subdivision thereof in teaching as
distinguished from administrative duties.
65 Pa.C.S. § 1102. See also, Commission Regulations, 51 Pa. Code § 11.1.
Section I I 03(b) of the Ethics Act, which applies to restrict "persons," provides as
follows:
§ 1103. Restricted activities
(b) Seeking improper influence. --No person shall offer or give to
a public official, public employee or nominee or candidate for public
office or a member of his immediate family or a business with which
he is associated, anything of monetary value, including a gift loan
political contribution, reward or promise of future employment based
on the offeror's or donor's understanding that the vote, official action
or judgment of the public official or public employee or nominee or
candidate for public office would be influenced thereby.
65 Pa.C,S, § 1103(b).
Simpson 0 19-9007/19-1003
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Page 4
PBA would be considered a "person" as the Ethics Act defines that term:
§ 1102. Definitions
"Person." A business, governmental body, individual, corporation,
union, association, firm, partnership, committee, club or other
organization or group of persons.
65 Pa.C.S. § 1102.
In response to your first specific question, you are advised that PBA would not
transgress Section 1103(b) of the Ethics Act by offering free CLE credits to publicofficials
and public emTloyees who either are or are not faculty members of such classes as long
asthere woul be no understanding that the vote, official action or judgment of the public
official or public employee would be influenced thereby.
Your remaining five questions are posed under the Lobbying Disclosure Law. The
following terms pertinent to those questions are defined in the Lobbying Disclosure Law as
follows:
§ 13AO3. Definitions.
"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) (o providing angift, hospitality, transportation or lodging
a State o icial or employee for the purpose of
advancing the interest of the lobbyist or principal.
"Leciiislative 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.
"Administrative action." Any of the following.
(1) An agency's,
(i) proposal, consideration, promulgation or
rescission of a regulation;
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development or modification of a statement of
policy;
(iii) approval or rejection of a regulation; or
(iv) procurement of su�plies, services and
construction under 6 Pa.C.S. (relating to
procurement).
(2) The review, revision, approval or disa roval of a
regulation under the act of June 25, 1982 (W.L633, 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) The proposal, consideration, promulgation or rescission
of an executive order.
"Direct communication." An effort, whether written, oral or by
n
ay other medium, made by a lobbyist or principal, directed to
a'9tate 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,
I
telephone banks, print an 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.
(3) The term may include personnel expenses and office
expenses.
"State official or employee." An individual elected or
appointed to a position in State government or employed b
State government, whether compensated or uncompensatey,
who is involved in legislative action or administrative action.
"Gift." Anything which is received without consideration of
equal or greater value. The term shall not include a political
contribution otherwise reportable as required by law or a
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Page 6
commercially reasonable loan made in the ordinary course of
business. The term shall not include hospitality, transportation
or lodging.
"Hospitality." Includes all of the following:
(1) Meals.
(2) Beverages.
(3) Recreation and entertainment.
The term shall not include gifts, transportation or lodging.
"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 Linder section 1 3AO6 (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 bying.
65 Pa.C.S. § 13A03 (Emphasis added).
Section 13A05 of the Lobbying Disclosure Law, pertaining to expense reporting,
provides in part:
§ 13A06. Reporting.
(a) General rule. --A registered principal shall, subject to
the penalties under 18 Pa.C.S. § 4904 (relating to
unsworn falsification to authorities), file quarterly
expense reports with the department electronically
using the computerized filing system developed by the
department that is consistent with the purpose of this
chapter no later than 30 days after the 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
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Page 7
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:
(i) The costs for gifts, hospitalit , transportation and
lodging given to or provideyto State officials or
employees or their immediate families.
The costs for direct communication.
(iii) The costs for indirect communication.
(iv) Ex enses 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.
(2.1) For purposes of filing an expense report under this
subsection a registrant may use any reasonable
methods off' estimation and allocation.
(3) The following apply:
(i) In addition to reporting the totals required under
this subsection, the expense report must identify,
%name, position and each occurrence, a State e
official or employee who receives from a
principal or lobbyist anything of value which must
e included in the statement under section
1105(b)(6) or Q (relating to statement of
financialas implemented by section
1105(d),
(ii) For purposes of this cha ter, the amount
referred to in section 1185(b)(7) shall be
considered an aggregate amount per year.
(iii) For purfoses of this chapter, the amount
refer o in section 11 05(b)(7) shall not include
the cost of a reception which the State official or
employee attends in connection with public office
or employment.
(iv) Written notice must be given to each State
official or employee who is listed in an expense
report under this paragraph at least seven days
dnor to the report's Submission to the
epartment. Notice under this subparagraph
shall include the information which will enable
the State official or emplo�ee to comply with
section 11 05(b�(6) and( ). or purposes 61 this
chapter and hapter 11 (relating to ethics
standards and financial disclosure), section
1105(b)(6) and (7) shall constitute mutually
exclusive categories. For each category
enumerated in paragraph (2)(i), each notice shall
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Rage 83
include both the amount incurred during the
quarter and the cumulative amount incurred from
anuary 1 through the end of the applicable
quarter.
65 Pa.C.S. § 13A05(a)-(b)(3)(iv),
In applying the above provisions to your remaining five questions, you are advised
as follows.
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, A
CLE program offered by PBA would constitute lobbyin 7-M—eprogram would include
effort(s) to influence legislative action or administrative action in Pennsylvania through: (1)
direct communication with State official(s) or employee(s) speaking at or otherwise
attending, participating in, or being provided with materials from the program; (2) indirect
communication, such as where others attending, participating in, or being provided with
materials from the program would be encouraged to take action, the puirpose or
foreseeable effect of which would be to directly influence legislative action or admnistrative
action; and/or (3 the provision of gift(s), hospitality, transportation or lodging to State
official(s) or emp�oyee(s). Cf., McCormick, Opinion 15-1001.
Not everyone who would be considered a "public official" or "public employee" as the
Ethics Act defines those terms would be considered a "State official or employee" as the
Lobbying Disclosure Law defines that term. By definition, State officials or employees are
individuals elected or appointed to positions in State government or, empl%d by State
Mgovernment who are involved in -legislative action or administrative action. 5 Pa.C.S. §
103.
As a registered principal, PBA's provision of free or discounted tuition to State
official(s) or emplo ee(s) to attend a CLE program would constitute lobbying and would be
reportable as gift(s�
/hospitality provided to State officials or employees. The amount of the
free or discounted tuition attributable to attendance at the CLE program itself would be
considered a "gift," and any meals, beverages, recreation or entertainment would constitute
"hospitality." McCormick, supra; 65 Pa.C.S. § 13A03 (definitions of "gift" and "hospitality").
PBA's provision of free or discounted transportation or lodping to State officials or
employees would not be reportable as "gifts" on PBA's quarterly expense reports, but
rather, would be reportable as transportation or lodging. This is because the Lobbying
Disclosure Law's above definition of "gift'" specifically provides that the term does not
include hospitality, transportation or lodging. 65 Pa.C.S. § 13A03.
PBA would be required to report all lobbying expenses associated with CLE
progra (s) on the appropriate quarterly expense report(s). If the CLE program would not
include lobbying other than the provision of gifts, hospitality, transportation or lodging to
State officials or employees then PBA wouldbe required to report the total costs of such
as its lobbying costs for the ALE program. If the CLE rog ram would include lobb �ing in the
form of direct communication or indirect communication, the full cost of the CL program
would be reportable. McCormick, supra.
PBA's expense report(s) must include the total costs of all lobbying for the
'I
casts
Yand allocate such total amount among the three "breakout"categories of:
fT for gifts, hospitality, transportation, and lodging given to or provided to State
6�icials or employees or their immediate families; (2) costs for direct communication; and
Sim son, 19-007/19-1 00�3
ay '2019
Page 9
(3) costs for indirect communication. 65 Pa.C.S. § 13AO5(b)(2).
Free or discounted tuition and any other gifts or free or discounted hospital*t
IT
transportation, or lodgingprovided to State officials or employees with respect to a CL
allocated
provi e
program would be to the category for reporting costs for gifts, hospitality,
ransportation, and lodging given to or rovided to State officials or employees or their
immediate families, Other costs of the CLE program, including but not lim ted to PBA staff
time and expenses incurred in planning the CLE program, would be reported as either
direct communication or indirect communication. The primary goal of the Lobbying
Disclosure Law is to ensure that all lobbying expenses are reported,
and determination of
whether a particular expense falls within direct or indirect communications is secondary.
See, McCormick, supra.
Lastly, your questions have only been addressed under the Ethics Act and the
Lobbying Disclosure Law; the applicabilitof any other statute, code, ordinance, regulation
or other code of conduct other than thethics Act and the Lobbying Disclosure Law has
not been considered.
IV. CONCLUSION:
Based upon the submitted facts that: (1) the Pennsylvania BarAssociation ("PBA")
is a 501 (c.�.(6) non-profit corporation and a principal registered pursuant to Pennsylvania's
lobbying disclosure law ("Lobb ing Disclosure Law"), 65 Pa.C.S. § 13AO1 et Use,; (2) as a
result
isc o t 3 1
of the dissolution of the Onsylvania Bar Institute (a separate 5 3 non-profit
corporation), PBA will soon begin providing statewide continuing legal education ("CLIE")
courses in diverse areas of the law and other topics; (3) PBA plans To invite persons who
are "public officials" and "public e oyees," as those terms are defined in the Public
gmp I
9( t
Official and Employee Ethics Act (Ethics Act"), 65 Pa.C.S. § 1102, to participate in the
CLE programs as faculty members to provide legal education; and (4) PBA's CLE facult
members would be eligible to receive the following from/thrOLIgh PBA free -of -charge: (a�
CLE credit(s) for their sessions, and sometimes additional CLEcredit(s for sessions they
attend but at which they are not presenting; (b) hotel lodging for one or o days before or
during the CLE event; (c) reimbursement of travel costs including, but not limited to cost of
mileage and train tickets; and (d) meals on the day of the CLE session at which tkey are
presenting and sometimes on the night prior to the CLE program, you are advised as
follows.
PBA would not transgress Section 1103(b) of the Ethics Act, 65 Pa.C,S. § 1103(b),
by offering free CLE credits to public officials and public employees who either are or are
not faculty members of such classes as long as there would be no understanding that the
vote, official action or judgment of the public official or public employee would be
influenced thereby.
A CLE program offered by PBA would constitute lobbying if the program would
include efforts) to influence legislative action or administrative action in Pennsylvania
through; (1) direct communication with State official(s) or employee(s) speaking at or
otherwise attending participating in, or being provided with materials from the program, (2)
indirect communication, such as where others attending participating in, or being provided
with materials from the program would be encouraged to take action, the purpose or
foreseeable effect of which would be to directly influence legislative action or administrative
action; and/or (3 the provision of gift(s), hospitality, transportation or lodging to State
official(s) or employees).
As a registered rincipal, PBA's provision of free or discounted tuition to State
officials) oremployee(sM attend a CLE program would constitute lobbying and would be
reportable as gift(s)/hospitality provided to State officials or employees. The amount of the
SlWs19-007119-1003
mavy . M19
Page 16
free or discounted tuition attributable to attendance at the CLE program itself would be
considered a "gift," and any meals, beverages, recreation or entertainment would constitute
"hospitality." PBA's provision of free or discounted transportation or lodging to State
officials or employees would not be reportable as "gifts" on PBA's quarterly expense
reports, but rather, would be reportable as transportation or lodging.
PBA would be required to report all lobbying expenses associated with CLE
progra (s) on the appropriate quarterly expense report(s). If the CLE rn rograwould not
include lobbying other than the provision of gifts, hospitality, transportation or lodging to
State officials or employees, then PBA would be required to report the total costs of such
as its lobbying costs for the CLE program. If the CLE program would include lobbying in the
form of direct communication or indirect communication, the full cost of the CLE program
would be reportable.
PBA's expense report(s) must include the total costs of all lobbying for the
applicable period and allocate such total amount among the three "breakout" categories of:
(1) costs for gifts, hospitality, transportation, and lodging for
to or provided to State
officials or employees or their immediate families; (2) costs or direct communication; and
(3) costs for indirect communication. Free or discounted tuition and any other gifts or free
or discounted hotitality, transportation, or lodging provided to State officials or employees
with respect to a I-Epro ram would be allocated to the category for reporting costs for
gifts, hospitality, transportation, and lodng given to or provided to State officials or
employees or their immediate families. Other GostsoftheCLEpro ram, including but not
limited PBA staff time and expenses incurred in planning the CLE program, would be
reported as either direct communication or indirect communication. 4he primary goal of
the Lobbying Disclosure Law is to ensure that all lobbying expenses are reported, and
determination of whether a particular expense falls within direct or indirect communications
is secondary.
The questions presented have only been addressed under the Ethics Act and the
Lobbying Disclosure Law.
Pursuant to Section 1107(10) of the Ethics Act, 65 Pa.C.S. § 1107(10), the person
who acts in good faith on the Ethics Act portion of this Opinion issued to him shall not be
subject to criminal or civil penalties for so acting provided the material facts are as stated in
the request. Pursuant to Section 13A08(a) of he Lobbying Disclosure Law 65 Pa.C.S. §
13A08(a), a requester who truthfully discloses all material acts in request ?or 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,
Ni oldColafella
Chair
Commissioner Monique Myatt Galloway did not participate in this matter.