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HomeMy WebLinkAbout19-007/19-1003 SimpsonPHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800.932-0936 FINANCE BUILDING WEBSJTE: wwwethic. pagov ftinics 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 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 may 2019 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 I 191-5-y-'No 2019 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 M a Vy 1 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; WS'l M F19-007/19-1003 5-yy-1 V� 0 19 Page 5 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 # I , 0 1 1 fill Ria 1, 019 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 MI son, 19-007/19-11003 ay W'2019 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 Sisoon„ 19-007/19-100 aN1019 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.