Loading...
HomeMy WebLinkAbout20-1500 SailhamerPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: Brent A. Sailhamer Dear Mr. Sailhamer: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov ADVICE OF COUNSEL April 30, 2020 20-1500 This responds to your letters dated January 30, 2020, and February 12, 2020, and your email of February 20, 2020, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether an individual who is a former registered lobbyist and current employee of the Pennsylvania Infrastructure Investment Authority ("PENNVEST") would have a conflict of interest under Section 13A07(d)(1) of Penns Ivania's lobbying disclosure law ("Lobbying Disclosure Law"), 65 Pa. .S. § 13A07(d) 1), with regard to lobbying for PENNVEST in light of his former lobbying activities, where: (1) Section 13A07(d)(1) of the Lobbying Disclosure Law only applies to registrants; (2) the individual is no longer a registrant; and (3) as a PENNVEST employee whose lobbbying activities are performed in an official capacity and exclusively on behalf of PENNVEST, the individual is exempt from the registration requirements of the Lobbying Disclosure Law. Facts: You request an advisory opinion under the Lobbying Disclosure Law. You submitted facts, the material portion of which may be fairly summarized as follows. In August of 2019, you accepted your current employment position as a Media and Legislative Affairs Specialist with PENNVEST. As a Media and Legislative Affairs Specialist with PENNVEST, you are an employee of the Commonwealth of Pennsylvania and your job duties and responsibilities include lobbying for PENNVEST. Prior to becoming a PENNVEST/Commonwealth employee, you were registered as a lobbyist in Pennsylvania for the January 1, 2019-December 31, 2020, registration period. During the time period from January of 2019 until July of 2019, you represented as a lobbyist the Keystone chapter of the Associated Builders & Contractors, and in particular, you advocated in support of Senate Bill 104 and House Bill 373 pertaining to the use of project labor agreements by public entities. Neither Senate Bill 104 nor House Bill 373 has become law. You state that you are no longer a registrant, having terminated your status as a registered lobbyist. You state that you do not represent any principals other than Sailhamer, 20-1500 April 30, 2020 Page 2 PENNVEST and you have not filed any supplementary employment request to perform work for any other entity. Based upon the above, you ask whether, pursuant to the Lobbying Disclosure Law, your previous lobbying activities would present a conflict with your current duties or responsibilities as a Media and Legislative Affairs Specialist with PENNVEST. It is administratively noted that PENNVEST was statutorily established by the Pennsylvania Infrastructure Investment Authority Act, P.L. 82, Act 168-16. See, 35 P.S. 751.1 et sec.. PENNVEST is a body corporate and politic and an instrumentality of the ommonwealth of Pennsylvania. 35 P.S. § 751.4. Discussion: It is initially noted that pursuant to Section 13A08(a) of the Lobbying Disclosure Law, 65 Pa.C.S. § 13A08(a), in conjunction with Sections 1107(10) and 11 0711 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, the 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 truthfull 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 truth ully disclosed a I of the material facts. Having terminated your status as a registered lobbyist, you are no longer a "registrant" as the Lobbying Disclosure Law defines that term: § 13A03. Definitions. "Registrant." A registered lobbyist, registered lobbying firm or registered principal. 65 Pa.C.S. 13A03. See also, the Lobbying Disclosure Regulations, 51 Pa. Code § 51.1 (definition of "registrant"). Additionally, as a PENNVEST/Commonwealth employee whose lobbying activities are performed in an official capacity and exclusively on behalf of PENNVEST, you are exempt from the registration requirements of the Lobbying Disclosure Law: § 13A06. Exemption from registration and reporting. The following persons and activities shall be exempt from registration under section 13A04 (relating to registration) and reporting under section 13A05 (relating to reporting): (10) An employee of the Commonwealth or an agency of the commonwealth who is acting in an official capacity for the Commonwealth or agency. 65 Pa.C.S. § 13A06(10). See also, the Lobbying Disclosure Regulations, 51 Pa. Code § 57.2(a)(7); cf., Staffieri, Opinion 07-1002. On its face, the conflict of interest restriction of Section 13A07(d)(1) of the Lobbying Disclosure Law only applies to registrants: § 13A07. Prohibited activities. (d) Conflicts of interest.-- Sailhamer, 20-1500 April 30, 2020 Page 3 (1) Except as permitted by paragraph (2), a registrant may not to by on behalf of a principal on any subject matter in which the principal's interests are directly adverse to the interests of another principal currently represented by the lobbyist or previously represented by the lobbyist during the current session of the General Assembly or the lobbyist's own interests. 65 Pa.C.S. § 13A07(d)(1) (Emphasis added). Because you are not a registrant and are exempt from the registration requirements of the Lobbying Disclosure Law, the conflict of interest restriction of Section 13A07(d)(1) of the Lobbying Disclosure Law currently does not apply to you. Based upon the above, you are advised that pursuant to the Lobbying Disclosure Law, your previous lobbying activities would not present a conflict with yyour current duties or responsibilities as a Media and Legislative Affairs Specialist with PENNVEST. Lastly, the request for an advisory has only been addressed under the Lobbying Disclosure Law and derivatively, the Ethics Act to the extent applicable. Conclusion: Based upon the submitted facts that: (1) in August of 2019, you accepted your current employment position as a Media and Legislative Affairs Specialist with the Pennsylvania Infrastructure Investment Authority ("PENNVEST"); (2) as a Media and Legislative Affairs Specialist with PENNVEST, you are an employee of the Commonwealth of Pennsylvania and your job duties and responsibilities include lobbying for PENNVEST; (3) prior to becoming a PENNVEST/Commonwealth employee, you were registered as a lobbyist in Pennsylvania for the January 1, 2019-December 31, 2020, registration period; (4) during the time period from January of 2019 until Jul yy of 2019, you represented as a lobbyist the Keystone chapter of the Associated Builders & Contractors, and in particular, you advocated in support of Senate Bill 104 and House Bill 373 pertaining to the use of project labor agreements by public entities; (5) neither Senate Bill 104 nor House Bill 373 has become law; (6) you are no longer a registrant, having terminated your status as a registered lobbyist; (7) you do not represent any principals other than PENNVEST; and (8) you have not filed any supplementary employment request to perform work for any other entity, you are advised as follows. Having terminated your status as a registered lobbyist, you are no loner a "registrant" as Pennsylvania's lobbying disclosure law "Lobbying Disclosure Law"), 65 Pa.C.S. § 13A01 et sec.., defines that term. 65 Pa.C.S. § 13A03. See also, the Lobbying Disclosure Regulations, 51 Pa. Code § 51.1 (definition of "registrant"). Additionall , as a PENNVEST/Commonwealth employee whose lobbying activities are performedyin an official capacity and exclusively on behalf of PENNVEST, you are exempt from the registration requirements of the Lobbying Disclosure Law. 65 Pa.C.S. § 13A06(10). On its face, the conflict of interest restriction of Section 13A07(d)(1) of the Lobbying Disclosure Law, 65 Pa.C.S. § 13A07(d)(1), only applies to registrants. because you are not a registrant and are exempt from the registration requirements of the Lobbying Disclosure Law, the conflict of interest restriction of Section 13A07(d)(1) of the Lobbying Disclosure Law, 65 Pa.C.S. § 13A07(d)(1), currently does not apply to you. Therefore, you are advised that pursuant to the Lobbying Disclosure Law, your previous lobbying activities would not present a conflict with your current duties or responsibilities as a Media and Legislative Affairs Specialist with PENNVEST. The request for an advisory has only been addressed under the Lobbying Disclosure Law and, derivatively, the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1101 et seq., to the extent applicable. Sailhamer, 20-1500 April 30, 2020 Page 4 Pursuant to Section 13A08(a) of the Lobbying Disclosure Law, 65 Pa.C.S. § 13A08(a)I a requester who truthfully discloses all material facts in a request for an advisory and who acts in good faith based upon a written Advice or Opinion of the Commission issued to the requester shall not be held liable for a violation of the Lobbying Disclosure Law. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actuaII14 received at the Commission within thirt (30 days of the date o this vice pursuant to 51 Pa. Code j 13.2h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission f717-787-0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, 5647-,- Robin M. Hittie Chief Counsel