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HomeMy WebLinkAbout20-1001 SimpsonPHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: wwwethics,pa,goy 613 NORTH STREET ROOM 309 HARRISBURG, PA 17120-0400 OPINION OF THE COMMISS10"'AN Before: Nicholas A. Colafella, Chair Mark R. Corrigan, Vice Chair Roger Nick Melanie DePalma Michael A. Schwartz DATE DECIDED: 12/1/20 DATE MAILED: 12/2/20 To the Requester: 20-1001 Barry M, Simpson, Esquire Executive Director Pennsylvania Bar Association Dear Mr. Simpson: This Opinion is issued in response to your letter dated November 2, 2020, by which you requested an advisory opinion from the Pennsylvania State Ethics Commission ("Commission"). i 6111-111:5 Whether the Pennsylvania Bar Association's provision of continuing legal education ("CLE") credit to a public official/public employee for the teaching of a CLE course would be reportable on the Pennsylvania bar ssociationIs quarterly expense report filed pursuant to Pennsylvania's lobbying disclosure law (the "Lobbying Disclosure Law"), 65 Pa.C.S. § 13A01 et seg. 11. FACTUAL BASIS FOR DETERMINATION: By letter dated November 2, 2020, you have requested an advisory opinion on behalf of the Pennsylvania Bar Association ("PBA"). It is noted that you previously �ously requested and received an Opinion from this Commission on behalf of PBA, specifically, Simpson, Opinion 19-007/19-1003, issued May 28, 2019. PBA is a 501 (c��6) non-profit corporation and a principal re istered pursuant to the Lobbying Disclosure aw. Additionally, PBA is aTrovider of CLE courses on various topics. You state that PBA invites public officials an public employees to serve as faculty members for its CLE courses. You state that such faculty members work many hours to prepare for and teach a CLE course. As a result of teaching a CLE course, faculty can receive CLE credit for said course, which applies toward meeting that attorney's annual Simpson, 20-1001 December 2, 2020 Page 2 CLE requirement. Based upon the above submitted facts, you ask whether PBA's provision of CLE credit to a public officiallpublic employee for teaching a CLE course would be reportable on PBA's quarter) expense report filed pursuant to the Lobbying Disclosure Law (see, 65 Pa.C.S. § 13AO5), in particular, as a "gift." You contend that PBA's provision of such CLE credit would not constitute a "gift" as the Lobbying Disclosure Law defines that term, 65 Pa.C.S. § 13A03, based upon your assertions that: (1) it would be "consideration" provided in exchange for the faculty member preparing for and teaching the course; and (2) as consideration acceptable to the parties, its actual value would not be relevant to an analysis of your question. By letter dated November 16, 2020, you were notified of the date, time and location of the public meeting at which your request would be considered. At the public meeting on December 1, 2020, Ashley Murphy, Esquire, Legislative Counsel for PBA, appeared for the purpose of answering any questions of the Commission. Attorney Murphy stated that if CLE credit provided by PBA to PBA faculty would be considered a "gift,' there would be a negative impact on PBA's ability to secure faculty from among persons serving in public positions. III. 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 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 he 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 truthfullyy 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. It is also initially noted that the term "course" as used by this Commission in this advisory Opinion refers to a single CLE session, and the term "CLE program" as used by this Commission in this advisory Opinion refers to a CLE event consisting of one or more courses. The following definitions set forth in the Lobbying Disclosure Law are relevant to your inquiry: § 13A03. 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) 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. Simpsoonn, 20-1001 eD cember 2, 2020 Page 3 "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. "Administrative action." Any of the following: (1) An agency's: (i) proposal, consideration, promulgation or rescission of a regulation, (ii) development or modification of a statement of policy; (iii) approval or rejection of a regulation; or (iv) procurement of supplies, services and construction under 62 Pa.C.S. (relating to procurement). (2) The review, revision, approval or disapproval of a regulation under the act of June 25, 1982 (P.L.633, 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. "State official or employee." An individual elected or appointed to a position in State government or employed by State government, whether compensated or uncompensated, who is involved in le islative action or administrative action. "Gift." Anvthinq which is received without consideration of equal or greater value. The term shall not include a political contra ution otherwise reportable as required by law or a commercially reasonable loan made in the ordinary course of business. The term shall not include hospitality, transportation or lodging. Sim son, 20-1001 December 2, 2020 Page 4 65 Pa.C.S. § 13A03 (Emphasis added). Section 13A05 of the Lobbying Disclosure Law, pertaining to expense reporting, requires a registered principal to electronically file with the Pennsylvania Department of State either a quarterly expense report or a statement of failure to meet the reporting threshold for each quarter it has been registered as a principal, by no later than the 30111 day after each quarterly reporting period has ended. 65 Pa.C.S. § 13A05(a), (d); 51 Pa. Code § 55.1(d). Section 13A05(b) of the Lobbying Disclosure Law provides, in part: § 13A05. Reporting. (b) Content.-- (�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 immediate families. The costs for direct communication. (iii) 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. (2.1) For purposes of filing an expense report under this subsection, a registrant may use any reasonable methods of estimation and allocation. 65 Pa.C.S. § 13A05(b)(2), (2.1). In considering the question that you have posed, we shall first address the nature of PBA's provision of CLE credit to PBA faculty members. As noted above, you contend that it is `consideration" rovided in exchange for the faculty member preparing for and teaching the course, anthatas consideration acceptable to the parties, its actual value would not be relevant to an analysis of your question. However, given that the Lobbying Disclosure Law expressly defines the term "gift," in pertinent part, as "[a]nythin which is received without consideration of equal or greater value," 65 Pa.C.S. § 13A03 emphasis added), the necessary conclusion is that for purposes of the Lobbying Disclosure Law, value would be an essential factor when determining whether something characterized as consideration would be considered a "gift" under the Lobbying Disclosure Law. CLE credit itself is not a gift from PBA. Attorneys must earn CLE credit, and the Pennsylvania Continuing Legal Education Board ("CLE Board"), not PBA, awards CLE credit. What PBA provides is the processing of CLE paperwork with the CLE Board and payment to the CLE Board of $1.50 per CLE credit hour or portion thereof, the value of Sim soon, 20-1001 e© camber 2, 2020 Page 5 which clearly would fall far short of the value of an attorney faculty member's work in preparing for and teaching a PBA course. We conclude that for purposes of the Lobbying Disclosure Law, PBA's processing of CLE paperwork and payment of $1.50 per CLE credit hour or portion thereof for an attorney faculty member for the specific course(s) taught by that attorney would not be considered a "gift" as the Lobbying Disclosure Law defines that term. Rather, it would be payment of an expense related to the teaching of a course, and as such, would not constitute lobbying but would be reportable as part of the cost of a CLE program that would include lobbying. If PBA would pay for CLE credit for a State official or employee for course(s) not taught by the State official or employee, such would constitute a "gift" as the Lobbying Disclosure Law defines that term. An effort to influence legislative action or administrative action in Pennsylvania through the provision of one or more gifts to one or more State officials or employees would constitute lobbying. See, Simpson, Opinion 19-007119-1003; cf., McCormick, Opinion 15-1001. Lastly, your question has only been addressed under the Lobbying Disclosure Law. Based upon the submitted facts that: (1) the Pennsylvania Bar Association ("PBA") is a 501(c)(6) non-profit corporation and a principal registered pursuant to Pennsylvania's lobbying disclosure law ("Lobbying Disclosure Law" , 65 Pa.C.S. § 13A01 et seq.; (2) PBA is a provider of continuing legal education ("CLE") courses on various topics; (3) PBA invites public officials and public employees to serve as faculty members for its CLE courses; (4) such faculty members work many hours to prepare for and teach a CLE course; and (5) as a result of teaching a CLE course, faculty can receive CLE credit for said course, which applies toward meeting that attorney's annual CLE requirement, you are advised as follows. The term "course" as used by this Commission in this advisory Opinion refers to a single CLE session, and the term "CLE program" as used by this Commission in this advisory Opinion refers to a CLE event consisting of one or more courses. For purposes of the Lobbying Disclosure Law, PBA's processing of CLE paperwork and payment of $1.50 per CLE credit hour or portion thereof for an attorney faculty member for the specific course(s) taught by that attorney would not be considered a "gift" as the Lobbying Disclosure Law defines that term. Rather, it would be payment of an expense related to the teaching of a course, and as such, would not constitute lobbying but would be reportable as part of the cost of a CLE program that would include lobbying. If PBA would pay for CLE credit for a State official or employee for course(s) not taught by the State official or employee, such would constitute a "gift" as the Lobbying Disclosure Law defines that term. An effort to influence legislative action or administrative action in Pennsylvania through the provision of one or more gifts to one or more State officials or employees would constitute "lobbying." This Opinion is limited to addressing the single question posed under the Lobbying Disclosure Law. Simpson 20-1001 eD cember 2, 2020 Page 6 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 thp Commission, Nic olas A. Colafella Chair Commissioner Shelley Y. Simms did not participate in this matter. ,JR