HomeMy WebLinkAbout00-1500 BrownADVICE OF COUNSEL
March 17, 2000
Ellen S. Brown, Counsel
Philadelphia Authority for Industrial Development
2600 Centre Square West
1500 Market Street
Philadelphia, PA 19102 -2126
Dear Ms. Brown:
00 -1500
Re: Lobbying, Principal, Lobbyist, Exempt, Philadelphia Authority for Industrial
Development (PAID).
This responds to your letter received February 14, 2000 by which you requested
advice from the State Ethics Commission.
Issue: Whether the Philadelphia Authority for Industrial Development would be a
"principal" as that term is defined in the Lobbying Disclosure Act, such that the Authority or its
lobbyists would be subject to the registration and reporting requirements of the Lobbying
Disclosure Act.
Facts: As Counsel to the Philadelphia Authority for Industrial Development (PAID), you
request an advisory as to whether PAID would be a "principal" as that term is defined in the
Lobbying Disclosure Act (Act), such that the Authority or its lobbyists would be subject to the
registration and reporting requirements of the Act.
PAID was created pursuant to the Industrial Development Authority Law, currently
known as the Economic Development Financing Law, 73 P.S. §371 et seq. You note that the
Economic Development Financing Law defines an "industrial and commercial development
authority" as "a public instrumentality of the Commonwealth and a body politic and corporate.
. ." 73 P.S. §373. The law provides that such authorities are to be organized by ordinance
of the governmental body of any municipality. 73 P.S. §374. PAID was established by the
Council of the City of Philadelphia. The Mayor of the City of Philadelphia appoints the
Members of the Board of Directors of PAID. You state that PAID exists for the public purpose
of financing and developing industrial, commercial, and other economic activities, and that
PAID performs these activities, including hiring lobbyists, as an agency of the City of
Philadelphia.
You contend that PAID is not within the statutory definition of principal, and that
therefore, neither PAID nor persons who lobby on its behalf are subject to the registration and
filing requirements of the Act. You note that the definition of "principal" does not specifically
include authorities for industrial development. You cite Franklin - Suber, Opinion 99 -1012
(regarding the City of Philadelphia) and Bowers, Opinion 99 -1015 (regarding SEPTA) in
support of your position.
Brown, 00 -1500
March 17, 2000
Page 2
Discussion: It is initially noted that pursuant to Section 1308(c) of the Lobbying Disclosure
Act ( "Act "), 65 Pa.C.S. §1308(c), in conjunction with Sections 7(10) and 7(11) of the Ethics
Act, 65 P.S. § §1107(10), (11), advisories are issued to the requestor based upon the facts
which the requestor has submitted. The Commission does not engage in an independent
investigation of the facts, nor does it speculate as to facts which have not been submitted, in
issuing advisories. It is the burden of the requestor to truthfully disclose all of the material
facts relevant to the inquiry. An advisory only affords a defense to the extent the requestor
has truthfully disclosed all of the material facts.
In considering the questions which you have presented, the following pertinent
definitions from the Act and Lobbying Disclosure Regulations must be reviewed.
Section 1303 of the Act defines "lobbying" as follows:
"Lobbying." An effort to influence legislative action or
administrative action. The term includes:
(1) providing any gift, entertainment, meal, transportation or
lodging to a State official or employee for the purpose of
advancing the interest of the lobbyist or principal; and
(2) direct or indirect communication.
65 Pa.C.S. §1303.
The terms "principal" and "lobbyist" are defined in the statute as follows:
"Principal." Any individual, firm, association, corporation,
partnership, business trust or business entity:
(1) on whose behalf a lobbyist influences or attempts to
influence an administrative action or a legislative action; or
(2) that engages in lobbying on the principal's own
behalf.
Id.
"Lobbyist." Any individual, firm, association, corporation,
partnership, business trust or business entity that engages in
lobbying on behalf of a principal for economic consideration.
The term includes an attorney who engages in lobbying.
The Lobbying Disclosure Regulations define "political subdivision" as it is defined in
section 1102 of the Pennsylvania Public Official and Employee Ethics Act (Ethics Act)(see, 51
Pa. Code §31.1):
"Political subdivision." Any county, city, borough, incorporated town,
township, school district, vocational school, county institution district, and any
authority, entity or body organized by the aforementioned.
65 Pa.C.S. §1102 (Emphasis added).
In applying the above provisions of law to the facts which you have submitted, it is
clear, through a straightforward application of the definition of "political subdivision," that
PAID is a political subdivision.
Brown, 00 -1500
March 17, 2000
Page 3
Political subdivisions are not "principals" under the Act. See, Bowers, Opinion 99-
1015 (SEPTA); Veraldi, Opinion 99 -1013 (The Port Authority of Allegheny County); Franklin -
Suber, Opinion 99 -1012 (City of Philadelphia); Beaty, 00 -1005 (Pennsylvania Local
Government Investment Trust). Additionally, political subdivisions are not "lobbyists" under
the Act. Beaty, supra.
Thus, PAID is not a principal under the Act.
To the extent that PAID officials /employees would act in an official capacity on behalf
of PAID, such individuals would not be subject to the registration or reporting provisions of the
Act. Section 1306(4)(iii) of the Act provides an exemption as to elected /appointed officials or
employees of a political subdivision when acting in an official capacity. See, Bowers, supra;
Veraldi, supra; Franklin - Suber, supra.
Those contracting with PAID to perform activities which would otherwise constitute
lobbying would not be "lobbyists" and would not be subject to the registration and reporting
requirements of the Act as to such activities solely relating to PAID. See, Bowers, supra;
Veraldi, supra; Franklin - Suber, supra. Since PAID is not a principal, an individual or entity
under contract with PAID may not be a lobbyist under the Act as to that particular work
because there is no principal.
The propriety of the proposed conduct has only been addressed under the Act and
derivatively the Ethics Act to the extent applicable; the applicability of any other statute, code,
ordinance, regulation or other code of conduct has not been considered in that they do not
involve an interpretation of the Act.
Conclusion:
The Philadelphia Authority for Industrial Development (PAID) is not a principal under
the Lobbying Disclosure Act (Act). PAID employees acting in an official capacity are not
subject to the registration and reporting requirements of the Act. Those under contract with
PAID to perform activities which would otherwise constitute lobbying would not be "lobbyists"
and would not be subject to the registration and reporting requirements of the Act as to such
activities solely relating to PAID.
Pursuant to Section 1308 of the Act, a requestor 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 requestor shall not be held liable for a violation of
the Act.
This Advice 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 actually received at
the Commission within thirty (30) days of the date of this Advice pursuant to
51 Pa. Code §13.2(h). The appeal may be received at the Commission by
hand delivery, United States mail, delivery service, or by FAX transmission
(717 - 787 - 0806). Failure to file such an appeal at the Commission within
thirty (30) days may result in the dismissal of the appeal.
Sincerely,
Brown, 00 -1500
March 17, 2000
Page 4
Vincent J. Dopko
Chief Counsel