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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