HomeMy WebLinkAbout99-1501 NaumanSpencer G. Nauman, Jr., Esquire
Nauman, Smith, Shissler & Hall, L.L.P.
18th Floor, 200 North Third Street
P.O. Box 840
Harrisburg, PA 17108 -0840
Dear Mr. Nauman:
ADVICE OF COUNSEL
October 13, 1999
99 -1501
Re: Lobbying, Principal, Lobbyist, Legislative Action, Administrative Action, Litigation.
This responds to your letter dated September 10, 1999 by which you requested
advice from the State Ethics Commission.
Issue: Whether a law firm's /attorney's representation of clients before a state
agency in matters determining such clients' rights and obligations under current law would
bring the law firm /attorney within the definition of "lobbyist," requiring registration under the
Lobbying Disclosure Act.
Facts: You /your firm request an advisory from the State Ethics Commission with
recto the applicability of the Lobbying Disclosure Act to you in your representation of
clients before various state agencies.
You cite various news articles as having interpreted "lobbying" to include appearing
before state agencies such as the PUC, the Department of Health, or licensure boards.
However, you state that you do not interpret the definition to include litigation before state
agencies.
You state that your firm represents clients before the Department of Health,
Department of Insurance, Department of Revenue, licensure boards and the PUC in
matters determining your clients' rights and obligations under current law. You ask
whether this activity would constitute "lobbying," requiring the firm or its members to
register under the Lobbying Disclosure Act ( "Act ").
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.
Nauman, 99 -1501
Page 2
In order to decide the issues which you have raised, this Commission must review
the pertinent definitions and substantive provisions of the Act and related Regulations.
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 key terms "legislative action," "administrative action," "direct communication,"
and "indirect communication" that are within the definition of "lobbying" are themselves
defined as follows:
"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 legislation; legislative motions; overriding or
sustaining a veto by the Governor; or confirmation of
appointments by the Governor or of 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 guideline or
a statement of policy; or
(iii) approval or rejection of a regulation.
(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.
"Direct communication." An effort, whether written, oral or
by any other medium, made by a lobbyist or principal, directed
to a State official or employee, the purpose or foreseeable
effect of which is to influence legislative action or
administrative action.
Nauman, 99 -1501
Page 3
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.
"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. The term includes letter- writing
campaigns, mailings, telephone banks, print and electronic
media advertising, billboards, publications and educational
campaigns on public issues. 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.
"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 related terms "guideline" and "statement of policy" must also be considered.
Although such terms are not defined in the Act itself, the Regulations at 51 Pa. Code §31.1
(definition of "administrative action ") adopt definitions set forth in the Administrative Code:
Guideline - A document, other than an adjudication, interpretation or
regulation, which announces the policy an agency intends to implement in
future rulemakings, adjudications or which will otherwise guide the agency in
the exercise of administrative discretion. The document may not amend,
repeal or suspend a published regulation or otherwise effectively
circumscribe administrative choice, but shall establish a framework within
which an agency exercises administrative discretion. If authorized by
statute, the documents may be incorporated into or published as regulations.
The term includes, but is not limited to:
(1) Plans for agency operation and administration which
establish important policies to be utilized in the future exercise
of administrative discretion.
(2) General policies and plans for the award and
administration of discretionary grants of public monies.
(3) Announcements of principles and standards to be applied
in future adjudications.
Nauman, 99 -1501
Page 4
Statement of policy- A document, except an adjudication or a regulation,
promulgated by an agency which sets forth substantive or procedural
personal or property rights, privileges, immunities, duties, liabilities or
obligations of the public or a part thereof. The term includes a document
interpreting or implementing a statute enforced or administered by an
agency. The term includes, but is not limited to, guidelines and
interpretations.
1 Pa. Code § 1.4. (Emphasis added); see also, related definition of "statement of policy" in
45 P.S. §1102.
In applying the above provisions of law to the facts which you have submitted, you
are advised that lobbying and the practice of law are separate, distinct, and mutually
exclusive activities. Chiavetta, Opinion 99 -1003; Artz, Opinion 99 -1007; Flaherty, Opinion
99 -1010.
In Flaherty, supra, the Commission held, inter alia, that representation by a law firm
of a corporate client as to a specific application or enforcement proceedings before a
Commonwealth agency for a specific site would not fall within the definition of
administrative action and would not constitute lobbying, but rather, the practice of law.
The Commission further held that a law firm's advocacy on behalf of its client for a
favorable interpretation of an agency policy in a specific matter involving the client would
constitute the practice of law but not lobbying. Id.
In Artz, Opinion 99 -1019, the Commission held, inter alia, that an attorney
representing a physician or health care client before the Insurance Fraud Division of the
Office of Attorney General regarding alleged fraudulent or illegal activity would constitute
the practice of law, not lobbying.
Finally, in reviewing the definition of "administrative action" and the related
definitions of "guideline" and "statement of policy," it is clear that the term "administrative
action" does not include an agency's action in adjudicating a specific matter as to a
specific person or entity.
Based upon the above Opinions of the Commission and the statutory and regulatory
definitions pertinent to your request, you are advised that your /yourfirm's representation of
clients before the Department of Health, Department of Insurance, Department of
Revenue, licensure boards, and /or the PUC in matters adjudicating your clients' rights and
obligations under current law would not constitute lobbying and would not bring you /your
firm within the definition of "lobbyist" so as to require registration under the Lobbying
Disclosure Act.
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 requestor attorney's /law firm's representation of clients before the
Department of Health, Department of Insurance, Department of Revenue, licensure
boards, and /or the PUC in matters adjudicating such clients' rights and obligations under
current law would not constitute lobbying and would not bring the attorney /firm within the
definition of "lobbyist" so as to require registration under the Lobbying Disclosure Act.
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.
Nauman, 99 -1501
Page 5
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,
Vincent J. Dopko
Chief Counsel