HomeMy WebLinkAbout99-1502 BonstedtHeinrich O. Bonstedt
Executive Director
Prestressed Concrete Association of Pennsylvania
1042 North Thirty- Eighth Street
Allentown, PA 18104
Re: Lobbying, Principal, Association, Members, Dues, Contribution to Principal, Total
Resources.
Dear Mr. Bonstedt:
ADVICE OF COUNSEL
December 1, 1999
99 -1502
This responds to your letter dated October 25, 1999 by which you requested advice
from the State Ethics Commission.
Issue: Where there are only four members of an association, and each member
contributes an equal share of the dues needed to operate the association such that each
member contributes more than 10 percent of the association's total resources, are the four
members required to be listed in block 19 of the association's expense reports?
Facts: As Executive Director of the Prestressed Concrete Association of
Pennsylvania (PCAP), you seek an advisory from the State Ethics Commission under the
Lobbying Disclosure Act.
PCAP is an industry association representing the prestressed concrete producers
and suppliers to the Pennsylvania Department of Transportation (PennDOT). You state
that primarily, the actions in which PCAP engages are of an administrative nature and
generally involve technical specifications at all levels of PennDOT.
PCAP has only four members. The PCAP members are all of the approved
suppliers of prestressed concrete products to PennDOT.
You inquiry pertains to item 19 of the Quarterly Expense Report which asks for a
listing of any entity that contributes more than 10 percent of the principal's total resources.
Since all four of PCAP's member companies pay an equal share of the dues needed to
operate PCAP, you note that the individual contributions would all exceed the 10 percent
level.
You note that PCAP left item 19 on the Quarterly Expense Report blank for the
reporting cycle for the third quarter of 1999. You request an advisory as to whether the
four member companies of PCAP should be listed in item 19 of PCAP's Quarterly Expense
Reports, and if so, how such a listing may be accomplished given that the form allows for
only one entry. If an attachment is appropriate, you ask how it should be formatted.
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.
It is further initially noted that an opinion /advice may be given only as to prospective
(future) conduct. If the activity in question has already occurred, the Commission may not
issue an opinion /advice. 51 Pa. Code §39.3.
Finally it is noted that you have posed a very narrow inquiry, and that this Advice
assumes that PCAP is a principal subject to the Act.
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.
Bonstedt, 99 -1502
December 1, 1999
Page 3
Id.
(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.
"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.
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.
"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.
As for the substantive provisions to be reviewed, Section 1305(b)(5) of the Act
provides as follows:
§1305. Reporting
Bonstedt, 99 -1502
December 1, 1999
Page 4
(b) Content. --
(5) The expense report shall also include the name,
permanent business address and daytime telephone number
of any individual, firm, association, corporation, partnership,
business trust or business entity which contributed more than
10% of the total resources received by the principal during the
reporting period.
65 Pa.C.S. §1305(b)(5).
The Lobbying Disclosure Regulations provide, in pertinent part:
§ 35.1. Quarterly expense reports.
(g) A quarterly expense report of a principal required to be registered under
the act shall include the following information:
(1) The name, permanent business address and daytime
telephone number of any individual, firm, association,
corporation, partnership, business trust or business entity
which contributed more than 10% of the total resources
received by the principal during the reporting period. "Total
resources" do not include the purchase, transfer, or ownership
of stock in a publicly held corporation.
51 Pa. Code §35.1(g)(1).
In applying the above provisions of law to the facts which you have submitted, it is
clear that factually, each of the four members of PCAP pay an equal share of the dues
needed to operate PCAP, and mathematically, each is paying well in excess of ten percent
of PCAP's total resources. In Roth, Opinion 99 -1006, the Commission held, inter alia, that
Section 1305(b)(5) requires that a principal must identify in its expense report any entity
which contributed more than ten percent of the total resources received by that principal
within the quarter. The Commission stated: "Thus, if one or more of the councils /chapters
belonging to an association would make such a contribution, they would have to be
identified on the expense report of the principal." Id at 6. Accordingly, for each reporting
period in which such contributions would be made to the PCAP by the PCAP members, the
members would have to be listed in block 19 of the PCAP expense report.
As for the practical aspects of listing all four members given that the expense report
form currently provides space for only one source to be listed, you are advised as follows.
The Commission is striving to improve the filing process under the Lobbying
Disclosure Act. In the meantime, to obtain adequate space to list its members, PCAP may
attach to its expense report additional expense report forms, using block 19 of the extra
forms to list the PCAP members /contributors. In attaching the additional forms, PCAP
need not complete the other blocks of the extra forms, but should ensure that the extra
forms are securely appended to the main expense report form.
Bonstedt, 99 -1502
December 1, 1999
Page 5
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: Where there are only four members of an association, and each
member contributes an equal share of the dues needed to operate the association such
that each member contributes more than 10 percent of the association's total resources, in
accordance with Section 1305(b)(5) of the Lobbying Disclosure Act the four members are
required to be listed in block 19 of the association's expense reports for each reporting
period in which such contributions would be made.
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,
Vincent J. Dopko
Chief Counsel