HomeMy WebLinkAbout99-1017 CowdenOPINION OF THE COMMISSION
James L. Cowden
Strokoff & Cowden, P.C.
Attorneys at Law
PO Box 11903
Harrisburg, PA 17108 -1903
Before: Daneen E. Reese, Chair
Austin M. Lee, Vice Chair
Julius Uehlein
Louis W. Fryman
John J. Bolger
Frank M. Brown
Susan Mosites Bicket
DATE DECIDED: 10/1/99
DATE MAILED: 10/13/99
99 -1017
Re: Lobbying, Principal, Lobbyist, Administrative Action, Direct Communication, Exempt,
State Employee, Union, Collective Bargaining, Contract.
Dear Mr. Cowden:
This Opinion is issued in response to your advisory request received on August 16,
1999.
I. ISSUE:
Whether collective bargaining by a union representing state employees in seeking
modifications as to wages and benefits constitutes lobbying under the Lobbying Disclosure
Act.
II. FACTUAL BASIS FOR DETERMINATION:
You are a registered lobbyist and Chief Negotiator for the Association of Pennsylvania
State College and University Faculties (APSCUF), which is a certified bargaining agent for
three groups of employees of the Pennsylvania State System of Higher Education (State
System). These groups include teaching faculty, administrative faculty, and other non -
classroom teaching employees such as librarians, and intercollegiate athletic coaches. The
State System was created by Act 188 of 1982 to operate the 14 state -owned universities.
The State System currently receives approximately 40 percent of its operating revenues from
the General Assembly. APSCUF has concluded that its legislative activities constitute
lobbying and has registered for that purpose.
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APSCUF's negotiating team includes approximately eight members who are State
System employees within the APSCUF bargaining units and who are participants in
negotiations during non - working hours. Although these members are not paid for their
services on the negotiating team, they are compensated for their travel, lodging and meals
when they come to Harrisburg for negotiation sessions.
You inquire as to whether collective bargaining constitutes lobbying under Section
1303 of the Lobbying Disclosure Act (Act), 65 Pa.C.S. §1303. You question whether the
General Assembly intended to include collective bargaining within the definition of lobbying.
You acknowledge that as a negotiator on behalf of a union representing state employees,
your role is to persuade the representatives of the state agency to make modifications to
wages, benefit programs and other working conditions, including rules and guidelines under
which work is performed, for the benefit of the union employees. You have enclosed a copy
of the current collective bargaining agreement between APSCUF and the State System.
You request an advisory as to whether your activities as Chief Negotiator of APSCUF
that bargains with the State System are lobbying under the Act, and whether expenses
incurred by APSCUF to bring members to Harrisburg to serve on an unpaid negotiating team
are lobbying expenses.
By letter dated September 10, 1999, you were notified of the date, time, and location of
the public meeting at which your request for an Opinion was to be considered.
At the public meeting on October 1, 1999, Elliot A. Strokoff appeared and offered the
following commentary. The bargaining process is an adversarial one which involves the
flexing of economic power. Collective bargaining is regulated by the Pennsylvania Labor
Relations Board. There are strict accounting requirements under the fair share law. The
collective bargaining process does not seek to make broad changes in administrative policy
but rather to obtain compensation and benefits for a group of employees. Mr. Strokoff
contended that the process of collective bargaining is separate and distinct from lobbying.
III. DISCUSSION: It is initially noted that pursuant to Section 1308(c) of the Act 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. This 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 order to decide the issues which you have raised, we 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 "administrative action" and "direct communication" that are within the definition
of "lobbying" are themselves defined as follows:
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Id.
"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.
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.
Turning to your inquiry relating to negotiations on behalf of certain groups of state
employees for a union contract, the question is simply whether such actions would be
considered lobbying. "Administrative action," as defined above, includes an effort to influence
an agency's development or modification of a guideline or statement of policy. Although the
terms "guideline" and "statement of policy" are not defined in the Act, per the Lobbying
Disclosure Regulations (51 Pa. Code §31.1 (definition, "administrative action "), they are as
defined in 1 Pa. Code §1.4, specifically:
Guideline - A document, other than an adjudication, interpretation or regulation, which
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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.
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.; see also, related definition of "statement of policy" in 45 P.S. §1102.
In applying the Act and the above definitions to your activities as to negotiating a
contract on behalf of state employees, we hold that the actions which you take on behalf of
APSCUF are not encompassed within the definition of administrative action. Your actions are
not an effort to influence administrative action but rather to enter into a specific contract with
the State System on behalf of APSCUF. Since such activity does not constitute lobbying, the
expenses for bringing the members of the negotiating team to Harrisburg are not lobbying -
related expenses.
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.
IV. CONCLUSION:
Collective bargaining by a union representing state employees in seeking
modifications as to wages and benefits does not constitute lobbying 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 opinion of
the Commission issued to the requestor shall not be held liable for a violation of the Act.
This Opinion is a public record and will be made available as such.
Finally, a party may request this Commission to reconsider its Opinion. The
reconsideration request must be received at this Commission within thirty days of the mailing
date of this Opinion. The party requesting reconsideration must include a detailed explanation
of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code
§39.1.
By the Commission,
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Daneen E. Reese
Chair