Loading...
HomeMy WebLinkAbout99-1002 GatesOPINION OF THE COMMISSION 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: 8/31/99 DATE MAILED: 9/14/99 99 -1002 David Gates The Pennsylvania Health Law Project 20 N. Market Square, 3rd Floor Harrisburg, PA 17101 -1632 Re: Lobbying, Principal, Lobbyist, Legislative Action, Administrative Action, Pennsylvania Developmental Disabilities Council, Grant, Direct Communication, Indirect Communication, Disability, Economic Consideration, Pennsylvania Health Law Project. Dear Mr. Gates: This Opinion is issued in response to your advisory request received on July 29, 1999. I. ISSUE: Whether an entity, that receives a grant from a state agency for use in assisting people with developmental disabilities as to health and related services, is a principal or lobbyist subject to the provisions of the Lobbying Disclosure Act. II. FACTUAL BASIS FOR DETERMINATION: Pennsylvania Health Law Project (PHLP) obtained a grant from the Pennsylvania Development Disabilities Council (PDDC), an independent State agency established by Executive Order of the Governor to implement a federal statute, the Developmental Disabilities Assistance and Bill of Rights Act. PDDC is housed for administrative purposes within the Department of Public Welfare (DPW). As per a grant from PDDC, PHLP undertakes certain activities which may meet the definitions of "direct communication" and "indirect communication" under the Lobbying Disclosure Act (Act). PHLP never provides any gift, entertainment, meal, transportation or Gates, 99 -1002 Page 2 lodging to any State official. PDDC neither directs PHLP's activities, nor specifies legislative provisions or administrative policies to be adopted. PHLP does not undertake direct or indirect communications with legislators or administrative officials for PDDC. Further, PDDC is not the direct beneficiary of PHLP's activities. The beneficiaries who are served without charge are those members of the general public with developmental disabilities who seek health or related services. You believe your status under the Act turns upon an interpretation of on behalf of" in the statutory definition of "`lobbyist. You do not know whether you undertake such activities on behalf of" PDDC which provides economic consideration for the activities. You believe that if your activities are on behalf of" a segment of the general public, PHLP would not be a lobbyist because the public does not provide it with "economic consideration ". You have submitted a copy of a 5 page grant document which consists of a cover sheet and 4 -page rider, identified as "Contract Number 930861490 -1," which document is incorporated herein by reference. The grant is from DPW /PDDC to PHLP and is the third year renewal of a prior grant. The rider is the work plan for the grant, and covers the period from April 1, 1999 through March 31, 2000. The work plan is an overview of multi- faceted efforts to be performed under the grant, on matters relating to persons with disabilities including: (1) "HealthChoices," the new mandatory managed care program for people on Medical Assistance, and implementing regulations that are to be drafted by the Department of Health; (2) the development of proposals to expand the Children's Health Insurance Program; (3) proposed new DPW guidelines for "wraparound" behavioral health services for children with mental illness and behavioral disorders; (4) access to transportation for medical purposes under the Medical Assistance Transportation Program; (5) expanding consumer options for personal assistance services; and (6) empowerment of consumers with developmental disabilities through education, responding to requests for individual assistance, and the encouragement and facilitation of consumer /family involvement. The specific efforts to be made by PHLP under the work plan include: (1) directly contacting key staff in the Department of Health to raise the concerns of persons with disabilities as to regulations that the Department will be drafting; (2) working with disabilities organizations to provide formal comments to regulations; (3) meeting directly with the Deputy Secretary of the Office of Social Programs to raise and address issues regarding the Medical Assistance Transportation Program; (4) informing and working with parent groups to ensure that the voices of families are heard by DPW in making and implementing guidelines /policies; (5) facilitating input from the disabilities community to the Committee on Assisted Living of the Governor's Long Term Care Advisory Council, through the Executive Director of PHLP who serves as Chair of that Committee; (6) working with disabilities groups and child health groups to develop proposals for expanding the Children's Health Insurance Program; (7) assisting consumer organizations in advocating for quality care in community -based settings; (8) ensuring consumer access to needed services in settings of choice by advocating directly with the State, and by advising and representing individuals, working with disabilities groups, and serving as Counsel to the Consumer Subcommittee of the Medical Assistance Advisory Committee; (9) educating consumers, their families, and consumer groups as to consumer rights, the impact of decisions about future health care policies, and changes or proposed changes in laws, policies, or practices affecting health care and related services; and (10) informing consumers and family members of concrete opportunities to be heard by policy makers, such as contacting State officials, testifying at public hearings, and participating in meetings with government officials. Given the nature of PHLP's work and the fact that its funding comes from a state agency which is not its client, PHLP requests an advisory as to whether it is a "lobbyist" as Gates, 99 -1002 Page 3 defined in §1303 of the Act. By letter dated August 9, 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. On August 20, 1999, the Commission received your Brief, in which you presented the following points. PHLP in a grant from PDDC has the following purpose: To ensure that Pennsylvanians with developmental disabilities receive the financing for health care supports and the level, scope and quality of services they need in settings they choose." Although PHLP undertakes activities which constitute direct and indirect communication, you do not consider PHLP a lobbyist because its activities are not done on behalf of a principal for economic consideration. PHLP receives a grant from PDDC which, as an agency of the Commonwealth, cannot be a principal. Further, since the beneficiaries of your advocacy are people with developmental disabilities, such people cannot be principals in your view. You conclude that since PHLP does not meet the definition of lobbyist, the Act does not apply to such activities involving grants from Commonwealth agencies. At the public meeting on August 30, 1999, you appeared and offered commentary, which may be fairly summarized as follows. PHLP, a non - profit corporation, receives funding for other activities such as providing direct legal representation of clients or certain groups. Although you concede that you engage in lobbying as a PHLP salaried employee, you argue that such activity is not on behalf of a principal for economic consideration. You restate that PDDC cannot be a principal because it is an arm of the Commonwealth. You assert that PHLP is not a principal on the theory that its activities are not on its own behalf but for people who have developmental disabilities. In your view, there is no benefit to PHLP in that no new business or dues paying members are sought. You conclude that PHLP cannot be a principal because its activities are not on behalf of itself. 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, 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. Gates, 99 -1002 Page 4 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: (1) 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. "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. Gates, 99 -1002 Page 5 65 Pa. C. S. 1303. Id. The term "principal" is 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. The term "lobbyist" is defined in the statute as follows: "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 issue before us is whether any of the above entities or individuals is a principal or lobbyist(s). PDDC is an independent State agency established by a Gubernatorial Executive Order. Generally, the Commonwealth or a political subdivision cannot be a "principal" or a "lobbyist" within the definitions of those terms as set forth in the Act, although we reserve for another time the consideration of such entities that are created as corporations. In this case, it is clear that PDDC is neither a principal nor a lobbyist, because it does not fall within any of the forms of entities enumerated in the definitions of those terms. Although PDDC is not within the definition of "lobbyist" or "principal," PHLP is clearly a principal. PHLP is within the forms of entities enumerated in the first part of the definition, in that it is a corporation. PHLP is also within the second part of the definition which sets forth the types of activities in which a principal engages. PHLP engages in such activities, both as an entity and through its staff who are lobbyists, because it attempts to influence administrative and legislative action on its own behalf. The PHLP workplan submitted to DPW /PDDC outlines PHLP's objectives. Those objectives include engaging in activities that constitute administrative action as that term is defined under the Act. Specifically, the workplan references action as to agency regulations, guidelines, and policies. To the extent that PHLP /PHLP staff have contacts with state agency personnel about such matters, such activities constitute direct communications as to administrative action. Further, PHLP's activities involve indirect communication when it engages in an effort to encourage others to take action, the purpose or foreseeable effect of which would be to directly influence legislative or administrative action. PHLP contends that it cannot be a principal because the beneficiaries of its efforts are people with developmental disabilities. We disagree with that theory. While we do recognize the benefits of the lobbying efforts to a significant segment of our community, specifically those with such disabilities, the fact that such others are benefitted does not mean that PHLP is not engaging in the lobbying activities on its own behalf. To the contrary, PHLP has applied for and received a grant to perform a certain mission and is acting to fulfill that mission. Hence, the lobbying by PHLP is pursuant to its own stated Gates, 99 -1002 Page 6 mission. PHLP falls within the definition of principal under the Act. Accordingly, if PHLP's total expenses for lobbying would exceed $2500 in any quarter, PHLP, as a principal, would be subject to the registration and reporting requirements of the Act. Further, those staff members of PHLP whose compensation for lobbying would exceed $2500 in any quarter would be required to register as lobbyists, to the extent they would not otherwise qualify for exemption under Section 1306 of the 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. IV. CONCLUSION: An entity that applies for and receives a grant from a state agency to perform a mission which includes engaging in influencing legislative or administrative action as to the disabled through direct or indirect communication would be a "principal" and would be subject to the provisions of the Lobbying Disclosure Act. As a principal, the entity would be required to register and file reports pursuant to the Lobbying Disclosure Act if its total lobbying expenses would exceed $2500 in any quarter. Entity staff members whose compensation for lobbying would exceed $2500 in any quarter would have to register as lobbyists, to the extent they would not otherwise qualify for an exemption under Section 1306 of 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, Daneen E. Reese Chair