Loading...
HomeMy WebLinkAbout99-1002-R GatesOPINION OF THE COMMISSION David Gates The Pennsylvania Health Law Project 20 N. Market Square, 3rd Floor Harrisburg, PA 17101 -1632 Dear Mr. Gates: 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- 1002 -R Re: Reconsideration, Gates, 99 -1002, Lobbying, Principal, Lobbyist, Pennsylvania Developmental Disabilities Council, Grant, Direct Communication, Indirect Communication, Disability, Economic Consideration, Pennsylvania Health Law Project. This Opinion is issued in response to your timely request for reconsideration of Gates, Opinion No. 99 -1002. I. ISSUE: Whether this Commission should grant reconsideration of Gates, Opinion No. 99 -1002. II. FACTUAL BASIS FOR DETERMINATION: This matter initially arose from your advisory request received on July 29, 1999 which resulted in Gates, Opinion No. 99 -1002 issued September 14, 1999. In that Opinion, we determined that the Pennsylvania Health Law Project (PHLP) is a "principal" under the Lobbying Disclosure Act (Act) since it had applied for and received a grant from the Pennsylvania Developmental Disabilities Council (PDDC) to perform a mission which includes engaging in an effort to influence legislative or administrative action as to the disabled through direct or indirect communication. We further concluded that the PHLP or its staff members would be subject to registration and reporting requirements if the applicable thresholds would be met. You timely submitted a request for reconsideration of Gates, Opinion No. 99 -1002, arguing that the Commission made a material error of fact in concluding that the lobbying of PHLP is pursuant to its own stated mission," and an error of law in concluding that the PHLP WorkPlan indicates that the lobbying activities undertaken by the PHLP staff pursuant to the PDDC Council grant are on behalf of PHLP itself. Gates, 99- 1002 -R Page 2 As for the first assignment of error, you contend that PDDC, a governmental agency, establishes the mission which drives PHLP's lobbying activities. After referring to specific portions of PDDC's Request for Proposals (RFP) which set forth the mission, goals, objectives, and minimum required activities, you argue that PHLP is acting to fulfill PDDC's mission, rather than its own. As for the second assignment of error, you contend that the WorkPlan that PHLP had to submit as part of its proposal merely implements PDDC's goals, objectives and minimum required activities. You state that the lobbying activities undertaken by the PHLP staff are on behalf of PDDC which, as Gates, Opinion No. 99 -1002 concedes, is neither a principal nor a lobbyist." You challenge our interpretation of the phrase on behalf of, "noting that PHLP staff do not engage in such activities as "rais[ing] the concerns of persons with disabilities as to regulations that the Department [of Health] will be drafting" for PHLP's own benefit. You state that PHLP is not an organization whose members stand to benefit from the policies for which PHLP may be advocating as it has no financial stake in those policies. You maintain that without the direct connection between the policies for which PHLP advocates and PHLP's organizational interests, PHLP's advocacy activities cannot be on its own behalf. Finally, you disagree with our Opinion which in your view suggests that PHLP's acceptance of the grant from PDDC is the benefit that PHLP stands to gain by engaging in the advocacy activities set forth in the PDDC grant. You claim that such an interpretation would dissolve the distinction between a lobbyist and principal under the Act. You assert that every lobbyist stands to gain financially by taking a contract to lobby and that acceptance of a fee does not turn a lobbyist into a principal. You contend that what makes an organization a principal is the connection between the policies being advocated and the organization's or member's interests. You assert that such a connection does not exist in your situation so that PHLP does not lobby on its own behalf. You conclude that PHLP is not a principal as defined by Section 1303 of the Act. III. DISCUSSION: We have been asked to reconsider Gates, Opinion 99 -1002. This Commission may exercise broad discretion in determining whether to grant or deny reconsideration as long as such discretion is exercised in a sound manner. Krane, Opinion 84- 001 -R; PSATS v. State Ethics Commission, 499 A.2d 735 (1985). The Regulations of this Commission set forth procedures which are to be followed as to advices and opinions issued under the Lobbying Disclosure Act (see, Lobbying Disclosure Regulations, 51 Pa. Code §39.1). The pertinent Regulations provide: §13.3. Opinions. (d) Reconsideration may be granted in the discretion of the Commission under §21.29(e). §21.29. Finality; reconsideration. (b) Any party may ask the Commission to reconsider an order or opinion within 30 days of service of the order or opinion. The requestor shall present a detailed explanation setting forth the reason why the order or opinion should be reconsidered. (c) A request for reconsideration filed with the Commission will delay the public release of an order, but will not suspend the final order unless reconsideration is granted by the Commission. Gates, 99- 1002 -R Page 3 (d) A request for reconsideration may include a request for a hearing before the Commission. (e) Reconsideration may be granted at the discretion of the Commission if: (1) A material error of law has been made. (2) A material error of fact has been made. (3) New facts or evidence are provided which would lead to reversal or modification of the order or opinion and if these could not be or were not discovered by the exercise of due diligence. 51 Pa. Code § §13.3(d); 21.29(b), (c), (d), (e). If the above criteria are met by the requestor, this Commission has the discretion to grant reconsideration. If the above criteria are not met, this Commission does not have such discretion. We must now determine whether you have met the above criteria. Since we conclude that there has been no material error of law or fact, your request for reconsideration must be denied. As for your claim that there has been a material error of fact, we must disagree. We do not believe that PHLP is acting to fulfill PDDC's mission rather than its own. Your contention that the mission driving PHLP's lobbying activities as set forth in PDDC's RFP was established by PDDC is not dispositive in light of the fact that PHLP has applied for and received a grant to perform a certain mission and acts to fulfill that mission. PHLP in applying for the grant has essentially adopted PDDC's mission as its own. We are not suggesting that by accepting the grant, PHLP has received a financial benefit. In our view, a financial benefit is not required for a person or entity to be a principal under the Act, as you seem to suggest. See, Daugherty, Opinion 99 -1009. As for your claim of a material error of law, we do not interpret the phrase on behalf of" narrowly as in furthering the goals and objectives of a principal. The fact that PHLP itself has no financial stake in the policies for which it advocates is irrelevant in making a determination as to whether it is a principal lobbying on its own behalf. Since lobbying activities occur on behalf of PHLP, we rightly concluded that PHLP is a principal. In that there has been no material error of fact or law, and given that no new facts or evidence have been provided, the request for reconsideration is denied. IV. CONCLUSION: The request for reconsideration of Gates, Opinion 99 -1002 is denied. 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. By the Commission, Daneen E. Reese Chair Gates, 99- 1002 -R Page 4 Commissioner Louis W. Fryman dissents.