HomeMy WebLinkAbout99-1004 KeltzOPINION 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 -1004
M. Lynn Keltz, M.A.
Executive Director
United Cerebral Palsy of Pennsylvania
1902 Market Street
Camp Hill, PA 17011
Re: Lobbying, Principal, Lobbyist, United Cerebral Palsy, Pennsylvania Developmental
Disabilities Council, Grant, Exemption, Commonwealth, Political Subdivision,
Organization.
Dear Ms. Keltz:
This Opinion is issued in response to your advisory request received on August 2,
1999.
I. ISSUE:
Whether an entity, that receives a grant from a state agency for use in advocating,
educating and promoting independence and civil rights for people with disabilities, is a
principal or lobbyist subject to the provisions of the Lobbying Disclosure Act.
II. FACTUAL BASIS FOR DETERMINATION:
United Cerebral Palsy (UCP) of Pennsylvania (UCPP), a 501 C (3) non - profit
organization, has a mission to provide statewide advocacy and education on disability
issues and to promote the independence and civil rights of persons with disabilities. The
Board of Directors is made up of volunteers from UCP affiliates throughout the state,
including volunteer "Directors at Large" who do not represent affiliates. Other UCP staff
includes a part time Administrative Assistant and part time Fiscal Assistant. You serve as
Executive Director of UCPP.
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Page 2
UCPP has a formal relationship with the federally funded Pennsylvania
Developmental Disabilities Council (PDDC), which is administered through the
Pennsylvania Department of Public Welfare (DPW). Since PDDC is a state agency, you
believe it to be exempt from registering as a principal or lobbyist under the Lobbying
Disclosure Act (Act).
You have submitted a brochure (Attachment 1) which outlines PDDC's mission and
functions. PDDC determines its goals for three year periods and then develops requests
for proposals to achieve its goals. All of PDDC's goals and plans must be submitted to and
approved by the federal government. Pertinent pages detailing PDDC's RFP for its Family
Support Objective (Attachment 2) from the "Request for Grant Proposals 1996 -98" have
been submitted. Also submitted are pages from PDDC's RFP for its Policy Information
Exchange Grant (Attachment 3). A letter from PDDC that explains its interaction with
parties such as UCPP has been submitted as Attachment 4.
In 1996, UCPP received a grant to implement PDDC goals for Family Support. In
1999, UCPP received a PDDC grant for implementation of the Policy Information Exchange
Grant. UCPP is currently involved with the Family Support Project and, in October, 1999,
will begin implementation of the Policy Information Exchange Grant. In both instances
PDDC is responsible for determining its goals, choosing an organization that will meet its
goals, and assigning a Project Manager to provide oversight for each PDDC project. A
Work Plan must be approved by the PDDC, followed by the submission of Quarterly
Reports to PDDC throughout the grant period.
A formal "grant agreement" signed by officers of UCPP details the requirements of
UCPP. The pages titled "Information for Grantees" and The Council" (Attachment 5),
further detail the above requirements and processes of PDDC.
As part of the grant implementation, UCPP hired consultants to meet PDDC's goals
for the Family Support Project. The consultants who are registered lobbyists [under the
prior law] worked to obtain grass roots, statewide feedback on issues of importance to
families of children with disabilities. Legislation was then drafted in conjunction with the
Project's Volunteer Advisory Committee. The consultants are now implementing legislative
strategies to accomplish PDDC's goal to "Draft, introduce and build support for passage of
state legislation that enacts and funds a family support services system" (Attachment 2).
Some of these activities fall within the definition of lobbying in the Act.
The goal of state legislation for family support services had its genesis with PDDC.
UCPP is simply the entity chosen by PDDC to accomplish its goal.
The second grant received by UCPP from PDDC concerns the Policy Information
Exchange project (PIE) which will not begin until October 1, 1999. The PIE RFP reflects
the plan of PDDC to have UCPP perform work that will promote a PDDC goal. PDDC
requires UCPP to "represent the Council's vision, mission, federal and state mandates in
all of its funded grant activities" and to "operate under the guidance of, and take direction
from, the Council as communicated to the project by the Council's Executive Director ".
UCPP, through the use of contracted consultants, will implement PDDC goals. It is
possible that some of the consultants' activities may constitute lobbying.
If UCPP is exempt from registering as a principal under the Act, you ask whether the
contracted consultants must register for PDDC, since PDDC is part of state government
and exempt from registering as a principal.
Because UCPP has not registered as a lobbyist in the past, you do not know how
much of its activity falls within the purview of the Act. You cannot make a good faith
estimate of whether UCPP will meet the $2500 threshold until you begin to define and
track time and expenses. If UCPP is not exempt, you inquire if UCPP will have 10 days
Keltz, 99 -1004
Page 3
within which to register.
You have submitted, as Attachment 2 to your request, two pages (numbered 22 and
23) from PDDC's "Request For Grant Proposals for 1996- 1998," which Attachment is
incorporated herein by reference. Attachment 2 specifically relates to PDDC's "Family
Support Objective," which is To promote statewide, cross - disability, comprehensive,
inclusive family support legislation that is family centered and family driven." (Attachment
2, first page).
The RFP for the Family Support Objective delineates numerous activities required
of the grantee, as well as expected outcomes of the grant. These include, but are not
limited to, the following: (1) drafting, introducing, and building support for passage of state
legislation that enacts and funds a family support services system; (2) establishing a
coalition of families to carry out activities that will ensure participation, choice, and control
by families of children with developmental disabilities in decisions relating to family support
services; (3) promoting interagency coordination between State agencies and private
entities involved in activities relating to the provision of family support; (4) investigating
and promoting the development of a state policy council for support for families of children
with disabilities; and (5) developing a project advisory committee with members including,
among others, state policy makers, legislators, families, and service providers, which
committee is to share information, evaluate the current system, make recommendations as
to interagency agreements, and "plan to advance the family support agenda in
Pennsylvania." (Attachment 2, second page).
Attachment 3 to your request consists of three pages (numbered 89 -91) which you
identify as PDDC's RFP for its "Policy Information Exchange" grant, which grant was
received by UCPP and is to begin October 1, 1999. Attachment 3 is incorporated herein
by reference.
The "Background" portion of the RFP cites and quotes both the federal
Developmental Disabilities Assistance and Bill of Rights Act of 1994 (P.L. 103 -230)
(hereinafter the federal act ") and Executive Order 1997 -2, signed May 30, 1997 by the
Governor, as requiring PDDC, in carrying out its work, to "inform policy makers"
(Attachment 3, first page). The federal Act is quoted as specifically mandating the State
Councils to provide information to, among others, the Governor, State Legislature, and
State agencies, ". . . in order to increase the ability of such policy makers to offer
opportunities and to enhance or adapt generic services or provide specialized services to
individuals with developmental disabilities and their families by conducting studies and
analyses, gathering information, and developing and disseminating model policies and
procedures, information, approaches, strategies, findings, conclusions, and
recommendations." It is administratively noted that the Executive Order includes among
PDDC's responsibilities not only informing policy makers, but serving as an "advocate for
systemic change, capacity building, and advocacy activities." Executive Order 1997 -2 at 3.
The RFP sets forth activities required of the grantee which include, but are not
limited to, the following: (1) representing the Council's vision, mission, and federal and
state mandates in all of its funded grant activities while operating under the guidance and
direction of PDDC through its Executive Director; (2) staying abreast of, researching,
analyzing, and reporting to PDDC on pertinent state and federal legislation or
appropriations; (3) researching, preparing and disseminating PDDC's "public position
papers" on selected subjects; (4) preparing individuals to testify to policy makers; (5)
referring people with developmental disabilities, their families, and allies to policy makers
who seek related information; (6) serving as a liaison to national and state level
organizations; (7) assisting PDDC to develop, implement and coordinate its strategies for
affecting public policy; and (8) maintaining an "advocacy /public policy alert" system on
behalf of PDDC. (Attachment 3, second page).
Keltz, 99 -1004
Page 4
Attachment 4, which is incorporated herein by reference, is a letter dated July 29,
1999, from the Executive Director of the PDDC, to this Commission, offered in support of
your request for a ruling. The letter briefly outlines the work of PDDC, and states:
The Pennsylvania Council, in concert with virtually every other of the 56 Councils in
the several states and territories, chooses to carry out this work through the funding
of a number of local entities, usually non - profit, through a "Request for Proposals"
process, to carry out the work contained in our state plan on our behalf.
(Attachment 4). Noting that UCPP has entered into an agreement with PDDC to undertake
a number of PDDC projects (following guidance outlined in the PDDC's "Requests for
Proposals" and according to a work plan which it approves), the Executive Director states
that some of the activities carried out by UCPP on behalf of PDDC would appear to
constitute "lobbying" as defined by the Act. The Executive Director however questions
whether UCPP would be required to register as a lobbyist under the Act, given that such
activities are performed on behalf of PDDC as a government agency carrying out statutory
duties. The Executive Director opines that PDDC itself would not meet the definition of a
"principal" under the Act.
Attachment 5 to your request consists of the first 7 pages of PDDC's "Request For
Grant Proposals for 1996- 1998," which Attachment is incorporated herein by reference.
These pages provide background information regarding PDDC, the federal act, and
PDDC's grant process. It is noted that proposals are evaluated by PDDC based in part
upon the experience and knowledge of the grantee's personnel in the particular type of
work, as sell as its "reputation for doing work that is coherent with the values of the field
and PDDC's Vision and Mission." (Attachment 5 at 6).
Your ask whether UCPP is required to register either as a principal or lobbyist and
whether the people who work for UCPP are required to register as lobbyists. You also
inquire about the registration threshold as a principal.
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.
At the public meeting on August 30, 1999, you appeared and offered commentary,
which may be fairly summarized as follows.
Although you understand the need for accountability as to actions that are designed
to influence legislative /administrative action, you question the applicability of the Act to
UCPP. As a 501(c)(3) organization, UCPP has a small budget of $140,000 plus grants,
and does not provide gifts or hospitality to state officials. UCPP has never been required
to register under federal or the prior state law.
You believe UCPP to be exempt as a principal because it works on behalf of PDDC
and would not undertake such work on its own. Control is exerted over what is done by
UCPP which must meet the requirements of PDDC. In turn, PDDC receives federal money
and its goals must be approved by the federal government. If UCPP as a grantee does not
meet the requirements of PDDC, the UCPP would not meet federal goals.
III. DISCUSSION: It is initially noted that pursuant to Section 1308(c) of the
Lobbying Disclosure 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.
Keltz, 99 -1004
Page 5
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
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Page 6
65 Pa. C. S. 1303.
Id.
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.
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 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. As we held in Gates, Opinion No. 99 -1002, 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," UCPP is
clearly a principal. UCPP is within the forms of entities enumerated in the first part of the
definition, at least as an association (see, 51 Pa. Code §31.1 (definition of "association ").
UCPP is also within the second part of the definition, which sets forth the types of activities
in which a principal engages. Based upon the facts which you have submitted, UCPP
engages in such activities because it attempts to influence legislative action on its own
behalf.
In its workplans for PDDC grants, UCPP outlines its objectives which include
engaging in activities that constitute efforts to influence legislative action as that term is
defined under the Act. To the extent that UCPP staff or its hired "consultants" would have
Keltz, 99 -1004
Page 7
contacts with state officials about such matters, such activities would constitute direct
communications as to legislative action. Further, UCPP's activities would involve indirect
communication when it would engage in an effort to encourage others to take action, the
purpose or foreseeable effect of which would be to directly influence legislative action.
We disagree with the contention that UCPP cannot be a principal because the
beneficiaries of its efforts are people with disabilities. 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 UCPP is not
engaging in the lobbying activities on its own behalf. To the contrary, UCPP has applied
for and received grants to perform certain missions and is acting to fulfill those missions.
Hence, the lobbying by UCPP is pursuant to its own stated missions. UCPP falls within the
definition of principal under the Act.
Accordingly, if UCPP would have total expenses for lobbying exceeding $2500 in
any quarter, UCPP, as a principal, would be subject to the registration and reporting
requirements of the Act and would have 10 days to register from that point. Further, those
staff members of UCPP or hired consultants who would engage in lobbying for UCPP
would be required to register as lobbyists, to the extent they would not 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 missions which include engaging in an effort to influence legislative
action as to persons with disabilities through direct or indirect communication would be a
"principal" 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
or hired consultants who engage in lobbying for economic consideration on behalf of the
entity would have to register as lobbyists, to the extent they would not qualify for 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