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Home My WebLink About99-1005 GibboneyOPINION 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: 8/30/99 DATE MAILED: 9/14/99 99 -1005 Douglas L. Gibboney 1520 York Road Carlisle, PA 17013 Re: Lobbying, Lobbyist, Compensation, Retainer, Registration, Threshold, Exemption. Dear Mr. Gibboney: This Opinion is issued in response to your advisory request received on August 2, 1999. I. ISSUE: Whether an individual who receives $250 as his total monthly compensation for lobbying is required to register as a lobbyist under the Lobbying Disclosure Act. II. FACTUAL BASIS FOR DETERMINATION: You are self - employed as a public relations consultant. Your sole lobbying client is the Glass Packaging Institute (GPI) of Washington, DC. Under your contract with GPI, you receive a monthly retainer of $250. Since your aggregate compensation does not exceed $2500 in any quarter, you inquire whether you are exempt from registration and filing any reports under the Lobbying Disclosure Act (Act), unless your circumstances change. 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. 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 Gibes, 99 -1005 Page 2 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. 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 to a State official or employee, the purpose or foreseeable effect of which is to influence legislative action or administrative action. Gibes, 99 -1005 Page 3 65 Pa.C.S. 1303. Id. "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 "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. As for the substantive provisions to be reviewed, the following statutory exemption is to be considered in determining whether you are exempt from registration and reporting under the Act: §1306. Exemption from registration and reporting The following individuals and activities shall be exempt from registration under section 1304 (relating to registration) and reporting under section 1305 (relating to reporting): (3) Any of the following: 65 Pa.C.S. § §1306(1), (3). * * * * * * (ii) An individual whose compensation for lobbying, from all principals represented, does not exceed $2,500 in the aggregate during any reporting period. * * * The issue before us is whether you are exempt from registering as a lobbyist given that you have only one client for which you provide lobbying services, and for which services ou are paid a monthly retainer of $250. It is clear that the exemption of §1306(3) (ii) would apply. We note that this exemption only applies to an "individual." Lobbyists which are firms or other entities do not qualify for this exemption. Since you are an individual, and since your total compensation from all principals represented is $750 per quarter, you do qualify for this exemption and you do not have to register as a lobbyist. Parenthetically, the fact that you are exempt from the registration and reporting requirements of the Act does not necessarily mean that your principal is exempt. If your principal would have total expenses for lobbying in any quarter which would exceed $2500, the principal would have to register and file reports pursuant to the Act. The principal Gibes, 99 -1005 Page 4 would have to list in its Registration Statement all of its lobbyists, both registered and unregistered, including you. This conclusion is based upon Section 1304(b) of the Act, which delineates the registration requirements for principals, and requires the inclusion "...of each individual who will for economic consideration engage in lobbying on the principal's behalf." 65 Pa.C.S. §1304(b)(2). The requirement is not limited to registered lobbyists, and therefore must be read to require the listing of all lobbyists: registered and unregistered. 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 individual whose total monthly compensation for lobbying is $250 is not subject to the registration and reporting requirements 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