HomeMy WebLinkAbout99-1007 ArtzOPINION 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 -1007
Charles I. Artz
Charles I. Artz & Associates
207 State Street
Harrisburg, PA 17101
Re: Lobbying, Lobbyist, Attorney, Practice of Law, Exempt, Preparing Testimony,
Testifying Before Committee of Legislature, Individual, Limitation, Expense.
Dear Mr. Artz:
This Opinion is issued in response to your advisory request received on August 4,
1999.
I. ISSUE:
Whether an individual who engages in various lobbying activities including but not
limited to the specific activity of preparing testimony and testifying before a committee of the
Legislature qualifies for an exemption as to such specific activity so that the expenses for
such activity together with all related expenses involving research, analysis and drafting
would not have to be reported.
II. FACTUAL BASIS FOR DETERMINATION:
You represent statewide health care associations and provide legal advice and
analysis that may, in your view, constitute "administrative action" pursuant to 65 Pa.C.S.
§1303. You opine that a small part of your "health care legal practice" constitutes "lobbying"
under §1303 of the Lobbying Disclosure Act (Act).
You provide legal services to your clients which in your view falls within the definition
of "administrative action" and therefore "lobbying ". You reference litigation in which you
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engage frequently before the licensing boards in the Department of State, Health Department,
Insurance Department, Department of Public Welfare, and other state agencies.
Your inquiry concerns the legislative committee testimony and preparation exemption.
See, 65 Pa.C.S. §1306(1); 51 Pa. Code §37.1(1). Our regulations at 51 Pa. Code §37.1(1)
quote the statutory language of Section 1306(1).
You interpret the above provision to mean that all of your activities relating to the
preparation and presentation of testimony before any legislative committee are exempt from
reporting. You opine that the legislative committee testimony and preparation exemption
applies to you so that all fees paid to you and the expenses you incur related to legislative
committee testimony presentation and preparation need not be reported.
Your note that the introductory language of the subsection might be construed as
restricting the exemption to an individual who limits" his lobbying activities to legislative
committee testimony and preparation; however, the introductory clause of §1306 provides
that legislative committee testimony and preparation "activities shall be exempt from
...reporting under section 1305." You assert that the exemption applies to you even though
you do not "limit" your practice to legislative committee heairngs. You argue that if such were
not the case, you would have to register and report fees and expenses incurred for services
you render to principals including all of your administrative agency litigation matters, which
you state would be an absurd result not intended by the General Assembly.
Your second question is whether the exemption includes all analysis of the particular
legislation about which the hearing is being held, such as preparatory legal research and
memorandum drafting, constitutional analysis, fact gathering, discussion with the client as to
strategy, travel time to the location of the hearing, and the amount of time expended attending
the hearing and presenting the testimony.
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 31, 1999, you appeared and offered commentary,
which may be fairly summarized as follows.
Since some of your activities fall within the definition of administrative action, it is
important for you to know what must be reported for purposes of the Act.
You seek clarification as to the hearing exemption set forth in Section 1306(1) of the
Act. When a legislative bill is scheduled for Committee hearing, you do an analysis and
prepare for testifying. You find the exemption section confounding because the introductory
clause references exempt activities but the first subsection identifies individuals who limit
activities to testifying before a committee of the General Assembly.
You ask whether the word "limit" applies to an individual who does nothing but testify
before a committee of the legislature or to a lobbyist that does other types of lobbying
whereby the time for testifying would not have to be reported. You acknowledge that the
word "limit" cannot be surplusage but, given the ambiguity, you believe that a fair reading
should allow for a partial exemption for testifying along with the related preparation and
analysis.
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
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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.
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
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65 Pa. C. S. 1303.
Id.
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.
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.
As for the substantive provisions to be reviewed, the following statutory exemption is to be
considered in determining exemption requirements of the Act:
Section 1306 of the Act provides:
§ 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):
(1) An individual who limits lobbying activities to preparing
testimony and testifying before a committee of the legislature or
participating in an administrative proceeding of an agency.
Our analysis and interpretation must include the introductory phraseology of Section
1306 of the Act as well as subsection (1).
The introductory language notes that the exemptions are for the "individuals and
activities" in the subparagraphs that follow. You misconstrue this to mean that as to any
particular exemption, one or the other, that is, an individual or activity, will suffice. Some of
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the exemptions certainly deal with individuals and all deal with activities but as to each
exemption, all of the conditions for its applicability must be met in order for it to apply. To the
extent that all of the conditions for an exemption relating to a particular activity are met, the
expenses associated with that activity need not be reported under the Act.
Having established the general parameters for reviewing exemptions, we will now
focus upon the specific activities you perform as a lobbyist on behalf of your principals.
As to your activities of preparing testimony and testifying before a Committee of the
General Assembly, such activity is not exempt pursuant to Section 1306(1) of the Act. We
reach this conclusion by noting the long established legal principle that for remedial
legislation, exemptions are to be narrowly construed. See, Phillips v. State Ethics
Commission, 470 A.2d 659 (Pa Commonwealth Court 1984). In order to qualify for the
exemption, you would have to meet all of its conditions. You do not meet such conditions.
The exemption applies to an individual who limits lobbying activities to the delineated
activities. Thus, a lobbyist which is an entity or which does not limit lobbying activities to the
specified activities is not exempt. You have factually stated that you engage in other lobbying
activities. Accordingly, you do not qualify for the exemption. Consequently, the expenses
related to such activities are reportable. Please note that since only totals of single
aggregate good faith estimates are reported, the principal would not specifically identify you
as its attorney, nor would it give any breakdown as to your fee. The fee for your services
would be subsumed within the totals.
Parenthetically, we note that in your recitation of the facts, you equate certain activities
you perform for clients as being both lobbying and the practice of law. We disagree with such
statements because lobbying and the practice of law are mutually exclusive activities. See,
Reilly v. Ozzard, 33 N.J. 529, 166 A.2d 360. Thus, your reference to agency litigation where
you practice law before the licensing boards of the Department of State and other agencies is
the practice of law and not lobbying.
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 who engages in various lobbying activities including but not limited to the
specific activities of preparing testimony and testifying before a committee of the General
Assembly is not exempt as to such specific activities. The individual's principal would have to
include such expenses in the appropriate single aggregate good faith estimates of total costs.
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