HomeMy WebLinkAbout99-1012 Franklin-SuberStephanie L. Franklin - Suber, Esquire
City of Philadelphia
Law Department
One Parkway
1515 Arch Street, 17th Floor
Philadelphia, PA 19102
Re: Lobbying, Principal, Lobbyist, Exempt, City, Philadelphia.
Dear Ms. Franklin - Suber:
1999.
This Opinion is issued in response to your advisory request received on August 11,
I. ISSUE:
OPINION 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: 9/30/99
DATE MAILED: 10/13/99
99 -1012
Whether a city in corporate form may be a "principal" as that term is defined in the
Lobbying Disclosure Act.
II. FACTUAL BASIS FOR DETERMINATION:
As Solicitor for the City of Philadelphia ( the City), you inquire whether the City must
register as a principal under the Lobbying Disclosure Act, 65 Pa.C.S. §1301 et seq., (Act).
After opining that lobbyists who seek to influence certain actions and the principals who
hire such lobbyists must register under the Act, you argue that the City is not a "principal"
required to register.
After quoting from the statutory definition of "principal" as including "[a]ny individual,
firm, association, corporation, partnership, business trust, or business entity," and after
noting that the definition does not include municipalities, municipal corporations, or
political subdivisions, you conclude that the City is not encompassed within the entities
listed within the definition and, hence, is not required to register. By letter dated
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September 10, 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 September 23, 1999 you filed a brief which presents the following arguments:
(1) The City of Philadelphia is not a principal as that term is defined under the Act.
Because the City is not a principal, its lobbyists are not subject to the requirements
of the Act.
(2) The Act defines "principal" as "[a]ny individual, firm, association, corporation,
partnership, business trust or business entity. ." The City is a municipal
corporation, vested with all of the powers, rights, privileges and immunities incident
to a municipal corporation, and necessary for the proper government of the same."
53 P.S. §16251 et seq. Municipal corporations are not among the enumerated
entities that constitute a principal under the Act. Therefore, the City is not subject
to the provisions of the Act.
(3) A municipal corporation is defined as "a city, borough, incorporated town or
township." 1 Pa.C.S. §1991. A municipal corporation is a "subordinate
governmental agenc[y] established for local convenience and in pursuance of
public policy. ..[it] is merely an agency instituted by the sovereign for the purpose
of carrying out in detail the objects of government, essentially a revocable agency."
Shirk v. Lancaster City, 313 Pa. 158, 162, 169 A. 557, 561 (1993). Municipal
corporations are "public bodies created for civil or political purposes," and are
distinguishable from public and private corporations. 56 Am. Jur. 2d §10. Unlike
private corporations which are organized wholly for the profit and the advantage of
their own members, and cannot constitutionally be granted governmental powers,
public corporations are created for public purposes connected with the
administration of the government, and the interests and franchises pertaining
thereto are the exclusive property of the government itself.
(4) The terms "corporation" and "municipal corporation" are not typically
interchanged in Pennsylvania statutes. The Public Official and Employee Ethics
Law defined "person" as a "business, individual, corporation, union, association,
form, partnership, committee, club or other organization or group of persons."
Since the definition was amended in 1989 to include the term "governmental body,"
the General Assembly considers governmental bodies to be distinct from
corporations, associations, and other business entities.
(5) Since the City is not a principal under the Act, its lobbyists are not required to
file registration statements or expense reports on the City's behalf.
(6) The Act defines lobbyist as any "individual, firm, association, corporation,
partnership, business trust or business entity that engages in lobbying on behalf of
a principal for economic consideration." That language suggests that any lobbying
done on behalf of an entity that is not a principal is not subject to the registration
and filing requirements of the Act.
After proffering the above arguments, you conclude that neither the City nor persons
who lobby on its behalf are subject to the registration and reporting requirements of the
Act.
At the public meeting on October 1, 1999, Assistant City Solicitor Laura Teresinski
appeared for the purpose of answering any questions of the Commissioners.
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),
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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, we 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 terms "principal" and "lobbyist" are 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.
"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.
Id.
We must now decide whether the City is a principal as that term is defined under
the Act. The applicable enabling legislation provides:
§ 16251. Name and boundaries
The corporate name of the mayor, aldermen and citizens of Philadelphia
shall be changed to The City of Philadelphia," and the boundaries of the
said city shall be extended so as to embrace the whole of the territory of the
county of Philadelphia, and all the powers of the said corporation, as
enlarged and modified by this act, shall be exercised and have effect within
the said county and over the inhabitants thereof.
*
*
§ 16252. Perpetual succession; corporate powers in general
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The inhabitants of the city of Philadelphia, as the same extends and is laid
out between the rivers Delaware and Schuylkill, be, and they, and their
successors for ever, are hereby constituted a corporation and body politic, in
fact and in law, by the name and style of The Mayor, Aldermen and Citizens
of Philadelphia," and by the same name shall have perpetual succession; - --
Act of February 2, 1854, 53 P.S. §§ 16251, 16252.
Given that the City is a "political subdivision" as that term is defined under the
Ethics Act, as well as a "corporation " - -a type of entity which is listed within the definition of
"principal" under the Act - -the following paradox arises. Under the Act, the definition of
"principal" includes "corporation" which reflects a legislative intent that a corporation is a
principal if it has lobbyists to influence legislative /administrative action on its behalf or
lobbies on its own behalf. However, the definition of "principal" does not include political
subdivisions which evidences a legislative intent that political subdivisions are not
principals. Our conundrum is to decide whether a political subdivision as a corporation
may be a principal.
We conclude that the General Assembly did not intend to include political
subdivisions as covered under the Act merely because they exist in corporate form. To do
so would result in unequal treatment and a non - uniform application of the Act as to political
subdivisions. In addition, if we were to find that the City as a political subdivision were a
principal, we would have the anomaly that its employees would be exempt under Section
1306(4)(iii) of the Act. Hence, the City is not a principal under the Act.
Turning to the matter of the employees of the City, Section 1306(4)(iii) provides an
exemption as to elected /appointed officials or employees of a political subdivision when
acting in an official capacity. To the extent that its officials /employees act in an official
capacity on behalf of the City, such individuals would not be subject to the registration or
reporting provisions of the Act.
Finally, as to a "contract lobbyist" engaged by the City, we do not believe that such
an individual or entity would be subject to registration or reporting under the Act regarding
activities which solely relate to the City. The above quoted definition of "lobbyist" requires
that the activity be on behalf of a principal" for economic consideration. Since we have
established that the City is not a principal, the individual or entity under contract may not
be a lobbyist under the Act as to that particular work because there is no principal.
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:
A city which is in corporate form is not a principal under the Lobbying Disclosure
Act. City employees acting in an official capacity are not subject to the registration and
reporting requirements of the Act. Those under contract with the city to perform activities
which would otherwise constitute lobbying would not be "lobbyists" and would not be
subject to the registration and reporting requirements of the Act as to such activities solely
relating to the City.
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.
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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