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Home My WebLink About99-1013 VeraldiDennis L. Veraldi USX Tower 600 Grant Street, 44th Floor Pittsburgh, PA 15219 Re: Lobbying, Principal, Lobbyist, Exempt, Port Authority of Allegheny County. Dear Mr. Veraldi: 1999. 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 -1013 This Opinion is issued in response to your advisory request received on August 9, Whether a port authority in corporate form, its employees or contract lobbyists are subject to the registration and reporting requirements of the Lobbying Disclosure Act, 65 Pa. C. S. §1101 et seq. (Act). II. FACTUAL BASIS FOR DETERMINATION: You are General Counsel for the Port Authority of Allegheny County (the Port Authority) which was created pursuant to the Second Class County Port Authority Act, 55 P.S. §551 et seq., for the "...purpose of planning, acquiring, holding, constructing, improving, maintaining and operating, owning, leasing, either as lessor or lessee...a transportation system in the County by which it is incorporated..." Pursuant to the Second Class County Port Authority Act, the Port Authority, like its sister agency, the Southeastern Pennsylvania Transportation Authority ( "SEPTA "), is the authorized provider of mass transportation services within Allegheny County. Section 3 of the Second Class County Port Authority Act specifically provides: There are hereby created bodies corporate and politic in the counties of the Veraldi, 99 -1013 Page 2 second class, to be known as Port Authority of (insert name of County), which shall constitute public bodies corporate and politic; exercising the public powers of the Commonwealth as an agency thereof. You first contend that the Port Authority is an independent agency of the Commonwealth, citing Marshall v. Port Authority of Allegheny County, 524 Pa. 1, 568 A.2d 931 (1990), which addressed the issue of whether the Port Authority was protected by sovereign immunity. You state that in Marshall, the Pennsylvania Supreme Court found that the Port Authority, which was created by the Commonwealth rather than by a local government, acts as an agency of the Commonwealth even though the Port Authority Board is appointed by County Commissioners. You note that in reaching its holding, the Court reasoned that the Port Authority could claim sovereign immunity as a "Commonwealth party ": A "Commonwealth party" is defined in 42 Pa. C.S.A. § 8501 as "[a] Commonwealth Agency" and an employee thereof...." Under 42 Pa. C.S.A. §102, "Commonwealth Agency" is defined as "[a]ny executive agency or independent agency." Agencies are classified as "executive" if they are under the supervision and control of the Governor, and, if they are not, as "independent." The Court maintained that as an "independent agency," the Port Authority was an agency of the Commonwealth government which is defined as "...the departments, boards, commissions, authorities and officers and agencies of the Commonwealth but the term does not include any politic subdivision, municipality or other local authority or any officer or agency of any such political subdivision or local authority." Based upon Marshall, you assert that the Port Authority is an independent agency of the Commonwealth of Pennsylvania. You then pose three questions under the Act. You inquire whether the Port Authority, as an independent agency of the Commonwealth, is a "principal" as defined in the Act, subject to the registration and reporting requirements. After quoting the statutory definition of "principal" under the Act, and noting that it does not specifically include an entity that is a body corporate and politic, and an independent agency of the Commonwealth, you conclude that Port Authority is not a "principal" as defined in the Act and is exempt from the registration and reporting requirements. Your second inquiry is whether Port Authority employees fall within the exemption from registration and reporting provided under Section 1306(4)(iv) of the Act. Based upon the Court's ruling in Marshall, you argue that the Port Authority employees fall within the exemption from registration for employees of the Commonwealth or an independent agency as provided in Section 1306(4)(iv) of the Act. Your third inquiry is whether a contract lobbyist is required to register or file quarterly expense reports with respect to lobbying activities in which he or she engages on behalf of the Port Authority. You assert that the registration and reporting requirements applicable to a lobbyist under the Act are predicated upon a lobbyist performing services for a "principal." You reference Section 1305(b)(6) of the Act which requires that a lobbyist submit a separate report if, during the reporting period, the lobbyist engages in lobbying activities which are not contained in the reports filed by the principal or principals represented. You submit Veraldi, 99 -1013 Page 3 that a "lobbyist" performing services for the Port Authority will not be performing services for a "principal" so that the individual will not be engaging in lobbying as defined by the Act. You opine that an individual who is lobbying for the Port Authority is not a "lobbyist," defined in the Act as, "[a]ny individual, firm, association, corporation, partnership, business trust or business entity that engages in lobbying on behalf of a principal for economic consideration." (Emphasis added). You conclude that individuals who lobby on behalf of the Port Authority are not "lobbying" on behalf of a principal and are not required to comply with the registration and reporting requirements under the Act. Finally, you note your assumption that the filing of the advisory request tolls the requirements of registration and reporting until such time as the Commission issues an opinion. By letter dated 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. 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 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. Veraldi, 99 -1013 Page 4 Id. We must now decide whether the Port Authority is a "principal" as that term is defined under the Act. We must also consider whether the employees or "contract lobbyists" for the Port Authority are subject to the registration and reporting requirements of the Act as their activities relate to the Port Authority. Regarding the legal status of the Port Authority, the following is set forth in the relevant enabling legislation as to its structure: § 552. Definitions As used in this act: (1) The term "authority" shall mean any body, politic and corporate, created by this act. * * § 553. Creation of port authorities; right or powers (a) There are hereby created bodies corporate and politic in counties of the second class, to be known as Port Authority of (insert name of county), which shall constitute public bodies corporate and politic; exercising the public powers of the Commonwealth as an agency thereof. Each authority shall be for the purpose of planning, acquiring, holding, constructing, improving, maintaining and operating, owning, leasing, either as lessor or lessee, port facilities within the port district, and a transportation system in the county by which it is incorporated and outside of the county to the extent necessary - -- Act of April 6, 1956, P.L. 1414, as amended 55 P.S. §§ 552, 553. Given that the Port Authority is a "political subdivision" as that term is defined under the Ethics Act, as well as a "corporation " - -which is a type of entity listed within the definition of "principal" under the Act - -we must decide whether the Port Authority as a political subdivision and a corporation may be a principal. We conclude that the Port Authority is not a principal under the Act. In addition, its employees acting in an official capacity are not subject to the registration and reporting requirements of the Act. Those contracting with the Port Authority 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 Port Authority. We reach this result based upon our analysis in Franklin - Suber, Opinion 99 -1012 which involved the same issue now before us. 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 port authority which is in corporate form is not a principal under the Lobbying Disclosure Act. Its employees acting in an official capacity are not subject to the registration and reporting requirements of the Lobbying Disclosure Act. Those contracting with the Port Authority to perform activities which would otherwise constitute lobbying Veraldi, 99 -1013 Page 5 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 Port Authority. 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