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HomeMy WebLinkAbout99-1014 BuzydlowskiOPINION 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 -1014 Frank P. Buzydlowski Bell Atlantic - Pennsylvania, Inc. Strawberry Square 4th Floor Harrisburg, PA 17101 Re: Lobbying, Principal, Lobbyist, State Official, Ticket, Entertainment, Hospitality, Spouse, Threshold. Dear Mr. Buzydlowski: This Opinion is issued in response to your advisory request received on August 11, 1999. I. ISSUE: Where tickets to an entertainment event are valued at less than $10 each, and a principal provides one ticket to a state official and another ticket to the state official's spouse, are such tickets included for purposes of calculating whether the reporting threshold for that state official is met under Section 1305(b)(3) of the Lobbying Disclosure Act? II. FACTUAL BASIS FOR DETERMINATION: As Director of Legislative Matters for Bell Atlantic - Pennsylvania, Inc., you request an advisory as to the following. If your principal purchases two tickets, each worth $7.50, to an entertainment event, and you provide one of the tickets to a Member of the General Assembly and the other ticket to that Member's spouse, is the expense considered "de minimis" and not included for purposes of calculating whether the reporting threshold as to that Member is met under Section 1305(b)(3) of the Act? Buzydlowski, 99 -1014 Page 2 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 Lobbying Disclosure Act (Act), 65 Pa.C.S. §1308(c), 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. Id. 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. As for the substantive provisions to be reviewed, we must consider Sections 1305(b)(2) and (3) in resolving this issue. Sections 1305(b)(2) and (3) of the Act provide: (2) Expense reports must contain the following categories: (i) A single aggregate good faith estimate of the total amount spent for personnel and office expenses related to lobbying. This subparagraph includes salaries and other forms of compensation, benefits, vehicle allowances, bonuses and reimbursable expenses for those Buzydlowski, 99 -1014 Page 3 involved in lobbying. If compensation is to be reported by or for an individual or entity whose lobbying is incidental to regular employment, it shall be sufficient to report a good faith prorated estimate based on the value of the time devoted to lobbying. Reportable personnel costs include costs for lobbying staff, research and monitoring staff, consultants, lawyers, lobbyists, publications and public relations staff, technical staff and clerical and administrative support staff who engage in lobbying but are exempt from reporting under section 1306(6) (relating to exemption from registration and reporting). This subparagraph includes costs for offices, equipment and supplies utilized for lobbying. (ii) A single aggregate good faith estimate of the total amount spent for direct communication. (iii) The total costs for gifts, entertainment, meals, transportation, lodging and receptions, given to or provided to State officials or employees or their immediate families. (iv) A single aggregate good faith estimate of the total amount spent for indirect communication. (3) In addition to reporting the totals required under this subsection, the expense report must identify, by name, position and each occurrence, a State official or employee who receives from a principal or lobbyist anything of value which must be included in the statement under section 1105(b)(6) or (7) (relating to statement of financial interests) as implemented by section 1105(d). (i) For purposes of this chapter, the amount referred to in section 1105(b)(7) shall be considered an aggregate amount per year. (ii) Written notice must be given to each public official or employee of inclusion in the expense report within seven days of the report's submission to the commission. Notice under this subparagraph shall include the information which will enable the public official or employee to comply with section 1105(b)(6) and (7). For purposes of this chapter and Chapter 11 (relating to ethics standards and financial disclosure), section 1105(b)(6) and (7) shall constitute mutually exclusive categories. (iii) Regulations shall be promulgated under section 1310(c) (relating to filing fees; fund established; regulations) to define mutually exclusive categories under section 1105(b)(6) and (7) and to determine whether a thing of Buzydlowski, 99 -1014 Page 4 value is subject to disclosure under section 1105(b)(6) or (7). 65 Pa.C.S. § §1305(b)(2) and (3). In addition, the Lobbying Disclosure Regulations discuss items of value that do not exceed $10 at Section 35.1(g)(6): (g) A quarterly expense report of a principal required to be registered under the act shall include the following information: (6) The total costs for gifts, entertainment, meals, transportation, lodging and receptions, given to or provided to State officials or employes or their immediate families, except that any cost under this paragraph which is of a value not exceeding $10 need not be reported under section 1305(b)(3) of the act. If the same or similar gift, hospitality or transportation or lodging is provided to more than one State official or employe, the aggregate economic value of which is $10 or more, such value shall be included in the appropriate totals reported under section 1305(b)(2) of the act. 51 Pa. Code §35.1(g)(6). Before addressing the narrow question you have posed, we make three preliminary observations under the Ethics Act and the Act. First, the Regulation quoted above does not use the term "de minimis" (which term is actually defined in Section 31.1 of the Regulations as "insignificant ") but rather speaks of a specific dollar amount figure, that is, $10. This clarification is provided because the issue as you phrased it used the term "de minimis." Second, under the Act there is a distinction between the disclosure of an item under Section 1305(b)(3) (which pertains to identification of a particular state official or state employee who receives from a given source items with an aggregate value in excess of the applicable reporting threshold), and the inclusion of the value of that item under Section 1305(b)(2) in reporting the required total amounts and costs. Although Section 35.1(g)(6) quoted above clarifies that when an item valued at $10 or less is provided to one individual it need not be listed if and when disclosure as to that individual is made under Section 1305(b)(3), it nevertheless must be included within the applicable total amounts and costs under Section 1305(b)(2). This is because, per the Regulation, it is only where the same or similar item is provided to more than one State official or employee and the aggregate value is less than $10 that such need not be included in the "total" figures reported under Section 1305(b)(2) of the Act. Third, as to the ticket provided directly to the spouse of the state official, the state official would not have to list the value of the ticket provided to his or her spouse on the Statement of Financial Interests that the state official would file. See, Denoncourt v. State Ethics Commission, 504 Pa.191, 470 A.2d 945 (1983). Under the particular scenario which you have presented, the Regulations would direct that the value of the ticket to the Member, being $10 or less, need not be reported under Section 1305(b)(3) of the Act. The value of both tickets would be included in the applicable totals as per Section 1305(b)(2) of the Act, as noted above. Buzydlowski, 99 -1014 Page 5 Turning to the specific question which you have posed, as to whether the state official's $7.50 ticket would be included in determining the $650 reporting threshold as to transportation, lodging or hospitality, we believe that the value should not be included in determining the threshold. Through the regulatory review process, the decision was made that an item valued at $10 or less need not be reported under Section 1305(b)(3) of the Act. Although not specifically addressed by the Regulations, it would seem that if the item need not be reported, then that item should not be counted in arriving at the reporting threshold which would trigger disclosure. To rule otherwise would create an anomaly whereby items of $10 or less would never have to be reported but would always have to be included in the calculation to determine the threshold for reporting. 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 ticket to an entertainment event which is valued at less than $10 is not included for purposes of calculating whether the reporting threshold has been met for the recipient state official or state employee under Section 1305(b)(3) 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