HomeMy WebLinkAbout99-1015 BowersOPINION OF THE COMMISSION
G. Roger Bowers
SE PA Transportation Authority
Legal Division
1234 Market Street, 5th Floor
Philadelphia, PA 19107 -3780
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
Re: Lobbying, Principal, Lobbyist, Exempt, SEPTA.
Dear Mr. Bowers:
1999.
I. ISSUE:
99 -1015
This Opinion is issued in response to your advisory request received on August 11,
Whether a municipal transportation 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. §1301 et seq. (Act).
II. FACTUAL BASIS FOR DETERMINATION:
You are General Counsel for Southeastern Pennsylvania Transportation Authority
(SEPTA), a regional transportation authority created by an act of the General Assembly,
formerly known as the Metropolitan Transportation Authorities Act, 66 P.S. §2001 et seq.
(repealed by Act 1980, July 10, P.L. 427, No. 101 §3), (MTTA). SEPTA currently operates
under the Public Transportation Law, 74 Pa.C.S.A. §1001 et seq., ( "PTL ") which created it
for the purpose of planning, acquiring, holding, constructing, improving, maintaining,
operating, leasing, either as lessor or lessee and otherwise functioning with respect to a
transportation system in the region in which it is incorporated." SEPTA's responsibility to
"act as an Agent of the State, or of the Federal Government or any of its instrumentalities
or agencies, for the public purpose," as originally set forth in Section 600.303(d)(25) of the
MTTA, is now set forth in Section 1711(a).
Bowers, 99 -1015
Page 2
You contend that SEPTA is a state agency of the Commonwealth, citing Feingold v.
SEPTA, 512 Pa. 567, 517 A.2d 1270 (1986), for the proposition that SEPTA as an agency
of the Commonwealth was exempt from punitive damages. You also reference a
subsequent case, Spencer v. SEPTA, 525 Pa. 466, 581 A.2d 565 (1990), wherein the
Pennsylvania Supreme Court of Pennsylvania held that SEPTA was protected by
sovereign immunity and therefore entitled to invoke the protection of the statutory damages
cap in a personal injury case, relying upon Feingold and Marshall v. Port Authority of
Allegheny County, 524 Pa. 1, 568 A.2d 931 (1990) which addressed the issue of whether
the Port Authority of Allegheny County (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."
You state that 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 political
subdivision, municipal or other local authority or any officer or agency of any
such political subdivision or local authority.
Because the Port Authority is an independent agency of the Commonwealth under
the Marshall ruling which was incorporated in Spencer, and because SEPTA, like the Port
Authority, is also governed by a Board of Directors, you conclude that SEPTA is similarly
structured. Since a governing board was a determinative factor in finding the Port
Authority to be an independent agency in Marshall, you reference the makeup of SEPTA's
Board. The members of the SEPTA Board are appointed by the Governor; by the majority
and minority leaders of the Senate and House of Representatives who may each appoint
one person to serve as a board member; by county commissioners in each of the five
counties in its designated service area - Bucks, Chester, Delaware and Montgomery; and
by the Mayor of Philadelphia, with the approval of the City Council. Based upon applicable
Pennsylvania Supreme Court precedent, you assert that SEPTA is entitled to an exemption
under the Act.
You then pose three questions.
First, you inquire whether SEPTA as an independent agency of the Commonwealth
of Pennsylvania is a "principal" as defined in the Act.
After quoting the statutory definition of "principal" under the Act, and after noting
that the definition does not specifically include an entity that is a body corporate and
politic, and an independent agency of the Commonwealth, you conclude that SEPTA is not
a "principal" and is exempt from the registration and reporting requirements of the Act.
Your second inquiry is whether SEPTA employees fall within the provisions of
Section 1306(4)(iv) of the Act.
Bowers, 99 -1015
Page 3
Based upon the rulings in Spencer and Marshall, you argue that SEPTA 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.
Finally, you ask whether a contract lobbyist providing services to SEPTA is required
to register and file quarterly expense reports with respect to lobbying on behalf of SEPTA.
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
refer to Section 1305(b)(6) of the Act which requires a lobbyist to 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 assert that a
lobbyist performing services for SEPTA will not be performing services for a "principal" so
that he or she will not be lobbying as defined by the Act. You conclude that such an
individual is not a "lobbyist" for SEPTA under the Act. Even though a contract lobbyist for
SEPTA would receive compensation, you argue that he or she would not be subject to the
registration and reporting requirements of the Act since he or she would not be lobbying on
behalf of a "principal."
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.
Bowers, 99 -1015
Page 4
Id.
"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.
We must now decide whether SEPTA is a principal as that term is defined under the
Act. We must also consider whether the employees or "contract lobbyists" for SEPTA are
subject to the registration and reporting requirements of the Act as their activities relate to
SEPTA.
Regarding the legal status of SEPTA, the following is set forth in the relevant
enabling legislation as to its structure:
§ 1701. Definitions
The following words and phrases when used in this chapter shall have the meanings
given to them in this section unless the context clearly indicates otherwise:
"Authority." Any body corporate and politic created under
this chapter or created under the former provisions of Article III
of the act of January 22, 1968 (P.L. 42, No. 8), known as the
Pennsylvania Urban Mass Transportation Law, or the former
provisions of Chapter 15 (relating to metropolitan
transportation authorities) and continued under this chapter.
*
*
§ 1711. Creation of metropolitan transportation authorities
(a) Creation and purpose. —There is hereby authorized the creation of a
separate body corporate and politic in each metropolitan area, to be known
as the transportation authority of that metropolitan area, extending to and
including all of the territory in the metropolitan area. An authority shall in no
way be deemed to be an instrumentality of any city or county or other
municipality or engaged in the performance of a municipal function, but shall
exercise the public powers of the Commonwealth as an agency and
instrumentality thereof.
(b) Certificate of incorporation. —
(1) The certification by the appointing power of each board member,
and the constitutional oath of office subscribed by each member, shall be
filed with the Department of State, and, except as provided in subsection (c),
upon the receipt of initial certifications and respective oaths of a majority of
the total number of board members appropriate to any metropolitan area, the
Secretary of the Commonwealth shall issue a certificate of incorporation.
This certificate shall refer to that authority by the name which shall be
designated by the board members.
74 Pa. C. S. §§ 1701, 1711.
Given that SEPTA 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
Bowers, 99 -1015
Page 5
"principal" under the Act - -we must decide whether SEPTA as a political subdivision and a
corporation may be a principal.
We conclude that SEPTA 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 SEPTA 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 SEPTA. 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 transportation 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 transportation 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 transportation 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