Loading...
HomeMy WebLinkAbout99-1016 EyerOPINION OF THE COMMISSION Paul K. Eyer, Esquire Gmerek & Hayden, P.C. 600 North Second Street Suite 200 Harrisburg, PA 17101 -1031 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: 10/1/99 DATE MAILED: 10/13/99 99 -1016 Re: Lobbying, Principal, Lobbyist, Exempt, City, Philadelphia, Philadelphia Gas Works. Dear Mr. Eyer: This Opinion is issued in response to your advisory request received on August 12, 1999. I. ISSUE: Whether a city gas works and its employees are exempt from the registration and reporting provisions of the Lobbying Disclosure Act. II. FACTUAL BASIS FOR DETERMINATION: As counsel for Philadelphia Gas Works ( "PGW "), you seek an advisory as to whether PGW or its employees are subject to the registration and reporting requirements of the Lobbying Disclosure Act, 65 Pa.C.S. §1301 et seq., (Act), assuming that PGW's relevant expenditures exceed the $2,500.00 threshold established by Section 1306 of the Act. You believe that PGW has standing because it is directly affected by state government laws, regulations and policies, such as the recently enacted natural gas deregulation legislation (Act 21 of 1999), which necessitates regular interaction with state government officials concerning policy issues germane to the natural gas industry. Ever, 99 -1016 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. At the public meeting on October 1, 1999, you appeared to answer questions presented by 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), 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. In order to determine whether PGW is a principal subject to the requirements of the Act, we must understand the nature of PGW. The courts have held that PGW has no legal status. Specifically, PGW is nothing more than a collection of property, with no legal identity, by which the City of Philadelphia furnishes gas to customers. Philadelphia Facilities v. Biester, 431 A.2d 1123 (Pa. Cmwlth. Ever, 99 -1016 Page 3 Ct. 1981). The status of PGW appears to follow that of the City of Philadelphia. See, Comm. v. Philadelphia Gas Works, 484 Pa. 60, 398 A.2d 942 (1979) where the Pennsylvania Supreme Court ruled that the tax exempt status for Liquid Fuels Tax purposes of Philadelphia as a political subdivision extended to PGW because it was an integral part of the City. Finally, Act 21 of 1999, which sets forth provisions as to "city natural gas distribution operation" provides in Section 3(k)(1): (k) City instrumentality. -- Unless and until the governing body of a city that owns a city natural gas distribution operation otherwise provides: (1) a city natural gas distribution operation shall be deemed an instrumentality of the city that owns it and independently authorized to establish and maintain pension, welfare and other employee benefit plans for the benefit of those individuals who render services in connection with its operations. Since we have held in Franklin - Suber, Opinion 99 -1012 that the City of Philadelphia may not be a principal under the Act, it follows that PGW, as an integral part and instrumentality of the City, may not be a principal under the Act. PGW employees acting in an official capacity are likewise not subject to the registration and reporting requirements of the Act. 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 natural gas distribution operation, as an integral part and instrumentality of a city that owns it, 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. 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