HomeMy WebLinkAbout99-1018 KocklerKimberly J. Kockler
Managed Care Association of PA
240 North Third Street, Suite 203
P.O. Box 12108
Harrisburg, PA 17108 -2108
Dear Ms. Kockler:
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: 10/1/99
DATE MAILED: 10/13/99
99 -1018
Re: Lobbying, Principal, Lobbyist, Legislative Action, Administrative Action, Direct
Communication, Indirect Communication, Exempt, Threshold, Sales Tax, Managed
Care, Association.
This Opinion is issued in response to your advisory request received on August 19,
Whether the employees of an association that engages in lobbying are required to
register under the Lobbying Disclosure Act and, if so, when is registration and reporting
required.
II. FACTUAL BASIS FOR DETERMINATION:
As Executive Director of the Managed Care Association of Pennsylvania (MCAP), a
statewide, not - for - profit trade association representing a number of members of managed
care plans throughout the Commonwealth, you request an advisory as to whether you and
the government affairs associate who are both "registered lobbyists with the Department of
State," must register under the Lobbying Disclosure Act (Act) ".
MCAP represents its members as to both the General Assembly and regulatory
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agencies of the Commonwealth. MCAP devotes a majority of its time to providing
information to its members about legislative and regulatory activities. MCAP seeks to
educate legislators and regulators about the value of managed health care. Further,
MCAP develops and communicates industry positions and occasionally lobbies on certain
issues.
After noting that MCAP's sales tax total for the 1998 -99 fiscal year was just over
$300.00 and ranged from $60.00 to $90.00 per quarter, you opine that neither you nor the
government affairs associate would be engaged in lobbying activities exceeding the
$2,500.00 threshold.
Based upon the above, you ask whether you and MCAP's government affairs
associate must register under the Act, and if so, whether you must do so immediately or
only after you meet the $2,500.00 threshold. Assuming that you and the government
affairs associate must register, you inquire as to when you must begin to report, that is,
during the first reporting period even if you do not meet the $2,500.00 threshold or only
after you meet the threshold during a specific reporting period.
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 key terms "legislative action," "administrative action," "direct communication,"
and "indirect communication" that are within the definition of "lobbying" are themselves
defined as follows:
"Legislative action." An action taken by a State official or
employee involving the preparation, research, drafting,
introduction, consideration, modification, amendment,
approval, passage, enactment, tabling, postponement, defeat
or rejection of legislation; legislative motions; overriding or
sustaining a veto by the Governor; or confirmation of
appointments by the Governor or of appointments to public
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Page 3
boards or commissions by a member of the General Assembly.
"Administrative action." Any of the following:
(1) An agency's:
(1) proposal, consideration, promulgation or
rescission of a regulation;
(ii) development or modification of a guideline or
a statement of policy; or
(iii) approval or rejection of a regulation.
(2) The review, revision, approval or disapproval of a
regulation under the act of June 25, 1982 (P.L.633, No.181),
known as the Regulatory Review Act.
(3) The Governor's approval or veto of legislation.
(4) The nomination or appointment of an individual as an
officer or employee of the Commonwealth.
(5) The proposal, consideration, promulgation or rescission of
an executive order.
"Direct communication." An effort, whether written, oral or
by any other medium, made by a lobbyist or principal, directed
to a State official or employee, the purpose or foreseeable
effect of which is to influence legislative action or
administrative action.
"Indirect communication." An effort, whether written, oral
or by any other medium, to encourage others, including the
general public, to take action, the purpose or foreseeable
effect of which is to directly influence legislative action or
administrative action. The term includes letter- writing
campaigns, mailings, telephone banks, print and electronic
media advertising, billboards, publications and educational
campaigns on public issues. The term does not include
regularly published periodic newsletters primarily designed for
and distributed to members of a bona fide association or
charitable or fraternal nonprofit corporation.
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,
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Id.
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.
Before we address the issues, we must determine the status of MCAP under the
Act. Since MCAP is an association which has lobbyists who attempt to influence
legislative action or administrative action on its behalf, or which engages in lobbying on its
own behalf, MCAP is a "principal" as that term is defined under the Act.
The questions which you have posed shall be addressed seriatim.
As to whether you as Executive Director or your government affairs associate would
be required to register under the Act, the submitted facts reflect that both you and your
government affairs associate engage in lobbying on behalf of your employer, MCAP, as
part of your respective duties with MCAP. Therefore, as Executive Director, you would be
required to register as a lobbyist if your lobbying activity would represent the equivalent of
$2500 or more of your time during any quarter, based upon an hourly proration of your
compensation. See, 65 Pa.C.S. §1306(3)(iii). Likewise, your government affairs associate
would be required to register as a lobbyist if his or her lobbying activity would represent
the equivalent of $2500 or more of his or her time during any quarter, based upon an
hourly proration of his or her compensation. Id. When the $2500 trigger for registration
would be met, you or the government affairs associate respectively would have 10 days in
which to register. 65 Pa.C.S. §1304(a).
You are cautioned that MCAP's sales tax liability for the 1998 -1999 fiscal year has
no relevance in determining thresholds under the Act and would not be a reliable indicator
of whether or when you or the government affairs associate would be required to register.
Regarding your inquiry as to reporting requirements, the primary responsibility for
filing quarterly expense reports is with MCAP as the principal, although MCAP's registered
lobbyists, if any, would be required to sign its reports to attest to their validity and
accuracy. See, 65 Pa.C.S. §1305.
In addition, if a registered principal does not file a required quarterly expense report
or if the report filed by the principal does not include lobbying activity engaged in by the
lobbyist, a separate report must be filed by the registered lobbyist.
If the principal would be exempt from registration and reporting, the registered
lobbyist would be required to file a separate expense report if the principal's lobbying
expenses for the quarter would exceed $500. If such expenses would be $500 or less, the
registered lobbyist would file a statement to that effect. See, Roth, Opinion No. 99 -1006.
Finally, the reporting requirements only apply to registered principals and registered
lobbyists. A principal or individual lobbyist would not have to file or sign -off on reports until
the quarter in which required to register.
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:
Under the Lobbying Disclosure Act, an individual who is employed by a trade
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Page 5
association to perform duties which include lobbying on behalf of the association, must
register as a lobbyist if his or her lobbying activity would represent the equivalent of $2500
or more of his or her time during any quarter, based upon an hourly proration of his or her
compensation. When the $2500 trigger for registration would be met, the employee would
have 10 days in which to register. The reporting requirements of the Lobbying Disclosure
Act only apply to registered principals and registered lobbyists. A principal or individual
lobbyist would not have to file or sign -off on reports until the quarter in which required to
register.
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