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HomeMy WebLinkAbout99-1019 ArtzOPINION OF THE COMMISSION Charles I. Artz Charles I. Artz & Associates Attorneys At Law 207 State Street Harrisburg, PA 17101 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 -1019 Re: Lobbying, Principal, Lobbyist, Administrative Action, Direct Communication, State Official, Office of Attorney General, Client, Lawyer, Practice of Law, Investigation, Violation, Insurance, Company, Antitrust, Opinion, Informal Opinion, Regulation. Dear Mr. Artz: This Opinion is issued in response to your advisory request received on August 27, 1999. I. ISSUE: Whether any of the following activities by an individual before the Office of Attorney General would be lobbying under the Lobbying Disclosure Act: requesting enforcement of the Unfair Trade Practices and Consumer Protection Law as to an alleged violation by an insurance company; representing a physician or client before the Insurance Fraud Division regarding alleged fraudulent or illegal activity; or arguing the applicability of antitrust laws for initiation of an investigation or remedial action. II. FACTUAL BASIS FOR DETERMINATION: You represent a variety of health care clients before administrative agencies and the Office of Attorney General. You opine that part of your "health care legal practice" may involve "lobbying" under §1303 of the Lobbying Disclosure Act (Act), 65 Pa.C.S. §1303. You meet directly with the Attorney General and his staff attorneys on a number of health law related matters and anticipate doing so in the future to present legal arguments and factual analyses. You may ask the Attorney General and his staff in the Antitrust Artz, 99 -1019 Page 2 Division, Insurance Fraud Division, and Charitable Organization Division, to take certain legal positions in various state and federal courts. After quoting part of the statutory definition of "Regulation" which references "formal and informal opinions of the Attorney General," you conclude that your involvement with the Attorney General's Office would not result in formal opinions of the Attorney General. However, you inquire whether you would be seeking an "informal opinion of the Attorney General," (assuming the term "informal" to be interpreted in its broadest sense), in three scenarios: requesting the Attorney General to enforce the Unfair Trade Practices and Consumer Protection Law after factually demonstrating a violation by an insurance company; representing a physician or other health care client before the Attorney General's Insurance Fraud Division to convince the Attorney General that your client's conduct did not involve or rise to the level of any fraudulent or illegal activity; and arguing that antitrust laws apply to a particular factual circumstance to warrant the Attorney General to investigate and take remedial action. You opine that you would not be seeking "informal opinions of the Attorney General" in such instances because the case - specific nature of your representations would not engender an opinion of the Attorney General of general application, except to the extent other providers might rely on his conclusion, just as health care providers are guided by the Attorney General's consent decrees executed in federal court. You conclude that such conduct would not constitute "lobbying" as defined under the Act. You request an advisory opinion relating to your conduct in the above matters. 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 and offered commentary, which may be fairly summarized as follows. Although the term "informal opinion" does not appear to be defined, you do not believe that your actions would be classified as seeking to influence broad public policy, even though it may have such an incidental effect at times. You opine that the three areas of activities would not constitute "lobbying" as that term is defined in the Act. 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 Artz, 99 -1019 Page 3 (2) direct or indirect communication. 65 Pa.C.S. §1303. The key terms "administrative action" and "direct communication" that are within the definition of "lobbying" are themselves defined as follows: "Administrative action." Any of the following: (1) An agency's: (i) 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. Id. "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. 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. Artz, 99 -1019 Page 4 We must also consider the terms "regulations," "guideline" and "statement of policy." The Lobbying Disclosure Regulations define the term "regulation" as follows: Regulation - -Any rule, regulation or order in the nature of a rule or regulation, including formal and informal opinions of the Attorney General, of general application and future effect, promulgated by an agency under statutory authority in the administration of a statute administered by or relating to the agency, or prescribing the practice or procedure before the agency. 51 Pa. Code §31.1 (definition, "Regulation "). The terms "guideline" and "statement of policy" are not defined in the Act; per the Lobbying Disclosure Regulations (51 Pa. Code §31.1 (definition, "administrative action "), they are as defined in 1 Pa. Code §1.4, specifically: Guideline - A document, other than an adjudication, interpretation or regulation, which announces the policy an agency intends to implement in future rulemakings, adjudications or which will otherwise guide the agency in the exercise of administrative discretion. The document may not amend, repeal or suspend a published regulation or otherwise effectively circumscribe administrative choice, but shall establish a framework within which an agency exercises administrative discretion. If authorized by statute, the documents may be incorporated into or published as regulations. The term includes, but is not limited to: (1) Plans for agency operation and administration which establish important policies to be utilized in the future exercise of administrative discretion. (2) General policies and plans for the award and administration of discretionary grants of public monies. (3) Announcements of principles and standards to be applied in future adjudications. Statement of policy - A document, except an adjudication or a regulation, promulgated by an agency which sets forth substantive or procedural personal or property rights, privileges, immunities, duties, liabilities or obligations of the public or a part thereof. The term includes a document interpreting or implementing a statute enforced or administered by an agency. The term includes, but is not limited to, guidelines and interpretations. 1 Pa. Code 1.4. (Emphasis added); see also, related definition of "statement of policy" in 45 P.S. §1102. In applying the submitted facts to the Act and Regulations, we do not believe that your actions in the above instances would constitute lobbying. Requesting the Office of Attorney General to enforce the Unfair Trade Practices and Consumer Protection Law for an alleged violation by an insurance company would not be an effort to influence administrative action. Such activity would merely be an effort directed by you to an agency with prosecutorial powers to urge enforcement of a particular law against a specific insurance company alleged to have violated that law. We see such Artz, 99 -1019 Page 5 activity as nothing more than an individual reporting a possible crime to the appropriate law enforcement authority. Such action on your part would not be lobbying. As to representing a physician or health care client before the Office of Attorney General regarding alleged fraudulent or illegal activity, such action would constitute the practice of law, not lobbying. See, Flaherty, Opinion 99 -1010. Finally, as to seeking the application of antitrust laws in a specific factual circumstance through a request to the Office of Attorney General to investigate or take remedial action, such activities would once again be directed to an agency with prosecutorial powers to proceed as to some alleged illegal activity. For the reasons noted above, such action would not constitute lobbying. 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: The activities of: requesting enforcement by the Office of Attorney General (OAG) of the Unfair Trade Practices and Consumer Protection Law as to an alleged violation by an insurance company; representing a physician or health care client before the Insurance Fraud Division of the OAG regarding alleged fraudulent or illegal activity; or arguing the applicability of antitrust laws in a specific factual circumstance through a request to the OAG to investigate or take remedial action would not constitute lobbying under 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