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HomeMy WebLinkAbout99-1020 StabackOPINION OF THE COMMISSION The Honorable Edward G. Staback State Representative 115th Legislative District 307 Betty Street P.O. Box 305 Archbald \Eynon, PA 18403 -0305 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 -1020 Re: Lobbying, Principal, Lobbyist, State Official, Hospitality, Ticket, Nascar, Race, Report. Dear Representative Staback: This Opinion is issued in response to your advisory request received on August 23, 1999. I. ISSUE: Whether tickets provided by a raceway owner to a state official for distribution to specified or unspecified constituents are hospitality to the state official under the Lobbying Disclosure Act. II. FACTUAL BASIS FOR DETERMINATION: As a member of the 115th Legislative District, you seek an advisory concerning tickets to special events, such as NASCAR races, and the extent to which the Lobbying Disclosure Act, 65 Pa.C.S. §1301, et seq. (Act) applies to such activities. You pose the following questions: if the owner of a raceway gives admission tickets directly to you for your constituents, are the tickets first gifts to you or gifts directly to the final recipients; if you know the identity of the ticket recipients, present their names to the patron and offer to serve as a conduit for the dispersion of the tickets, is the value of the tickets reportable as a gift to you; and if the owner of a raceway rather than a registered lobbyist gives you the tickets, is the Act implicated. By letter dated September 29, 1999 you supplemented your prior letter with the following additional information in the form of two hypothetical situations. In the first scenario, a legislator requests 40 to 70 tickets to an event, such as NASCAR races, for distribution to unspecified constituents. Following receipt of the tickets from a principal /lobbyist, the legislator distributes the tickets. You ask whether the tickets would be gifts from the legislator to the individual constituents and whether the value of the tickets would be included in the quarterly expense report as "gifts" to the individual constituents or to the legislator. Staback, 99 -1020 Page 2 In the second scenario, the facts would be the same except that the legislator would give the principal /lobbyist a list of names to whom the tickets would be distributed and the number of tickets for each person. You then pose the same inquiries as set forth above. 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: (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. Id. (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 We must determine whether the Act has application to tickets provided to you for distribution to specified or unspecified constituents. This type of issue by necessity will be determined through a close scrutiny of the particular facts in each case. In general, tickets which are provided to a state official without any specification as to who the ultimate recipients will be constitute hospitality to the state official. This is so because the state official has discretion to give the tickets to himself or herself, family or friends, or to any others whom he or she chooses. Under this sort of scenario, the tickets clearly constitute hospitality to the state official. Staback, 99 -1020 Page 3 The result is the same if the state official specifies to whom the tickets are to be provided. See, Confidential Opinion 99 -1011. Under such a scenario, all of the tickets constitute hospitality to the state official. Turning to the facts which you have presented, all of the tickets provided by the raceway owner to you for "constituents," whether specified or unspecified by you, constitute hospitality to you. First, the owner does not specify to whom the tickets are to be provided, but rather provides the tickets to you for your specification. You are in a position to decide who will ultimately receive the tickets. Further, such tickets are for "constituents" and hence are provided to you by virtue of your position as a state official. One could conclude that the provision of such tickets is for the purpose of advancing the interests of the raceway owner who may be a principal under the Act. We do not have before us the situation where a principal or lobbyist provides tickets with no contact, involvement or consultation with you as a state official. This case involves you as a state official having the ability to specify the ultimate recipients of the tickets, either by supplying their names or by actually distributing the tickets to whomever you choose. The tickets constitute hospitality to you which is subject to the reporting requirements of the Ethics Act regardless of whether they are provided by a registered lobbyist or principal. Such tickets are also subject to the reporting requirements of the Act if the donor is a principal or lobbyist. Parenthetically, there would be no reporting requirements as to tickets provided directly by the raceway owner to other individuals where there is no contact or involvement on your part. Likewise, there would be no reporting requirements for you as a donor either under the Act or Ethics Act regarding your subsequent provision of such tickets to constituents. 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: Tickets provided by a raceway owner to a state official for distribution to his constituents, with or without specification by the state official as to who those recipient constituents will be, constitute hospitality to the state official under the Lobbying Disclosure Act or Ethics 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