HomeMy WebLinkAbout99-1024 SweetOPINION OF THE COMMISSION
David W. Sweet, Esquire
Pepper Hamilton LLP
200 One Keystone Plaza
North Front and Market Streets
P.O. Box 1181
Harrisburg, PA 17108 -1181
Dear Mr. Sweet:
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: 11/23/99
DATE MAILED: 12/7/99
99 -1024
Re: Lobbying, Principal, Lobbyist, Government Relations, Registration, Reporting,
Exemption, Limited Liability Partnership, Law Firm, Partner, Associate, Expense
Report, Separate Expense Report, Signature.
This Opinion is issued in response to your advisory request received on September
7, 1999.
I. ISSUE: Where partners and associates of a limited liability partnership law
firm provide government relations services to clients of the firm, would the firm, in addition
to its partners, associates and staff, be required to register as a lobbyist; sign the expense
reports submitted by the principals represented; and file separate expense reports
pursuant to Section 1305(b)(6) of the Lobbying Disclosure Act?
II. FACTUAL BASIS FOR DETERMINATION: As a partner in the law firm of
Pepper Hamilton LLP (Pepper), you seek an advisory regarding the applicability of the
registration and reporting requirements of the Lobbying Disclosure Act (Act) to Pepper.
Pepper is a limited liability partnership engaged in the general practice of law. It is
operated by the partners.
You state that some of Pepper's partners and associates provide government
relations services to Pepper's clients. As a result of such representations, those partners
Sweet, 99 -1024
December 7, 1999
Page 2
or associates may now or in the future be registered as individual lobbyists.
You pose two inquiries: (1) whether Pepper, as a partnership, would be required to
register as a lobbyist under the Act if each partner, associate, or other employee who is
engaged in lobbying would register individually as a lobbyist; and (2) if so, whether
Pepper, in addition to its partners, associates and staff who are registered individually as
lobbyists, would be required to sign reports submitted by its principals and to submit
separate expense reports as to lobbying expenses which are not included in the reports
submitted by such principals.
With regard to the first question, involving registration, you contend that in reading
the statutory definition of "lobbyist" together with Section 1304(b) of the Act, only the
individual lobbyist, and not the business entity which employs the lobbyist, should be
required to register under the Act.
With regard to the second question, involving signing principals' expense reports
and filing separate reports when required by Section 1305(b)(6) of the Act, you contend
that since only the individual lobbyist, and not Pepper itself, would have the knowledge
needed to "attest to the validity and accuracy [of the report] to the best of the lobbyist's
knowledge" and to prepare any separate report required by Section 1305(b)(6), it would be
purposeless and redundant to also require Pepper to sign or prepare a report.
Based upon the foregoing, you ask whether Pepper, in its capacity as a limited
liability partnership, would be required to comply with subparagraphs (4) and (6) of Section
1305(b) of the Act if those requirements are fulfilled by the individual partners, associates,
and staff of Pepper who are registered lobbyists.
By letter dated November 2, 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 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S.
§ §1107(10), (11), advisories are issued to the requestor based upon the facts which the
requestor has submitted. The 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, this Commission must review
the pertinent definitions and substantive provisions of the Act and 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," and "administrative action" that are within the
definition of "lobbying" are themselves defined as follows:
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December 7, 1999
Page 3
"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.
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.
Id.
"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
boards or commissions by a member of the General Assembly.
"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.
Sweet, 99 -1024
December 7, 1999
Page 4
Section 1304(a) of the Act provides, in pertinent part:
§1304. Registration
(a) General rule. -- Unless excluded under section 1306
(relating to exemption from registration and reporting), a
lobbyist or a principal must register with the commission within
ten days of acting in any capacity as a lobbyist or principal....
65 Pa. C. S. §1304(a).
Section 33.3(a) of the Lobbying Disclosure Regulations provides:
§33.3. Lobbyist registration.
(a) Unless exempt under section 1306 of the act (relating to
exemption from registration and reporting), a lobbyist shall
register with the Commission within 10 days of acting in any
capacity as a lobbyist.
(1) Accepting an engagement to lobby constitutes acting in
the capacity of a lobbyist.
(2) Engaging in lobbying constitutes acting in the capacity of
a lobbyist.
(3) When a firm, association, corporation, partnership,
business trust or business entity is engaged as a lobbyist, it
and each of its members or employes that engage in lobbying
on behalf of the principal shall register with the Commission,
unless exempt under section 1306 of the act.
51 Pa. Code §33.3(a).
Section 1305 of the Act provides, in pertinent part:
§1305. Reporting
(a) General rule. - -A lobbyist as required by subsection (b)(6)
or a registered principal shall, under oath or affirmation, file
quarterly expense reports with the commission.
(b) Content. --
(4) A lobbyist must sign the reports submitted by each
principal represented to attest to the validity and accuracy to
the best of the lobbyist's knowledge. A lobbyist may attach a
statement to the report of any principal, describing the limits of
the lobbyist's knowledge concerning the expenditures
contained in the report.
(6) A lobbyist shall submit a separate report if, during the
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December 7, 1999
Page 5
reporting period, the lobbyist engaged in lobbying which was
not contained in the reports filed by the principal or principals
represented by the lobbyist. A separate lobbyist report shall
contain the identity of the principal for whom such lobbying
was performed and shall contain all information required under
paragraphs (2) and (3).
65 Pa.C.S. § §1305(a), (b)(4), (6).
Finally, § §33.5(h) and 35.1(m) provide that "A lobbyist required to be registered
under the act" shall sign the expense reports or amended expense reports filed by the
principals represented to attest to the validity and accuracy of the reports to the best of
the lobbyist's knowledge." 51 Pa. Code § §33.5(h); 35.1(m).
In applying the above provisions of law and regulations to the questions which you
have submitted, we first note that the statutory definition of "lobbyist" includes firms,
partnerships, and various other forms of entities in addition to individuals.
In response to your first inquiry, we find that both the Act and the Lobbying
Disclosure Regulations would require the registration of Pepper as a lobbyist if lobbying is
being done through the firm. In support of this conclusion, we note that Section 1304(a) of
the Act quoted above does not distinguish between individuals and entities in directing
registration by "lobbyists." Additionally, Section 33.3(a)(3) of the Lobbying Disclosure
Regulations speaks directly to this issue, and would expressly require registration by the
partnership itself. The fact that the principal's registration statement is required to only
name those of its lobbyists who are individuals does not in any way abrogate the separate
requirement that a firm which is a lobbyist must itself register.
As for your second inquiry, specifically whether Pepper, in addition to its partners,
associates, and staff who register individually as lobbyists, would be required to sign
reports submitted by the principals represented and to submit separate expense reports as
to lobbying expenses which are not included in the reports submitted by such principals,
you are advised that Pepper would indeed be required to do so. The Act provides no
exception for non - individual lobbyists with regard to signing a principal's report or filing a
separate expense report when required by the Act. Parenthetically, we note that the
Regulations do provide registered lobbyists with the option for a joint filing - -in this case for
the firm, partners and staff - -as to any required separate lobbyist expense report. See, 51
Pa. Code § §33.5(i)(1); 35.1(n)(1).
With regard to your arguments for a contrary result based upon practical
considerations, we do not have the power to abrogate statutory requirements. See,
Richardson Opinion 93 -006. Further, the fact that the Act makes different references to
lobbyists, registered lobbyists, and individuals who are lobbyists reflects a legislative intent
as to the reporting requirements in Section 1305 that "lobbyist" includes entities as well as
individuals.
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: Where partners and associates of a limited liability partnership
law firm provide government relations services to clients of the firm, and such lobbying is
done through the firm, the firm itself is required to register as a lobbyist; to sign the
expense reports submitted by the principals represented; and to file separate expense
Sweet, 99 -1024
December 7, 1999
Page 6
reports to the extent such are required by Section 1305(b)(6) of the Lobbying Disclosure
Act, even though the partners, associates, and staff of the firm register individually as
lobbyists and comply with those requirements.
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