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HomeMy WebLinkAbout99-1027 Frankel1999. Larry Frankel Executive Director ACLU of Pennsylvania 125 South 9th Street P.O. Box 1161 Philadelphia, PA 19105 -1161 Re: Lobbying, Principal, Lobbyist, American Civil Liberties Union, Press Briefing, General Assembly, Department of Corrections, Constitution, Right, Policy Change, Regulatory Change, Agency Officials, Policy, Prison Conditions, School, Expense. Dear Mr. Frankel: 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: 11/23/99 DATE MAILED: 12/7/99 99 -1027 This Opinion is issued in response to your advisory request received on October 4, I. ISSUE: Whether an organization which advocates on civil rights issues at a press briefing and meets with state officials and employees in an effort to effectuate policy and regulatory changes is engaged in lobbying, such that the related expenses must be reported under the Lobbying Disclosure Act. II. FACTUAL BASIS FOR DETERMINATION: As the Executive Director and a registered lobbyist for the American Civil Liberties Union of Pennsylvania (ACLU), you request an advisory opinion with regard to three scenarios. In the first scenario, you are considering holding a press briefing on the issue of teaching creationism in the schools and why the ACLU believes such to be unconstitutional. You intend to invite reporters who cover the General Assembly as well as reporters and editorial writers who focus on educational issues. You plan to provide breakfast for those who attend. You plan to bring in a speaker from your national office in New York. You ask whether the costs for the invitations, the food and beverages, the travel expenses and one- Frankel, 99 -1027 December 7, 1999 Page 2 day salary for the guest speaker, as well as your own time spent on this specific activity, would be reportable under the Lobbying Disclosure Act (Act). Under the second scenario, the ACLU writes to the Department of Corrections (DOC) about what the ACLU considers to be unsafe and unhealthy conditions in the state prisons. The ACLU believes the conditions may violate the prisoners' constitutional rights. In the letter to the DOC, the ACLU requests that DOC personnel meet with the ACLU to discuss policy changes that could lead to improved prison conditions. The DOC agrees to the meeting, and at the meeting, policy changes are discussed. You ask whether the time the ACLU spends preparing for the meeting and actually meeting with DOC personnel would constitute lobbying activity for which any related expenses -- specifically staff time - -would be reportable under the Act. The third scenario which you present similarly involves meeting with the DOC regarding prison conditions. Under this scenario, the DOC rather than the ACLU would initiate the contact, even though the ACLU would not have threatened to sue. You ask whether the ACLU would be required to report expenses for meeting with DOC employees to discuss proposed policy and regulatory changes that would affect prison conditions if the contact would be initiated by a DOC policy maker, rather than by the ACLU. 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 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 Frankel, 99 -1027 December 7, 1999 Page 3 the Governor; or confirmation of appointments by the Governor or of appointments to public boards or commissions by a member of the General Assembly. "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. "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. Frankel, 99 -1027 December 7, 1999 Page 4 Id. "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. An effort to influence "administrative action," as that term is defined above, includes an effort to influence an agency's development or modification of a guideline or statement of policy. Although 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. See also, related definition of "statement of policy" in 45 P.S. §1102. In applying the above provisions of law to the first scenario and question which you have submitted, involving the proposed press briefing, the answer to your question as to whether the related expenses would be reportable under the Act would hinge upon the nature of the briefing. If the press briefing would merely set forth the viewpoint of the ACLU on the issue of teaching creationism in schools - -and nothing more - -then such activity would not constitute lobbying under the Act. On the other hand, if the press briefing would be an effort to encourage others to take action, the purpose or foreseeable effect of which would be to directly influence legislative action or administrative action, it would constitute "indirect communication" and therefore lobbying. In the latter instance, the related expenses would be reportable under the Act. Frankel, 99 -1027 December 7, 1999 Page 5 We now turn to your second inquiry concerning an ACLU - initiated meeting with DOC personnel regarding prison conditions. We determine that if the ACLU's actions would constitute an effort to influence "administrative action" as defined above, such as the modification of a "guideline" or a "statement of policy" as those terms are defined above, then such action would constitute lobbying. You are advised that to the extent the ACLU would be engaged in lobbying activities, both the preparation time and the meeting time expenses would have to be reported under the Act as included within the "single aggregate good faith estimate of the total amount spent for personnel and office expenses related to lobbying," which category represents a "grand total" of expenditures for lobbying. See, 65 Pa.C.S. §1305(b)(2)(i). However, only the meeting time expenses, and not the preparation time expenses, would have to be included within the breakout for the "single aggregate good faith estimate of the total amount spent for direct communication." See, 65 Pa.C.S. §1305(b)(2)(ii). As to your third inquiry of whether the result would be different if the contact between the ACLU and the DOC would be initiated by a DOC policy maker, rather than by the ACLU, the answer is that the result would not differ. The question was first addressed in Roth, Opinion 99 -1006, wherein this Commission held: [T]he source of the initiation of the activity, whether the principal /lobbyist or the state official or employee, is not dispositive as to whether the activity is lobbying. Rather, it is the nature of the activity itself which controls. Thus, where there would be an effort to influence legislative or administrative action in any given contact, the activity would be lobbying even though the contact may have been initiated by a state official /employee. Lobbying expenses are required to be included within the totals in reports filed pursuant to the Act. Id. at 9. 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: An organization that holds a press briefing on civil rights issues is engaged in indirect communication and therefore lobbying if such activity is an effort to encourage others to take action, the purpose or foreseeable effect of which is to directly influence legislative action or administrative action. An organization that meets with state official(s) or employee(s) in an effort to influence legislative action or administrative action is engaged in lobbying regardless of whether the organization or state personnel initiated the contact. An effort by an organization to effectuate changes to an agency guideline or statement of policy is an effort to influence administrative action. Any lobbying and lobbying related expenses would be reportable under the 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, Frankel, 99 -1027 December 7, 1999 Page 6 Daneen E. Reese Chair Commissioner Louis W. Fryman concurs as to the result regarding the press briefing and ACLU contacts of the Department of Corrections but dissents as to the decision regarding contact initiated by the Department of Corrections.