HomeMy WebLinkAbout99-1028 SundayOPINION OF THE COMMISSION
Jeffery H. Sunday, Esquire
House Counsel
Pennsylvania Enterprises, Inc.
One PEI Center
Wilkes- Barre, PA 18711 -0601
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 -1028
Re: Lobbying, Principal, Political Action Committee, PAC Expenses, Expense Report.
Dear Mr. Sunday:
This Opinion is issued in response to your advisory request received on October 7,
1999.
I. ISSUE: Whether a principal filing quarterly expense reports under the
Lobbying Disclosure Act must include the expenses of its affiliated political action
committee.
II. FACTUAL BASIS FOR DETERMINATION: As House Counsel for Pennsylvania
Enterprises, Inc. (PEI), you request an advisory as to whether a principal filing quarterly
expense reports under the Lobbying Disclosure Act (Act) must include the expenses of its
affiliated political action committee (PAC).
You state that since you do not anticipate receiving a ruling in this matter by the
November 1, 1999 due date for the first quarterly expense reports, you will not include
PAC expenses in your principal's said quarterly expense report. However, if this
Commission rules that such expenses should be included, you will then file an amended
quarterly expense report under the Act.
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.
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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" and "administrative action" 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
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
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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.
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.
The term "affiliated political action committee" is defined in the Act as follows:
"Affiliated political action committee." A political action
committee as defined in section 1621(1) of the act of June 3,
1937 (P.L. 1333, No. 320), known as the Pennsylvania
Election Code, which has a chairman, a treasurer or another
officer who is a principal, an employee of a principal, a lobbyist
or an employee of a lobbyist, provided, if an employee of a
registrant serves as the officer of a political action committee
in what is clearly a personal capacity and the goals and
mission of that political action committee clearly have no
relationship to the goals and mission of the registrant, such
political action committee shall not be considered an affiliated
political action committee for the purposes of this definition.
The following provisions of the Election Code are also pertinent to your request:
§3241. Definitions
As used in this article, the following words have the following
meanings:
(d) The word "expenditure" shall mean:
(1) the payment, distribution, loan or advancement of money
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or any valuable thing by a candidate, political committee or
other person for the purpose of influencing the outcome of an
election;
(2) the payment, distribution, loan, advance or transfer of
money or other valuable thing between or among political
committees;
(3) the providing of a service or other valuable thing for the
purpose of influencing the outcome of a nomination or election
of any person to any public office to be voted for in this
Commonwealth; or
(4) the payment or providing of money or other valuable
thing by any person other than a candidate or political
committee, to compensate any person for services rendered to
a candidate or political committee.
(1) The words "Political Action Committee" shall mean any
political committee as defined in subsection (h) which receives
contributions and makes expenditures to, or on behalf of, any
candidate other than a candidate's own authorized political
committees or the political committees of any State, county,
city, borough, township, ward or other regularly constituted
party committee of any political party or political body.
25 P.S. §§ 3241(d),(I).
§3246. Reporting by candidate and political committees
and other persons
(j) All "Political Action Committees" shall report to the
Secretary of the Commonwealth all expenditures to or made
on behalf of, any Statewide candidate, candidate for the
Pennsylvania House of Representatives, or candidate for the
State Senate, in the same manner as indicated in this section
as a candidate's political committee. This provision shall be in
addition to any other filing and reporting provisions of this act
which apply to such committees, their treasurers and
chairmen.
25 P.S. § 3246(j).
In applying the above provisions to your inquiry under the Lobbying Disclosure Act,
we find that PAC expenditures, which are properly reportable under the Election Code, are
not to be included in a principal's expense reports filed under the Lobbying Disclosure Act.
This conclusion is based upon the following analysis.
Except for expenditures between or among political committees, PAC expenditures
are, by law, for the purpose of influencing the outcome of a nomination or election or
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paying for services rendered to a candidate or political committee. Under the Election
Code, there is already a mechanism in place for the reporting of PAC expenditures.
The object of all interpretation and construction of statutes is to ascertain and
effectuate the intention of the General Assembly...." 1 Pa.C.S. §1921(a). We believe
that if the General Assembly had intended for reporting under the Lobbying Disclosure Act
to include PAC expenditures, which are clearly already required to be reported under the
Election Code, the General Assembly would have so stated. The General Assembly did
nothing of the sort. Instead, the Act's references to political action committees are limited
to: (1) the definition of the term, "affiliated political action committee," 65 Pa.C.S. §1303;
(2) the requirement to disclose affiliated political action committees when registering as a
principal or lobbyist under the Act, 65 Pa.C.S. §§ 1304(b)(1), (c)(1); (3) the prohibition
against lobbyists serving as officers for candidates' political action committees, 65 Pa.C.S.
§1307(b); and (4) the direction that this Commission's annual report of lobbying activities
in the Commonwealth identify the affiliated political action committees of lobbyists and
principals, 65 Pa.C.S. §1308(e). None of these requirements have anything to do with the
contents of expense reports filed under the Act.
While it is possible that PAC expenditures made properly for the aforesaid purposes
under the Election Code might, in some situations, also arguably seek to influence
legislative action or administrative action, a requirement that such expenses not only be
reported under the Election Code but also under the Lobbying Disclosure Act would, in our
view, lead to double reporting and, consequently, confusion on the part of the public. Such
was not the intent of the General Assembly in enacting the Lobbying Disclosure Act. See,
65 Pa.C.S. §1302(a).
Having determined that it was not the intent of the General Assembly to include
PAC expenditures as reportable under the Lobbying Disclosure Act, we hold that PAC
expenditures, which are properly reportable under the Election Code, are not to be
included in a principal's expense reports filed under the Lobbying Disclosure Act.
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: PAC expenditures, which are properly reportable under the
Election Code, are not to be included in a principal's expense reports filed 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
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Chair