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HomeMy WebLinkAbout99-1029 DeWallDear Mr. DeWall: 1999. 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 Thomas H. DeWall, CAE Executive Officer Pennsylvania Psychological Association 416 Forster Street Harrisburg, PA 17102 -1714 99 -1029 Re: Lobbying, Principal, Lobbyist, Political Action Committee, Legislative Fundraiser, Strategy Session, Legislative Coalition Meeting, Association, Contribution. This Opinion is issued in response to your advisory request received on October 7, I. ISSUE: Whether an individual who attends legislative fundraising events, strategy sessions, and meetings of legislative coalitions engages in lobbying so that such expenses would be reported under the Lobbying Disclosure Act. II. FACTUAL BASIS FOR DETERMINATION: As a registered lobbyist for the Pennsylvania Psychological Association (PPA), you seek an advisory from this Commission regarding the reporting requirements of the Lobbying Disclosure Act (Act). You have posed very specific questions under three factual scenarios, which involve: (1) your attendance at legislative fundraising events; (2) your participation in lobbyist /association staff strategy sessions; and (3) your participation in meetings of legislative coalitions. Under the first scenario involving your attendance at legislative fundraising events, you ask four questions: (1) whether the time spent at a legislative fundraising event which is attended by public officials, lobbyists, and other people would constitute lobbying under the Act; (2) whether you must track and report your time spent talking to public officials, as DeWall, 99 -1029 December 7, 1999 Page 2 distinguished from your time spent talking to others; (3) whether the time spent talking to public officials is considered lobbying only if you encourage them to take action, but not if the discussion involves other things; and (4) whether the PAC contribution that "got you in the door" is a lobbying expense given that contributions to a PAC must be reported by the PAC under a different law. Under the second scenario involving your participation in lobbyist /association staff strategy sessions, you ask three questions: (1) whether that sort of activity would be considered "indirect lobbying "; (2) whether the characterization of such activity as lobbying depends upon the content of the conversation, for example, whether the participants merely share information about which legislators they plan to contact or actually "encourage" each other to take action; and (3) whether it is "indirect" lobbying to ask a lobbyist who is on your own staff or is under contract with your principal to talk to a particular legislator. Finally, under the third scenario involving your participation in meetings of legislative coalitions, you ask the following question: whether participating in meetings of legislative coalitions, at which people representing different organizations share information about legislative issues and strategies, would be considered "indirect lobbying." 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," "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 DeWall, 99 -1029 December 7, 1999 Page 3 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 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 DeWall, 99 -1029 December 7, 1999 Page 4 Id. 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. Section 1305(e) of the Act provides: §1305. Reporting (e) Voluntary disclosure. -- Nothing in this section shall prevent a principal or lobbyist from disclosing expenses in greater detail than required. 65 Pa. C. S. §1305(e). Finally, Section 35.2(b)(2) of the Lobbying Disclosure Regulations provides: An expenditure incurred partially in connection with lobbying may be prorated by any reasonable accounting method, but the method used shall be described in detail in the records maintained as to the expenditure." 51 Pa. Code §35.2(b)(2). Having set forth the provisions of law and regulations which are pertinent to your inquiry, we shall now address seriatim the questions which you have posed. Under the first scenario involving your attendance at legislative fundraising events, the first question is whether your time spent at a legislative fundraising event which is attended by public officials, lobbyists, and other people would constitute lobbying under the Act. In McGee, Opinion 99 -1022, we determined that mere attendance at a political function would not constitute lobbying. However, activity which would attempt to influence legislative action or administrative action would constitute lobbying, regardless of whether the activity would occur at such a political function. We further held that the provision of gift(s) or hospitality to a State official or employee by a lobbyist or principal, while on an outing or at a political fundraiser, would be deemed to inherently be within the definition of "lobbying" and reportable by a registrant under the Act. Id. (Citing Cook, Opinion 99 -1001; Chiavetta, Opinion 99- 1003). Thus, the answer to your first question would depend upon what you would do while at the legislative fundraiser. If you would merely attend the event, such would not constitute lobbying. However, if you would communicate with any State official or employee in an effort to influence legislative action or administrative action, or if you /your principal would provide gift(s) or hospitality to a State official or employee at such a function, then such activity would constitute lobbying and would require the reporting of the related expenses. Likewise, if you would encourage others to take action, the purpose or foreseeable effect of which would be to directly influence legislative or administrative action, such communication would constitute "indirect communication" and therefore "lobbying." DeWall, 99 -1029 December 7, 1999 Page 5 Your second question as to legislative fundraisers is whether you must track and report your time spent talking to public officials, as distinguished from your time spent talking to others at the political fundraiser. We first conclude that you could prorate the time actually spent on lobbying activities at the fundraiser, as opposed to time spent on non - lobbying activities, but that you would not be penalized for failing to do so. This conclusion is supported by Section 35.2(b)(2) of the Lobbying Disclosure Regulations which allows the proration -- by any reasonable accounting method " - -of an expenditure incurred partially in connection with lobbying, and by Section 1305(e) of the Act, which allows for voluntary disclosure of expenses in greater detail than required. We read the latter provision as reflecting the legislative intent that principals and lobbyists are not to be penalized for providing greater detail or more information than they would be required to provide. You should keep track of time spent on direct communication versus indirect communication, so that you will be able to accurately break out those expenses for the expense reports. Your third question as to legislative fundraisers is whether the time spent talking to public officials is considered lobbying only if you encourage them to take action, but not if the discussion involves other things. We conclude that if a discussion with a State official or employee is, for example, about the weather, and is not an effort to influence legislative action or administrative action, it is not lobbying. Your final question as to legislative fundraisers is whether the PAC contribution that "got you in the door" to the event would be a lobbying expense given that PAC contributions are reported under a different law. In Sunday, Opinion 99 -1028, we determined, as to expenditures by political action committees, that although PAC expenditures made for proper 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 lead to double reporting and, consequently, confusion on the part of the public. We determined that such was not the intent of the General Assembly. Accordingly, we held that expenditures by a PAC, which are properly reportable by the PAC under the Election Code, are not to be included in a principal's expense reports filed under the Lobbying Disclosure Act. We find these same principles to be applicable to your inquiry as to a contribution to a PAC. Such are also reportable by the PAC under the Election Code. Political action committees are "political committees" under the Election Code. 25 P.S. §3241(I). Under the Election Code, a political committee must report not only its expenditures, but also the contributions it receives. 25 P.S. §3246. We conclude that it was not the intent of the General Assembly that contributions to a PAC be reported under both laws. Accordingly, we hold that your PAC contribution which "gets you in the door" to a political fundraiser, and which is properly reportable by the PAC under the Election Code, is not to be included in expense reports filed under the Lobbying Disclosure Act. However, we would emphasize that we are dealing with your PAC contribution here; the issue of whether to report the lobbyist's contribution to the PAC is very different from the question of whether the value of such a ticket to a political fundraiser must be reported where the ticket is subsequently provided to a State official or employee. The latter issue has not yet been specifically addressed by this Commission and is reserved for another day. Turning to the second scenario which you have presented, all three of your questions involve your participation in lobbyist /association staff strategy sessions, that is, strategy sessions where the communications are occurring strictly among the principal (through its staff) and its own lobbyists. In Chiavetta, Opinion 99 -1003, we first stated our DeWall, 99 -1029 December 7, 1999 Page 6 view that discussions between lobbyists and their principals would not constitute lobbying. In such a scenario, the principal is essentially talking to itself through its own staff and lobbyists. Such activities involve review, analysis or strategy but not direct or indirect communications in an effort to influence legislative or administrative action. However, even though such activities are not lobbying, they are "lobbying- related," so that the related expenses for such strategy sessions would be includable in expense reports filed under the Act as within the "single aggregate good faith estimate of the total amount spent for personnel and office expenses related to lobbying." We shall now address your third and final inquiry regarding meetings of legislative coalitions, where people representing different organizations share information about legislative issues and strategies. It would seem that the content of the communications may control, but that generally, such activities would constitute an effort to influence legislative or administrative action through "indirect communication." We would expect this scenario to be the norm, and to stand in sharp contrast to the unusual situation in Powell, Opinion 99 -1008, where an organization which had not yet begun to lobby merely interfaced with other groups opposed to gambling to identify such groups, their location, leadership, membership and reach, and to find out what those other groups were doing. 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: A registered lobbyist for an association would not be engaged in lobbying by merely attending a legislative fundraiser. However, if the lobbyist would, while at the fundraiser, communicate with a State official or employee or other person in an effort to influence legislative action or administrative action, such would constitute lobbying reportable under the Lobbying Disclosure Act. If the lobbyist or his or her principal would provide gift(s) or hospitality to a State official or employee at such a function, then such activity would also constitute lobbying and would require the reporting of the related expenses. The registered lobbyist could prorate the time actually spent on lobbying activities at the fundraiser as opposed to time spent on non - lobbying activities, but would not be penalized for failing to do so. The lobbyist should keep track of time spent on direct communication versus indirect communication, so that the lobbyist is able to accurately break out those expenses for the expense reports. A discussion with a State official or employee that would not involve an effort to influence legislative action or administrative action would not constitute lobbying. The lobbyist's contribution to the PAC which gets the lobbyist in the door" to a political fundraiser, and which is properly reportable under the Election Code, is not to be included in expense reports filed under the Lobbying Disclosure Act. However, the issue of whether to report the lobbyist's contribution to the PAC is very different from the question of whether the value of such a ticket to a political fundraiser must be reported where the ticket is subsequently provided to a State official or employee. The latter issue has not yet been specifically addressed by this Commission and is reserved for another day. Strategy sessions where the communications occur strictly among the principal (through its staff) and its own lobbyists would not constitute lobbying. However, such activities would be "lobbying- related," so that the related expenses for such strategy sessions would be includable in expense reports filed under the Act as within the "single aggregate good faith estimate of the total amount spent for personnel and office expenses related to lobbying." Meetings of legislative coalitions, where people representing different organizations DeWall, 99 -1029 December 7, 1999 Page 7 would share information about legislative issues and strategies, would generally constitute an effort to influence legislative or administrative action through "indirect communication." 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