Loading...
HomeMy WebLinkAbout99-1031 Van Horne1999. OPINION OF THE COMMISSION The Honorable Terry Van Horne Van Horne for Congress P.O. Box 444 New Kensington, PA 15068 Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Louis W. Fryman John J. Bolger Frank M. Brown Susan Mosites Bicket DATE DECIDED: 11/23/99 DATE MAILED: 12/7/99 99 -1031 Re: Lobbying, Lobbyist, Candidate, Political Committee, Political Action Committee, Honorary Chairman, State Representative, Federal Office, Prohibition, Officer. Dear Representative Van Horne: This Opinion is issued in response to your advisory request received on October 18, I. ISSUE: Whether a lobbyist would be prohibited by the Lobbying Disclosure Act from serving as an honorary chairman for a political committee of a candidate, where the candidate is an incumbent State Representative who is seeking federal office. II. FACTUAL BASIS FOR DETERMINATION: As an incumbent State Representative who is seeking federal office, you seek an advisory from this Commission on behalf of former Pennsylvania Lieutenant Governor and Beaver County State Senator Ernest P. Kline, at his request. You state that you have filed the necessary papers with the Federal Election Commission to register as a candidate for federal office and to authorize and register a candidate's principal (political) committee. Although the only officer your committee was required to appoint was a treasurer, you have chosen to appoint various "honorary chairpersons" whom you state will not serve in any official capacity under federal law. You have asked Mr. Kline to serve as your Honorary Chairman in Beaver County. Van Horne, 99 -1031 December 7, 1999 Page 2 Mr. Kline, who is a registered lobbyist, would like to serve in this capacity. However, Mr. Kline is concerned about whether such service would be permissible under Section 1307(b) of the Lobbying Disclosure Act. You state your understanding that under federal law, a treasurer is the only recognized officer of a candidate's political committee. It is therefore your position that Mr. Kline would not be prohibited from serving as an honorary chairman. At Mr. Kline's request, you seek an advisory opinion from this Commission in this matter. 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. 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 Van Horne, 99 -1031 December 7, 1999 Page 3 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. "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. As for the substantive provisions to be reviewed, Section 1307(b) of the Act provides: (b) Political committees. - -A lobbyist may not serve as a treasurer or another officer for a candidate's political committee or a candidate's political action committee. 65 Pa.C.S. §1307(b). The following definitions from the Election Code are pertinent to your request: §3241. Definitions As used in this article, the following words have the following meanings: Van Horne, 99 -1031 December 7, 1999 Page 4 (h) The words "political committee" shall mean any committee, club, association or other group of persons which receives contributions or makes expenditures. (m) The words "Candidate's Political Committee" shall mean any political committee formed on behalf of a specified candidate and authorized by said candidate. 25 P.S. §3241. In applying the above provisions of law to your inquiry, it is clear that Section 1307(b) of the Act prohibits a lobbyist from serving in any officer position for a candidate's political committee or a candidate's political action committee. We parenthetically note that although Mr. Kline is a registered lobbyist, this particular prohibition does not appear to be limited to registered lobbyists. In any event, the inquiry which is presently before us is whether the above quoted prohibition of Section 1307(b) of the Act applies where the candidate is an incumbent State Representative who is running for a federal office, and the "officer" position with the political committee is as an "honorary" chairman. In analyzing your inquiry, we are mindful that, 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). It is our view that the legislative intent behind this particular prohibition in Section 1307 is twofold: (1) to prevent any influence that a lobbyist might exert in terms of expenditures as to the candidate's campaign; and (2) to distance the lobbyist from the candidate. The first issue to be decided is whether the prohibition applies where the candidacy is for a federal office. We find that the prohibition of Section 1307(b) of the Lobbying Disclosure Act generally would apply to prohibit a lobbyist from serving as an officer with a candidate's political committee for a candidate seeking a federal office. We first note that Section 1307(b) itself does not limit the prohibition to apply only where the candidate is running for State office. The General Assembly certainly knows how to draw such distinctions between governmental levels when it intends to do so, as is evidenced by the Act's limitation of lobbying to include only activities at the State level (See, McGee, Opinion 99- 1022). If the General Assembly had intended that the Section 1307(b) prohibition would not apply where the candidate would be seeking federal office, it would have so stated. Furthermore, there is no question that at least one, and sometimes both, of the General Assembly's purposes of preventing the lobbyist from having influence as to the candidate's campaign expenditures and distancing the lobbyist from the candidate would apply to a situation where the lobbyist would be serving as an actual officer for a candidate's political committee, particularly where the candidate seeking federal office would be an incumbent State official or employee, such as an incumbent State Representative. However, in reviewing the second aspect of your inquiry, we are constrained to find Van Horne, 99 -1031 December 7, 1999 Page 5 that the prohibition of Section 1307(b) does not apply where the so- called officer position to be "held" by the lobbyist is only honorary and does not actually exist in law as an officer position, and where the lobbyist can exercise no authority of any kind over the affairs of the candidate's political committee. We do not go so far as to determine whether your understanding of federal law is correct in this regard, because we do not have the jurisdiction to interpret federal law. Rather, we simply determine that Section 1307(b) of the Lobbying Disclosure Act would not prohibit a lobbyist from being designated to an honorary position with a candidate's political committee where the position is in fact only honorary and does not actually exist in law as an officer position, and where the lobbyist can exercise no authority of any kind over the affairs of the candidate's political committee. 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: The prohibition of Section 1307(b) of the Lobbying Disclosure Act generally would apply to prohibit a lobbyist from serving as an officer with a candidate's political committee for a candidate seeking federal office. However, Section 1307(b) of the Lobbying Disclosure Act would not prohibit a lobbyist from being designated to an honorary position with a candidate's political committee where the position is in fact only honorary and does not actually exist in law as an officer position, and where the lobbyist can exercise no authority of any kind over the affairs of the candidate's political committee. 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