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HomeMy WebLinkAbout99-1030-R McKeonSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Kevin J. McKeon, Esquire Malatesta Hawke & McKeon LLP Harrisburg Energy Center 100 North Tenth Street Harrisburg, PA 17101 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: 2/1/2000 DATE MAILED: 2/11/2000 99- 1030 -R Re: Lobbying, Administrative Action, Administrative Proceeding, Administrative Law, Exempt, Attorney, Agency, Rulemaking, Public Utility Commission, Docket, Public, Proceeding, Reconsideration, Appeal, Court. Dear Mr. McKeon: This Opinion is issued in response to your letter of January 6, 2000 requesting reconsideration of McKeon, Opinion 99 -1030. I. ISSUE: 1030. Whether this Commission should grant reconsideration of McKeon, Opinion 99- II. FACTUAL BASIS FOR DETERMINATION: This matter initially arose from your opinion request received on October 8, 1999 which resulted in the issuance of McKeon, Opinion 99 -1030 on December 7, 1999. In McKeon, we addressed the following issue: where an agency commences a proceeding for the purpose of considering the promulgation, revision or rescission of rules, policies, or guidelines, assigns a docket number to the matter, and makes all filings in that docket accessible to the public, is a lawyer's preparation and filing of comments at that docket, in an attempt to influence the outcome, activity which McKeon, 99- 1030 - R December 7, 1999 Page 2 would qualify for exemption from the i Section registration n of t eti g requirements of the Lobbying Disclosure Act (Act) under the In McKeon, we first noted to that the exemptions from the eg st tionf all and conditions must be met in order qualify reporting requirements under the Act. We concluded that the exemption as es only to a n i n r v i d e l whose lobbying agency limited by the frequency of participation. We an individual wh We determined that the particular phraseo eflects a I'mit tion the exemption to o e an proceeding of � agency instance involvement with an administrative that proceeding int pretaton a hieved the biennial registration period. We reasoned th a between the and the exemption for individuals disclosure of m efforts activity to administrative ation ption f proceedings of agencies. e Commonwealth On January 5, 2000, you filed daPetition D 2000Ralleg ng, inter that M Keszn_, Court of Pennsylvania, docketed at 99-1030 rights under based upon t d error tates law, and Pennsylvania Constitutions violation i of your ri in ghts nder the U derogation of the power of the Pennsylvania Supreme Court to regulate the private practice of law. On January 6, 2000 you filed a Petition for Reconsideration with this Commission alleging Sect that 06 ( ) m of de a the material "administrative proceedings" roceedi gs" concluded that ion 1306 exemption to those individuals during p given biennial registration ." egist adminis period proceeding before one agency 9 a furtherance of your reconsideration ntent ndrea shes arlegally ft lawced conclus onprets he Act, misperceives legislative Pa.C.S. After quoting Section "the singular shall include the plural, and the plural, the s 1 g ala which proved any specific yon fic hu um of appearances Section 1306(1) of the befo a committeestor administrative proceedings. any spcimr of pper You assert that there is no legislative proceeding in the biennial period. on as narrowly as in M eon, su ra, to merely one p 9 You contend that the exemption y Act 212 f 1976 n tion chfprovided in in the Lobbying Registration and Regula tion Act pertinent part that "a natural person shall not be considered a lobbyist when he: (A) Formally communicates with or formally presents testimony before an agency of the Commonwealth or the General Assembly. (g) Testifies before a committee of the General Assembly..." ue that Contrary to this Commission's interpretation Report�ng Act �as amended the practice existing under the Lobbying Registration and appearances but rather by the "type" by Act 212, was not limited by the "number" of app of proceeding. It is highly relevant in your view that the activities under the Section 1306(1) McKeon, 99- 1030 -R December 7, 1999 Page 3 exemption are all "on the public record" because the underlying purpose of the Act is to provide notice to the public regarding .those who try to influence legislative and administrative action. You believe that since testifying before a committee or participating in an administrative proceeding is public by its very nature, regardless of the number of occurrences, there is no need to require disclosure of what already occurs in the public domain. You opine that the Act requires disclosure of lobbying activities which would not otherwise be of public record. You conclude that this Commission's determination of limiting the number of "appearances" is contrary to the public policy of the Act, the underlying basis for the exemption, as well as the entire Act itself. By letter dated January 11, 2000, you were notified of the date, time, and location of the public meeting at which your Petition for Reconsideration was to be considered. III. DISCUSSION: We have been asked to reconsider McKeon, Opinion 99 -1030. This Commission may exercise broad discretion in determining whether to grant or deny reconsideration as long as such discretion is exercised in a sound manner. Gates, Opinion 99- 0002 -R; PSATS v. State Ethics Commission, 499 A.2d 735 (1985). The Regulations of this Commission set forth procedures which are to be followed as to opinions issued under the Act (see, Lobbying Disclosure Regulations, 51 Pa. Code §39.1). The pertinent Regulations provide: §13.3. Opinions. (d) Reconsideration may be granted in the discretion of the Commission under §21.29(e). §21.29. Finality; reconsideration. (b) Any party may ask the Commission to reconsider an order or opinion within 30 days of service of the order or opinion. The requestor shall present a detailed explanation setting forth the reason why the order or opinion should be reconsidered. (c) A request for reconsideration filed with the Commission will delay the public release of an order, but will not suspend the final order unless reconsideration is granted by the Commission. (d) A request of reconsideration may include a request for a hearing before the Commission. (e) Reconsideration may be granted at the discretion of the Commission if: (1) A material error of law has been made. (2) A material error of fact has been made. (3) New facts or evidence are provided which would McKeon, 99- 1030 -R December 7, 1999 Page 4 lead to reversal or modification of the order or opinion and if these could not be or were not discovered by the exercise of due diligence. 51 Pa.Code §§13.3(d); 21.29(b), (c), (e). If the above criteria are met by the requestor, this Commission has the discretion to grant reconsideration. If the above criteria are not met, this Commission does not have such discretion. We must now determine 1306 of the Act wh which provides e nt partOur review must start with Section 1306. Exemption from registration and reporting. The following individuals and activities shall be exempt from registration under section 1304 (relating to registration) and reporting under section 1305 (relating to reporting): (1) An individual who limits lobbying activities to preparing testimony and testifying before a committee of the legislature or participating in an administrative proceeding of an agency. (Emphasis added) 65 Pa.C.S. §1306(1) In McKeon, supra, we sought to reconcile the definitional section of the Act, which includes "Administrative Action" as one of the two activities comprising inddividua l w wi the exemption limits lobby g activities to participating in an administrative ativ pro i proceeding nividuaho of "an" agency. In order to effectuate both provisions of the Act, we could not grant a oof the definition exemption t of lobbying wh1 h °includessanbecause effo t to nfluence would adm negate administrative part f t action. Contrariwise, if we applied the Act to all administrative action, the exemption uld would negated. We reached result basis by the provisions xemption to have application using and did so g a quantitative proceeding in the biennial period. During the public commentary following our decision, Senate Counsel apprised led this Commission that it was the intent of the General Assembly to apply to administrative proceedings that occur in a public forum, without regard to the frequency of the individual's participation in such proceedings. While it is the duty of this Commission to interpret the Act, we are mindful of the Statutory Construction es is to ascertain tain and effectuate the intention object l of the General and construction of statutes 1 Pa.C.S. §1921(a). We are also mindful of the rule of construction that, "The singular shall include the plural, and the plural, the singular...." 1 Pa.C.S. §1902. At the time of our initial ruling in this matter, the interpretation which we of adopted th e Act. . In ado seemed t t in the g that ante n p et tion, we were not privy to former practice th Actpint under the former Lobbying Regulation t 1 06( 1 1) was as n indication new Act itself that the intent of Section we have no ndlcatlon In the n now been apprised. McKeon, 99- 1030 -R December 7, 1999 Page 5 We now have the benefit of an alternative interpretation to consider and it is, in our view, the legally correct one. The legislative intent as enunciated by Senate Counsel provides, in our view, a more logically and legally sound interpretation of Section 1306(1) of the Act than that which we previously adopted in this matter. Moreover, it is consonant with the underlying purpose of the Act as stated in Section 1302 of the Act: § 1302. Statement of intent and jurisdiction (a) Intent. -- The Constitution of Pennsylvania recognizes the principle that all free government is founded upon the authority of the people. It further provides that the power to make law in this Commonwealth is vested in the General Assembly and the power to enforce law is vested in the Executive Department. The ability of the people to exercise their fundamental authority and to have confidence in the integrity of the process by which laws are made and enforced in this Commonwealth demands that the identity and the scope of activity of those employed to influence the actions of the General Assembly and the Executive Department be publicly and regularly disclosed. 65 Pa.C.S. §1302(a) (Emphasis added). In order to strengthen the confidence of the people of this Commonwealth in the lawmaking and administrative processes, the General Assembly intended that the Act require the disclosure of activities which seek to influence legislative and administrative action. That legislative intent for disclosure is satisfied as to an individual involved in a formal administrative proceeding of an agency which is docketed at the agency and open to the public because disclosure occurs by the very nature of the public proceeding. Consistent with this legislative intent and purpose of the Act, Section 1306(1) of the Act exempts "an individual who limits lobbying activities to preparing testimony and testifying before a committee of the legislature or participating in an administrative proceeding of an agency" from registration under Section 1304 and reporting under Section 1305 of the Act. We now believe that the Section 1306(1) exemption is not limited to a one instance involvement with an administrative proceeding of one agency during a given biennial registration period, but rather applies regardless of the number of times an individual participates in any number of administrative proceedings of an agency provided the administrative proceeding is a docketed agency rulemaking or formal public proceeding open to the public. Having completed our analysis result, we must now address a procedural issue before we make our final determination. You filed a reconsideration request with this Commission but you also filed an appeal in Commonwealth Court. Under the Pennsylvania Rules of Civil Procedure, the simultaneous filing of a Petition for Review in Commonwealth Court and a request for reconsideration at an administrative agency accords the agency 30 days within which to act upon the reconsideration request; the failure to so act in the 30 day period generally precludes any further action by the agency. In this case, since the reconsideration request was filed on the 30th day, it was impossible for this Commission to act in that one day time frame. McKeon, 99- 1030 -R December 7, 1999 Page 6 However, there is a procedural mechanism in use whereby a Commonwealth agency may act, even after 30 days have elapsed, and arrive at a conditional determination. In particular, the agency may reach a decision conditioned upon the withdrawal of the court appeal. If the appeal is withdrawn, the opinion will become effective. If the appeal is not withdrawn, the decision of the agency is not operative. See, Tripps Park v. Pa. PUC, 415 A.2d 967 (Pa. Cmwlth. Ct. 1980). Based upon the above judicial precedent, we opt to go forward with the reconsideration request even though 30 days have elapsed from the date of issuance of McKeon, supra. We conclude that there has been a material error of law and hence grant your request for reconsideration. The material error of law was the determination in McKeon, Opinion 99 -1030 that Section 1306(1) of the Act limited the "administrative proceedings" exemption to those individuals "participating in only one such administrative proceeding before one agency during a given biennial registration period." We now conclude that an individual who limits lobbying activities to participating in administrative proceedings relating to docketed agency rulemakings or formal agency proceedings open to the public is exempt from the registration and reporting requirements of the Act without regard to the frequency of such participation, subject to the following condition. The above grant of reconsideration and this determination are operative if and only if the Petition for Review filed with Commonwealth Court on January 5, 2000, at Docket No. 9 C.D. 2000 is discontinued. 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 Petition for Reconsideration of McKeon, Opinion 99 -1030 is granted. An individual who limits lobbying activities to participating in administrative proceedings relating to docketed agency rulemakings or formal agency proceedings open to the public is exempt from the registration and reporting requirements of the Act without regard to the frequency of such participation. This Opinion shall be operative if and only if the Petition for Review filed with the Commonwealth Court at Docket No. 9 C.D. 2000 is discontinued. 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. By the Commiission, P Daneen E. Reese Chair