HomeMy WebLinkAbout07-1001 CONFIDENTIALOPINION OF THE COMMISSION
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Donald M. McCurdy
Paul M. Henry
Raquel K. Bergen
Nicholas A. Colafella
DATE DECIDED: 3/27/07
DATE MAILED: 4/11/07
07 -1001
This Opinion is issued in response to your advisory request dated February 13,
2007.
I. ISSUE:
Whether Commission A would be considered a "principal" subject to the
requirements and restrictions of Pennsylvania's lobbying disclosure law, 65 Pa.C.S. §
1301 -A et seq. ( "Lobbying Disclosure Law "), to the extent lobbying firms or lobbyists would
engage in lobbying on its behalf or it would engage in lobbying on its own behalf.
II. FACTUAL BASIS FOR DETERMINATION:
As Representative B of Commission A, you request a confidential advisory as to
whether Commission A, an instrumentality of the Commonwealth of Pennsylvania, would
be considered a "principal" subject to the requirements and restrictions of the Lobbying
Disclosure Law. You have stated that for purposes of addressing your advisory request,
this Commission should presume that lobbying firms or lobbyists may, from time to time,
engage in lobbying on behalf of Commission A or that Commission A may, from time to
time, engage in lobbying on its own behalf.
By letter dated February 15, 2007, you were notified of the date, time, and location
of the executive meeting at which your request for an Opinion would be considered.
On March 20, 2007, this Commission received a Brief submitted by Attorney C of
Law Firm D, Attorneys for Commission A. In the Brief, Counsel presents the following
arguments:
(1) That Commission A and its Commissioners should not be considered
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April 11, 2007
Page 2
principals, lobbyists, or lobbying firms required to register or report
under the Lobbying Disclosure Law because the General Assembly
did not intend for the Lobbying Disclosure Law to regulate the
conduct of governmental entities or public officials;
(2) That ". . . the General Assembly intended to provide transparency in
the lobbying profession by requiring the regular, public disclosure of
the identity and actions of those who pay or are paid to influence
legislative or administrative action," but "[t]he General Assembly did
not intend to regulate government instrumentalities or actors as they
perform their essential public functions," Brief of Counsel, at 10 -11
(citing 65 Pa.C.S. § 1302 -A);
That Commissioners of Commission A would be exempt from
registration and reporting pursuant to Section 1306 -A(8) of the
Lobbying Disclosure Law, as long as they would act in their official
capacities;
(4) That it would be an anomalous and absurd result for Commission A's
Commissioners and employees to be exempt under § 1306 -A, but for
Commission A itself to be held to be a principal required to register
and report (citing 1 Pa.C.S. § 1921(c)(6));
(5) That under the former Lobbying Disclosure Act, this Commission held
that governmental bodies were neither principals nor lobbyists;
(6) That the changes from the prior definitions of the terms "principal" and
"lobbyist," as contained in the former Lobbying Disclosure Act, to
include in the current definitions the term "other entity" instead of
"business entity," related to questions posed under the prior Act
regarding whether a non - profit entity could qualify as a principal or
lobbyist;
(7) That the Lobbying Disclosure Law's definition of the term "agency"
includes governmental bodies, but the definitions of the terms
"principal" and "lobbyist" do not encompass governmental bodies;
(8) That pursuant to principles of statutory construction, and in particular,
the principle that "[g]eneral words shall be construed to take their
meanings and be restricted by preceding particular words," 1 Pa.C.S.
§ 1903(b), the term "other entity" as it appears in the definitions of
"principal" and "lobbyist" must be limited to private entities, because
the preceding items in the definitions are private in nature; and
(3)
That Commission A would not be a lobbying firm because it does not
engage in lobbying for any third party.
III. DISCUSSION:
It is initially noted that pursuant to Section 1308 -A(a) of the Lobbying Disclosure
Law, in conjunction with Sections 1107(10) and 1107(11) of the Public Official and
Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to
the requester based upon the facts that the requester has submitted. In issuing the
advisory based upon the facts that the requester has submitted, this Commission does not
engage in an independent investigation of the facts, nor does it speculate as to facts that
have not been submitted. It is the burden of the requester to truthfully disclose all of the
material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only
(9)
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April 11, 2007
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affords a defense to the extent the requester has truthfully disclosed all of the material
facts.
The following terms are relevant to your inquiry and are defined in the Lobbying
Disclosure Law as follows:
§ 1303 -A. Definitions.
"Agency. " An agency, board, commission, authority or
department of the Executive Department of the
Commonwealth.
"Lobbying." An effort to influence legislative action or
administrative action in this Commonwealth. The term
includes:
(1) direct or indirect communication;
(2) office expenses; and
(3) providing any gift, hospitality, transportation or lodging
to a State official or employee for the purpose of
advancing the interest of the lobbyist or principal.
"Lobbying Firm." An entity that engages in lobbying for
economic consideration on behalf of a principal other than the
entity itself.
"Lobbyist." Any individual, association, corporation,
partnership, business trust or other entity that engages in
lobbying on behalf of a principal for economic consideration.
The term includes an attorney at law while engaged in
lobbying.
"Principal." An individual, association, corporation,
partnership, business trust or other entity:
(1) on whose behalf a lobbying firm or lobbyist engages in
lobbying; or
(2) that engages in lobbying on the principal's own behalf.
65 Pa. C. S. §1303 -A.
The following substantive provisions of the Lobbying Disclosure Law are also
relevant to your inquiry:
§ 1305 -A. Reporting.
(b) Content. —
(8) A lobbying firm or a lobbyist not associated with a
lobbying firm shall submit a report if the lobbying firm or
lobbyist engaged in lobbying on behalf of any entity that
is exempt under Section 1306 -A(7), (8), (9) or (10)
(relating to exemption from registration and reporting).
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April 11, 2007
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65 Pa.C.S. § 1305- A(b)(8) (Emphasis added).
§ 1306 -A. Exemption from registration and reporting.
The following persons and activities shall be exempt
from registration under section 1304 -A (relating to registration)
and reporting under section 1305 -A (relating to reporting):
(6) Except as required under Section 1305 -A(d), a principal
whose total expenses for lobbying purposes do not
exceed $2,500 during any reporting period.
(7) An elected State official who acts in an official capacity.
(8) An appointed State official acting in an official capacity.
(9) An elected or appointed official of a political subdivision
who is acting in an official capacity for the political
subdivision.
(10) An employee of the Commonwealth or an agency of the
Commonwealth who is acting in an official capacity for
the Commonwealth or agency.
65 Pa.C.S. §§ 1306- A(6) -(10).
In applying the above provisions of the Lobbying Disclosure Law to your inquiry, the
threshold question is whether a governmental entity may qualify as a "principal." We are
mindful that "[t]he 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).
The definition of the term "principal" as set forth in the current Lobbying Disclosure
Law is significantly different than the former definition that existed under the former
Lobbying Disclosure Act (Act 93 of 1998, Chapter 13, declared void, Gmerek v. State
Ethics Commission, 569 Pa. 579, 807 A.2d 812 (2002)):
CURRENT DEFINITION
§ 1303 -A. Definitions.
"Principal." An individual, association, corporation,
partnership, business trust or other entity:
(1) on whose behalf a lobbying firm or lobbyist engages in
lobbying; or
(2) that engages in lobbying on the principal's own behalf.
65 Pa.C.S. §1303 -A (Emphasis added).
FORMER DEFINITION
§ 1303. Definitions
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April 11, 2007
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"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.
Former 65 Pa.C.S. § 1303 (Emphasis added) (now void).
Under the former Lobbying Disclosure Act, we concluded that governmental entities
were not principals. We determined that governmental entities that were not corporations
did not fall within any of the forms of entities enumerated in the definition of the term
"principal," and that the General Assembly did not intend to treat incorporated
governmental entities differently merely because they existed in corporate form. See, void
Opinions 99 -1002, 99 -1004, 99 -1012, 99 -1013, 99 -1015, 99 -1016, 00 -1005.
However, the current definition of "principal" includes "[a]n individual, association,
corporation, partnership, business trust or other entity ..." 65 Pa.C.S. § 1303 -A (Emphasis
added). The General Assembly's use of the phraseology "other entity" instead of
"business entity" in the current definition of the term "principal" has resulted in a broader
definition, which includes any type of entity.
The term "entity" is not defined in the Lobbying Disclosure Law or in the Statutory
Construction Act at 1 Pa.C.S. § 1991. Pursuant to the Statutory Construction Act, the non-
technical, non - peculiar words and phrases of a statute are to be construed according to
rules of grammar and their common and approved usage. 1 Pa.C.S. § 1903(a).
Black's Law Dictionary defines the term "entity," in pertinent part, as follows:
entity. An organization (such as a business or a
governmental unit) that has a legal identity apart from its
members.
public entity. A governmental entity, such as a state
government or one of its political subdivisions.
Black's Law Dictionary at 573 (8 ed. 2004).
The Merriam - Webster Online Dictionary provides the following meanings for the
term "entity ":
1a: BEING, EXISTENCE; especially: independent,
separate, or self- contained existence b: the existence of a
thing as contrasted with its attributes
2: something that has a separate and distinct existence
and objective or conceptual reality
3: an organization (as a business or governmental unit)
that has an identity separate from those of its members.
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April 11, 2007
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Merriam - Webster Online Dictionary.
Finally, The American Heritage Dictionary of the English Language, Fourth Edition
(2000) (online) defines the term "entity" as follows:
1. Something that exists as a particular and discrete unit:
Persons and corporations are equivalent entities under the law.
2. The fact of existence; being. 3. The existence of
something considered apart from its properties.
Based upon the common and approved usage, we determine that the term "entity "
as used in the Lobbying Disclosure Law: (1) means something that has a separate and
distinct existence; and (2) includes, but is not limited to, governmental entities.
We conclude that the definition of the term "principal" includes a governmental
entity on whose behalf a lobbying firm or lobbyist engages in lobbying or that engages in
lobbying on its own behalf. We reject the submitted arguments to the contrary.
Clearly, the change in the statutory definition of "principal" from "business entity" to
"other entity" was made to broaden the definition. The term "other entity" is very broad. As
noted above, the common and approved usage of the term "entity" includes both private
and governmental entities. There is no basis for assuming that the broadening of the
definition related solely to non - profits. Likewise, there is no basis for assuming that the
term "other entity" was intended to be limited to private entities merely because some
principals are private. Had the General Assembly intended to limit the definition of
"principal" to encompass only private entities, it would have used narrow phraseology
rather than broad phraseology.
Additionally, we see no significance to the argument that the unrelated definition of
the term "agency" specifically lists various types of governmental entities.
Commission A has a separate and distinct existence. (See, [cite].) It is a
governmental entity. (See, e.g., [cites].) It is an instrumentality of the Commonwealth,
[cite], and a Commonwealth agency. [Cite]. We hold that to the extent lobbying firms or
lobbyists engage in lobbying on behalf of Commission A or Commission A engages in
lobbying on its own behalf, Commission A is a "principal" as that term is defined in the
Lobbying Disclosure Law.
However, our analysis does not end here, because the Lobbying Disclosure Law
sets forth certain exemptions, which, when applicable, operate to exclude persons or
activities from the registration and reporting requirements of the Lobbying Disclosure Law.
"Every statute shall be construed, if possible, to give effect to all its provisions." 1
Pa.C.S. § 1921(a). Sections 1306- A(7) -(10) of the Lobbying Disclosure Law, which
provide for certain persons and activities to be exempt from the registration and reporting
requirements, and Section 1305- A(b)(8) of the Lobbying Disclosure Law, which references
entities that are exempt under Sections 1306- A(7) -(10), together establish the General
Assembly's intent to exempt Commonwealth governmental entities, Commonwealth
employees, elected /appointed State officials, political subdivisions, and elected /appointed
officials of political subdivisions from the registration and reporting requirements of the
Lobbying Disclosure Law to the extent their lobbying activities are performed by the
governmental entities themselves or by such officials /employees in an official capacity.
Therefore, you are advised that lobbying by Commission A on its own behalf and
lobbying by officials or employees of Commission A acting in an official capacity on behalf
of Commission A would be exempt from the registration and reporting requirements of the
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April 11, 2007
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Lobbying Disclosure Law and would not necessitate registration or reporting by
Commission A or its aforesaid officials or employees. However, if other lobbyists or
lobbying firms would engage in lobbying on behalf of Commission A, their lobbying
activities would not be exempt, and Commission A would be required to register and report
as a principal with respect to those non - exempt lobbying activities assuming its total
expenses for non - exempt lobbying activities would not bring it within the exemption at 65
Pa.C.S. § 1306 -A(6) (pertaining to a principal whose total expenses for lobbying purposes
do not exceed $2,500 during any reporting period).
The request for a confidential advisory has only been addressed under the
Lobbying Disclosure Law and, derivatively, the Ethics Act to the extent applicable.
IV. CONCLUSION:
Commission A is a governmental entity. To the extent lobbying firms or lobbyists
engage in lobbying on behalf of Commission A or Commission A engages in lobbying on
its own behalf, Commission A is a "principal" as that term is defined in the Lobbying
Disclosure Law at 65 Pa.C.S. §1303 -A. Lobbying by Commission A on its own behalf and
lobbying by officials or employees of Commission A acting in an official capacity on behalf
of Commission A would be exempt from the registration and reporting requirements of the
Lobbying Disclosure Law and would not necessitate registration or reporting by
Commission A or its aforesaid officials or employees. If other lobbyists or lobbying firms
would engage in lobbying on behalf of Commission A, then Commission A would be
required to register and report as a principal with respect to those non - exempt lobbying
activities, assuming its total expenses for non - exempt lobbying activities would not bring it
within the exemption at 65 Pa.C.S. § 1306 -A(6).
Pursuant to Section 1308 -A(a) of the Lobbying Disclosure Law, a requester who
truthfully discloses all material facts in a request for an advisory and who acts in good faith
based upon a written Opinion of this Commission issued to the requester shall not be held
liable for a violation of the Lobbying Disclosure Law. The protection afforded for
reliance upon this Opinion will remain in effect until such time as any regulation,
statutory enactment, or ruling precludes further reliance upon this Opinion.
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,
Louis W. Fryman
Chair