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HomeMy WebLinkAbout07-1003 SUROVIECOPINION OF THE COMMISSION Stephen H. Suroviec The Arc of Pennsylvania Suite 8 — Executive House 101 South Second Street Harrisburg, PA 17101 Dear Mr. Suroviec: 2007. I. ISSUE: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen Nicholas A. Colafella DATE DECIDED: 3/28/07 DATE MAILED: 4/11/07 07 -1003 This Opinion is issued in response to your advisory request dated February 13, Whether a non - profit organization that engages in public policy advocacy meeting the statutory definition of "lobbying" would be considered a "principal" or "lobbying firm" under Pennsylvania's lobbying disclosure law ( "Lobbying Disclosure Law "), 65 Pa.C.S. § 1301 -A et seq., and to what extent the organization and /or its staff members who engage in lobbying activities would be required to register and to pay registration fees under the Lobbying Disclosure Law. II. FACTUAL BASIS FOR DETERMINATION: As Executive Director for The Arc of Pennsylvania ( "The Arc "), you request an advisory pursuant to the Lobbying Disclosure Law. You have submitted the following facts for consideration. You state that The Arc is a stand -alone non - profit organization that exists for charitable purposes. The Arc has four staff members. The mission of The Arc includes, but is not limited to, public policy advocacy. You state that the public policy advocacy portion of the work of The Arc appears to meet the statutory definition of lobbying set forth in the Lobbying Disclosure Law, 65 Pa.C.S. § 1303 -A. You state that it is not clear to you who at The Arc is required to register and how Suroviec, 07 -1003 April 11, 2007 Page 2 The Arc is to account for expenses. You pose the following specific questions: (1) Whether The Arc is an entity that must register, and if so, whether it is a principal or lobbying firm; (2) Whether staff of The Arc would be required to register, and if so, under which category of registrant; Whether the registration requirement for staff of The Arc would be limited to the Executive Director or would also apply to staff members who engage in public policy advocacy in addition to other tasks; (4) Whether a separate $100 registration fee would apply to each registrant, or whether one $100 registration fee would cover The Arc and staff members required to register; and Whether the exemptions at 65 Pa.C.S. § 1306 -A are effective independently of each other or whether they are interdependent. With regard to the fifth question above, you specifically ask whether a person earning more than $2,500 per quarter to lobby who does not spend more than $2,500 per quarter in expenses would have to register. By letter dated February 23, 2007, 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 -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 affords a defense to the extent the requester has truthfully disclosed all of the material facts. (3) (5) The following terms are relevant to your inquiry and are defined in the Lobbying Disclosure Law as follows: § 1303 -A. Definitions. "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. Suroviec, 07 -1003 April 11, 2007 Page 3 "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 Lobbying Disclosure Law provides the following exemptions from the registration and reporting requirements at Sections 1304 -A and 1305 -A: § 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): (1) An individual who limits lobbying to preparing testimony and testifying before a committee of the General Assembly or participating in an administrative proceeding of an agency. (2) An individual who is an employee of an entity engaged in the business of publishing or broadcasting while engaged in the gathering and dissemination of news and comment on the news to the general public in the ordinary course of business. (3) An individual who does not receive economic consideration for lobbying. (4) An individual whose economic consideration for lobbying, from all principals represented, does not exceed $2,500 in the aggregate during any reporting period. An individual who engages in lobbying on behalf of the individual's employer if the lobbying represents less than 20 hours during any reporting period. (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. (5) Suroviec, 07 -1003 April 11, 2007 Page 4 (7) ( ( An elected State official who acts in an official capacity. An appointed State official acting in an official capacity. 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. (11) An individual representing a bona fide church or bona fide religious body of which the individual is a member where the lobbying is solely for the purpose of protecting the constitutional right to the free exercise of religion. (12) An individual who is not a registered lobbyist and who serves on an advisory board, working group or task force at the request of an agency or the General Assembly. (13) Participating as a party or as an attorney at law or representative of a party, case or controversy in any administrative adjudication pursuant to 2 Pa.C.S. (relating to administrative law and procedure). (14) Expenditures and other transactions subject to reporting under Article XVI of the act of June 3, 1937 (P.L. 1333, No. 320), known as the Pennsylvania Election Code. (15) Vendor activities under 62 Pa.C.S. §§ 514 (relating to small procurements), 516 (relating to emergency procurements) and efforts directly related to responding to publicly advertised invitations to bid and requests for proposals. 65 Pa.C.S. § 1306 -A. Your specific inquiries shall be addressed seriatim. You ask whether The Arc is an entity that must register, and if so, whether it is a principal or lobbying firm. Based upon the submitted facts, you are advised that The Arc is a principal, and the Arc must register and report as a principal unless it qualifies for an exemption under Section 1306 -A of the Lobbying Disclosure Law, 65 Pa.C.S. § 1306 -A. These conclusions are based upon the following analysis. First, the definition of "principal" is broad, including individuals, associations, corporations, partnerships, business trusts, and other "entities." This Commission has determined 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. Confidential Opinion, 07 -1001. The Arc would certainly be an "entity." Second, a principal includes an entity on whose behalf a lobbying firm or lobbyist Suroviec, 07 -1003 April 11, 2007 Page 5 engages in lobbying or that engages in lobbying on its own behalf. 65 Pa.C.S. § 1303 -A. Based upon the submitted facts, The Arc and /or its staff engage in lobbying on behalf of The Arc. We do not interpret the phrase on behalf of" to require a principal to have any particular stake in the matters for which it lobbies. Likewise, the fact that others might benefit from The Arc's lobbying activities does not mean that The Arc is not engaging in lobbying activities on its own behalf. The Arc's mission includes public policy advocacy. The Arc and /or its staff engage in lobbying to fulfill that mission. Thus, The Arc falls within the definition of "principal" under the Lobbying Disclosure Law. Accordingly, unless The Arc would qualify for an exemption under Section 1306 -A of the Lobbying Disclosure Law, the Arc as a principal would be subject to the registration and reporting requirements of the Lobbying Disclosure Law. Further, the Executive Director and all other staff members of The Arc who engage in lobbying on behalf of The Arc would be required to register as lobbyists, to the extent they would not otherwise qualify for exemption under Section 1306 -A of the Lobbying Disclosure Law. The fact that staff members might also perform other tasks for The Arc in addition to lobbying would be irrelevant. A biennial registration fee in the amount of $100 is required for each registrant. 65 Pa.C.S. § 1310 -A. Thus, to the extent The Arc and its staff members who lobby on behalf of The Arc would not qualify for exemption, each would be subject to a biennial registration fee in the amount of $100. It would make no difference if The Arc would pay all such registration fees or if each registrant would pay his /her /its registration fee. As for the exemptions at 65 Pa.C.S. § 1306 -A, we hold that each exemption is effective independently of the others. This conclusion is based upon a straightforward application of Section 1306 -A, which on its face does not make any of the exemptions interdependent. We would parenthetically note that the particular example that you provided involving multiple exemptions did not reflect an accurate understanding of the exemptions you appeared to be considering. Specifically, the exemption based upon the amount an individual earns for lobbying pertains to lobbyists (Section 1306- A(4)), while the exemption based upon the amount expended for lobbying pertains to principals (Section 1306- A(6)). It is important to consider an exemption carefully when determining whether it applies. An accurate illustration of the independence of the exemptions would be that an individual earning more than $2,500 for lobbying in a reporting period, and therefore failing to qualify for exemption under Section 1306 -A(4), would still qualify for exemption under Section 1306 -A(5) if the lobbying was on behalf of the individual's employer and represented less than 20 hours during the reporting period. Finally, we note that you have indicated that you are unclear as to how The Arc is to account for expenses. Since you have not posed any particular question as to accounting, this advisory Opinion must necessarily be limited to generally stating that the accounting needs to be adequate to enable compliance with the reporting requirements at Section 1305 -A of the Lobbying Disclosure Law. It is noted that the Lobbying Disclosure Law specifically provides that for purposes of filing expense reports, "a registrant may use any reasonable methods of estimation and allocation." 65 Pa.C.S. § 1305- A(b)(2.1). We would further note that the Lobbying Disclosure Regulatory Committee that is presently working on drafting regulations under the Lobbying Disclosure Law will also be preparing and publishing a manual setting forth guidelines for accounting and reporting. 65 Pa.C.S. §§ 1310- A(d)(1), (5). The request for an advisory has only been addressed under the Lobbying Disclosure Law and, derivatively, the Ethics Act to the extent applicable. Suroviec, 07 -1003 April 11, 2007 Page 6 IV. CONCLUSION: As a non - profit organization that engages in public policy advocacy meeting the statutory definition of "lobbying" set forth in Pennsylvania's lobbying disclosure law ( "Lobbying Disclosure Law "), 65 Pa.C.S. § 1301 -A et seq., The Arc of Pennsylvania ( "The Arc ") is a "principal" as that term is defined in the Lobbying Disclosure Law. As a principal, The Arc must satisfy the registration and reporting requirements of the Lobbying Disclosure Law unless it qualifies for an exemption under Section 1306 -A of the Lobbying Disclosure Law, 65 Pa.C.S. § 1306 -A. The Executive Director and all other staff members of The Arc who engage in lobbying on behalf of The Arc would be required to register as lobbyists to the extent they would not otherwise qualify for exemption under Section 1306 - A of the Lobbying Disclosure Law. A biennial registration fee in the amount of $100 is required for each registrant. Each of the exemptions at Section 1306 -A of the Lobbying Disclosure Law is effective independently of the other exemptions. 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