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HomeMy WebLinkAbout99-1026-C Lowman• • • STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 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: 4/13/2000 DATE MAILED: 4/28/2000 Lowman S. Henry Chairman & CEO Lincoln Institute of Public Opinion Research, Inc. 453 Springlake Road Harrisburg, PA 17112 99- 1026 -C Re: Lobbying, Corporation, Nonprofit, Educational Foundation, Exemption, Exclusion, Public Opinion Research, Public Affairs Program, Broadcasting, Radio Program, Publishing, Newsletter, Individual, Henry, Opinion 99 -1026, Indirect Communication, Clarification. Dear Mr. Henry: This Opinion is in response to your letters of January 3, 2000 and January 17, 2000 by which you requested a clarifying opinion from the State Ethics Commission. I. ISSUE: Whether a non - profit educational corporation engaged in producing a syndicated radio program and a newsletter is exempt from registration and reporting under the Lobbying Disclosure Act. II. FACTUAL BASIS FOR DETERMINATION: On September 24, 1999, you requested an opinion from the State Ethics Commission as to the applicability of the Lobbying Disclosure Act (Act) to the activities of the Lincoln Institute of Public Opinion Research, Inc. (Lincoln Institute). Henry, Opinion 99 -1026 was issued on December 7, 1999, and is incorporated herein by reference. In Henry, supra, we concluded that as a non - profit corporation, the Lincoln Institute is a "principal" as defined by the Act if it either has a lobbyist lobbying on its behalf or engages in lobbying on its own behalf. We noted that the submitted facts made no mention of whether the Lincoln Institute has a lobbyist lobbying on • • Henry, 99- 1026 -C Page 2 its behalf. As to whether the Lincoln Institute engages in lobbying on its own behalf, we were unable to reach a conclusive determination based upon the insufficiency of the facts which had been submitted. Based upon the Mission Statement of the Lincoln Institute, we noted that the organization has its own mission which goes beyond merely conducting research or reporting results of research to advancing certain identified ideals or values. After noting that the activities of the Lincoln Institute fall within four categories, namely, (1) conducting public opinion research on state and local public policy issues; (2) producing a syndicated radio program; (3) publishing a quarterly newsletter; and (4) engaging in educational outreach through its website, media outreach, and commentaries submitted to and carried by newspapers throughout eastern Pennsylvania, we considered each activity separately. With regard to public opinion research, we determined that such activity generally would not constitute lobbying provided that the research would not include any effort to influence legislative or administrative action as defined in the Act. As for the production of a syndicated radio program, we noted that such could constitute lobbying depending upon program content. Similarly, we determined that the publication of a quarterly newsletter could constitute lobbying depending upon its content. We concluded that the statutory exclusion to the definition of "indirect communication" would apply to the periodic newsletters of a bona fide charitable or fraternal nonprofit corporation if such newsletters would be primarily designed for and distributed to the corporation's members. Finally, we concluded that educational outreach by a nonprofit corporation would constitute "indirect communication" and therefore "lobbying" to the extent such educational efforts would encourage those being educated to take action, the purpose or foreseeable effect of which would be to directly influence legislative or administrative action. By letter dated January 3, 2000, you submitted a timely request for clarification. After criticizing our Opinion as lengthy and qualified without providing simple "yes" or "no" answers, you focused your inquiry as to the Lincoln Journal and the "Lincoln Radio Journal." Along with your request, you provided the 1999 Spring, Summer, Fall, and Winter editions of the Linco /n Journal. You also provided two audio cassette recordings of the "Lincoln Radio Journal" broadcast covering the time periods of November 20, 1999 to December 3, 1999; December 4, 1999 to December 17, 1999; December 18, 1999 to December 31, 1999; and January 1, 2000 to January 14, 2000. As to the "samples" of the Lincoln Journal and the "Lincoln Radio Journal" submitted for our review, we note that each radio program or newsletter includes a variety of features such as interviews, polling data results, and commentary. However, we shall only focus upon those particular features and the particular statements contained therein that may constitute lobbying. We will first provide a brief overview of the general content of the radio programs. We will then summarize the particular features included in the radio programs that may constitute indirect communications. We will then follow the same procedure as to the quarterly newsletter. As to the "Lincoln Radio Journal," we note that each program generally includes the following: (1) interviews with individuals on key public policy issues such as the right to vote on tax reform and running a small business in Pennsylvania; r • • • Henry, 99- 1026 -C Page 3 (2) results of Al Sindlinger's polling data including popularity ratings of President Clinton and Federal Reserve Chairman Alan Greenspan; (3) interviews with leaders in the non - profit community; and (4) "Somedays" commentary by Albert Paschall (Paschall), senior commentator for the Lincoln Institute. In Paschall's Somedays commentary entitled 99ers: Open Space as Political Gold on Program #99 -23, Paschall talks about the California gold rush of 1849 and compares that phenomenon to the Pennsylvania "land rush of 1999" in which politicians are "riding the wave of open space preservation." Paschall notes that several pieces of legislation focusing on open space preservation are passing through the General Assembly including Senate Bill 300. According to Paschall, Senate Bill 300 would transfer the regulatory zoning power of municipalities to a new bureaucracy called the Governor's Center for Local Government Services. Paschall warns that any municipality that would fail to comply with the bill could face cutbacks in state highway, infrastructure, and even open space funding. Paschall states: There isn't any doubt that we should strengthen local control over land use. Our municipalities should have more time to review developmental plans. The threat of lawsuits by developers that try to force changes in qualified comprehensive plans must be minimized. The ability to transfer development rights through joint municipal authorities to preserve open space and preserve jobs should be instruments of Pennsylvania's local zoning powers. There isn't any reason, except lack of political will, that we can't make these changes in the state code now. Paschall, Somedays Commentary: 99ers: Open Space as Political Gold, The "Lincoln Radio Journal," Program # 99 -23, November 20, 1999 to December 3, 1999, (Emphasis added). Turning to the quarterly newsletter, we note that in general, each edition of the Lincoln Journal includes the following: (1) results from various surveys, polls, and public policy debates; (2) the "Chairman's Corner," in which your commentaries as Chairman of the Lincoln Institute appear; (3) results of Al Sindlinger's polling data including popularity ratings of President Clinton and Federal Reserve Chairman Alan Greenspan; (4) commentaries written by politicians on key public policy issues; (5) a "Marketplace of Ideas" section; and (6) Paschall's "Somedays" commentary. In the Spring 1999 edition of the newsletter, Paschall, in his "Somedays" commentary entitled "Until It's Gone," writes about urban sprawl and Governor Ridge's attempt to persuade smaller communities to surrender land use control to multi - municipal authorities or to county government. Paschall maintains that "big government" is not the answer to efficient land use management and that land use management should remain at the local level. At the end of the article, Paschall states: The big governments will take over managing what's in our own backyards with all the compassion that they routinely muster. If we sit back and surrender community control of land use to the onslaught of state and federal academics, some day we'll sing the other line from Mitchell's tune: "you don't know what you've got 'til it's gone." • • Henry, 99- 1026 -C Page 4 Paschall, "Somedays Commentary: Until It's Gone," the Linco /n Journal, Spring 1999, at 12, (Emphasis added). In the Summer 1999 edition of the Linco /n Journal, Daniel J. Whelan (Whelan); President and CEO of Bell Atlantic - Pennsylvania, in an article entitled "Bell Atlantic /GTE: Merger Will Help Attract Business and Jobs to Pennsylvania," contends that the long distance companies' complaint that Bell Atlantic is monopolizing the local telephone market is untrue. Whelan states that, in fact, there is no local telephone monopoly in Pennsylvania since dozens of companies are competing with Bell Atlantic. Whelan argues that long distance telephone companies such as AT &T and MCI WorldCom are not interested in trying to persuade local residential customers to switch telephone service; they are only interested in persuading business customers to switch. By complaining about Bell Atlantic's alleged monopoly, the long distance companies in Whelan's view have managed to keep Bell Atlantic entangled in a web of litigation. Whelan maintains that the Bell Atlantic /GTE merger will benefit its customers by providing more services and by improving existing services. Whelan states that the "diversionary tactics" of the long distance companies hinder Bell Atlantic's goal of meeting customers' demands. Whelan then states, "We ask our opponents, their high - priced lobbyists and the legislators lured by the siren song of the long distance companies to support real solutions that will get us out of the courts and hearing rooms and onto the playing field." Whelan, "Bell Atlantic /GTE: Merger Will Help Attract Business and Jobs to Pennsylvania," the Lincoln Journal, Summer 1999, at 12. In the Fall 1999 edition of the Lincoln Journal, Paschall in his "Somedays" commentary entitled "The Wolf is at the Door," maintains that there is a liability crisis in Pennsylvania. In his article, Paschall states: For two decades the Pennsylvania General Assembly has allowed this wolf to eat us alive. In the fall there might be a happy- ever -after ending if the Pennsylvania House passes legal reforms to end abuse of the system. Seventeen other states have and tamed the beast. If passed, so- called tort reform laws some day might help the truly injured and the intentiona //y negligent get their day in court while protecting the innocent from laws that are only disguised as justice. Paschall, "Somedays Commentary: The Wolf is at the Door," the Lincoln Journal, Fall 1999, at 17, (Emphasis added). Finally, in the Winter 1999 edition of the Lincoln Journal, in an article entitled "A Win - Win -Win on Taxes," you discuss the surplus of funds amassed in Governor Ridge's Administration. You state that in response to the surplus, many interest groups are demanding tax cuts in their favor. You note that Democrats, in particular, want a cut in Pennsylvania's rate of personal income tax_ You state that Governor Ridge has indicated that he would consider a personal income tax cut if coupled with the enactment of his proposal to amend the Pennsylvania Constitution to require a 'super majority' of 60% of votes in both Houses of the General Assembly to enact a tax increase. You write, "A more lasting legacy would be adoption of the 'super majority' provision, which would make it infinitely more difficult for future governors and future legislatures to roll back the hard won gains of the past four years." Lowman Henry, "Chairman's Corner: A Win - Win -Win on Taxes," the Lincoln Journal, Winter 1999, at 2. r • Henry, 99- 1026 -C Page 5 By letter dated January 17, 2000, you provided the following supplemental information. The Lincoln Institute is a nonprofit education foundation; hence it does not have members. All 2,500 copies of the Linco /n Journal are delivered to non- members. The Lincoln Journal is set up to parallel the format of a daily newspaper insofar as the findings of public opinion research are presented in an unbiased manner. The Lincoln Journal contains editorial columns written by the staff as well as "op -eds" written by non -staff individuals. Based upon the additional information you have submitted including the audio cassette recordings and the four editions of the newsletter, you request clarification as to the definition of "indirect communication" and ask whether the Lincoln Institute is engaged in such activity. In particular, you ask whether the quarterly newsletter, the Lincoln Journal, and the bi- weekly public affairs radio show, the "Lincoln Radio Journal," contain "indirect communications." By letter dated March 27, 2000, you were notified of the date, time and location of the public meeting at which your appeal was to be considered. 111. DISCUSSION: In that Henry, Opinion 99 -1026 is incorporated herein by reference, the quotations and commentary as to the Act will not be repeated. In your request for a clarifying opinion, you ask whether the Lincoln Institute is engaged in "indirect communication" when it undertakes the activities of producing a syndicated radio program and publishing a quarterly newsletter. We shall limit our inquiry to the two areas on which you seek clarification. As noted above, in Paschall's Somedays commentary on Program # 99 -23 of the "Lincoln Radio Journal," he makes the statement, "There isn't any reason, except lack of political will, that we can't make these changes to the state code now." We hold that this statement constitutes indirect communication in that Paschall, in advocating for localized land use control, is attempting to encourage the listener to take action, the purpose or foreseeable effect of which is to directly influence legislative action. In Paschall's "Somedays" commentary entitled, "Until It's Gone" appearing in the Spring 1999 edition of the Lincoln Journal referred to above, Paschall states, "If we sit back and surrender community control of land use to the onslaught of state and federal academics, some day, we'll sing the other tine from Mitchell's tune: 'you don't know what you've got 'til it's gone.' We hold that such constitutes an indirect communication in that Paschall is attempting to encourage the reader to take action, the purpose or foreseeable effect of which is to directly influence legislative action in favor of localized land use control. Turning to the Summer 1999 edition of the Lincoln Journal featuring Whelan's article, "Bell Atlantic /GTE: Merger Will Help Attract Business and Jobs to Pennsylvania," we find that this is an indirect communication. In that article, Whelan states, "We ask our opponents, their high - priced lobbyists and the legislators lured by the siren song of the long distance companies to support real solutions that will get us out of the courts and hearing rooms and onto the playing field." This clearly constitutes an effort to encourage the readers and others to take action, the purpose or foreseeable effect of which is to directly influence legislative or administrative action. The legislative action or administrative action that Whelan desires, of course, is the elimination of anti - monopoly litigation that is claimed to be tying up Bell Atlantic. • • • Henry, 99- 1026 -C Page 6 In Paschall's "Somedays" commentary entitled "The Wolf is at the Door" appearing in the Fall 1999 edition of the Lincoln Journal, he writes, "In the fall there might be a happy- ever -after ending if the Pennsylvania House passes legal reforms to end abuse of the system ... If passed, so- called tort reform laws some day might help the truly injured and the intentionally negligent get their day in court while protecting the innocent from laws that are only disguised as justice." In that Paschall is attempting to encourage readers to contact their legislators to enact tort- reform legislation, we hold that such a statement constitutes an indirect communication. Finally, in your article entitled "A Win - Win -Win on Taxes" featured in the Winter 1999 edition of the Lincoln Journal, you write, " A more lasting legacy would be adoption of the 'super majority' provision, which would make it infinitely more difficult for future governors and future legislatures to roll back the hard won gains of the past four years." In light of the fact that you are advocating for Governor Ridge's "super majority" constitutional amendment, we conclude that the foregoing statement constitutes an indirect communication in that it is an effort on your part to encourage the reader to take action, the purpose or foreseeable effect of which is to directly influence legislative action in favor of amending the Constitution to include the proposed amendment. Having established that there are indirect communications in the Lincoln Journal, we must consider whether the statutory exclusion to the definition of "indirect communication" which pertains to regularly published periodic newsletters for the membership of a bona fide association, charitable, or non - profit corporation has application. Based upon your specific factual representation that the Linco /n Journal is distributed to non - members only, we conclude that the statutory exclusion does not apply. Having examined the contents of the "Lincoln Radio Journal" and the Lincoln Journal, we conclude that the Lincoln Institute's activities as to the production of a syndicated radio program and the publication of a quarterly newsletter constitute lobbying because such activities include efforts to influence legislative or administrative action as defined by the Act. You contend that any conclusion on our part that your activities constitute indirect communications would also apply to every daily and weekly newspaper and magazine published in the Commonwealth. Such is not the case. Although you liken the Lincoln Journal and the "Lincoln Radio Journal" to any other newspaper or magazine, such comparison fails, given the Lincoln Institute's acknowledged mission to promote certain ideals and to advance such identified values. Finally, in response to your criticism that our base Opinion did not provide simple "yes" or "no" answers, there are a number of reasons for the composition of our opinions. First, we must comply with the Administrative Agency Law as to our adjudications. Needless to say, responding to factual inquiries with "yes" or "no" answers is legally insufficient and impermissible. See, 2 Pa.C.S. §507. Second, opinions serve an educational function by setting forth the submitted facts, the Act, the Regulations, prior precedent and our analysis in reaching a particular result; this is beneficial not only for the requestor but for all who read the opinion. Third, our opinions contain qualifiers, as they must, which set forth the circumstances or conditions that are applicable in reaching particular results. 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. A 0 • • • Henry, 99- 1026 -C Page 7 IV. CONCLUSION: A non - profit educational foundation which produces a syndicated radio program and publishes a quarterly newsletter that includes material which encourages others to take action, the purpose or foreseeable effect of which is to directly influence legislative or administrative action, is engaged in indirect communications and hence lobbying under the Lobbying Disclosure Act. 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. B t e Commission, NUSAJ 6 Daneen E. Reese Chair