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Home My WebLink About07-1002 STAFFIERIOPINION 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: 3/28/07 DATE MAILED: 4/11/07 Nicholas J. Staffieri General Counsel Southeastern Pennsylvania Transportation Authority Legal Division 1234 Market Street, 5 Floor Philadelphia, PA 19107 -3780 Dear Mr. Staffieri: This Opinion is issued in response to your advisory request letters dated January 5, 2007, and February 9, 2007. I. ISSUE: 07 -1002 Whether a metropolitan transportation authority in corporate form, or certain of its employees who are involved in legislative matters on its behalf, would be subject to the requirements and restrictions of Pennsylvania's lobbying disclosure law, 65 Pa.C.S. § 1301 -A et seq. ( "Lobbying Disclosure Law "). II. FACTUAL BASIS FOR DETERMINATION: As General Counsel for the Southeastern Pennsylvania Transportation Authority, hereinafter "SEPTA," you request an advisory opinion on behalf of SEPTA and the following SEPTA employees who are principally involved in legislative matters: Assistant General Manager of Public and Government Affairs Juan M. Torres ( "Torres "), Frances M. Jones ( "Jones "), Jeanne E. Neese, Esquire ( "Neese "), and Michelle A. Schultz, Esquire ( "Shultz "). You note that SEPTA is a body corporate and politic that "exercise[s] the public powers of the Commonwealth as an agency and instrumentality thereof." 74 Pa.C.S. § 1711(a). You ask whether the Lobbying Disclosure Law applies to SEPTA or the aforesaid Staffieri/Torres /Jones /Neese /Schultz (SEPTA), 07 -1002 April 11, 2007 Page 2 SEPTA employees when they act on behalf of SEPTA. You note that the statutory definition of the term "principal" does not include "agency." 65 Pa.C.S. § 1303. You state your view that both SEPTA and its aforesaid employees acting in their official capacities would be exempt from the registration and reporting requirements of the Lobbying Disclosure Law pursuant to 65 Pa.C.S. § 1306 -A. By letter dated February 12, 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. At the public meeting on March 28, 2007, you appeared together with two of the aforesaid SEPTA employees. You offered commentary, which may be briefly summarized as follows. SEPTA is a Commonwealth agency and is subject to the Right to Know Law and the Sunshine Act. From time to time, SEPTA officials or employees might have interactions with the Office of the Governor or Pennsylvania State legislators. Such interactions might pertain to matters such as budgetary issues. You reference the possibility that a SEPTA official might, at a public meeting, encourage the public to contact State legislators on matters pertaining to SEPTA. It is your view that it would be contrary to the legislative intent to determine that the Lobbying Disclosure Law would be implicated when a governmental agency like SEPTA would engage in such communications or contacts. 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. 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. Staffieri/Torres /Jones /Neese /Schultz (SEPTA), 07 -1002 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 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). 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. Staffieri/Torres /Jones /Neese /Schultz (SEPTA), 07 -1002 April 11, 2007 Page 4 IV. CONCLUSION: (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 Confidential Opinion, 07 -1001, we determined that the definition of the term "principal" as set forth in the Lobbying Disclosure Law, 65 Pa.C.S. § 1303 -A, includes a governmental entity on whose behalf a lobbying firm or lobbyist engages in lobbying or that engages in lobbying on its own behalf. SEPTA is a governmental entity, being an instrumentality of the Commonwealth and a Commonwealth agency. 74 Pa.C.S. § 1711(a). We hold that to the extent lobbying firms or lobbyists engage in lobbying on behalf of SEPTA or SEPTA engages in lobbying on its own behalf, SEPTA is a "principal" as that term is defined in the Lobbying Disclosure Law. However, as in Confidential Opinion, 07 -1001, 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. In Confidential Opinion, 07 -1001, we determined that 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 their officials /employees in an official capacity. Therefore, you are advised that lobbying by SEPTA on its own behalf and lobbying by Torres, Jones, Neese, or Schultz, as employees of SEPTA acting in an official capacity on behalf of SEPTA would be exempt from the registration and reporting requirements of the Lobbying Disclosure Law and would not necessitate registration or reporting by SEPTA or by Torres, Jones, Neese, or Schultz. However, if lobbying firms or lobbyists other than SEPTA officials /employees would engage in lobbying on behalf of SEPTA, their lobbying activities would not be exempt, and SEPTA 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 an advisory has only been addressed under the Lobbying Disclosure Law and, derivatively, the Ethics Act to the extent applicable. The Southeastern Pennsylvania Transportation Authority ( "SEPTA ") is a governmental entity, being an instrumentality of the Commonwealth and a Commonwealth agency. To the extent lobbying firms or lobbyists engage in lobbying on behalf of SEPTA or SEPTA engages in lobbying on its own behalf, SEPTA is a "principal" as that term is defined in the Lobbying Disclosure Law at 65 Pa.C.S. § 1303 -A. Lobbying by SEPTA on Staffieri/Torres /Jones /Neese /Schultz (SEPTA), 07 -1002 April 11, 2007 Page 5 its own behalf and lobbying by officials /employees of SEPTA acting in an official capacity on behalf of SEPTA would be exempt from the registration and reporting requirements of the Lobbying Disclosure Law and would not necessitate registration or reporting by SEPTA or its aforesaid officials or employees. If lobbying firms or lobbyists other than SEPTA officials /employees would engage in lobbying on behalf of SEPTA, then SEPTA 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