Title 51--PUBLIC OFFICERS LOBBYING DISCLOSURE COMMITTEE [51 PA. CODE CHS. 31, 33, 35, 37, 39, 41,
43 AND 45]Lobbying Disclosure [29 Pa.B. 3868] The Lobbying Disclosure Committee (Committee) statutorily created to promulgate regulations necessary to carry out 65 Pa.C.S. Chapter 13 (act) (relating to Lobbying Disclosure Act), comprised of the Secretary of the Senate, the Chief Clerk of the House of Representatives, the Chairperson of the State Ethics Commission, the Attorney General, the Secretary of the Commonwealth, the Auditor General and the General Counsel, or their designees, adds Chapters 31, 33, 35, 37, 39, 41, 43 and 45 under the authority of 65 Pa.C.S. §§ 1305(b)(3)(iii) and 1310(c) (relating to reporting; and filing fees; fund established; regulations).
Purpose
The regulations implement the act and also impact upon section 1105(b)(6) and (7) of the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1105(b)(6) and (7) (relating to statements of financial interests).
The regulations are generally procedural in nature and implement the requirements of the act concerning: definitions; registration and reporting by principals and lobbyists; the maintenance of records of lobbying activity; the issuance of opinions and advices of counsel; compliance audits; investigations and hearings; referrals; the imposition of civil penalties; and the imposition of prohibitions against lobbying as a sanction.
The regulations have been drafted to be thorough and comprehensive, and to be easily understood by the regulated community and the general public.
Fiscal Impact and Paperwork Requirements
Since the regulations are under a new act, the fiscal impact cannot be discerned. Paperwork will be as dictated by the act.
Summary of Public Comments and Changes
The regulations were published as proposed at 29 Pa.B. 548 (January 30, 1999), with an invitation to submit written comments within 30 days.
Comments were received from the public; the House Judiciary Committee; the Senate Rules and Executive Nominations Committee; and the Independent Regulatory Review Commission (IRRC). A summary of the comments, the Committee's responses to those comments, and related changes to the proposed regulations are set forth in ''The Lobbying Disclosure Committee's Comment and Response Document for Final Form Regulation (63-06)'' which is incorporated herein by reference.
All comments were considered by the Committee, and at a public meeting on May 19, 1999, there was review and a vote by the Committee to then adopt the final-form regulations and to submit them to IRRC, the aforesaid Standing Committees and the Office of Attorney General for approval. The final-form regulations were disapproved by the House Judiciary Committee and IRRC, and were subsequently submitted with revisions or modifications, or both, under section 7(c) of the Regulatory Review Act (71 P. S. § 745.7(c)).
The final-form regulations as revised/modified reflect numerous and substantial changes to the proposed regulations. The following are some of the more noteworthy changes:
(1) The use of calendar year quarters for reporting.
(2) The clarification that the contents of communications and the identity of those with whom the communications take place need not be reported, recorded or maintained.
(3) The inclusion of a provision allowing a parent corporation and its subsidiaries to register and report on a consolidated basis if they meet the eligibility standards of the Internal Revenue Service for filing a consolidated corporate tax return.
(4) Clarifications as to the burden of proof and the number of Commission members required for the Commission to find a violation, impose a civil penalty or impose a prohibition against lobbying.
(5) Clarifications as to certain definitions.
(6) Clarifications as to access to computerized/electronic records.
(7) The maintenance of books and records on the same basis used by the registrant for Federal tax purposes, or, for those who do not file tax returns, on a cash basis.
(8) The clarification of what a principal must do when unable to secure a lobbyist's signature for a report.
(9) The inclusion of an additional valuation method that may be used where more than one individual is benefited incident to an occasion or transaction.
With regard to the latter point, the regulations recognize several different valuation methods as acceptable. Depending upon the method chosen, the valuation will likely vary. Moreover, the fact that a registrant chooses a given method for valuing an item under the act does not compel the recipient to use the same method for valuing it when reporting it under the Ethics Act, 65 Pa.C.S. §§ 1101--1113. Thus, variations between the respective reports are to be expected and do not necessarily indicate that either report is erroneous.
Effective Date
The regulations will take effect on August 1, 1999.
Sunset Date
The effectiveness of these regulations will be reviewed by the Committee periodically. Thus, no sunset date is necessary.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on January 20, 1999, the Committee submitted a copy of the proposed regulations to IRRC and to the Chairpersons of the House Judiciary Committee and Senate Committee on Rules and Executive Nominations. In addition to submitting the proposed regulations, the Committee provided IRRC and the Standing Committees with a copy of a detailed Regulatory Analysis Form. A copy of this material is available to the public upon request.
In compliance with section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)), the Committee submitted a copy of the final-form regulations to IRRC and the aforesaid Standing Committees on May 26, 1999. In addition, the Committee provided IRRC and the Standing Committees with information pertaining to commentators and a copy of a detailed Regulatory Analysis Form prepared by the Committee. A copy of this material is available to the public upon request.
In preparing the final-form regulations, the Committee considered all comments received from IRRC, the Standing Committees and the public.
The final-form regulations were deemed approved by the Senate Committee on Rules and Executive Nominations on June 15, 1999. The final-form regulations were disapproved by the House Judiciary Committee on June 15, 1999, and were disapproved by IRRC on June 17, 1999. Under section 7(c) of the Regulatory Review Act (71 P. S. § 745.7(c)), the regulations were submitted with revisions or modifications to the Standing Committees and IRRC on June 24, 1999. The revised/modified regulations were deemed approved by the Senate Committee on Rules and Executive Nominations and the House Judiciary Committee on July 6, 1999, and approved by IRRC on July 8, 1999.
Contact Person
Questions regarding these regulations may be submitted to: John J. Contino, Executive Director, or Vincent J. Dopko, Chief Counsel, State Ethics Commission, P. O. Box 11470, Room 309, Finance Building, Harrisburg, PA 17108-1470 (717) 783-1610.
Findings
The Committee finds that:
(1) Public notice of intention to adopt the regulations adopted by this order has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202), and the regulations thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments were considered.
(3) The adoption of regulations in the manner provided by this order is necessary and appropriate for the administration of the authorizing statute.
Order
The Committee, acting under the act, orders that:
(a) The regulations of the Commission, 51 Pa. Code, are amended by adding §§ 31.1--31.14, 33.1--33.5, 35.1, 35.2, 37.1, 37.2, 39.1--39.3, 41.1--41.5, 43.1--43.7, 45.1 and 45.2 to read as set forth in Annex A.
(b) The Chief Counsel of the State Ethics Commission shall submit this order and Annex A to the Office of Attorney General for approval as required by law.
(c) The Chief Counsel of the State Ethics Commission shall submit this order, Annex A and a Regulatory Analysis Form to IRRC, the Senate Committee on Rules and Executive Nominations and the House Judiciary Committee for their review and action as required by law.
(d) The Chairperson of the Committee shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(e) This order shall take effect on August 1, 1999.
AUSTIN M. LEE,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 29 Pa.B. 3978 (July 24, 1999).)
Fiscal Note: 63-6. (1) General Fund; (2) Implementing Year 1998-99 is $165,000; (3) 1st Succeeding Year 1999-00 is $280,275; 2nd Succeeding Year 2000-01 is $294,849; 3rd Succeeding Year 2001-02 is $310,181; 4th Succeeding Year 2002-03 is $326,310; 5th Succeeding Year 2003-04 is $343,279; (4) 1997-98 New Program--Not Applicable; 1996-97 New Program--Not Applicable; 1995-96 New Program--Not Applicable; (7) State Ethics Commission; (8) recommends adoption. Fees and revenues deposited in the Lobbying Disclosure Fund should offset, to some extent, the cost of running this program.
Annex A TITLE 51. PUBLIC OFFICERS PART II. LOBBYING DISCLOSURE COMMITTEE CHAPTER 31. GENERAL PROVISIONS Sec.
31.1. Definitions. 31.2. Application to Ethics Act regulations. 31.3. Filing deadlines to fall on Commonwealth working days. 31.4. Registration periods and reporting periods. 31.5. Delinquency. 31.6. Deficiency. 31.7. Biennial review of exemption threshold and reporting threshold. 31.8. Forms, records and Commission publications. 31.9. Amended filings. 31.10. Filings to be originals signed under oath or affirmation. 31.11. Electronic filing. 31.12. Faxed filings. 31.13. Enforcement of Commission orders. 31.14. Parent corporations and subsidiaries. § 31.1. Definitions.
The following words and terms, when used in this part, have the following meanings, unless the context clearly indicates otherwise:
Act--The Lobbying Disclosure Act, 65 Pa.C.S. Chapter 13.
Administrative action--The term includes one or more of the following:
(i) An agency's proposal, consideration, promulgation or rescission of a regulation; development or modification of a guideline or a statement of policy as defined in 1 Pa. Code § 1.4 (relating to definitions); or approval or rejection of a regulation.
(ii) The review, revision, approval or disapproval of a regulation under the Regulatory Review Act.
(iii) The Governor's approval or veto of legislation.
(iv) The nomination or appointment of an individual as an officer or employe of the Commonwealth.
(v) The proposal, consideration, promulgation or rescission of an executive order.
Affiliated political action committee--A ''political action committee'' as defined in section 1621(l) of the Election Code (25 P. S. § 3241(l)), which has a chairperson, a treasurer or another officer who is a principal, an employe of a principal, a lobbyist or an employe of a lobbyist. If an employe of a registrant serves as the officer of a political action committee in what is clearly a personal capacity, and the goals and mission of that political action committee clearly have no relationship to the goals and mission of the registrant, the political action committee will not be considered an affiliated political action committee.
Agency--A State agency, board, commission, authority or department.
Anything of value--
(i) For the limited purpose of reporting gifts, transportation, lodging or hospitality under section 1304 or 1305 of the act (relating to registration; and reporting), or under section 1105(b)(6) or (7) of the Ethics Act (relating to statement of financial interests), these terms mean anything of any nature whatsoever which is not or would not ordinarily be obtainable in the marketplace without consideration, including, but not limited to:
(A) A pecuniary or negotiable item such as money; a bank bill or note; a stock, bond, note or other investment interest in an entity; a promissory note, bill of exchange, order, draft, warrant, check or bond given for the payment of money.
(B) A discount or rebate not extended to the public generally.
(C) A conveyance, or a contract, agreement, promise, or other obligation for a conveyance.
(D) A deposit, distribution, payment, pledge, or transfer of money, or a contract, agreement, promise or other obligation for these.
(E) An advance or loan, or a contract, agreement, promise, or other obligation for an advance or loan.
(F) A forgiveness of indebtedness, or a contract, agreement, promise or other obligation for a forgiveness of indebtedness.
(G) Personalty or an interest in personalty, such as works of art, antiques or collectibles.
(H) Real property or an interest in real property.
(I) A service not extended free of charge to the general public.
(J) The use of real property, personal property or services belonging to other persons or entities.
(K) Entertainment and recreation not extended free of charge to the general public, or the payment of fees or charges incident thereto.
(L) A complimentary ticket/pass, or the purchase of a ticket/pass, to an event such as a reception, rally, fund-raiser, sporting event, theater, opera, concert, exhibition, or the like.
(M) Food, beverage or lodging.
(N) Rewards or prizes from any contest, event or drawing not open to the general public.
(O) An automobile or other means of transportation not extended free of charge to the general public.
(ii) The term does not include services to a constituent or other member of the public based upon a referral or recommendation by a legislator or other State official or employe made within the scope of such office or employment.
(iii) For the purpose of reporting the amount of gifts, transportation, lodging and hospitality, see § 35.1(k) (relating to quarterly expense reports).
Association--An ''association'' as defined in the Association Code in 15 Pa.C.S. § 102 (relating to definitions). The term includes a corporation, a partnership, a limited liability company, a business trust or two or more persons associated in a common enterprise or undertaking. The term does not include a testamentary trust or an inter vivos trust as defined in 20 Pa.C.S. § 711(3) (relating to mandatory exercise of jurisdiction through orphans' court division in general).
Audit--A review of registration statements or disclosure reports, or both, and related information to determine compliance with the act and to review methods of recordkeeping and reporting.
Candidate's political committee--A ''candidate's political committee'' as defined in the Election Code. The words ''candidate's political committee'' mean any political committee formed on behalf of a specified candidate and authorized by the candidate.
Child--The term includes adopted and biological children.
Commission--The State Ethics Commission of the Commonwealth.
Compensation--Anything of value, including benefits, received or to be received from a principal by one acting as a lobbyist.
Complaint--A complaint on a form prescribed by the Commission, or the equivalent of the form, which is signed and sworn under penalty of perjury and which otherwise meets, to the extent applicable, the criteria for complaints under §§ 11.1 (relating to definition of ''sworn complaint'') and 21.1 (relating to complaints).
De minimis--Insignificant.
Docket (noun)--The official listing of entries to the record of a matter before the Commission.
Docket (verb)--The initial, official assignment of a file number to a matter before the Commission; or the entry of an item on the docket of a matter before the Commission.
Direct communication--An effort, whether written, oral or by another medium, made by a lobbyist or principal, directed to a State official or employe, the purpose or foreseeable effect of which is to influence legislative action or administrative action.
Economic consideration--Anything of value offered or received.
Effort to influence legislative action or administrative action--An effort to initiate, support, promote, modify, oppose, delay or advance a legislative action or administrative action. The term does not include services to a constituent or other member of the public based upon a referral or recommendation by a legislator or other State official or employe made within the scope of such office or employment.
Election Code--25 P. S. §§ 2600--3591.
Employe--For the limited purpose of determining exemption under section 1306(6) of the act, the term ''employee'' means an individual from whose wages an employer is required under the Internal Revenue Code (26 U.S.C.A.) to withhold Federal income tax.
Engaging a lobbyist--Engaging means making an arrangement, and ''engagement'' means an arrangement, whereby a lobbyist is employed or otherwise hired or retained to lobby on behalf of a principal for economic consideration.
Ethics Act--The Public Official and Employee Ethics Act, 65 Pa.C.S. §§ 1101--1113.
Fax--Facsimile transmission.
Filed--Registration statements, reports, and other official statements or papers are filed on the date they are physically received at the Commission office whether filed electronically or delivered by United States mail, express carrier, hand delivery or by fax. See § 31.12 (relating to faxed filings) for additional requirements when filing by fax.
Fund--The Lobbying Disclosure Fund established in section 1310(b) of the act (relating to filing fees; fund established; regulations).
Gift--Anything which is received without consideration of equal or greater value.
(i) The term does not include a political contribution which is otherwise reported as required by law or a commercially reasonable loan made in the ordinary course of business.
(ii) For the purpose of categorizing a reportable item under section 1304 or 1305 of the act, or under section 1105(b)(6) or (7) of the Ethics Act, the term does not include ''transportation and lodging or hospitality received in connection with public office or employment'' as defined in this section, which is otherwise reported as required by law.
(iii) The term does not include services to a constituent or other member of the public based upon a referral or recommendation by a legislator or other State official or employe made within the scope of such office or employment.
(iv) The term does not include information received by a legislator or other State official or employe within the scope of such office or employment, except to the extent that such has a fair market value beyond the actual information contained therein.
Hospitality--Includes the following:
(i) Meals.
(ii) Beverages.
(iii) Recreation and entertainment.
Immediate family--An individual's spouse, child, parent, brother, sister, mother-in-law, father-in-law, brother-in-law or sister-in-law.
Indirect communication--An effort, whether written, oral or by another medium, to encourage others, including the general public, to take action, the purpose or foreseeable effect of which is to directly influence legislative action or administrative action. The term includes, but is not limited to, letter-writing campaigns, mailings, telephone banks, print and electronic media advertising, billboards, publications and educational campaigns on public issues. The term does not include regularly published periodic newsletters primarily designed for and distributed to members of a bona fide association or charitable or fraternal nonprofit corporation.
Investigative Division--The Investigative Division of the Commission.
Intentional--The term has the meaning set forth in 18 Pa.C.S. § 302(b) (relating to general requirements of culpability).
Legislation--Bills, resolutions, amendments and nominations pending or proposed in either the Senate or the House of Representatives. The term includes any other matter which may become the subject of action by either chamber of the General Assembly.
Legislative action--An action taken by a State official or employe involving the preparation, research, drafting, introduction, consideration, modification, amendment, approval, passage, enactment, tabling, postponement, defeat or rejection of legislation; legislative motions; overriding or sustaining a veto by the Governor; or confirmation of appointments by the Governor or of appointments to public boards or commissions by a member of the General Assembly.
Lobbying--An effort to influence legislative action or administrative action. The term includes the following:
(i) Providing any gift, entertainment, meal, transportation or lodging to a State official or employe for the purpose of advancing the interest of the lobbyist or principal.
(ii) Direct or indirect communication.
Lobbyist--An individual, firm, association, corporation, partnership, business trust or business entity that engages in lobbying on behalf of a principal for economic consideration. The term includes an attorney who engages in lobbying. The term does not include an individual who receives economic consideration which is de minimis. Membership in an association alone is not sufficient to make an association member a lobbyist.
Negligence--Conduct, whether of action or omission, which violates or fails to comply with the act, and which is occasioned by a failure to exercise such care as a reasonably prudent and careful principal or lobbyist would exercise in satisfying the requirements of the act, and is characterized by inadvertence, thoughtlessness, inattention, or the like.
Political subdivision--A ''political subdivision'' as defined in section 1102 of the Ethics Act (relating to definitions).
Principal--
(i) An individual, firm, association, corporation, partnership, business trust or business entity on whose behalf a lobbyist influences or attempts to influence an administrative action or a legislative action; or that engages in lobbying on the principal's own behalf.
(ii) Membership in an association alone is not sufficient to make an association member a principal.
Registrant--A registered lobbyist or a registered principal.
Regulatory Review Act--71 P. S. §§ 745.1--745.14.
Regulation--Any rule, regulation or order in the nature of a rule or regulation, including formal and informal opinions of the Attorney General, of general application and future effect, promulgated by an agency under statutory authority in the administration of a statute administered by or relating to the agency, or prescribing the practice or procedure before the agency.
Respondent--The subject of an audit, complaint, notice of noncompliance, investigation or formal proceeding before the Commission.
Service (of official papers)--Official papers are deemed served by the Commission, or by a Division thereof, on the date of mailing if delivered by United States mail; the pickup date if delivered by express carrier; or the date received from the Commission if hand delivered or transmitted by fax.
Staff--The Executive Director, the Chief Counsel, investigators and other personnel as may be employed by or assigned to assist the Commission.
State official or employe--An individual elected or appointed to a position in State government or employed by State government, whether compensated or uncompensated, who is involved in legislative action or administrative action.
Transportation and lodging or hospitality received in connection with public office or employment--Transportation, lodging or hospitality received in the course of, or incident to, the performance of official duties or responsibilities, or received on the basis of the status of the recipient as a public official or employe or State official or employe as those terms are defined under the Ethics Act or the act, respectively.
§ 31.2. Application to Ethics Act regulations.
(a) The definitions of ''gift'' and ''transportation and lodging or hospitality received in connection with public office or employment'' in § 31.1 (relating to definitions) apply to administration of the act and section 1105(b)(6) and (7) of the Ethics Act (relating to statement of financial interests).
(b) Section 35.1(k) (relating to quarterly expense reports) applies to reporting the amount of gifts or transportation, lodging or hospitality to be disclosed under section 1304 or 1305 of the act (relating to registration; and reporting) or under section 1105(b)(6) or (7) of the Ethics Act.
§ 31.3. Filing deadlines to fall on Commonwealth working days.
When the deadline for filing a registration statement, report, answer, brief or other official paper with the Commission falls on a weekend or holiday, or on another day that Commission offices are closed or close early, the deadline for the filing shall be extended to the following Commonwealth working day.
§ 31.4. Registration periods and reporting periods.
(a) Registration under section 1304 of the act (relating to registration) shall be within biennial registration periods that coincide with the terms of the members of the House of Representatives (December 1 of each even-numbered year to November 30 of the following even-numbered year), except that the first registration period shall commence August 1, 1999, and continue through November 30, 2000.
(b) Reporting under section 1305 of the act (relating to reporting) shall be quarterly within each calendar year, specifically, for January through March; April through June; July through September; and October through December, except that the first quarterly reporting period shall commence August 1, 1999, and shall continue through September 30, 1999.
§ 31.5. Delinquency.
(a) A registration statement or report required to be filed under section 1304 or 1305 of the act (relating to registration; and reporting) is delinquent if not received by the Commission on the date due as follows:
(1) Hard copy filings must be received by 5 p.m.
(2) Faxed or electronic filings may be filed until 11:59 p.m.
(b) A failure to timely file a registration statement constitutes a failure to register as required by the act.
(c) A failure to timely file a report constitutes a failure to report as required by the act.
(d) A delinquent registration statement or report continues to be delinquent until received in proper form as required by the act and this part.
§ 31.6. Deficiency.
(a) A registration statement, report or notice of termination required to be filed under section 1304 or 1305 of the act (relating to registration; and reporting) is deficient if one or more of the following exist:
(1) It does not fully and accurately include and disclose all that is required by the act and this part.
(2) It includes a false statement.
(3) It is illegible.
(4) The filer fails to use the appropriate form prescribed by the Commission.
(5) The filer fails to date the registration statement, report or notice of termination.
(6) The filer fails to sign the registration statement, report or notice of termination under oath or affirmation as set forth in § 31.10 (relating to filings to be originals signed under oath or affirmation).
(b) The filing of a deficient registration statement constitutes a failure to register as required by the act.
(c) The filing of a deficient report constitutes a failure to report as required by the act.
(d) The filing of a deficient notice of termination shall be ineffective.
(e) A deficient registration statement, report or notice of termination continues to be deficient until it is amended to fully and accurately disclose all of the information that is required to be disclosed by the act and this part.
§ 31.7. Biennial review of exemption threshold and reporting threshold.
(a) On a biennial basis commencing in January 2002, the Commission will review the threshold for reporting under section 1305(d) of the act (relating to reporting) and the threshold for exemption under section 1306(3)(ii)--(iv) of the act (relating to exemption from registration and reporting), using, to the extent applicable, the procedures within § 19.5 (relating to reporting threshold adjustments) for reviewing the threshold dollar amounts in section 1105(b) of the Ethics Act (relating to statement of financial interests).
(b) The Commission may increase the exemption threshold and reporting threshold amounts to rates deemed reasonable for assuring appropriate disclosure. Changes to the thresholds made under this section will become effective as determined by the Commission.
(c) The Commission will publish adjusted threshold amounts in the Pennsylvania Bulletin by June 1, 2002, and every 2 years thereafter, as necessary.
§ 31.8. Forms, records and Commission publications.
(a) Blank forms for filing or amending registration statements, quarterly expense reports, separate quarterly expense reports, lobbyists' statements of limitations of knowledge, notices of termination, termination reports or separate termination reports under the act may be obtained by contacting the Commission at: State Ethics Commission, Post Office Box 11470, Harrisburg, Pennsylvania 17108-1470, (717) 783-1610 or (800) 932-0936, or by visiting any Commission office during business hours on Commonwealth working days. Forms are also available at the Commission's web address: http://www.ethics.state.pa.us
(b) Additional sheets of equal size may be attached to any hard copy form filed under the act, if more space is required.
(c) Completed registration statements, quarterly expense reports, separate quarterly expense reports, lobbyists' statements of limitations of knowledge, notices of termination, termination reports and separate termination reports filed with the Commission shall remain on file for 4 years and shall be available for public inspection at the office of the Commission in Harrisburg, Pennsylvania during business hours on Commonwealth working days. The Commission will provide copies of these documents for the cost of the copying. Documents that are maintained and reproducible in an electronic format are available in that format upon request, at cost.
(d) Payments to the Commission for charges under subsection (c) shall be deposited into the Fund established by section 1310(b) of the act (relating to filing fees; fund established; regulations).
(e) Under section 1308 of the act (relating to administration and enforcement), the Commission will prepare and publish the following:
(1) An annual report of lobbying activities in this Commonwealth.
(2) An annual listing of principals, which shall identify affiliated political action committees and lobbyists.
(3) An annual listing of lobbyists, which shall identify affiliated political action committees and principals.
(4) A biennial directory of all registered lobbyists, which shall include photographs.
(i) The directory will be produced and distributed on or before May 1 of each odd-numbered year.
(ii) Copies of the directory will be made available to the public at a price not to exceed the actual cost of production.
(iii) Revenue received by the Commission from sales of this directory will be deposited into the Fund established by section 1310(b) of the act.
(5) One or all of the items in paragraphs (1)--(3) may, at the discretion of the Commission, be supplemented or be combined in a single publication or combined with the annual report prepared and published by the Commission under the Ethics Act.
§ 31.9. Amended filings.
(a) Filings under the act may be amended.
(b) Amended registration statements shall conform to the additional requirements detailed in § 33.4 (relating to amended registration statements).
(c) Amended filings will not affect the Commission's authority to conduct investigations, hearings or other proceedings under the act.
§ 31.10. Filings to be originals signed under oath or affirmation.
(a) Registration statements, quarterly expense reports, separate quarterly expense reports, lobbyists' statements of limitations of knowledge, notices of termination, termination reports, separate termination reports and amendments to these forms filed with the Commission shall be signed originals bearing the signature of the filer. See §§ 31.11 and 31.12 (relating to electronic filing; and faxed filings) for requirements when filing electronically or by fax.
(1) A document shall be deemed to be a signed original if it is filed electronically under § 31.11 or if it bears an original manual signature in ink.
(2) A principal who is an individual shall sign his own filings.
(3) Filings by a principal that is a firm, association, corporation, partnership, business trust or business entity shall be signed by a named officer or other individual who has the authority to sign documents on its behalf.
(4) A lobbyist who is an individual shall sign his own filings.
(5) Filings by a lobbyist that is a firm, association, corporation, partnership, business trust or business entity shall be signed by a named officer or other individual who has the authority to sign documents on its behalf.
(6) The signature shall appear on the line indicated on the form as prescribed by the Commission.
(b) Registration statements, notices of termination and amendments to these filed under the act shall include an affirmation subject to 18 Pa.C.S. § 4904 (relating to unsworn falsifications to authorities) that the information provided therein is true and correct to the best of the filer's knowledge, information and belief.
(c) Quarterly expense reports, separate quarterly expense reports, termination reports, separate termination reports and amendments to these, filed under the act, shall be filed under oath or affirmation.
(d) A lobbyist who signs a principal's quarterly expense report, termination report or amendment to these, shall do so under an affirmation subject to 18 Pa.C.S. § 4904 that the information provided therein is true and correct to the best of the lobbyist's knowledge, information and belief.
(e) A lobbyist attaching a statement to a principal's quarterly expense report, termination report or amendment to these, describing the limits of the lobbyist's knowledge concerning the expenditures contained therein, shall do so under an affirmation subject to 18 Pa.C.S. § 4904 that the information provided in the statement is true and correct to the best of the lobbyist's knowledge, information and belief.
§ 31.11. Electronic filing.
(a) Electronic filing shall be available when notice of its availability is announced in the Pennsylvania Bulletin by the Commission.
(b) Upon the availability of electronic filing, forms that are required to be filed under the act may be filed electronically. The use of a digital signature assigned by the Commission shall have the same force and effect as a manual signature upon acceptance by the filer. The digital signature assigned shall be: unique to the person to whom it is assigned; capable of verification; under the sole control and authority of the person to whom it is assigned; and linked to the data in a manner so that if the data are changed, the digital signature is invalidated.
(1) A digital signature shall be assigned to a lobbyist or principal that submits to the Commission, in proper form as required by this section, an application to file electronically.
(2) The application to file electronically shall be on a form prescribed by the Commission.
(3) In submitting an application to file electronically, the applicant shall agree to all of the following:
(i) For any registration statement, notice of termination or amendment to these that the applicant files with the Commission electronically, the digital signature assigned to the applicant shall constitute the applicant's signature under affirmation as set forth in § 31.10(b) (relating to filings to be originals signed under oath or affirmation).
(ii) For any quarterly expense report, separate quarterly expense report, termination report, separate termination report or amendment to these that the applicant files with the Commission electronically, the digital signature assigned to the applicant shall constitute the applicant's signature under oath or affirmation as set forth in § 31.10(c).
(iii) The use of the digital signature assigned to the applicant to ''sign'' a quarterly expense report, termination report or amendment to these filed by another shall constitute the applicant's affirmation as set forth in § 31.10(d).
(iv) The use of the digital signature assigned to the applicant to attach a statement to a quarterly expense report, termination report or amendment to these filed by another shall constitute the applicant's affirmation as set forth in § 31.10(e).
(4) An application to file electronically may be rejected if the application is illegible, incomplete or unsigned.
(c) A registration statement or amendment that is submitted to the Commission electronically is filed on the date the Commission receives the document electronically if the Commission receives the required photograph (in the case of a lobbyist's registration statement) and the biennial filing fee, if due, within 5 business days thereafter.
(1) If the Commission does not receive the required photograph (in the case of a lobbyist's registration statement) and the biennial filing fee, if due, within 5 business days from the date of receiving the document electronically, the registration statement or amendment is filed on the date the Commission receives all the required items.
(2) The failure to submit a photograph or to pay a biennial filing fee as required by the act and this part constitutes a failure to register as required by the act.
§ 31.12. Faxed filings.
(a) A registration statement or amendment sent by fax is filed on the date the Commission receives the faxed copy if the Commission receives the signed original, together with the required photograph (in the case of a lobbyist's registration statement) and the biennial filing fee, if due, within 5 business days thereafter. A registration statement or amendment shall be deemed to be a signed original if it is filed electronically under § 31.11 (relating to electronic filing) or if it bears an original manual signature in ink.
(1) If the Commission does not receive the signed original, together with the required photograph (in the case of a lobbyist's registration statement) and the biennial filing fee, if due, within 5 business days from the date of receiving the faxed copy, the registration statement or amendment is filed on the date the Commission receives all the required items.
(2) The failure to submit a photograph or to pay a biennial filing fee as required by the act and this part constitutes a failure to register as required by the act.
(b) A quarterly expense report, separate quarterly expense report, lobbyist's statement of limitations of knowledge, notice of termination, termination report, separate termination report or amendment to these sent by fax transmission is filed on the date the Commission receives the faxed copy if the Commission receives the signed original within 5 business days thereafter. The document shall be deemed to be a signed original if it is filed electronically under § 31.11 or if it bears an original manual signature in ink. If the Commission does not receive the signed original within 5 business days from the date of receiving the faxed copy, the document is filed on the date the Commission receives the signed original.
§ 31.13. Enforcement of Commission orders.
The Commission through its staff may take appropriate action to enforce its orders.
§ 31.14. Parent corporations and subsidiaries.
(a) Subject to the requirements of subsection (b), a parent corporation and its subsidiaries may register and report under the act on a consolidated basis if they meet the eligibility standards of the Internal Revenue Service for filing a consolidated corporate tax return.
(b) When registration and reporting is on a consolidated basis, the registration statements, quarterly expense reports, separate quarterly expense reports, notices of termination, termination reports and separate termination reports shall disclose with particularity all of the required information as to the parent corporation and the subsidiaries.
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[Continued from previous Web Page] CHAPTER 33. REGISTRATION AND TERMINATION Sec.
33.1. Biennial filing fee. 33.2. Principal registration. 33.3. Lobbyist registration. 33.4. Amended registration statements. 33.5. Termination. § 33.1. Biennial filing fee.
(a) Under section 1310(a) of the act (relating to filing fees; fund established; regulations), a principal or lobbyist required to be registered under the act shall pay a biennial filing fee of $100 to the Commission.
(1) The biennial filing fee shall be tendered to the Commission with the filing of the principal's or lobbyist's first registration statement in each registration period.
(2) The biennial filing fee shall be a flat fee for the registration period in which paid. A registrant shall not be required to pay more than one biennial filing fee in any given biennial registration period.
(3) A separate biennial filing fee shall be paid for each principal or lobbyist required to be registered, even if employed by a firm, association, corporation, partnership, business trust or business entity that is also required to register and that has paid or will pay the fee. A principal also acting as a lobbyist shall pay no more than one fee in a registration period.
(4) The biennial filing fee is nonrefundable and nontransferrable.
(5) Filing fees shall expire at the end of each registration period, regardless of when paid.
(b) The failure to pay a biennial filing fee as required by the act and this section shall constitute a failure to register as required by the act.
(c) Money received from biennial filing fees shall be deposited in the Fund.
§ 33.2. Principal registration.
(a) Unless exempt under section 1306 of the act (relating to exemption from registration and reporting), a principal shall register with the Commission within 10 days of acting in any capacity as a principal.
(1) Engaging a lobbyist for lobbying purposes constitutes acting in the capacity of a principal.
(2) Lobbying by a principal on the principal's own behalf constitutes acting in the capacity of a principal.
(i) A principal that is required to register and that engages in lobbying on its own behalf need only register with the Commission as a principal.
(ii) Unless exempt under section 1306 of the act, members or employes of a principal who engage in lobbying on behalf of the principal shall register as lobbyists with the Commission under § 33.3 (relating to lobbyist registration).
(b) A principal shall register by filing a registration statement with the Commission, on a form prescribed by the Commission, which shall disclose the following information:
(1) The name, permanent address, daytime telephone number, and name and nature of business of the principal.
(2) The name, registration number and acronyms of ''affiliated political action committees'' as defined in section 1303 of the act (relating to definitions), as to the principal or the principal's employes, or both.
(3) The name and permanent business address of each individual, registered or unregistered, who will for economic consideration engage in lobbying on the principal's behalf, whether as an individual or as a member, employe, or agent of a firm, association, corporation, partnership, business trust or business entity.
(4) If the principal is an organization or association, the number of its dues-paying members in the past calendar year.
(c) For each address that is to be disclosed on a registration statement, the filer shall include the mailing address and may, at the filer's option, include the street address, if different. If no street address is supplied, the registrant shall be deemed to have waived personal service where such service is required by law. The filer may, at the filer's option, also include a fax number or electronic mail address.
(d) The registration statement shall include the principal's consent to receive service of notices, other official mailings or process at addresses listed in the registration statement on file with the Commission.
(e) The registration statement shall include a statement that the principal has received, read and understands the requirements and prohibitions of sections 1304, 1305 and 1307 of the act (relating to registration; reporting; and prohibited activities) and section 1105(b)(6) and (7) of the Ethics Act (relating to statement of financial interests).
(f) A principal will not be considered registered until the completed registration statement, in proper form as required by the act and this section, is received by the Commission.
(g) Unless terminated, each registration statement filed under the act shall be effective from the date of filing through the final day of the registration period then in effect. The principal shall file new registration statements after that date, to the extent the principal is required to be registered under the act and this section.
§ 33.3. Lobbyist registration.
(a) Unless exempt under section 1306 of the act (relating to exemption from registration and reporting), a lobbyist shall register with the Commission within 10 days of acting in any capacity as a lobbyist.
(1) Accepting an engagement to lobby constitutes acting in the capacity of a lobbyist.
(2) Engaging in lobbying constitutes acting in the capacity of a lobbyist.
(3) When a firm, association, corporation, partnership, business trust or business entity is engaged as a lobbyist, it and each of its members or employes that engage in lobbying on behalf of the principal shall register with the Commission, unless exempt under section 1306 of the act.
(b) A lobbyist shall register by filing a ''registration statement'' with the Commission on a form prescribed by the Commission which shall include and disclose the following information:
(1) The name, permanent business address and daytime telephone number of the lobbyist.
(2) A passport-sized (approximately 2 inches × 2 inches) photograph of the lobbyist which photograph shall be of reasonable clarity and shall have been taken within 2 years of the date of registration, except that if the lobbyist is not an individual, a photograph is not required.
(3) The name, permanent business address and daytime telephone number of the principal the lobbyist represents.
(4) The name, registration number and acronyms of ''affiliated political action committees,'' as defined in section 1303 of the act (relating to definitions) as to the lobbyist or the lobbyist's employes, or both.
(c) For each address that is to be disclosed on a registration statement, the filer shall include the mailing address and may, at the filer's option, include the street address, if different. If no street address is supplied, the registrant shall be deemed to have waived personal service where such service is required by law. The filer may, at the filer's option, also include a fax number or electronic mail address.
(d) The registration statement shall include the lobbyist's consent to receive service of notices, other official mailings or process at addresses listed in the registration statement on file with the Commission.
(e) The registration statement shall include a statement that the lobbyist has received, read and understands the requirements and prohibitions of sections 1304, 1305 and 1307 of the act (relating to registration; reporting; and prohibited activities) and section 1105(b)(6) and (7) of the Ethics Act (relating to statement of financial interests).
(f) A lobbyist required to be registered under the act shall file a separate registration statement for each principal represented. A lobbyist registering on behalf of an association shall not be required to register on behalf of each individual member of that association, except as to such members of the association whom the lobbyist represents in an individual capacity.
(g) A lobbyist will not be considered registered until the completed registration statement, in proper form as required by the act and this section, is received by the Commission.
(h) Unless terminated, each registration statement filed under the act shall be effective from the date of filing through the final day of the registration period then in effect. The lobbyist shall file new registration statements after that date, to the extent the lobbyist is required to be registered under the act and this section.
§ 33.4. Amended registration statements.
(a) A principal required to be registered under the act shall file an amended registration statement whenever there is a change of or in the information required to be disclosed on the principal's registration statement. The amended registration statement shall be filed with the Commission within 14 days after the change occurs, except that if the change is solely as to the number of dues-paying members in the past calendar year, the amended registration statement shall be filed with the Commission within 14 days of the end of the year in which the change occurs.
(b) A lobbyist required to be registered under the act shall file an amended registration statement whenever there is a change of or in the information required to be disclosed on the lobbyist's registration statement.
(1) The amended registration statement shall be filed with the Commission within 14 days after the change occurs.
(2) A change to the identity or name of the principal represented shall require a new registration statement.
(c) The filing of amended registration statements shall be subject to the additional requirements detailed in § 31.9 (relating to amended filings).
§ 33.5. Termination.
(a) A lobbyist or a principal may terminate registration by filing a completed notice of termination with the Commission.
(1) The notice of termination shall be on a form prescribed by the Commission.
(2) A lobbyist may file notices of termination solely as to registration statements which the lobbyist has filed.
(3) A principal may file notices of termination solely as to registration statements which the principal has filed.
(b) A separate notice of termination shall be required for each registration statement.
(c) A notice of termination shall identify the applicable registration statement by the date filed, the name and address of the principal, and the names and addresses of the lobbyists.
(d) A notice of termination may be amended, but cannot be withdrawn.
(e) A registration statement cannot be revived or otherwise made effective after a notice of termination as to the registration statement has been filed.
(f) No lobbying may occur after the filing of a notice of termination unless the lobbying is under a separate registration statement which has already been filed with the Commission and which, at the time of the lobbying, has not been terminated.
(g) A lobbyist or principal filing a notice of termination shall, within 30 days thereafter, file a termination report with the Commission.
(1) Termination reports shall be filed on the quarterly expense report form prescribed by the Commission. The filer shall check the appropriate block on the form to indicate that it is a termination report.
(2) A termination report shall identify the applicable notice of termination by the date filed, the name and address of the principal, and the names and addresses of the lobbyists.
(3) For purposes of determining whether the reporting threshold has been met, expenses shall be accounted for as set forth in § 35.1(c) (relating to quarterly expense reports).
(4) If the total lobbying expenses of the registered principal or registered lobbyist, lobbying on the principal's behalf, or both, from the end of the previous quarterly reporting period through the final day of lobbying are $500 or less, the termination report may substantively be limited to a statement to that effect, by checking the appropriate block on the form.
(5) If the total lobbying expenses of the registered principal or registered lobbyist, lobbying on the principal's behalf, or both, from the end of the previous quarterly reporting period through the final day of lobbying are in excess of $500, a termination report by the principal shall include all information required by section 1305(b)(1)--(3), (5) and (7) of the act (relating to reporting), and a termination report by a lobbyist shall include all information required by section 1305(b)(2) and (3) of the act, through the final day of lobbying activity.
(6) The filer of the termination report shall give written notice to each public official or employe of the public official's or employe's inclusion in the termination report within 7 days of the submission of the termination report to the Commission. The notice shall include the information which will enable the public official or employe to comply with section 1105(b)(6) and (7) of the Ethics Act (relating to statement of financial interests).
(h) A lobbyist required to be registered under the act shall sign the termination reports and amended termination reports submitted by the principal represented to attest to the validity and accuracy of the reports to the best of the lobbyist's knowledge.
(1) A lobbyist may attach a statement to the report of any principal, describing the limits of the lobbyist's knowledge concerning the expenditures contained in the report.
(2) Lobbyists' statements as to limitations of knowledge shall describe the limitations and the reasons for the limitations with specificity.
(i) If the principal fails to file a termination report, or if, during the period covered by the principal's termination report or amended termination report, the lobbyist engaged in lobbying on behalf of the principal which was not contained in the report, a lobbyist required to be registered under the act shall file a separate termination report or a separate amended termination report.
(1) When more than one lobbyist would be required to file a separate report, they shall have the option of filing the reports jointly.
(i) The joint filing of a separate report does not excuse the various lobbyists involved from the duty to fully comply with the act and this section as to the separate reports.
(ii) The lobbyists joining in a joint report shall sign the report as provided in § 31.10 (relating to filings to be originals signed under oath or affirmation).
(2) The deadline for filing a separate report shall be the 30th day after the date the principal's related report was filed.
(3) Separate reports shall be filed on a form prescribed by the Commission.
(4) A separate termination report or separate amended termination report shall contain the identity of the principal for whom the lobbying was performed.
(5) A separate termination report or separate amended termination report shall include all information required by section 1305(b)(2), (3) and (7) of the act.
(6) A separate termination report or separate amended termination report may include a statement which sets forth, with specificity, the limitations of the lobbyist's knowledge and the reasons for the limitations.
(7) A lobbyist filing a separate termination report or separate amended termination report shall promptly serve it upon the principal.
(8) A lobbyist filing a separate termination report or separate amended termination report shall give written notice to each public official or employe of the public official's or employe's inclusion in the report within 7 days of the submission of the report to the Commission. The notice shall include the information which will enable the public official or employe to comply with section 1105(b)(6) and (7) of the Ethics Act.
(j) If the principal is unable to secure the signature of the lobbyist as to a termination report or amended termination report, the principal shall attach an affidavit to such report, setting forth the attempts made and the reasons for the inability to obtain the lobbyist's signature. Such affidavit shall be on a form prescribed by the Commission.
(k) After a reasonable review of the termination report, the Commission will issue to the lobbyist or principal who filed the notice of termination a letter stating that the registrant has terminated registration. The letter shall be issued within 90 days after the Commission's receipt of the notice of termination except that the filing of a defective or delinquent termination report shall automatically and correspondingly extend the Commission's deadline for issuing the letter.
(l) The filing of a notice of termination or a termination report, or the issuance of a Commission letter stating that the registrant has terminated registration, does not affect the Commission's authority to conduct audits, investigations, hearings or other proceedings under the act and this part.
CHAPTER 35. REPORTING Sec.
35.1. Quarterly expense reports. 35.2. Records maintenance, retention and availability. § 35.1. Quarterly expense reports.
(a) A quarterly expense report is required to be filed as set forth in this section when the total lobbying expenses of a registered principal or registered lobbyist lobbying on the principal's behalf, or both, exceed $500 in a quarterly reporting period.
(b) For a quarterly reporting period in which the total lobbying expenses of a registered principal or registered lobbyist lobbying on the principal's behalf, or both, are $500 or less, a statement to that effect shall be filed with the Commission by checking the appropriate block on the quarterly expense report form.
(c) For purposes of determining whether the reporting threshold has been met, and for filing reports required under sections 1304 and 1305 of the act (relating to registration; and reporting), books and records shall be kept on the same basis the registrant uses for Federal tax purposes. For those registrants who do not file tax returns, books and records shall be kept on a cash basis.
(d) The principal shall file a quarterly expense report or statement of failure to meet the reporting threshold on or before the 30th day after the quarterly reporting period ends.
(e) Pursuant to subsection (n), a lobbyist required to be registered under the act shall file a separate quarterly expense report or a separate amended quarterly expense report if the principal fails to file in accordance with subsection (d) or if, during the reporting period, the lobbyist engaged in lobbying which was not contained in the report filed by the principal represented by the lobbyist. The deadline for filing a separate report shall be the 30th day after the date the principal's related report was filed or due.
(f) Quarterly expense reports, statements of failure to meet the reporting threshold, separate quarterly expense reports by lobbyists and amendments to these shall be filed on forms prescribed by the Commission.
(g) A quarterly expense report of a principal required to be registered under the act shall include the following information:
(1) The name, permanent business address and daytime telephone number of any individual, firm, association, corporation, partnership, business trust or business entity which contributed more than 10% of the total resources received by the principal during the reporting period. ''Total resources'' do not include the purchase, transfer, or ownership of stock in a publicly held corporation.
(2) The names of all lobbyists, registered or unregistered, by whom the lobbying is conducted. If a lobbyist is a firm, association, corporation, partnership, business trust or business entity, its name and the names of the individuals who lobby on behalf of the principal shall be included.
(3) The general subject matter or issue being lobbied, which shall be indicated by checking the appropriate block on the form or completing the category designated ''other.'' The following need not be reported:
(i) A listing indicating which lobbyists are lobbying on which matters.
(ii) The specific bill numbers for which the lobbying is being done.
(iii) The specific contents of any communication or the identity of those with whom the communications take place.
(iv) The contents of privileged communications, such as those between attorney and client or doctor and patient.
(4) A single aggregate good faith estimate of the total amount spent for personnel and office expenses related to lobbying, to be calculated as prescribed by subsection (i).
(5) A single aggregate good faith estimate of the total amount spent for direct communication. In calculating this good faith estimate, any reasonable accounting method may be used.
(6) The total costs for gifts, entertainment, meals, transportation, lodging and receptions, given to or provided to State officials or employes or their immediate families, except that any cost under this paragraph which is of a value not exceeding $10 need not be reported under section 1305(b)(3) of the act. If the same or similar gift, hospitality or transportation or lodging is provided to more than one State official or employe, the aggregate economic value of which is $10 or more, such value shall be included in the appropriate totals reported under section 1305(b)(2) of the act.
(7) A single aggregate good faith estimate of the total amount spent for indirect communication. In calculating this good faith estimate, any reasonable accounting method may be used.
(8) The information required to be disclosed by section 1305(b)(3) of the act, as detailed by subsections (g)(6), (j) and (k).
(h) A registered principal or registered lobbyist that attempts to influence an agency's preparing, bidding, entering into or approving a contract shall ensure that the related expenses are included in calculating the totals referenced by subsection (g)(4)--(7).
(i) The single aggregate good faith estimate of the total amount spent for personnel and office expenses related to lobbying shall include salaries and other forms of compensation, benefits, vehicle allowances, bonuses and reimbursable expenses for those involved in lobbying, and costs for offices, equipment and supplies utilized for lobbying.
(1) In calculating the single aggregate good faith estimate of the total amount spent for personnel and office expenses related to lobbying, any reasonable accounting method may be used.
(2) Reportable personnel costs include costs for lobbying staff, research and monitoring staff, consultants, lawyers, lobbyists, publications and public relations staff, and technical staff, as well as clerical and administrative support staff who engage in lobbying but who are exempt from reporting under section 1306(6) of the act (relating to exemption from registration and reporting).
(3) Compensation, benefits and expenses of any nature shall be included if paid in furtherance of lobbying.
(4) If compensation is to be reported by or for an individual or entity whose lobbying is incidental to regular employment, it shall be sufficient to report a good faith prorated estimate based on the value of the time devoted to lobbying. The time devoted to lobbying shall include:
(i) Research time spent in preparation for lobbying.
(ii) Time spent in direct communication or indirect communication.
(iii) Other time consumed in furtherance of lobbying for which the individual or entity is compensated or reimbursed.
(5) Office expenses shall include, but not be limited to: the rental value of the physical facilities of an office during the period of time used for lobbying, together with additional charges for utilities, telephone usage, fax, insurance, services, furnishings, computers, printers, systems, copiers, fax machines, office supplies, postage and other costs related to the physical facilities and operation of an office during the period of time used for lobbying.
(j) A quarterly expense report shall also identify, by name, position and each occurrence, the State officials or employes, or both, who received from a principal or lobbyist anything of value which must be included in the statement of financial interests under section 1105(b)(6) or (7) of the Ethics Act (relating to statement of financial interests) as implemented by section 1105(d) of the Ethics Act.
(1) For purposes of the act, the amount referred to in section 1105(b)(7) of the Ethics Act shall be considered an aggregate amount per calendar year.
(2) The reporting of the provision of a gift to a State official or employe shall identify:
(i) The name and position of the State official or employe.
(ii) The name and address of the source of the gift.
(iii) The value of the gift.
(iv) The circumstances of the gift, including the nature of the gift.
(3) The reporting of the provision of transportation/lodging/hospitality to a State official or employe in connection with public office or employment shall identify the following:
(i) The name and position of the State official or employe.
(ii) The name and address of the source of the payment.
(iii) The value of the transportation, lodging or hospitality.
(k) For purposes of reporting the value of gifts or transportation, lodging or hospitality to be disclosed under section 1304 or 1305 of the act, or under section 1105(b)(6) or (7) of the Ethics Act:
(1) Gifts and hospitality items that are returned unused to the donor within 30 days of the date of receipt need not be reported.
(2) The valuation of a complimentary ticket to a fundraiser shall be based upon the reasonable amount of the goods or services received by the donee. Such valuation shall not include a political contribution which is otherwise reported as required by law.
(3) The value of gifts, transportation, lodging or hospitality shall equal the costs to the registrant if the items or services to be valued were in fact obtained by the registrant in marketplace transactions.
(4) When paragraph (3) is not applicable, the value of the gifts, transportation, lodging or hospitality shall equal the fair market values as determined by the replacement costs, that is, the costs of purchasing the same or similar items or services in marketplace transactions.
(5) When paragraphs (3) and (4) are not applicable, the registrant may use any reasonable method to determine the value of gifts, transportation, lodging or hospitality, but shall include a detailed explanation of the specific method used.
(6) When more than one individual is benefited incident to an occasion or transaction, the registrant may calculate the value of the gifts, transportation, lodging or hospitality provided to a particular individual by one of the following:
(i) Calculating the actual benefit provided to that individual.
(ii) Dividing the totals of expenditures common to more than one beneficiary including that individual by the number of recipients, and adding the resulting figures (quotients) together with the value of all other gifts, transportation, lodging or hospitality provided to that particular individual.
(iii) Allocating a portion of the total expenditures common to more than one beneficiary to each individual based upon each individual's participation and adding that value to the value of all other gifts, transportation, lodging or hospitality provided to that individual.
(l) The filer of the quarterly expense report or amended quarterly expense report shall give written notice to each public official or employe of the public official's or employe's inclusion in the report within 7 days of the submission of the report to the Commission. The notice shall include the information which will enable the public official or employe to comply with section 1105(b)(6) and (7) of the Ethics Act.
(m) A lobbyist required to be registered under the act shall sign the quarterly expense reports or amended quarterly expense reports submitted by the principals represented to attest to the validity and accuracy of the reports to the best of the lobbyist's knowledge. If the principal is unable to secure the signature of the lobbyist, the principal shall attach an affidavit to such report, setting forth the attempts made and the reasons for the inability to obtain the lobbyist's signature. Such affidavit shall be on a form prescribed by the Commission.
(1) A lobbyist may attach a statement to the quarterly expense report or amended quarterly expense report of any principal, describing the limits of the lobbyist's knowledge concerning the expenditures contained in the report.
(2) Lobbyists' statements as to limitations of knowledge shall be on a form prescribed by the Commission and shall describe the limitations and the reasons for the limitations with specificity.
(n) When a lobbyist is required to file a separate report under subsection (e), the following shall apply:
(1) When more than one lobbyist would be required to file a separate report, they shall have the option of filing the reports jointly.
(i) The joint filing of a separate report does not excuse the various lobbyists involved from the duty to fully comply with the act and this section as to the separate reports.
(ii) All lobbyists joining in a joint report shall sign the report as provided in § 31.10 (relating to filings to be under oath or affirmation).
(2) The deadline for filing any separate quarterly expense report or separate amended quarterly expense report shall be the 30th day after the date the principal's related report was filed.
(3) Separate quarterly expense reports and separate amended quarterly expense reports shall be filed on a form prescribed by the Commission.
(4) A separate quarterly expense report or separate amended quarterly expense report shall contain the identity of the principal for whom the lobbying was performed.
(5) A separate quarterly expense report or separate amended quarterly expense report shall include all information required by section 1305(b)(2), (3) and (7) of the act.
(6) A separate quarterly expense report or separate amended quarterly expense report may include a statement which sets forth, with specificity, the limitations of the lobbyist's knowledge and the reasons for the limitations.
(7) A lobbyist filing a separate quarterly expense report or separate amended quarterly expense report shall promptly provide it to the principal.
(8) A lobbyist filing a separate quarterly expense report or separate amended quarterly expense report shall give written notice to each public official or employe of the public official's or employe's inclusion in the report within 7 days of the submission of the report to the Commission. The notice shall include the information which will enable the public official or employe to comply with section 1105(b)(6) and (7) of the Ethics Act.
§ 35.2. Records maintenance, retention and availability.
(a) A registrant shall maintain records of all lobbying activity.
(1) The Commission may prescribe standardized forms for the records, in which case the forms prescribed by the Commission may be used by all principals and lobbyists required to be registered under the act.
(2) Records of lobbying activity shall be maintained in sufficient detail to enable the registrant to fully comply with the act and this part.
(3) The records shall identify the general subject matter or issue being lobbied. The specific contents of a particular communication, or the identity of those with whom the communications take place, need not be recorded or maintained.
(b) A registrant may keep records of all lobbying activity separate from records of the registrant's non-lobbying activity. A registrant may keep records related to registering and reporting under the act separate from other records relating to lobbying.
(1) Records which integrate both lobbying and non-lobbying activities shall be retained and made available for inspection or audit under this section and Chapter 41 (relating to compliance audits).
(2) An expenditure incurred partially in connection with lobbying may be prorated by any reasonable accounting method, but the method used shall be described in detail in the records maintained as to the expenditure.
(c) A registrant shall retain all documents reasonably necessary to substantiate the reports to be made under section 1304 or 1305 of the act (relating to registration; and reporting) for 4 years from the date of filing of the subject report.
(1) The documents shall include, but not be limited to: books, journals, ledgers, accounts, statements, invoices, bills, vouchers, receipts, charge slips, cancelled checks, payroll check stubs, time sheets, tax returns and related forms, contracts, subcontracts, business diaries and calendars, and other related written or computerized records.
(2) Original source records received by the registrant shall be retained in their original form.
(3) Records prepared by the registrant under this section may be in written or computerized/electronic formats.
(4) Computerized/electronic records shall be maintained to enable the Commission or Office of Attorney General to access in readable form all of the information reasonably necessary to substantiate the registration statements or reports.
(5) Affidavits may be used if actual records are lost, stolen or destroyed through no fault of the registrant, or are otherwise unavailable, and cannot be recreated from other sources. An affidavit shall be as complete and detailed as is reasonably possible, and shall include the specific reasons for the unavailability of the actual records.
(d) Reportable expenditures shall be supported by original source documents to the extent they are available. If an original source document is not available to support a reportable expenditure, the registrant shall upon payment of the expenditure promptly prepare a written voucher, journal entry, or other written or electronic form of record to document the expenditure, which record shall include a notation of the reason an original source document was not available.
(e) The documents and records maintained and retained to substantiate expenditures shall reflect for each reportable item, the following information:
(1) The full names of the payor and payee.
(2) The date of the transaction.
(3) The dates and forms of payments.
(4) The full name and official position of each State official or employe who was a beneficiary, and the amount of the expenditure reasonably attributable to each of them.
(5) The number of immediate family members of a State official or employe, who were beneficiaries, and the amount of the expenditures reasonably attributable to them.
(6) A description of the goods or services or other consideration for which the expenditure was made or incurred.
(f) Contributions of resources which are reportable under section 1305(b)(5) of the act shall upon receipt be promptly documented by the registered principal through the preparation of a written receipt, an entry in a journal maintained by the principal, or other written or electronic form of record.
(g) Documents and records maintained and retained to substantiate contributions of resources reportable under section 1305(b)(5) of the act shall reflect for each reportable item, the following information:
(1) The full names of the donor and donee.
(2) The amount or value and date of the contribution.
(3) In the case of a nonmonetary contribution, a description of the goods, services or other forms of resources provided.
(4) Instructions, directions, conditions, restrictions, limitations or controls provided or imposed by the donor as to the use or disposition of the contribution.
(h) Upon written request by the Office of Attorney General or the Commission, all documents reasonably necessary to substantiate reports made under section 1305 of the act shall be made available for inspection and copying within 30 days.
(1) Either the Office of Attorney General or the Commission may extend this 30-day deadline in connection with its own requests, when circumstances compelling an extended deadline are established.
(2) Computerized/electronic records shall be provided in readable form.
CHAPTER 37. EXEMPTION FROM REGISTRATION AND REPORTING Sec.
37.1. Qualifications for exemption. 37.2. Exempt status. § 37.1. Qualifications for exemption.
The following individuals and activities shall be exempt from registration under section 1304 of the act (relating to registration) and reporting under section 1305 of the act (relating to reporting):
(1) An individual whose lobbying activities are limited to preparing testimony and testifying before a committee of the General Assembly or participating in an agency administrative proceeding.
(2) An individual who is an employe of an entity engaged in the business of publishing, broadcasting or televising while engaged in the gathering and dissemination of news and comment thereon to the general public in the ordinary course of business.
(3) An individual who does not receive any compensation for lobbying, other than travel expenses. For the limited purpose of determining exemption under section 1306(3)(i) of the act (relating to exemption from registration and reporting), the term ''travel expenses'' means reasonable and necessary expenses for transportation, meals, beverages and lodging.
(4) An individual whose compensation for lobbying, from all principals represented, does not exceed $2,500 in the aggregate during any reporting period.
(5) An individual who engages in lobbying on behalf of the individual's employer when the lobbying activity represents less than the equivalent of $2,500 of the employe's time during any reporting period, based on an hourly proration of the employe's compensation.
(6) A principal whose total expenses for lobbying purposes do not exceed $2,500 during any reporting period.
(7) An elected State officer acting in an official capacity.
(8) A State executive officer appointed by the Governor acting in an official capacity.
(9) An elected or appointed official or employe of a political subdivision acting in an official capacity.
(10) An employe of the Commonwealth or an employe or official of an independent agency of the Commonwealth acting in an official capacity.
(11) An individual representing a bona fide church of which the individual is a member and the purpose of the lobbying is solely for the purpose of protecting the constitutional right to the free exercise of religion.
(12) An employe, who is not a registered lobbyist, of a corporation which is registered as a principal under section 1304 of the act; has one or more registered lobbyists; and includes in its reports under section 1305 of the act all of the employe's expenses related to lobbying.
§ 37.2. Exempt status.
(a) As long as a principal or lobbyist qualifies for exemption under section 1306 of the act (relating to exemption from registration and reporting), the principal or lobbyist is not required to register or report under the act, even if total lobbying expenses for a quarterly reporting period exceed $500.
(b) Upon losing exempt status, a principal or lobbyist is immediately subject to the registration and reporting requirements of the act.
(c) A principal is not required to retroactively file reports for quarterly reporting periods prior to the loss of exempt status.
(d) A lobbyist is not required to retroactively sign or file reports for quarterly reporting periods prior to the loss of exempt status.
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[Continued from previous Web Page] CHAPTER 39. OPINIONS AND ADVICES OF COUNSEL Sec.
39.1. Ethics Act regulations in Part I as to opinions and advices of counsel. 39.2. Standing requirements. 39.3. Prospective conduct to be reviewed. § 39.1. Ethics Act regulations in Part I as to opinions and advices of counsel.
The Commission shall provide advices of counsel and opinions in accordance with the procedures in section 1107 of the Ethics Act (relating to powers and duties of commission) and Chapter 13 (relating to opinions and advices of counsel). A principal, lobbyist or State official or employe who acts in good faith based upon a written advice or opinion of the Commission issued to him shall not be held liable for a related violation of the act.
§ 39.2. Standing requirements.
(a) An advice or opinion may be requested by a lobbyist, principal, State official or employe, or by his authorized representative, as to his own conduct, or by a lobbyist, principal, State official or employe regarding the conduct of employes responsible to him.
(b) An unauthorized request for an advice or opinion as to the conduct of another shall be considered a ''third- party request'' and will not be entertained.
§ 39.3. Prospective conduct to be reviewed.
An advice or opinion will only be issued as to prospective-future-conduct.
CHAPTER 41. COMPLIANCE AUDITS Sec.
41.1. Lotteries. 41.2. Number and scope of compliance audits. 41.3. Audit procedures. 41.4. Audit report. 41.5. Confidentiality. § 41.1. Lotteries.
(a) Each year, the Commission will initiate, by lottery, random audits of registration statements and disclosure reports required to be filed under the act.
(b) The Commission may hold up to four lotteries per year. The number of lotteries held in a given year will be a matter within the Commission's discretion.
(c) No lobbyist or principal will be subject to a random audit more than once in any 12-month period.
§ 41.2. Number and scope of compliance audits.
(a) The purpose of conducting the audits shall be to ensure compliance with the act.
(b) Each year, the number of audits to be conducted will be determined by the Commission through resolutions adopted at public meetings. The number of audits conducted in a given year will depend upon various factors, including the complexity, results and time required to complete the audits.
(c) An audit shall include registration statements and disclosure reports, as well as other relevant information to verify, explain, clarify, support or contravene the registration statements and disclosure reports.
(d) An audit shall be limited in time to the previous 4 calendar years, except that lobbying activities performed prior to August 1, 1999, will not be audited under the act.
§ 41.3. Audit procedures.
The following general procedures will be employed by the Commission for audits conducted under section 1308(g) of the act (relating to administration and enforcement):
(1) At least 30 days prior to the initiation of the audit, each audit subject will be advised by letter that it was randomly selected for audit and further advised of the time, date, place and general scope as well as a tentative time frame for completion of the audit. The letter will contain a request for documents deemed necessary for conduct of the audit.
(2) Prior to the initiation of the audit, a review of the subject's reports on file with the Commission for a period not to exceed 4 years will be conducted.
(3) The audit will be initiated by way of conference with the audit subject or in the case of a firm, the designated representative thereof.
(i) The audit will include a detailed field examination of the financial records of the audit subject relating to lobbying activities.
(ii) The audit may include independent verification of some or all of the information reported.
(A) The audit may include related records from other sources, in which case the subject of the audit shall cooperate fully and shall execute all waivers, releases or authorizations to allow the Commission to obtain the records.
(B) Registrants shall have an affirmative duty to cooperate fully in any audit of themselves.
(3) The audit may include interviews of lobbyists, principals, representatives and employes thereof and other individuals necessary to the completion of the audit.
(4) A post audit conference will be conducted with the subject of the audit, or in the case of an entity, with the designated representative thereof.
(5) Post audit preparation of a report describes the result of the audit.
§ 41.4. Audit report.
(a) The Division of the Commission that is responsible for performing compliance audits will, at the conclusion of each audit, prepare an audit report which will include findings.
(b) An audit report may include recommendations as to recordkeeping, reporting and other related practices arising from the audit.
(c) Upon completion, an audit report will be served upon the principal or lobbyist that is the subject of the audit.
(1) Service of the audit report shall be complete upon mailing.
(2) Within 30 days of service of the audit report, the subject of the audit may file with the Commission a statement setting forth the subject's position as to the audit report.
(d) Audit reports and any related responses shall be submitted to the Executive Director of the Commission for review, and may form the basis for further proceedings under the act or the Ethics Act.
§ 41.5. Confidentiality.
An audit report and findings will be confidential, except that the Commission will include the relevant portion of an audit as part of its findings of fact in a Commission order which results from an investigation arising out of an audit.
CHAPTER 43. INVESTIGATIONS, HEARINGS AND REFERRALS Sec.
43.1. Intentional violations. 43.2. Commission proceedings under section 1307 of the act. 43.3. Late or deficient filings--Commission proceedings under section 1304 or 1305 of the act. 43.4. Noninvestigative process for late or deficient filings. 43.5. Investigative process for late or deficient filings. 43.6. Civil penalties for late or deficient filings. 43.7. Commission decisions as to late or deficient filings. § 43.1. Intentional violations.
(a) If the Commission after investigation believes an intentional violation of the act has been committed, it will refer all relevant documents and other information to the Office of Attorney General.
(b) Under section 1309(b) of the act (relating to penalties) and § 43.4(16) (relating to noninvestigative process for late or deficient filings), if the Commission finds that a failure to register or report was intentional, it will refer the matter to the Attorney General for investigation and prosecution.
(c) Nothing contained in the act or regulations promulgated thereunder shall prohibit the Office of Attorney General from initiating an investigation or prosecution under the act pursuant to its authority by law, and the Office of Attorney General need not await a referral from the Commission before initiating such an investigation or prosecution.
§ 43.2. Commission proceedings under section 1307 of the act.
(a) Upon receipt of a complaint as defined in § 31.1 (relating to definitions), the Commission, through its Executive Director, will conduct a preliminary inquiry into an alleged negligent violation of section 1307 of the act (relating to prohibited activities).
(b) Upon the motion of the Executive Director of the Commission, the Commission, through its Executive Director, may conduct a preliminary inquiry into an alleged negligent violation of section 1307 of the act.
(c) Preliminary inquiries will be conducted in accordance with the procedures for preliminary inquiries set forth within § 21.3 (relating to preliminary inquiries), to the extent applicable.
(d) The Commission, through its Executive Director, may initiate an investigation and hold a hearing concerning alleged negligent violations of section 1307 of the act by a lobbyist or principal, in accordance with sections 1107 and 1108 of the Ethics Act (relating to powers and duties of commission; and investigations by commission) and, to the extent applicable, the related provisions in §§ 21.1--21.3, 21.5 and 21.21--21.27.
(1) If the respondent does not submit a timely request for a hearing, the Investigative Division shall have an additional 7 days beyond the respondent's deadline in which to submit a written request for a hearing.
(2) The Commission may sua sponte schedule a hearing if it is determined that a hearing is needed to resolve any contested facts to make a final determination.
(e) The Commission will decide cases, issue orders and rule upon requests for reconsideration concerning alleged negligent violations of section 1307 of the act, in accordance with sections 1107 and 1108 of the Ethics Act and, to the extent applicable, the related provisions in §§ 21.28--21.30 (relating to decision; finality; reconsideration; and effect of order).
(f) At least four members of the Commission present at a meeting must find a violation by clear and convincing proof.
§ 43.3. Late or deficient filings--Commission proceedings under section 1304 or 1305 of the act.
(a) Commission proceedings under section 1304 or 1305 of the act (relating to registration; and reporting) may be initiated based upon one or more of the following:
(1) Receipt of a complaint.
(2) An audit or related audit conducted by the Commission under Chapter 41 (relating to compliance audits).
(3) Reviews of filings conducted by Commission staff.
(4) The motion of the Executive Director of the Commission, which is based upon a reasonable belief that a violation of the act may have occurred.
(b) The Commission, through its Executive Director, will initiate proceedings involving section 1304 or 1305 of the act (relating to registration; and reporting) under either the noninvestigative procedures set forth in § 43.4 (relating to noninvestigative process for late or deficient filings) or under the investigative procedures in § 43.5 (relating to investigative process for late or deficient filings).
(1) In each case, the Executive Director of the Commission will elect which process will be followed, which election may be based upon factors, including but not limited to, the following:
(i) The complexity of the matter.
(ii) Whether an investigation is needed to fully review the matter.
(iii) Whether the filer has had prior notice of the requirements of the act.
(iv) Whether the filer has in the past complied with the act.
(2) The election of the process to be followed will not be controlled by the manner in which the alleged negligent violation or noncompliance comes to the attention of the Commission.
(3) If a formal complaint is received alleging a failure to register or report as required by the act, or the filing of a report containing a false statement, the Commission through its Executive Director may elect to proceed in the matter under the noninvestigative procedures of § 43.4 rather than through the investigative procedures of § 43.5.
(i) A complainant will be notified of the Executive Director's election of the process to be followed.
(ii) A complainant will also be notified of the final resolution of the matter.
(4) Information received under subsection (a) may form the basis for proceedings under either the noninvestigative procedures of § 43.4, or, upon the motion of the Executive Director, the investigative procedures of § 43.5.
§ 43.4. Noninvestigative process for late or deficient filings.
The noninvestigative process for matters under section 1304 or 1305 of the act (relating to registration; and reporting) will include the following procedures:
(1) The Executive Director of the Commission will issue a notice of noncompliance to the lobbyist, principal or individual that has failed to register or report as required by the act. A notice of noncompliance may encompass multiple failures to comply with the act.
(2) The notice of noncompliance will state the nature of the alleged noncompliance and the civil and criminal penalties for failing to register, failing to file a report or filing a report containing a false statement. A notice of noncompliance will also advise of the right to a hearing before the Commission and the time and manner in which to request a hearing.
(3) The notice recipient shall have 20 days from the mailing date of the notice of noncompliance in which to cure the noncompliance. If the noncompliance is not cured within that time, the Investigative Division may file with the Commission a petition for civil penalties, which petition shall be served upon the respondent by the Investigative Division.
(4) The petition for civil penalties shall set forth the pertinent factual averments in numbered paragraph form, and shall notify the respondent of the opportunity to file a written answer and to request a hearing in the matter.
(5) An answer to the petition for civil penalties shall be filed (received at the Commission) within 30 days of service of the petition upon the respondent.
(6) An answer to the petition for civil penalties shall specifically admit or deny each of the allegations made in the petition, and shall set forth the facts and state concisely the matters of law upon which the respondent relies. Matters not specifically denied shall be deemed admitted.
(7) Failure to file an answer within the 30-day period or the filing of general denials will be deemed an admission of the averments of the petition for civil penalties.
(8) A request by the respondent for a hearing shall be in writing and be received at the Commission within 30 days of service of the petition for civil penalties upon the respondent.
(i) A request for a hearing may be set forth within an answer to the petition or it may be submitted separately.
(ii) Failure to submit a timely request for a hearing shall be deemed a waiver of a hearing, so that a final order may be entered against the respondent without a hearing.
(9) If the respondent does not submit a timely request for a hearing, the Investigative Division will have an additional 7 days beyond the respondent's deadline in which to submit a written request for a hearing.
(10) The Commission may sua sponte schedule a hearing if it is determined that a hearing is needed to resolve contested facts to make a final determination.
(11) The respondent will be given access to evidence intended to be used by the Investigative Division at the hearing, as well as exculpatory evidence obtained by the Investigative Division.
(12) Access to evidence does not include an original complaint or the name of a complainant, information which is otherwise privileged, or information not within paragraph (11).
(13) A hearing under section 1309 of the act (relating to penalties) will be public and will be conducted by the Commission in accordance with sections 1107(14) and 1108(e) of the Ethics Act (relating to powers and duties of commission; and investigations by commission), and to the extent applicable, the related provisions of Part I (relating to State Ethics Commission). The Investigative Division bears the burden of proof.
(14) The hearing officer or the parties may request that briefs be presented. The filing of briefs shall be in accordance with the procedures for filing briefs under § 21.27 (relating to briefs) to the extent applicable.
(15) After the opportunity for a hearing has been provided, and following the submission of any briefs, the Commission will determine, based upon the record before it, whether the respondent was required to register or report under the act; whether the failure to register or report was negligent; and if the failure was negligent, the amount of the civil penalty to be imposed. At least four members of the Commission present at a meeting must find a violation by clear and convincing proof.
(16) If the Commission finds that the failure to register or report was intentional, it will refer the matter to the Attorney General for investigation and prosecution.
(17) The determination of the Commission will be in the form of a final order with findings and reasons for the adjudication.
(18) Requests for reconsideration may be submitted to the Commission. The Commission will consider and rule upon requests for reconsideration under the procedures set forth in § 21.29(b) and (d)--(f) (relating to finality; reconsideration) to the extent applicable.
(19) The official record of the case before the Commission will be publicly available.
(20) The files of the Investigative Division will not be publicly available.
§ 43.5. Investigative process for late or deficient filings.
The investigative process for matters under section 1304 or 1305 of the act (relating to registration; and reporting) shall include the following procedures:
(1) The Commission, through its Executive Director, may conduct a preliminary inquiry into any alleged negligent violation of section 1304 or 1305 of the act. Preliminary inquiries will be conducted under the procedures for preliminary inquiries in § 21.3 (relating to preliminary inquiries), to the extent applicable.
(2) The Commission, through its Executive Director, may initiate an investigation and hold a hearing concerning alleged negligent violations of section 1304 or 1305 of the act, in accordance with sections 1107 and 1108 of the Ethics Act (relating to powers and duties of commission; and investigations by commission) and, to the extent applicable, the related provisions of §§ 21.1--21.3, 21.5 and 21.21--21.27.
(i) If the respondent does not submit a timely request for a hearing, the Investigative Division will have an additional 7 days beyond the respondent's deadline in which to submit a written request for a hearing.
(ii) The Commission may sua sponte schedule a hearing if it is determined that a hearing is needed to resolve any contested facts to make a final determination.
(3) The Commission will decide cases, issue orders and rule upon requests for reconsideration concerning alleged negligent violations of section 1304 or 1305 of the act, in accordance with sections 1107 and 1108 of the Ethics Act and, to the extent applicable, the related provisions in §§ 21.28--21.30 (relating to decision; finality; reconsideration; and effect of order). At least four members of the Commission present at a meeting must find a violation by clear and convincing proof.
§ 43.6. Civil penalties for late or deficient filings.
Following a noninvestigative process under § 43.4 (relating to noninvestigative process for late or deficient filings), or an investigative process under § 43.5 (relating to investigative process for late or deficient filings), if the Commission finds negligent failures to register or report as required by the act, the Commission may, upon the vote of at least four of its members present, levy one or more civil penalties as provided for in this section.
(1) Each negligent failure to register or report as required by the act is punishable by a civil penalty of up to $50-per-day for each day the registration statement or report is delinquent or deficient.
(2) A civil penalty shall be calculated from the first day the registration statement or report is delinquent or deficient, through the date a complete and accurate registration statement or report is filed or the Commission decides the matter, whichever first occurs.
(3) In determining whether to impose a civil penalty that is less than $50-per-day, the Commission may consider factors including the following:
(i) Whether the respondent contacted the Commission or took any meaningful measures to attempt to remedy the delinquency, deficiency or falsehood.
(ii) Whether the respondent has raised any justifiable excuse such as, for example, the following:
(A) The unavailability of records due to loss, theft or destruction through no fault of the respondent.
(B) Incapacitating physical or mental illness, hospitalization, accident involvement, or death of a person required to register or report, a person whose participation is essential to the filing, or a member of the immediate family of the persons.
(iii) Whether the record establishes that the matter involved the first instance that the respondent was subject to the registration/reporting requirements of the act.
(iv) Whether Commission records indicate that the Commission has previously notified the respondent, in writing, of other delinquent, deficient, or false registration statements or reports.
(v) Whether proceedings have previously been initiated against the respondent under the act, either by the Commission or by the Office of Attorney General.
(vi) Whether there are any other factors which should be considered as aggravating or mitigating factors in the case.
(4) The imposition of a civil penalty by the Commission shall not preclude a criminal prosecution for intentional violation of the act.
§ 43.7. Commission decisions as to late or deficient filings.
The determination of the Commission will be in the form of a final order with findings and reasons for the adjudication.
CHAPTER 45. PROHIBITION AGAINST LOBBYING AS A SANCTION Sec.
45.1. Basis for prohibition against lobbying. 45.2. Procedures for imposing prohibition against lobbying. § 45.1. Basis for prohibition against lobbying.
(a) Under section 1309 of the act (relating to penalties), the Commission may prohibit a lobbyist or principal from lobbying for up to 5 years when the lobbyist or principal has done one or more of the following:
(1) Intentionally failed to register or report as required by the act.
(2) Filed a report under the act with knowledge that the report contained a false statement.
(3) Otherwise intentionally violated the act.
(4) Failed to comply with section 1304, 1305 or 1307 of the act (relating to registration; reporting; and prohibited activities) after notice of noncompliance and after a hearing, if requested.
(b) For the limited purpose of the imposition of a prohibition against lobbying, the respondent shall be deemed to have been notified of noncompliance when served with both of the following:
(1) A findings report, notice of noncompliance or other form of process which meets the requirements of section 1309(a) of the act.
(2) A Commission order or court order finding the respondent in noncompliance with, or in violation of, the act.
(c) For the limited purpose of the imposition of a prohibition against lobbying, the respondent shall be deemed to have failed to comply after notice of noncompliance if the respondent has not satisfied the requirements of the act within 30 days of the issuance of a Commission order or court order finding the respondent in noncompliance/violation, or within another time for compliance as specified by the order.
(d) The prohibition against lobbying will not be imposed unless the defendant/respondent has been afforded the opportunity for a hearing as to whether the prohibition should be imposed.
(1) A hearing, if requested, will be conducted by the Commission in accordance with sections 1107(14) and 1108(e) of the Ethics Act (relating to powers and duties of Commission; and investigations by Commission) and, to the extent applicable, Chapter 21 (relating to investigations).
(2) The record of the underlying proceeding on violation/noncompliance, as well as relevant evidence of mitigating or aggravating factors, shall be admissible.
§ 45.2. Procedures for imposing prohibition against lobbying.
(a) Giving consideration to the factors set forth in subsection (b)(14), the Commission, through its Executive Director, may institute proceedings to seek the imposition of a prohibition against lobbying.
(b) The procedures for the imposition of a prohibition against lobbying shall be as follows:
(1) The proceedings shall be initiated with the Commission through the filing of a petition by the Investigative Division, which petition shall be served upon the respondent by the Investigative Division.
(2) The petition shall set forth the pertinent factual averments in numbered paragraph form, and shall notify the respondent of the opportunity to file a written answer and to request a hearing in the matter. If the basis for the petition is the failure to comply with a Commission order, the petition shall be docketed to the same number as the base case before the Commission. If the basis for the petition is the failure to comply with a court order, the petition shall be docketed to the same number as the base case before the Commission if there was one, and if not, to a new number.
(3) An answer to the petition shall be filed (received at the Commission) within 30 days of service of the petition upon the respondent.
(4) An answer to the Investigative Division's petition shall specifically admit or deny each of the allegations made in the petition, and shall set forth the facts and state concisely the matters of law upon which the respondent relies. Matters not specifically denied shall be deemed admitted.
(5) Failure to file an answer within the 30-day period or the filing of general denials will be deemed an admission of the averments of the petition seeking the prohibition.
(6) A request by the respondent for a hearing shall be in writing and be received at the Commission within 30 days of service of the petition upon the respondent.
(i) A request for a hearing may be set forth within an answer to the petition or it may be submitted separately.
(ii) Failure to submit a timely request for a hearing will be deemed a waiver of a hearing, so that a final order may be entered against the respondent without a hearing.
(7) If the respondent does not submit a timely request for a hearing, the Investigative Division will have an additional 7 days beyond the respondent's deadline in which to submit a written request for a hearing.
(8) The Commission may sua sponte schedule a hearing if it is determined that a hearing is needed to resolve contested facts to make a final determination.
(9) The respondent will be given access to evidence intended to be used by the Investigative Division at the hearing, as well as exculpatory evidence obtained by the Investigative Division.
(10) Access to evidence does not include an original complaint or the name of a complainant, information which is otherwise privileged or information not within paragraph (9).
(11) A hearing under this chapter will be public and be conducted by the Commission in accordance with sections 1107(14) and 1108(e) of the Ethics Act (relating to powers and duties of Commission; and investigations by Commission), and to the extent applicable, the related provisions of Part I (relating to State Ethics Commission). The Investigative Division bears the burden of proof.
(12) The hearing officer or the parties may request that briefs be presented. The filing of briefs shall be in accordance with the procedures for filing briefs under § 21.27 (relating to briefs), to the extent applicable.
(13) After the opportunity for a hearing has been provided, and following the submission of briefs, the Commission will determine, based upon the record before it, whether and for how long a prohibition against lobbying is to be imposed against the respondent.
(i) If a lobbyist or principal has been found to be in noncompliance or in violation of the act in a proceeding before the Commission, for which noncompliance or violation the penalty of prohibition of lobbying may be imposed, such finding of noncompliance or violation shall be res judicata, and the Commission's further determination shall be limited to the amount of time, if any, that the lobbyist or principal shall be prohibited from lobbying.
(ii) To the extent any factual matters remain to be proven, such shall be proven by clear and convincing evidence.
(iii) A prohibition against lobbying may only be imposed by a vote of at least four members of the Commission present at a meeting.
(14) In determining whether and for how long a prohibition against lobbying is to be imposed against a respondent, the Commission may consider factors including the following:
(i) Whether the respondent contacted the Commission or took any meaningful measures to attempt to remedy the violation or failure to comply.
(ii) Whether the respondent has raised a justifiable excuse.
(iii) Whether the record establishes that the matter involved the first instance that the respondent was subject to the requirements of the act.
(iv) Whether other proceedings have been initiated against the respondent under the act, either by the Commission or by the Office of Attorney General.
(v) Whether there are other factors which should be considered as aggravating or mitigating factors in the case.
(15) The determination of the Commission will be in the form of a final order with findings and reasons for the adjudication.
(16) Requests for reconsideration may be submitted to the Commission. The Commission will consider and rule upon requests for reconsideration under the procedures set forth in § 21.29(b) and (d)--(f) (relating to finality; reconsideration), to the extent applicable.
(17) The official record of the case before the Commission will be publicly available.
(18) The files of the Investigative Division will not be publicly available.
(c) If a lobbyist or principal is convicted in a criminal proceeding for a violation of the act for which the penalty of prohibition of lobbying may be imposed, such conviction shall be res judicata, and the Commission's determination shall be limited to the amount of time, if any, that the lobbyist or principal shall be prohibited from lobbying.
[Pa.B. Doc. No. 99-1177. Filed for public inspection July 23, 1999, 9:00 a.m.]
