Tag Archives: press

Is Political Activity Dead for Canada’s Lobbyists?

J. Stephen Andrews
Government Relations Advisor
Borden Ladner Gervais LLP

Lobbyists for the most part are political junkies. They live to work on political campaigns of all kinds—from municipal races to national elections. Lobbyists often play key strategic roles in political campaigns which include the following activities:

  • Strategy development
  • Rapid response communications
  • Party platform development
  • Tour management
  • Fundraising
  • Debate preparation
  • Local campaign management.

These activities often bring lobbyists into close contact with those individuals seeking elected office, either current members of parliament or candidates for various political parties. The cut and thrust of intense campaigns fought over the course of several weeks or months often results in new personal relationships being formed.

These kinds of relationships to politicians matter to lobbyists; they establish a kind of credibility in the eyes of many organizations with interests in government policy since they assume that lobbying is (or is at least in part) about communication to these elected officials in an effort to influence policy outcomes. The perception is that the more relationships a lobbyist has to elected officials the greater the likelihood of being able to advance the cause of an organization’s policy objectives.

Lobbying in Canada is a regulated activity; lobbying statutes exist federally and in every provincial jurisdiction in Canada except for Prince Edward Island.
The cities of Ottawa and Toronto also have lobbying By-Laws that regulate communications of lobbyists to government officials. A number of jurisdictions have “codes of conduct” for lobbyists that spell out ethical and professional rules to guide the activities of lobbyists. Federally, the Commissioner of Lobbying, Ms. Karen Shepherd, administers the Lobbying Act and Lobbyists’ Code of Conduct and instructs lobbyists on various matters involving their interactions with government officials.

One key area relates to conflict of interest and the perception of a conflict of interest. As she states:

Any conflict of interest impairs the public confidence in government decision making. For this reason, the Lobbyists’ Code of Conduct, introduced in 1997, prohibits lobbyists from placing public office holders in a conflict of interest. Rule 8 of the Lobbyists’ Code of Conduct states: lobbyists shall not place public office holders in a conflict of interest by proposing or undertaking any action that would constitute an improper influence on a public office holder.[1]

For the past year, the Commissioner has been consulting with the lobbying industry on possible changes to the Lobbyists’ Code of Conduct. The draft, updated code of conduct was released in early June but has not yet come into force. The draft updated code contains additional criteria spelling out possible conflicts of interest. For example, the revised code outlines “preferential access” as a source of conflict. Proposed new rules 7 and 8 state:

A lobbyist shall not arrange for another person a meeting with a public office holder when the lobbyist and public office holder share a relationship that could reasonably be seen to create a sense of obligation;

A lobbyist shall not lobby a public office holder with whom they share a relationship that could reasonably be seen to create a sense of obligation.

In addition, in the revised code “political activities” is now explicitly mentioned as a source of conflict between lobbyists and public office holders. Proposed new rule 9 states:

When a lobbyist undertakes political activities on behalf of a person which could reasonably be seen to create a sense of obligation, they may not lobby that person for a specified period if that person becomes a public office holder. If that person is elected, the lobbyist shall also not lobby staff in their Office(s).[2]

In addition, in June 2015, the federal Commissioner issued a “guidance” that spells out the kinds of “political activities” that may violate rule 9. The guidance makes it clear that playing a strategic or senior role in political campaigns could create the appearance of a conflict of interest between a lobbyist and a successful political candidate, if a lobbyist were to lobby that individual after he or she assumes office. The rationale is that a member of parliament may feel obligated to the lobbyist who assisted in his or her campaign and this in turn may impair their judgment about what is in the public interest vs. what is in their private interest (for instance, getting elected or re-elected). Put another way, it is the creation of a sense of obligation to the lobbyist that establishes the perceived conflict of interest.

What follows from all of this? Obviously, playing a strategic role in federal political campaigns for lobbyists and lobbying those successful candidates subsequently is likely to run afoul of the federal Lobbyists’ Code of Conduct. This in turn will result in the lobbyist being investigated and possibly named in a public report to Parliament. This public report will damage the reputation of the named lobbyist and likely impair his or her career significantly. In addition, the lobbying professional as a whole will suffer since they will be viewed as trading on relationships for personal gain. And the perceived integrity of government decision making will also take a hit because politicians will be viewed as making decisions to support their private interests.

The federal Lobbyist Commissioner has made it very clear that she will view strategic political activity and the subsequent lobbying of elected officials by lobbyists as a violation of the conflict of interest rules in the Lobbyists’ Code of Conduct. Examples of strategic political activity outlined in the guidance include:

  • Serving as a campaign chair
  • Serving in a named position on behalf of a candidate or electoral district association
  • Leading the preparation of a candidate for debates or providing strategic advice in the context of debate preparation
  • Organizing a fundraising event.

Lobbyist should therefore stand down from any senior or strategic role in federal political campaigns or at least refrain from lobbying those they assist in campaigns for some period of time.[3]  For example, running a “war room” or serving as a paid staff person on a campaign are clearly ruled out. Moreover, lobbyists should pay close attention to the growing pressure on provincial lobbyist registrars to institute similar conflict of interest rules related to political activities. Political activity for lobbyists therefore appears to be coming to an end.


 

 

[1] Guidance on the Lobbyists’ Code of Conduct, June 2015.

[2] Lobbyist’ Code of Conduct (2015) May 21, 2015.

[3] The maximum timeframe to refrain from lobbying is five years. There is no indication however of a minimum timeframe.

Restrictions for Consultant-Lobbyists: Broader Public Sector Accountability Act, 2010

(La version française de ce message se trouve ci-dessous.)

NOTICE

Effective Jan. 1, 2011, certain public sector organizations are prohibited from using public funds to hire external (or consultant) lobbyists.

The Lobbyists Registration Office has made some changes to the registration form for consultant lobbyists to reflect the new rules, enacted under the Broader Public Sector Accountability Act, 2010.

Consultant lobbyists are encouraged to review this new Act and become familiar with the restrictions, as well as their obligations to comply with them. Amendments to the Lobbyists Registration Act, 1998 that reflect the new rules will also come into effect on Jan. 1, 2011.

The restriction applies to public bodies, hydro entities, larger broader public sector organizations such as hospitals, school boards and universities and every other publicly funded organization that received more than $10 million in government funding.

All consultant lobbyists with active registrations will be required to confirm whether their client is one of the restricted public sector organizations. If this is the case, the consultant lobbyist will be required to submit an attestation signed by the head of the organization, confirming that the lobbyist is not being paid with public funds. The attestation form will be available on the Lobbyist Registration Office website.

Beginning in January, every consultant lobbyist will be required to update their active registration. There is a 30-day transition period to comply with the new rule. We will provide more information about how to update your active registrations in the New Year.

Consultant lobbyists who represent a public sector organization and are unable to confirm that their services are not being paid with public funds will be required to terminate their relationship with their client, as well as their active registration, within the 30-day transition period.

If you have any questions, please do not hesitate to contact our office at 416-327-4053.

Lynn Morrison
Lobbyists Registrar
Lobbyists Registration Office of Ontario

• • • • • •

ANNONCE

À compter du 1er janvier 2011, il sera interdit à certains organismes du secteur public d’utiliser des fonds publics pour embaucher des lobbyistes de l’extérieur (ou lobbyistes-conseils).

Le Bureau d’enregistrement des lobbyistes a apporté certaines modifications au formulaire d’enregistrement pour les lobbyistes-conseils afin de tenir compte des nouvelles règles promulguées en vertu de la Loi de 2010 sur la responsabilisation du secteur parapublic.

Nous encourageons les lobbyistes-conseils à examiner la nouvelle Loi et à se familiariser avec les restrictions auxquelles ils doivent se conformer. Les modifications à la Loi de 1998 sur l’enregistrement des lobbyistes qui tiennent compte des nouvelles règles entreront elles aussi en vigueur le 1er janvier 2011.

La restriction s’applique aux organismes publics, aux entités productrices d’électricité, aux organismes du secteur parapublic tels que les hôpitaux, les conseils scolaires et les universités et à tous les autres organismes financés par des fonds publics qui ont reçu plus de 10 millions de dollars du gouvernement.

Tout lobbyiste-conseil dont l’enregistrement est actif devra indiquer si son client est un des organismes du secteur public assujettis aux restrictions. Si tel est le cas, il devra soumettre une attestation signée par la personne responsable de l’organisme confirmant que le lobbyiste ne reçoit pas une rémunération prélevée sur les fonds publics. Le formulaire d’attestation sera accessible sur le site Web du Bureau d’enregistrement des lobbyistes.

À compter de janvier, tous les lobbyistes-conseils devront mettre à jour leur enregistrement actif. Ils disposeront d’une période de transition de 30 jours pour se conformer à la nouvelle règle. Nous vous donnerons plus de détails sur la procédure à suivre pour mettre à jour votre enregistrement actif au cours de l’année qui vient.

Les lobbyistes-conseils qui représentent un organisme du secteur public et qui ne sont pas en mesure de confirmer que la rémunération au titre de leurs services n’est pas prélevée sur les fonds publics devront mettre fin à leur relation avec leur client, ainsi qu’à leur enregistrement actif, au cours de la période de transition de 30 jours.

Si vous avez des questions, n’hésitez pas à communiquer avec notre Bureau au 416-327-4053.

Lynn Morrison
Registraire des lobbyistes
Bureau d’enregistrement des lobbyistes de l’Ontario

The Standing Committee on Access to Information, Privacy and Ethics Presents a Report on the Statutory Review of the Lobbying Act

Government Relations Institute of Canada Press Release, May 14, 2012

The Standing Committee on Access to Information, Privacy and Ethics has tabled its report on the Statutory Review of the Lobbying Act (see News Release and PDF copy of report). Below is a summary of the recommendations and the NDP’s contribution. Many of the committee’s recommendations reflect positions advanced by GRIC in its submission and its appearance on February 2nd. Additional analysis will follow later this week.
Summary of Statutory Review of the Lobbying Act.

Overview

  • The committee found that the overall tenor of the testimony suggested that the Act is generally working well in accordance with its objectives.
  • The Lobbying Commissioner submitted a list of nine recommendations to the committee in anticipation of this review. The committee decided to endorse four of those recommendations. Those recommendations are number 2, 4,5 and 11 below.

Recommendations by the committee:

  1. All public servants serving in a Director General’s position, or serving in a more senior position than Director General, should now be considered Designated Public Office Holders and held subject to all applicable laws governing this designation.
  2. Remove the “significant part of duties” threshold for in-house lobbyists.
  3. Eliminate the distinction between in-house lobbyists (corporations) and in-house lobbyists (organizations).
  4. Require in-house lobbyists to file a registration, along with the senior officer of the company or organization.
  5. Ensure that monthly communications reports contain the names of all in-house lobbyists who attended oral pre-arranged meetings [in addition to the senior reporting officer].
  6. Allow board members (corporation and association directors), partners and sole proprietors to be included in an in-house lobbyist’s returns.
  7. Impose an explicit ban on the receipt of gifts from lobbyists.
  8. Prohibit an individual or entity from lobbying the government on a subject matter, if they have a contract to provide advice to a public office holder on the same subject matter.
  9. The five-year ban should be retained, and post-employment restrictions on public office holders should be interpreted and administered by a single authority.
  10. Enshrine the administrative review process in the Act.
  11. Empower the Commissioner of Lobbying to impose administrative monetary penalties. Perhaps consider temporary bans for breaches of the law (as in the Newfoundland and Labrador and Quebec provincial legislation).

NDP Supplemental Recommendations:

  • The NDP supported the recommendations put forth by the committee but also submitted the following changes they would like to see made.
  • The Lobbying Commissioner must be empowered to continue investigations that have been handed over to the RCMP.
  • Consultant lobbyists must report the ultimate client of their lobbying in their monthly communications reports, not the firm for which they work.
  • Enshrine immunity provisions for the Commissioner of Lobbying and her delegates as found in Sections 18.1 and 2 of the Auditor-General Act and other Acts.
  • The Commissioner of Lobbying must retain a formal mandate to educate lobbyists, public office holders, and the public about the Canada’s lobbying rules and regulations.
  • A list of all DPOHs must be maintained online by the Office of the Commissioner of Lobbying so as to avoid any confusion.

Update on the Statutory Review of the Lobbying Act

The House of Commons Standing Committee on Access to Information, Privacy and Ethics issued its report “Statutory Review of the Lobbying Act: Its First Five Years” in May 2012. In its report, the Committee requested that the government table a response.

The government issued its response on September 17, 2012. The government responded to the Committee’s 11 recommendations by supporting some of them and by stating it would continue to study others further.

The Government Response does not change the Lobbying Act, the Lobbyists Registration Regulations or the Designated Public Office Holder Regulations which are currently in force.

Changes to the Lobbying Act must be enacted by Parliament before coming into force and changes to the regulations must be approved by the Governor in Council (i.e., Cabinet). Should Parliament or the government make any such changes, we will inform you as soon as possible.

Until such time as any legislative or regulatory changes come into effect, the current requirements of the Lobbying Act and the regulations remain in effect.

Enquiries about this message should be directed to:

Office of the Commissioner of Lobbying of Canada
255 Albert Street, Ottawa ON K1A 0R5
Telephone: 613-957-2760
Facsimile: 613-957-3078
Email: QuestionsLobbying@ocl-cal.gc.ca
Website: www.ocl-cal.gc.ca

PAAC Statement on BC’s Lobbyist Registrar’s Report: Lobbying in BC

For immediate release
January 21, 2013

Lobbying in British Columbia: The Way Forward (pdf). Report on province-wide consultations and recommendations for reform, January 21, 2013

Vancouver, BC – Public Affairs Association of Canada (PAAC) today welcomed the BC Registrar of Lobbyists’ report on lobbying in British Columbia and the potential adoption of a provincial code of conduct for lobbyists.

“PAAC supports the Lobbyist Registration Act and the registry as they contribute to more open and transparent government and serve the public interest while helping maintain high standards and ethical conduct across British Columbia’s government relations profession,” said Adam Johnson, spokesperson for PAAC in BC. “We’ve been working with the Registrar’s office for over a year with respect to the Code of Conduct, as well as other issues like reporting requirements and cooling-off periods.”

“We now need to work with other stakeholders to determine if there is in fact a role for PAAC to assist in the development of an industry-lead code of conduct. We think BC’s lobbyists can be well represented by PAAC in these deliberations going forward,” said Johnson.

While PAAC needs to study the report in greater detail, the Association commends the Registrar’s Office for asking tough questions and engaging consultant and in-house lobbyists, academics, MLAs and others during the consultation process.

Johnson noted that many of the recommendations in the report regarding lobbyists’ conduct are already considered best practices by the majority of lobbyists in British Columbia.

John Capobianco, President of PAAC stated, “PAAC has always been committed to encouraging lobbyists to act in the most professional and ethical way possible. We were pleased to formally respond to the white paper on the need for a Code of Conduct issued by the BC Lobbyist Registrar. We see this as another step in encouraging an effective made-in-BC lobbyist registry.”

Contact:

Adam Johnson, PAAC spokesperson
(604) 678-2903
adam@earnscliffe.ca