Supporting Ottawa s new lobbyist registry: Making a strong proposal even stronger

Transcription

1 Supporting Ottawa s new lobbyist registry: Making a strong proposal even stronger Presentation to the Governance Renewal Sub-Committee December 1, 2011 Guy W. Giorno Partner ggiorno@fasken.com VANCOUVER CALGARY TORONTO OTTAWA MONTRÉAL QUÉBEC CITY LONDON PARIS JOHANNESBURG

2 Table of Contents 1. INTRODUCTION CANADIAN CONTEXT POSITIVE FEATURES THAT SHOULD BE RETAINED Covering all types of lobbying communication No minimum threshold for lobbying disclosure Code of conduct for lobbyists Ban on contingency fees Making Councillors and senior officials report their lobbying contacts Post-service restrictions ( cooling off period) Arranging a meeting is lobbying AREAS FOR IMPROVEMENT Allow the employer to file for all employees of a company or organization Enforcement: give the by-law teeth Disclose government funding and financial contributions to the lobbying effort The definition of lobbying should not be based on an attempt to influence Making sense of grass-roots communication Leave volunteers alone SUMMARY OF RECOMMENDATIONS presented to the Governance Renewal Sub-committee i

3 Supporting Ottawa s new lobbyist registry: Making a strong proposal even stronger Presentation to the Governance Renewal Sub-committee December 1, Introduction I am a partner in the law firm Fasken Martineau but I offer this presentation in an individual capacity. The opinions are my own, and do not necessarily reflect the views of the Firm or any client. The introduction of an Ottawa lobbyist registry and lobbying by-law is a positive and welcome development. Lobbyist disclosure helps to make government decision-making more open and transparent, and gives citizens one more tool to hold government accountable. While every Ottawan enjoys the democratic right to influence public policy, nobody has the right to try to influence public policy in secret. The Mayor should be congratulated for having put lobbying transparency on the agenda during the last election campaign. City Council should be congratulated for approving the concept in principle as one of its first decisions. The City staff should be congratulated for working hard to produce such a strong first draft. For years, I have studied, written and lectured about, and advised on lobbying laws across Canada. For the most part, the current draft by-law reflects the staff s solid understanding of what has worked and what hasn t worked in other jurisdictions. That said, even a strong product can be made even stronger. There are several areas in which the draft by-law can be improved should be improved in order to work well for the people of Ottawa. The need for amendment is no surprise, as clarification and revision are normal steps in the approval process. While certain improvements are necessary, the staff deserves credit for a good first draft, and City Council deserves credit for its continued commitment to lobbying transparency. presented to the Governance Renewal Sub-committee 2

4 2. Canadian context Lobbying is currently regulated at the federal level and in six provinces (Alberta, British Columbia, Newfoundland and Labrador, Nova Scotia, Ontario and Quebec). In two other provinces, regulation is pending. The Manitoba legislature has passed The Lobbyists Registration Act 1 but that law has not yet been brought into force. Meanwhile, a lobbyists registration bill is currently before the New Brunswick legislature. 2 Registration of municipal lobbyists is already required in Toronto, Montreal and all other municipalities in Quebec, and St. John s. Toronto is required by statute to maintain its own lobbyist registry, but its scope and rules are entirely at the city s discretion. In the other communities, municipal lobbying is reported to, and published on, the provincial governments lobbyist registries. In no other Canadian municipality is lobbying generally subject to reporting. (The City of Surrey 3 requires lobbyist reporting in limited instances, and the City of Hamilton 4 makes what can best be described as a token effort to collect basic lobbyist information in very narrow circumstances.) 3. Positive features that should be retained The draft by-law contains many positive features. Some features reflect the best practices of other Canadian jurisdictions. Other features would help to make the City of Ottawa a leader in lobbying transparency. As the draft by-law is debated and amended, City Council should strive to preserve the following elements of the original draft: C.C.S.M., c. L178. Lobbyists Registration Act, New Brunswick, 57th Legislature, 1st Session, Bill 43, first reading, June 1, Surrey s Lobbyist Registration Policy, Policy No. R-24, applies only to decision in relation to a development application for a development permit, a rezoning Policy or an official community plan amendment. Retrieved from The City of Hamilton has a rudimentary, voluntary registry that applies only individuals appearing before council committees. They are invited, not required, to answer, Do you or your organization represent a lobbyist? Note that the individuals are asked whether they represent lobbyists, not whether they themselves are lobbyists. See Since 2004, when the voluntary registry was created, only one individual has ever registered; his registration may be viewed online at presented to the Governance Renewal Sub-committee 3

5 3.1. Covering all types of lobbying communication The proposed by-law would cover any type of lobbying communication, whether oral or written, in a formal or informal setting. This is consistent with every other lobbying law in the country No minimum threshold for lobbying disclosure Lobbying in any amount would be subject to reporting. This welcome feature would make Ottawa a leader: it is consistent with the Toronto model (but is different than the practice in other Canadian jurisdictions). Except in Toronto, lobbying by employees of companies and organizations is reported only when it reaches a critical mass. 5 (On the other hand, in all jurisdictions lobbying by consultants is always reportable, regardless of how little time is taken.) Under the proposed Ottawa by-law, there would be no minimum threshold for reporting lobbying by any category of lobbyist this makes the law easy to understand, to implement and to enforce, and it increases transparency. Significantly, the federal Commissioner of Lobbying is recommending that the federal Act be amended to remove its minimum reporting threshold in other words, she is recommending that the federal law move closer to how the Ottawa by-law is drafted. 5 In Alberta and British Columbia, if the amount of lobbying on behalf of the organization meets or exceeds 100 hours per year, then all employees (including officers and directors who are remunerated and, in Alberta, including a sole proprietor or partners) who lobby would be listed in the return. In Newfoundland and Labrador, Nova Scotia and Ontario, the CEO would be required to file a return only if the combined volume of employees communication with provincial officials (in each jurisdiction) as part of their duties would amount to 20 per cent or more of the employment time of one individual. In other words, the cumulative amount of lobbying in a province, among all employees, would have to meet or exceed 0.2 full-time equivalents, or 0.2 FTE. In these provinces, calculations about reaching the 20-per-cent threshold are to be based on a three-month period. In Quebec, the senior officer must file a return if (a) the total volume of lobbying across the entire company is 12 days or more during a fiscal year, or (b) the individual who lobbies is a manager or director, or (c) the lobbying has a significant impact on the company. Under the Manitoba legislation and the proposed New Brunswick law, the return would name only each employee for whom lobbying constitutes a significant part of duties, or all employees who lobby if cumulatively their lobbying would constitute a significant part of the duties of one individual if performed by one individual. The term significant is not yet defined. In Alberta, Newfoundland and Labrador, Nova Scotia and Ontario, only the time actually spent lobbying is taken into account. In British Columbia and Quebec, the time taken into account must be that spent on actual lobbying and on preparation and follow-up. presented to the Governance Renewal Sub-committee 4

6 3.3. Code of conduct for lobbyists The draft by-law includes a mandatory code of conduct for lobbyists. This reflects the best practice among other jurisdictions. Currently four jurisdictions impose codes of conduct on lobbyists: federal, Newfoundland and Labrador, Quebec and Toronto. It is right for Ottawa to do the same. The staff report suggests that jurisdictions without codes of conduct might feel codes are unnecessary because, most lobbyists are members of professional associations that already have codes of conduct in place and therefore establishing a separate code of conduct is unnecessary. Some lobbyists like to make this claim. In fact, the lobbyist industry associations do not impose strong codes of conduct. For example, the Public Affairs Association of Canada (PAAC) has merely adopted a voluntary statement of principles. The principles lack an enforcement mechanism. The principles are not as strong as the federal, Newfoundland and Labrador, Quebec and Toronto lobbyists codes of conduct, or the proposed Ottawa code. It is telling that the PAAC website lists the lobbyists who have voluntarily agreed to uphold the principles, and only 15 individuals are named. Meanwhile, the Government Relations Institute of Canada (GRIC) another industry association for lobbyists did not adopt a so-called code of professional conduct until November Its code is weaker than federal, Newfoundland and Labrador, Quebec and Toronto lobbyists codes of conduct and the proposed Ottawa code. Three specifics illustrate why the PAAC principles and the GRIC code are not comparable to strong, mandatory, legislated, enforceable lobbyists codes of conduct: The PAAC and GRIC documents don t prevent a lobbyist from lobbying public office holders on a subject matter for which he or she also provides advice to the government. The PAAC and GRIC documents don t address the problem of lobbyists placing public office holders in a conflict of interest. The PAAC and GRIC documents deal with the lobbyists own conflicts weakly. If a conflict between two clients cannot be avoided, the lobbyist is merely required to inform the clients. (Contrast this to proper, legislated codes of conduct, such presented to the Governance Renewal Sub-committee 5

7 as the proposed Ottawa code which would require that clients consent in writing before a lobbyist is entitled to remain in a conflict position.) The only significant weakness of Ottawa s proposed code is the absence of a financial penalty for breach of the code. This omission is addressed in section 4.2 on page Ban on contingency fees Lobbyists would be prohibited from receiving, and their clients would be prohibited from offering or paying, contingency fees or success fees. This is a positive feature. It is consistent with the federal, Nova Scotia, Quebec and Toronto practices. The only weakness of the proposed ban on contingency fees is the absence of a proper enforcement mechanism. This omission is addressed in section 4.2 on page Making Councillors and senior officials report their lobbying contacts The proposal to make Councillors and senior City officials record and report their contacts with lobbyists is welcome, positive and appropriate. Such a requirement would be unique in Canada and, in this area, would make the City of Ottawa a national leader. The important principle is that the reporting obligation be mutual: not just the lobbyists, and not just the public office holders, but both lobbyists and public office holders. The mutual reporting obligation reflects a desirable balance. Unfortunately, the enforcement provision is unbalanced, because it treats Councillors and senior officials more harshly than lobbyists. This imbalance is discussed on page Post-service restrictions ( cooling off period) A temporary post-service ban on lobbying prevents former government officials from abusing their former offices. Under the current draft, former city employees would be prohibited from lobbying for a period of two years after leaving office. In principle, the cooling-off restriction is necessary and appropriate. That said, there are three aspects of the proposed cooling-off period that should receive greater scrutiny: First, the prohibition would apply to City employees at all levels, not just senior officials. In other jurisdictions, such restrictions only apply to former elected presented to the Governance Renewal Sub-committee 6

8 officials and/or former senior government officials. A cooling-off period that applies to all former City employees would be the broadest in the country. For example, what influential contacts would be acquired by a lifeguard or summer camp counsellor, such that he or she should be prohibited from lobbying once his or her municipal job ends? Second, as currently worded the post-employment restriction does not include City Councillors. Presumably it is intended that a cooling-off period for former councillors will be part of the forthcoming Code of Conduct for Members of Council. However, if the lobbying by-law comes into force before the Councillors code of conduct takes effect, then the omission of Councillors will have to be addressed. Third, City Council should think about the impact of combining (a) the cooling-off period with (b) a definition of lobbying that covers volunteers acting on behalf of neighbourhood groups. The combined effect of these provisions is to prevent a former City employee from advocating for causes espoused by a community association. Is the public interest really going to be harmed should a former City employee become involved with a neighbourhood association on an issue such as dog-hazing to discourage geese in parks? Background: Other Jurisdictions Under the federal Lobbying Act, a former designated public office holder is prohibited, for five years, from engaging in activity that would require him or her to be named in a registration under the Act. This prevents a former designated public office holder, for five years, from engaging in consultant lobbying, or engaging in-house lobbying for a non-profit entity. A former designated public office holder may lobby for a business corporation so long as the lobbying does not consume 20 per cent or more of his or her duties. The Conflict of Interest Act (Canada) places additional restrictions on former reporting public office holders. A former reporting public office holder shall not enter into a contract of service with or accept an appointment to the board of directors of or employment with an entity with which he or she had direct and significant official dealings during his or her last year in office and shall not make paid or unpaid representations on behalf of any other person or entity to any department, organization, board, commission or tribunal with which he or she had direct and significant official dealings during his or her last year in office. presented to the Governance Renewal Sub-committee 7

9 The restrictions apply to former reporting public office holders for one year, but apply for two years to former Ministers. Further, a former Minister shall not make representations to a current Minister who was a Minister at the same time as the former Minister. The laws in all provinces, even those that do not regulate lobbying, restrict the activities of former Cabinet Ministers. Among other restrictions, former Ministers are prohibited, for defined periods of time, from making representations to government. Only two provinces include such restrictions in their lobbying statutes. In Newfoundland and Labrador, all former public office holders are prohibited, for a period of one year, from lobbying as consultant lobbyists or in-house lobbyists. The Quebec statute imposes a series of restrictions: Certain former public office holders may not act as consultant lobbyists for one year (in the case of former Ministers, two years). For a period of one year (in the case of former Ministers and former municipal executives, two years), they may not lobbying institutions with which they had significant, direct official dealings. Further, a former senior public servant is prohibited from intervening (whether or not for pay) with an institution with which he or she formerly had significant, direct dealings Arranging a meeting is lobbying The definition of lobbying includes arranging a meeting between a city official and a third party, whenever a consultant or volunteer arranges the meeting. As applied to consultants, this definition is the norm in other Canadian jurisdictions. It is appropriate for Ottawa to define lobbying to include the arrangement of meetings by consultants. On the other hand, elsewhere in Canada it is rare to make volunteers register before they help to arrange meetings with government officials. (Only Toronto imposes this requirement on volunteers, and then only when the volunteers are helping profit-making entities and business, professional and trade union organizations.) Whether volunteers should register when they arrange meetings is discussed in section 16 at page 17. presented to the Governance Renewal Sub-committee 8

10 4. Areas for improvement 4.1. Allow the employer to file for all employees of a company or organization The Ottawa by-law should provide that the senior officer of a business or organization will submit a single report naming all employees who lobby. In every province and under federal law, in-house lobbyists for non-profit and similar organizations are not individually responsible for registering and reporting on their activities. Instead, the reporting obligation falls on the individual who holds the most senior office in the organization and is compensated for the performance of his or her duties, e.g., the CEO. Similarly, the Toronto by-law provides that a senior officer of the organization will file the return on behalf of all in-house lobbyists employed by the organization. In the case of employees of businesses, in Canada (federal), Alberta, British Columbia, Manitoba, Newfoundland and Labrador, Quebec and Toronto, the senior officer of a business is required to file the return covering in-house lobbying by employees of the business. In Nova Scotia and Ontario, each individual employee of a business must file his or her own return to report on in-house lobbying. The proposed New Brunswick legislation follows the Nova Scotia-Ontario model. Providing that the senior officer will file a single report that names everyone simplifies implementation, helps employers to promote consistent compliance, and provides the same level of transparency as registration by each individual employee Enforcement: give the by-law teeth Contravention of the by-law should be an offence. In every other jurisdiction in Canada, contravention of lobbying law is an offence. A person convicted is subject to a fine (and/or at the federal level) imprisonment. The City staff points out that, outside of British Columbia and Quebec, there have never been prosecutions or convictions for unregistered lobbying. 6 While this is true, the draft 6 In April 2009, the City of Toronto Lobbyist Registrar laid one charge of failure to register as a lobbyist, but the charge was dropped in January 2010: City of Toronto. (2010, January 27). Statement Toronto withdraws charge against lobbyist. Retrieved from 76b8005fa1fc?OpenDocument&Highlight=0,*registrar* presented to the Governance Renewal Sub-committee 9

11 by-law would make Ottawa the only place where unregistered lobbying is not an offence. This cannot be a good thing. After all, the mere prospect of prosecution has some deterrent value. Under the current proposal, there are only two ways in which the rules will be enforced: suspending/revoking lobbyist registration and enforcement against Councillors and senior officials. According to the staff report: With respect to lobbyists, the Integrity Commissioner would have the authority to refuse, suspend or revoke a registration if he or she finds that a lobbyist has failed to comply with the requirements of the Lobbyist Registry. For example, if the Integrity Commissioner was to find a lobbyist had failed to register or submit the appropriate information, s/he might decide to refuse or suspend the individual s registration. Notice would then be circulated to Members of Council and staff advising of the temporary ban imposed by the Integrity Commissioner on communication with the particular lobbyist. Notice of the temporary ban would also be posted on the City s website. It is understood that a lobbyist is only effective to the extent that s/he has the ability to communicate with public office holders.... staff believe[s] focussing the enforcement provisions on public office holders is equally effective and much less expensive....for Members of Council... With respect to conduct relating to lobbyists, failure to comply with the Code of Conduct may result in one or more of the following penalties: Written or verbal public acknowledgement and apology; and/or Reprimand.... [for the staff] Potential sanctions or penalties include verbal or written reprimand, suspension, and dismissal. The problem with enforcement directed only at public office holders is the lack of balance. Both lobbyists and public office holders share responsibility for lobbying transparency. It is right to enforce compliance by public office holders, but only if compliance by lobbyists is enforced, too. Quite simply, it is unfair to propose that officials could face sanctions such as reprimand, suspension and dismissal, while lobbyists would face no sanction at all. presented to the Governance Renewal Sub-committee 10

12 Further, it is insufficient to propose suspension/revocation of a lobbyist registration as the only sanction for breaking the law. It should be one sanction, but it cannot be the only sanction. Here is why: When an individual lobbies without being registered, preventing him or her from registering is an inadequate sanction and an ineffective deterrent. Would threatening to take away a driver s licence deter someone who drives without a licence? The ban on contingency fees applies to clients as well as lobbyists. Revoking a registration might, but does not necessarily, affect the client. If a client unlawfully pays a contingency fee, it could escape sanction. Registration is not the only requirement in the by-law. Lobbyists must also comply with the code of conduct. Revocation/suspension of a registration seems an inadequate sanction for such wrongdoing under the code of conduct as misusing insider information, lobbying public office holders while simultaneously providing advice to the City, or knowingly place public office holders in a conflict of interest. It should be noted that all Canadian lobbying laws are enforceable by prosecution and three of the four codes of conduct (Newfoundland and Labrador, Quebec and Toronto) are enforceable by prosecution. While currently there are no sanctions for contravening the federal lobbyists code, the federal Commissioner is seeking an amendment; she argues that financial penalties are required to enforce the lobbyists code Companies, organizations and clients should disclose government funding and disclose financial contributions to the lobbying effort Either the By-law should expressly provide, or Council s direction to the staff should make clear, that each lobbyist report must disclose: the amount of funding, from any level of government, that the client or employer received during its last fiscal year; and the identity of any individual, corporation or organization that contributed $750 or more toward the lobbying activities, and the amount of each contribution. Such disclosure is common in most other jurisdictions. presented to the Governance Renewal Sub-committee 11

13 The public has a right to see whether government funding is being used to lobby the same or another level of government. The public also has a right to know the financial backers of a lobbying effort The definition of lobbying should not be based on an attempt to influence The definition of lobby should be amended to replace any communication... with the goal of trying to influence any legislative action with any communication... related to [OR in respect of] [OR about] any legislative action. (This means adopting the federal or Toronto approach.) The current draft defines lobbying as communication with a public office holder with the goal of trying to influence a municipal decision. Thus, the definition turns on what the communicator is trying to accomplish: is his or her goal to influence a decision? While subjective definitions of this type are the norm, and are used in the provincial laws, 7 they do not satisfy emerging best practice. Best practice is reflected in the federal and Toronto laws, which employ objective definitions that focus on the content of a communication (was it about a government decision?) rather than the communicator s intent (was he or she trying to influence?). In other words, for a communication to be subject to the federal Act or the Toronto bylaw, it need not attempt to influence a government decision. It suffices that the communication be in respect of, that is, about, the decision. The rationale for an objective definition is that proving the content of a communication is easier than proving the communicator s intention, with the anticipated result that laws containing objective definitions are more easily enforced. 7 The provincial definitions of lobby only include communication with a public office holder that is made in an attempt to influence a specified type of government decision. The exception is Quebec, where lobbying consists of communication in an attempt to influence or that may reasonably be considered by the initiator of the communication as capable of influencing a government decision. presented to the Governance Renewal Sub-committee 12

14 4.5. Making sense of grass-roots communication Those running the grass-roots campaign should be recognized as lobbyists. Member of the public who respond to grass-roots campaigns should not be treated as lobbyists. (This is how federal and provincial laws work.) Under the legal definitions in other jurisdictions, lobbying typically involves communication to a public office holder. There are two exceptions: arranging meetings and grass-roots communication. Grass-roots communication is an exception to the rule that lobbying involves communication to a public office holder. Everywhere except British Columbia, Manitoba and Quebec, lobbyists must report on their grass-roots communication. (The proposed New Brunswick statute does not mention grass-roots communication but it is possible that grass-roots communication would be covered in the regulation made under that statute.) Grass-roots communication involves communication to members of the public in an attempt to put pressure on public office holders. The universal definition is: appeals to members of the public through the mass media or by direct communication that seek to persuade members of the public to communicate directly with a public office holder in an attempt to place pressure on the public office holder to endorse a particular opinion 8 In Alberta, Newfoundland and Labrador, Nova Scotia and Ontario, grass-roots communication is considered to be lobbying and must be reported as such. 9 Similarly, under Federal law, grass-roots communication is deemed to be, and must be reported in the same circumstances as, communication with a public office holder Lobbying Act, R.S.C. 1985, c. 44 (4 th Supp.), paras. 5(2)((j), 7(3)(k); Lobbyists Registration Act, S.O. 1998, c. 27, Sched., subs. 1(1), grass-roots communication definition; Lobbyists Act, S.A. 2007, c. L- 20.5, clause 1(1)(e); Toronto Municipal Code, chapter 140, 140-1, GRASS-ROOTS COMMUNICATION definition, subs. A. See also Lobbyists Registration Act, S.N.S. 2001, c. 34, clause 2(1)(a); Lobbyist Registration Act, S.N.L. 2004, c. L-24.1, para. 2(1)(b). 9 Lobbyists Act, S.A. 2007, c. L-20.5, Sched. 1, clause 2(q), Sched. 2, clause 2(p); Lobbyist Registration Act, S.N.L. 2004, c. L-24.1, paras. 5(4)(n), 6(3)(n); Lobbyists Registration Act, S.N.S. 2001, c. 34, clause 2(1)(c), as am.; Lobbyists Registration Act, S.O. 1998, c. 27, Sched., paras. 4(4)14, 5(3)15, 6(3) If you are not a registered lobbyist, and you are paid and and [sic] involved in a grass-roots lobbying campaign, it is necessary to register. Canada, Office of the Commissioner of Lobbying, Frequently Asked Questions: General Registration Requirements Question & Answers (undated), q. 5, online: presented to the Governance Renewal Sub-committee 13

15 The federal/provincial approach can be understood as a transparency measure: when politicians receive a flurry of letters or s from the public, the registry s light will illuminate the organizers of campaign that triggered the public reaction. The transparency measure applies to the people behind the public reaction, not to the public s reaction. Toronto treats grass-roots communication differently. Every jurisdiction, including Toronto, treats the organizers behind the grass-roots campaign as lobbyists. However, only Toronto treats as lobbyists the ordinary members of the public who call, write or e- mail in response to the campaign. Under the Toronto by-law, these members of the public must register as lobbyists unless the campaign organizers obtain a specific exemption. Toronto s unique approach is in part explained by its unique definition of lobbying. In most jurisdictions, lobbying is something that occurs on behalf of an employer or client. (The draft Ottawa by-law uses the term on behalf of. ) Toronto, however, refers to lobbying on behalf of or for the benefit of the interest of an entity. The added words are significant. Lobbying on behalf of an organization connotes some sort of representation or official status. Acting for the benefit of an organization is much broader. If A acts on behalf of B, then A is acting as B s agent. The same is not true if A acts for B s benefit: A could be acting for B s benefit without B being aware or having asked. Further, A could act for B s benefit by coincidence, for example merely because A s and B s positions on an issue happen to coincide. Toronto s expanded definition of lobbying has implications for grass-roots communication. When a member of the public responds a grass-roots campaign, he or she is not really writing, ing or phoning a politician on behalf of the campaign organizer. On the contrary, the citizen who writes, s or phones a politician typically is expressing the citizen s own views on an issue. The Toronto definition, however, includes the words, for the benefit of the interests of. When the citizen writes, s or phones, is he or she benefitting the interests of the organizer of the grass-roots campaign? Quite possibly this will be the case, especially when the citizen s private position is the same as that of the campaign organizer. (date accessed: January 20, 2010). presented to the Governance Renewal Sub-committee 14

16 Thus, Torontonians who respond to grass-roots campaigns are treated as potential lobbyists because of the unique Toronto definition of lobbying 11 a definition based on language ( for the benefit of the interest of ) that Ottawa is not proposing to adopt. Toronto s solution to the dilemma is to permit grass-roots campaign organizers to apply for an exemption for ordinary citizens who call, write and politicians. This solution is awkward and cumbersome. It exposes ordinary citizens to legal risk based on the diligence of the campaign organizer. Most significantly, the solution solves a problem created by how the Toronto by-law was drafted. Such a cumbersome solution would not be necessary were the by-law drafted in such a way that the grass-roots dilemma did not arise. Ottawa s current draft adopts the Toronto approach not the federal/provincial approach to grass-roots communication. The proposed Ottawa by-law provides that members of the public who respond to the grassroots appeal for example, citizens who , phone or write the Mayor are lobbying and are subject to registration unless the campaign organizer applies for and receives an exemption. The proposed approach is unnecessary and counter-productive. First, there is no reason to presume that citizens who respond to a grass-roots campaign are communicating on behalf of the campaign organizer. Usually citizens who contact politicians do so because of their personal beliefs. (If necessary, the by-law could easily clarify that a member of the public who responds to a grass-roots campaign is presumed to be communicating on his or her own behalf and not on behalf of the campaign organizer.) Second, the Ottawa by-law defines lobbying as being by someone representing an individual, organization or business. Ordinary citizens who respond to grass-roots campaigns are not representing the campaign organizer. Third, the proposal that campaign organizers be permitted to apply for an exemption is not a rationale for treating ordinary members of the public as lobbyists. This is a solution to a problem that should not exist in the first place a problem that would not exist if the by-law were drafted differently. Fourth, nobody has identified letters, s and phone calls from members of the general public as activities that require greater transparency. If these democratic 11 The other reason for the grass-roots dilemma is that the Toronto definition includes some volunteers. This factor is discussed in the next section. presented to the Governance Renewal Sub-committee 15

17 activities are already transparent enough, then why subject them to the new disclosure and reporting regime? 4.6. Leave volunteers alone The by-law should not apply to volunteers. Alternatively, the by-law should only apply to volunteers who represent business, professional and trade union interests. The proposal s impact on volunteers and community organizations would be sweeping. It is no exaggeration to say that, if adopted in its current form, the by-law would alter the role of citizen engagement and neighbourhood activism in the democratic, political process. When designing a lobbying-transparency law, the threshold question is not, What is a lobbyist? Since the goal of a lobbying law is to provide increased transparency, the threshold question is, What activities should be subject to disclosure and greater transparency? The activities thus identified should be defined as lobbying and made subject to the disclosure law. Everywhere else in Canada, the policy determination has been that paid relationships are the ones requiring increased transparency. Whether the individual making representations to government receives a salary, a consulting fee, a director s fee, income as a sole proprietor or partner, or some other form of compensation, other jurisdictions have viewed the financial connection as the impetus for disclosure. There is yet another reason to limit lobbyist registration to paid lobbying. When someone gets paid to deal with government, it is not unfair to burden him or her with paperwork and reporting. On the other hand, when a volunteer approaches government concerning a community issue, it seems inappropriate to impose a paperwork burden on, or to make advance registration a condition of, the exercise of this democratic right. With one exception, in other Canadian jurisdictions, only people who are paid to influence government decisions must be registered as lobbyists. Among all Canadian lobbying laws, only the Toronto by-law applies to volunteers, and even then, it only covers volunteers when a business, professional or trade union interest is at stake. Under the Toronto law, a volunteer that is, someone who acts without pay must register only when he or she lobbies for the benefit of (a) an individual, corporation, organization or other person, or a partnership, who or that presented to the Governance Renewal Sub-committee 16

18 carries on business or trade for profit or with a view to profit or (b) an organization related to professions, labour groups, business, industry or for-profit entities. The staff report states, The City of Toronto also includes those individuals who lobby on behalf of a business or organization on a voluntary basis. As can be seen from the preceding paragraph, the Toronto by-law is not as broad as this sentence suggests. It is wrong to suggest that the Toronto lobbying by-law applies widely to volunteers. It only applies when the volunteer is advancing some sort of financial interest. In this respect, the proposed Ottawa lobbying law would be radically different from every other lobbying law in the country. It would extend to volunteers who communicate with the City government on behalf of all organizations and associations, including not-forprofit organizations and community groups. For example, a citizen volunteering as a member of a non-profit community group would be prohibited from making representations to a councillor or other City employees unless: The citizen first registers as a lobbyist. He or she must register prior to communicating with a councillor or City official. When communicating with a councillor or City official, the citizen must identify the community group on behalf of which he or she is acting. Within 15 days of commencing each specific lobbying undertaking (i.e., making representations on a different topic), the citizen must file a specific lobbying return. The above requirements would apply to all communication by the volunteer, including meeting with, speaking by telephone to, or sending a letter to, the councillor or City official. The above requirements would also apply to a volunteer who arranges a meeting with a public office holder on behalf of a community or non-profit group. Example: A citizen urges a councillor to attend an upcoming meeting of the neighbourhood association. The citizen must be registered as a lobbyist. It is not clear how such a requirement would significantly increase transparency. Further, a former City employee would be prohibited, for two years after leaving office, from volunteering with a community group, where the volunteer activity included making presented to the Governance Renewal Sub-committee 17

19 representations to a City official. Is it necessary or appropriate to restrict the volunteer, neighbourhood activities of former City employees? Note that an individual would not be subject to the by-law when he or she makes representations in an individual capacity. The volunteer provisions of the by-law would only apply to an individual who makes representations or arranges a meeting on behalf of a non-profit organization, other organization or business. (The by-law would provide a limited exemption for citizens who contact City officials as a result of being targetted by a grassroots campaign encouraging people to contact the City. This topic was discussed in section 4.5, above.) Response to the Staff Report In an attempt to explain the coverage of volunteers, the staff report argues as follows: Staff is recommending the City of Ottawa s lobbyist registry take the definition of a voluntary lobbyist one step further. It is important to recognize the objective of the lobbyist registry is to increase transparency with respect to who is attempting to influence decisions and not to correct inappropriate lobbyist activity. One of the main tenets of a lobbyist registry is that the public has a right to know who is approaching a public official with the objective of influencing a particular outcome. For that reason, staff suggests the definition of a voluntary lobbyist be expanded to include not-for-profit organizations and groups such as community associations or neighbourhood organizations. It is hoped that by including notfor-profit organizations, the public will have the opportunity to make a complete assessment of how a decision was potentially influenced in an organized fashion. I agree that the purpose of a lobbying law is to increase transparency. However, the first step in the analysis is to identify areas where transparency needs to be increased. Is there currently a transparency problem with community groups? For-pay lobbyists often operate below the radar; in their case, the public would really benefit from lobbying disclosure. Does the same problem exist with community groups? Is the public unaware of community group activity? By their very nature, community groups tend to operate visibly and in the open in their communities. Registration will increase transparency only if the activities of community groups are not already public knowledge. For example, how would it increase transparency to disclose that the Friends of Lansdowne were campaigning concerning Lansdowne presented to the Governance Renewal Sub-committee 18

20 redevelopment? This was hardly a secret. If the Friends were required to register as lobbyists, what would the public learn that it did not already know? Further, the staff report is silent on the burden of registration. When somebody is paid to lobby, the burden is not a factor. However, when registration touches ordinary citizens who are exercising their civic right to participate in the democratic process, the burden becomes relevant. Is the inconvenience of not just registering but registering in advance (which can be significant for ordinary citizens who not familiar with the law) worth any increased transparency (if there is any increase)? The staff report also states, It is important to note individual citizens are not lobbyists when they approach public office holders about constituency matters or when advocating for a specific policy or program change. Only the first half of this statement is correct. Under the draft by-law, advocating for a specific policy or program change, if done on behalf of a neighbourhood group, would constitute lobbying. 5. Summary of recommendations Continue to cover all types of lobbying communication (oral and written, formal and informal). Do not introduce a minimum threshold for lobbying disclosure. Keep the mandatory code of conduct for lobbyists (but make it enforceable through financial penalties). Continue to ban contingency fees (but make the ban enforceable). Continue to make Councillors and senior officials report their lobbying contacts (but ensure enforcement is balanced between lobbyists and public office holders). Maintain the post-service restriction ( cooling off period) but o consider whether it should apply just to senior employees, not all employees; o make sure Councillors are covered, either in this by-law or in the forthcoming Code of Conduct for Members of Council; and o do not prevent former employees from volunteering. presented to the Governance Renewal Sub-committee 19

21 Continue to treat arranging a meeting as lobbying (when the meeting is arranged by a consultant, not by a volunteer). Allow the employer to file for all employees of a company or organization: The by-law should provide that the senior officer of a business or organization will submit a single report naming all employees who lobby. Enforcement: Give the by-law teeth: Contravention of the by-law should be an offence. Companies, organizations and clients should disclose government funding and disclose financial contributions to the lobbying effort. Either the By-law should expressly provide, or Council s direction to the staff should make clear, that each lobbyist report must disclose: o the amount of funding, from any level of government, that the client or employer received during its last fiscal year; and o the identity of any individual, corporation or organization that contributed $750 or more toward the lobbying activities, and the amount of each contribution. The definition of lobbying should not be based on an attempt to influence. The definition of lobby should be amended to replace any communication... with the goal of trying to influence any legislative action with any communication... related to [OR in respect of] [OR about] any legislative action. Grass-roots communication: Those running the grass-roots campaign should be recognized as lobbyists. Member of the public who respond to grass-roots campaigns should not be treated as lobbyists. (This is how federal and provincial laws work.) Leave volunteers alone: The by-law should not apply to volunteers. Alternatively, the by-law should only apply to volunteers who represent business, professional and trade union interests. presented to the Governance Renewal Sub-committee 20

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