Report to/Rapport au :
Governance Renewal Sub-Committee
Sous-comité du renouvellement de la gouvernance
Finance and Economic Development Committee
Comité des finances et du développement économique
and Council / et au Conseil
Submitted by/Soumis par: M. Rick, O'Connor, City Clerk and Solicitor / Greffier municipal et chef des contentieux
Contact Person/Personne resource: Leslie Donnelly, Deputy City Clerk/Greffière adjointe
613-580-2424 x28857, Leslie.Donnelly@ottawa.ca
OBJET : Registre des lobbyists
REPORT RECOMMENDATION(S)
1. That the Governance Renewal Sub-Committee receive and table this report for consideration by the Governance Renewal Sub-Committee at its meeting of November 18, 2011 for consideration at its meeting of December 1, 2011.
2. That the Governance Renewal Sub-Committee recommends that the Finance and Economic Development Committee recommends that Council approve the establishment of a Lobbyist Registry, including the Lobbyist Code of Conduct, as described in this report.
3. That the Governance Renewal Sub-Committee recommends that the Finance and Economic Development Committee recommends that Council approve that the provision for the Code of Conduct related to Conduct Respecting Lobbyists as described in this report be included in the upcoming Code of Conduct for Members of Council.
4. That staff be directed to amend the Employee Code of Conduct to incorporate the provisions related to lobbying and disclosure as described in this report.
RECOMMANDATION(S) DU RAPPORT
1. Que le Sous-comité du renouvellement de la gouvernance prenne connaissance du présent rapport et le dépose lors de sa réunion prévue le 1 décembre 2011.
2. Que le Sous-comité du renouvellement de la gouvernance recommande au Comité des finances et du développement économique de recommander à son tour au Conseil d’approuver l’établissement d’un Registre des lobbyistes, y compris le Code de conduite des lobbyistes, comme le décrit le présent rapport.
3. Que le Sous-comité du renouvellement de la gouvernance recommande au Comité des finances et du développement économique de recommander à son tour au Conseil d’ajouter la disposition du Code de conduite relatif à la conduite des lobbyistes, comme le décrit le présent rapport, au Code de conduite des membres du Conseil.
4. Qu’il soit demandé au personnel d’intégrer au Code de conduite des employés les dispositions relatives au lobbying et à la divulgation figurant dans le rapport.
EXECUTIVE SUMMARY
“Lobbying is best understood broadly as an organized effort to influence the development or ultimate fate of anything the government does: pass a law, develop a policy or program, award a contract, or give away money.” [1]
Madame Justice Denise E. Bellamy
Assumptions and Analysis:
As part of the 2010-2014 Governance Review, City Council adopted the following recommendation which, as the report indicated, was developed in support of Mayor Watson’s commitment to pursue and lead the development of an Accountability Framework for Members of Council:
That the Governance Renewal Sub-Committee, led by the Mayor and supported by staff and a third party, be tasked with assessing the overall governance structure and processes for the City of Ottawa, identifying issues and making recommendations to Council, including development of an Accountability Framework (Code of Conduct for Members of Council, Lobbyist Registry, etc).
The Accountability Framework is in addition to the City’s existing Accountability and Transparency Policy, a Delegation of Powers Policy, the application of the statutory provisions related to the office of the Auditor General, and the appointment of the Meetings Investigator to address the complaints related to closed meetings adopted by Council in November 2008, to meet the mandatory requirements under the Municipal Act, 2001.
The Lobbyist Registry, as part of the Accountability Framework, is intended to provide the public with an increased level of transparency that does not currently exist. Lobbying generally refers to communications related to some form of legislative or procurement action that takes place outside a public forum like a council meeting or open house. Lobbyists are those stakeholders who communicate with elected officials and public servants to promote the outcome desired by themselves or the organizations they work with and/or represent.
The City of Ottawa’s authority to establish a lobbyist registry was added to the Municipal Act, 2001, along with several other accountability and integrity tools. The statutory discretion to enact such a Registry as well as other integrity tools mirrors Toronto’s mandatory requirements. Both the discretionary accountability and integrity tools for Ontario municipalities and the mandatory provisions for Toronto were directly related to events that led up to, and the recommendations from, two City of Toronto judicial inquiries resulting from what is commonly known as the MFP Computer Leasing scandal. In September 2005, Madam Justice Denise Bellamy’s four-volume report included 241 recommendations relating to the broad themes of ethics, governance, lobbying, and procurement (as well as 3 additional recommendations related to Public Inquiries).
More recently, Mississauga City Council requested a judicial inquiry to investigate issues of conflict of interest. As part of the judicial inquiry, Mr. Justice J. Douglas Cunningham held a two-day expert panel discussion on municipal ethics with three professionals considered to be authorities in municipal ethics: Professor David Mullan, Mr. Gregory Levine, and Dean Lorne Sossin. The testimony of these three experts in municipal ethics not only informed Justice Cunningham’s analysis and recommendations but also provided valuable insight for staff’s development of a lobbyist registry. Although Justice Cunningham recommended that Mississauga not establish a lobbyist registry, several of the recommendations from his October 2011 final report inform this report.
Employing all the research from these judicial inquiries as well as the practical experience of the City of Toronto and provincial and federal registries, staff has developed a model for a low-cost lobbyist registry for the City of Ottawa. Highlights of the proposed model include:
· A definition of lobbying is as follows: lobbying is defined as any communication with a public office holder by someone representing an individual, organization or business with the goal of trying to influence procurement or any legislative action including development, introduction, passage, defeat, amendment or repeal of a by-law, motion, resolution or the outcome of a decision on any matter before Council, a Committee of Council, or a Ward Councillor or staff member acting under delegated authority. These communications can take place at any time, whether formally at a meeting or informally at an event or even in a hallway. In addition, grassroots lobbying is an organized effort to solicit the public to contact legislators to influence a specific outcome for legislation. Communications between individual citizens, businesses and organizations and public office holders that are classified as casework or are consistent with City processes and policies are not lobbying.
· A definition of lobbyist and those expected to register with the lobbyist registry and log lobbying activity is as follows: a “consultant lobbyist” is paid to lobby on behalf of a client, an “in-house lobbyist” is someone whose position entails lobbying on behalf of their employer or who lobbies on behalf of their own business and a “voluntary, unpaid lobbyist” is an individual or organization who lobbies a public office holder without payment. Lobbyists will be required to register prior to undertaking any lobbying activity. Certain individuals will be exempt from the definition of lobbyist, such as officials from other levels of government or municipalities when acting in their public capacity.
· A definition of Public Office Holder that includes elected officials, their staff, citizen members of the Transit Commission and those City staff who are in a position to make or influence decisions. The definition further differentiates between “Public Office Holder” and “Senior Public Office Holder” based on the respective levels of delegated authority. Members of Council, their staff, citizen members of the Transit Commission and senior managers are identified as senior public office holders due to their specific decision-making roles or ability to influence decisions. All other City of Ottawa staff are deemed to be Public Office Holders. Lobbying of all public office holders is to be disclosed by lobbyists through the registry.
· Both lobbyists and senior public office holders will be required to disclose lobbying activities. Lobbyists will have to register and then disclose all lobbying activities within fifteen days of the completion of said activities. Members of Council and senior managers (those from the General Manager/Director level and above), as Senior Public Office Holders, will also be required to disclose all instances where they have been lobbied and will be required to avoid knowingly communicating with a lobbyist who has not registered. Lobbying of City staff below the General Manager/Director level must also be disclosed through the lobbyist registry by the lobbyist. These staff will report to their respective General Manager, Director or Department Head that they have been lobbied.
· Enforcement of the Lobbyist Registry is focused on public office holders rather than lobbyists. The intent of the Registry is to bring into the open any and all meetings involving lobbyists and Public Office Holders. Many lobbyist registries have been criticized for the lack of effective enforcement and penalties. It would be difficult and expensive for the City of Ottawa to investigate and sanction those who breach lobbying regulations or the Code of Conduct for Lobbyists as a provincial offence (an option available in the Municipal Act, 2001). The City can, however, effectively sanction elected representatives and City staff for failure to provide the required disclosure and transparency of action required. Lobbying is only effective if those being lobbied are accessible.
· The Integrity Commissioner will provide oversight to the Lobbyist Registry and the accompanying policies and programs, including public education and training for public office holders and lobbyists. The Integrity Commissioner is expected to be appointed to oversee the application of the Code of Conduct for Members of Council to be recommended in a forthcoming report.
It is recommended that implementation of the Lobbyist Registry take place on March 31, 2012. This timeline would allow for the preparation of training and education materials as well as for the remaining Accountability Framework tools to be considered by Committee and Council and the Integrity Commissioner’s position to be established.
Staff is recommending a dynamic, bilingual web-based application for the Lobbyist Registry and is working with the Information and Technology Services Department to determine the most appropriate solution for the Registry. At this point in time, it appears it may be more cost effective and efficient to use an existing solution than to develop an application in-house. Once a solution has been identified, staff intends to bring forward a recommendation, with any costs over and above what can be accommodated in existing budgets, as part of the capital closing report. Staff is targeting the roll-out of the application for the end of Q1 2012. Should the tool not be ready by the time the Lobbyist Registry is implemented, it is recommended that registration and disclosure be accomplished in the same manner as the public disclosure of Members of Council’s office expenses (meaning manually, reported monthly through the Clerk’s Office).
The proposed model for the Lobbyist Registry is intended to be as cost effective as possible. The day-to-day administration of the lobbyist registry will be undertaken by the Legislative Services Branch of the City Clerk and Solicitor Department. Staff believes that once the Lobbyist Registry is in operation, one FTE will be required for its daily administration. As has been the case with previous changes to the City’s governance structure, the Deputy City Clerk will evaluate staff workloads and skills and realign staff within the Legislative Services Branch following the planned streamlining of the City’s Advisory Committee structure to accommodate the administration of the Lobbyist Registry.
As indicated, the Lobbyist Registry is one piece of Council’s Accountability Framework and, like the Code of Conduct, the Gifts Registry and the Expense Policy, it will evolve over time. It will be reviewed and renewed on a regular basis by the Integrity Commissioner on an as-needed basis and as part of the regular governance reviews.
Financial Implications:
As directed by Council, there are no additional financial implications associated with the recommendations of this report. Staff will bring forward a recommendation, with any costs over and above what can be accommodated in existing budgets, as part of the capital closing report.
Public Consultation/Input:
This report is being tabled at the Governance Renewal Sub-Committee on November 18, 2011 for subsequent consideration at the Sub-Committee’s December 1, 2011 meeting to allow for public review and comment. A further opportunity will be provided at the December 6, 2011 Finance and Economic Development Committee’s consideration of the Governance Renewal Sub-Committee’s recommendations on this report.
Furthermore, as part of this term of Council’s priorities, Mayor Watson has committed to improving accountability and transparency at the City of Ottawa and he was consulted on the recommendations in this report. This is consistent with the Mayor’s role under Section 225(c.1) of the revised Municipal Act, 2001 to provide information and recommendations to the council with respect to the role of council to ensure the accountability and transparency of the operations of the municipality. Finally, as noted by Madame Justice Bellamy, “[a] mayor’s powers may vary by municipality, but the ethical culture of municipal government trickles down from the mayor’s office regardless of the mayor’s mandated role.”[2]
RÉSUMÉ
« On ne saurait mieux décrire le lobbying en général que comme une démarche structurée visant à influencer l’évolution ou l’issue définitive de certains actes du gouvernement, notamment adopter une loi, élaborer une politique ou un programme, octroyer un contrat, ou allouer des fonds[3]. »
La juge Denise E. Bellamy
Dans le cadre de l’examen de la gestion publique pour les années 2010 à 2014, le Conseil municipal a adopté la recommandation suivante qui, comme l’indique le rapport, est née de la volonté de donner suite à l’engagement du maire Watson de poursuivre, voire de diriger l’élaboration d’un cadre de responsabilisation pour les membres du Conseil :
Que le Sous-comité du renouvellement de la gouvernance, sous la direction du maire et avec l’assistance du personnel et d’une ressource externe, reçoive le mandat de faire le point sur l’ensemble de la structure et des processus de gouvernance de la Ville d’Ottawa dans le but de faire ressortir les éléments préoccupants et de présenter des recommandations au Conseil, notamment en ce qui concerne l’élaboration d’un code de responsabilisation (code de conduite pour les membres du Conseil, registre des lobbyistes, etc.).
Le cadre de responsabilisation s’ajoute aux documents et mesures déjà en place, comme la Politique sur la reddition de comptes et la transparence, la Politique sur la délégation de pouvoir et l’application des mesures visant le Bureau du vérificateur général et la nomination d’un enquêteur chargé d’examiner les plaintes ayant trait aux réunions à huis clos du Conseil, mesures adoptées par le Conseil en novembre 2008 pour se conformer à la Loi de 2001 sur les municipalités.
À titre d’élément du cadre de responsabilisation, le registre des lobbyistes vise à assurer au public un niveau accru de transparence qui n’existe pas à l’heure actuelle. Le lobbying se présente généralement sous la forme de communications au sujet de certaines mesures liées aux activités législatives ou à l’approvisionnement, qui ont lieu à l’extérieur des tribunes que constituent les réunions du Conseil municipal ou les portes ouvertes. Le lobbyiste est un intervenant qui communique avec certains représentants élus ou fonctionnaires en vue de promouvoir un résultat conforme à ses propres intérêts ou à ceux de l’organisme avec lequel il travaille ou qu’il représente.
La Ville d’Ottawa s’est vu conférer le pouvoir de créer un registre des lobbyistes par un ajout à la Loi de 2001 sur les municipalités comportant aussi plusieurs autres outils relatifs à la responsabilisation et à l’intégrité. Le pouvoir discrétionnaire d’instaurer un tel registre et d’autres outils relatifs à l’intégrité correspond aux exigences obligatoires de la Ville de Toronto. Les outils relatifs à la responsabilisation et à l’intégrité dont l’emploi est discrétionnaire pour les municipalités de l’Ontario et obligatoire pour Toronto ont tous un rapport direct avec des événements survenus à la Ville de Toronto et ayant exigé deux enquêtes judiciaires, ainsi qu’avec les recommandations qui en ont découlé. L’affaire est connue en tant que scandale de la société MFP. En septembre 2005, le rapport en quatre volumes déposé par la juge Denise Bellamy comprenait 241 recommandations concernant les grands thèmes de l’éthique, de la gouvernance, du lobbying et des approvisionnements (ainsi que trois recommandations additionnelles concernant les enquêtes publiques).
Plus récemment, le Conseil municipal de Mississauga a réclamé une enquête judiciaire sur des questions de conflit d’intérêts. Dans le cadre de l’enquête judiciaire, Monsieur le juge J. Douglas Cunningham a organisé deux journées de table ronde sur l’éthique en matière municipale avec trois professionnels considérés comme des experts dans ce domaine : le professeur David Mullan, M. Gregory Levine, et le doyen Lorne Sossin. Leur témoignage a non seulement inspiré l’analyse et les recommandations du juge Cunningham, mais il s’est aussi avéré une mine de précieux conseils en ce qui touche la création d’un registre des lobbyistes par les membres du personnel. Même si le juge Cunningham a recommandé à la Ville de Mississauga de ne pas établir de registre des lobbyistes, plusieurs des recommandations figurant dans son rapport final d’octobre 2011 inspirent le présent rapport.
À partir de l’ensemble des recherches menées dans le contexte de ces enquêtes judiciaires et de l’expérience pratique acquise avec les registres de la Ville de Toronto et des gouvernements provincial et fédéral, le personnel de la Ville d’Ottawa a créé un modèle abordable de registre des lobbyistes. En voici les principaux éléments :
· Une définition de lobbying comme suit : Le lobbying se définit comme une communication avec le titulaire d’une charge publique par une personne représentant un particulier, un organisme ou une entreprise, en vue d’influencer toute mesure liée aux activités législatives ou à l’approvisionnement, y compris la rédaction, la présentation, l’adoption, le rejet, la modification ou l’abrogation d’un règlement municipal, d’une motion ou d’une résolution, ou le résultat d’une décision sur toute question présentée au Conseil, à un comité du Conseil, à un conseiller de quartier ou à un membre du personnel détenant des pouvoirs délégués. Une telle communication peut avoir lieu en tout temps, que ce soit de manière formelle à une réunion ou informelle à l’occasion d’un événement, ou même dans un corridor. Par ailleurs, le lobbying populaire est une démarche structurée visant à inciter le public à communiquer avec les législateurs afin d’influencer le résultat d’une mesure législative. Ne constituent pas du lobbying les communications entre les citoyens, les entreprises, les organismes et les titulaires d’une charge publique faisant partie du traitement des dossiers ou qui sont conformes aux politiques et procédés de la Ville.
· Une définition de lobbyiste et la désignation de la personne chargée des inscriptions au registre des lobbyistes et de l’inscription des activités de lobbying comme suit : Le lobbyiste-conseil rémunéré pour faire du lobbying au nom d’un client, le lobbyiste salarié dont la fonction consiste à faire du lobbying au nom de son employeur ou pour le compte de sa propre entreprise, et le lobbyiste bénévole qui fait du lobbying à titre gratuit auprès du titulaire d’une charge publique. Les lobbyistes devront s’inscrire au registre avant d’entreprendre toute activité de lobbying. Certaines personnes échappent à la définition de lobbyiste, comme les représentants de municipalités ou de tout ordre de gouvernement qui agissent en leur qualité officielle.
· Une définition de titulaire d’une charge publique englobant les représentants élus, les membres de leur personnel, les membres citoyens de la Commission du transport en commun et les membres du personnel de la Ville qui sont en mesure de prendre des décisions ou de les influencer. La définition établit une distinction entre le titulaire d’une charge publique et le titulaire d’une charge publique de haut rang, selon les niveaux respectifs de pouvoir délégué. Les membres du Conseil, les membres de leur personnel, les membres citoyens de la Commission du transport en commun et les cadres supérieurs sont tous des titulaires d’une charge publique de haut rang, en raison de leur rôle décisionnel particulier ou de leur capacité d’influencer les décisions. Tous les autres membres du personnel de la Ville d’Ottawa sont réputés constituer des titulaires d’une charge publique. Les lobbyistes doivent divulguer tout lobbying fait auprès du titulaire d’une charge publique au moyen du registre.
· Tant les lobbyistes que les titulaires d’une charge publique de haut rang seront tenus de divulguer les activités de lobbying. Les lobbyistes devront s’inscrire au registre et ensuite divulguer toute activité de lobbying dans les quinze jours suivant lesdites activités. En tant que titulaires d’une charge publique de haut rang, les membres du Conseil et les cadres supérieurs (de niveau équivalent ou supérieur à celui de directeur général ou de directeur) devront aussi divulguer toutes les activités de lobbying dont ils ont fait l’objet et éviter de communiquer sciemment avec un lobbyiste qui n’est pas inscrit au registre. Le lobbying pratiqué auprès du personnel de la Ville, à un niveau inférieur à celui de directeur général ou de directeur, doit également être divulgué par le lobbyiste au moyen du registre. S’ils font l’objet de lobbying, ces membres du personnel en feront rapport à leur directeur général, directeur ou chef de service respectif.
· La mise en œuvre du registre des lobbyistes vise plutôt les titulaires d’une charge publique que les lobbyistes. Le registre a pour but de faire connaître publiquement toutes les rencontres ayant lieu entre un lobbyiste et un titulaire d’une charge publique. Bon nombre de registres des lobbyistes ont fait l’objet de critiques en raison de l’absence de mesures d’application et de sanctions efficaces. Pour la Ville d’Ottawa, il serait difficile et onéreux de mener une enquête sur ceux qui violent les règles de lobbying ou le code de conduite pour les lobbyistes, et de les sanctionner en vertu des lois provinciales (ce que permet la Loi de 2001 sur les municipalités). Par contre, la Ville peut sanctionner les représentants élus et les membres de son personnel qui enfreignent les règles de divulgation et de transparence. Le lobbying ne fonctionne que si les personnes visées sont accessibles.
· Le commissaire à l’intégrité assurera la surveillance du registre des lobbyistes et des politiques et programmes connexes, y compris la sensibilisation du public et la formation des lobbyistes et des titulaires d’une charge publique. Le commissaire à l’intégrité devait être chargé de superviser la mise en œuvre du code de conduite pour les membres du Conseil, qui sera recommandé dans un prochain rapport.
Il est recommandé de mettre en place le registre des lobbyistes le 31 mars 2012. Ce délai permettra de préparer les documents de formation et de sensibilisation, de même que les outils relatifs au cadre de responsabilisation qui doivent être examinés par le Comité, le Conseil et le futur commissaire à l’intégrité.
Le personnel recommande une application Web dynamique et bilingue pour le registre, et cherche la meilleure solution en collaboration avec le Service de technologie de l’information. À l’étape actuelle, le recours à une solution existante semble plus rentable et efficace que la création d’une application interne. Quand la solution sera trouvée, le personnel prévoit formuler une recommandation et produire un rapport définitif décrivant tous les coûts qui dépassent les capacités des budgets existants. Les membres du personnel espèrent lancer l’outil à la fin du premier trimestre de 2012. S’il n’est pas au point au moment de la mise en place du registre des lobbyistes, il est recommandé de procéder à l’inscription des lobbyistes et à la divulgation du lobbying à l’aide de la méthode employée pour les dépenses de bureau des membres du conseil (soit un rapport mensuel remis au Bureau du greffier municipal).
Le modèle proposé de registre des lobbyistes a été conçu pour garantir une rentabilité optimale. Son administration quotidienne sera confiée à la Direction des services législatifs du Bureau du greffier municipal et chef du contentieux. Les membres du personnel estiment qu’une fois le registre mis en service, son administration quotidienne nécessitera un équivalent temps plein (ETP). Comme ce fut le cas lors des dernières modifications à la structure de gouvernance de la Ville, la greffière municipale adjointe évaluera la charge de travail et les compétences des membres du personnel et remaniera la dotation au sein de la Direction des services législatifs en fonction de la rationalisation de la structure du comité consultatif de la Ville qui est envisagée pour faciliter l’administration du registre des lobbyistes.
Comme nous l’avons dit précédemment, le registre des lobbyistes ne constitue qu’un élément du cadre de responsabilisation du conseil et, tout comme le code de conduite, le registre des cadeaux et la politique sur les dépenses, il est appelé à évoluer au fil du temps. Dans le cadre des examens de la gestion publique, le commissaire à l’intégrité en fera régulièrement l’examen et en assurera le renouvellement en fonction des besoins.
Incidence financière
Selon les instructions du Conseil, les recommandations du rapport ne supposent aucune dépense supplémentaire. Le personnel fera dans le rapport final sur les immobilisations une recommandation où il signalera tout dépassement à prévoir par rapport aux budgets actuels.
Consultation publique et commentaires
Le rapport est présenté au Sous-comité du renouvellement de la gouvernance le 18 novembre 2011 pour être porté à l’ordre du jour de sa réunion du 1er décembre 2011, où il sera examiné et commenté publiquement. Il y aura également examen et commentaires publics lorsque le Comité des finances et du développement économique, à sa réunion du 6 décembre 2011, se penchera sur les recommandations du Sous-comité du renouvellement de la gouvernance concernant le rapport.
Par ailleurs, dans le cadre des priorités du Conseil, le maire Watson s’est engagé à améliorer la responsabilisation et la transparence à la Ville d’Ottawa et a été consulté au sujet des recommandations du rapport. Cette mesure est conforme au paragraphe 225(c.1) de la Loi de 2011 sur les municipalités, selon laquelle le maire doit fournir des renseignements et faire des recommandations au conseil à l’égard du rôle de celui-ci afin d’assurer la responsabilité et la transparence des activités municipales. Enfin, comme le fait valoir la juge Bellamy, « les pouvoirs du maire peuvent varier selon les municipalités, mais la culture éthique de l’administration municipale est influencée par les activités du bureau du maire, peu importe le mandat de ce dernier[4]. »
BACKGROUND
“A lobbyist registry cannot stop lobbyists, if they are so inclined, from engaging
in corrupt or unethical practices. Nor can it stop elected officials or staff, if they are so inclined, from engaging in corrupt or unethical practices in their dealings with lobbyists. Mandatory firearms licensing does not put an end to
all gun crimes.
A registry is an achievable transparency measure, albeit an imperfect one. But it is better to do the achievable than to do nothing. A lobbyist registry benefits the public by accounting for all ethical lobbying. Beyond increasing transparency, a registry will serve to highlight the ethical transgressions of those who are caught lobbying inappropriately—for example, lobbying on behalf of two different clients on the same transaction.
Another purpose of a registry is to change the interaction between lobbyists and public servants by requiring both parties to think about the consequences of their conduct. But it is more likely that a lobbyist registry will affect ethical behaviour if it is part of a larger program of ethics policy.” [5]
Madame Justice Denise Bellamy
Lobbying has a long history and, in its very basic form, involves people acting on behalf of a business or organization communicating with legislators or other senior public officials in order to influence a specific, desired outcome related to a specific government decision. Lobbying typically takes place outside a public forum like a council meeting, town hall or roundtable discussion. As the City of Toronto notes, lobbying “is often—but not always—done by people who are paid or compensated in other ways for their efforts.” [6] Grassroots lobbying is an organized effort to solicit the public to contact legislators to influence a specific outcome for legislation.
Lobbyists are those stakeholders who are communicating with public office holders and public servants to promote the outcome desired by organizations they work with and/or represent. These informed stakeholders are an integral, legitimate part of government interaction with its citizens and can help public office holders make informed decisions.
While these informed stakeholders can have an important role in helping policy makers understand specific implications of specific decisions, it is equally important that the public knows and understands who is attempting to influence their government. As Madame Justice Bellamy noted, “Lobbying can best contribute productively to the democratic dialogue when everyone can see and understand what is going on. Thus, one key to overcoming scepticism about lobbying is a clear understanding of what lobbyists should and should not be able to do. That may be achieved through a code of conduct for lobbyists. Another key is transparency in lobbying, through a lobbyist registry.”[7]
A lobbyist registry is a formal tracking of lobbyists and their meetings with public officials that is made available for public inspection. A lobbyist registry and a lobbyist Code of Conduct are the most common form of the regulation of lobbying activities.
Lobbyist Registries in Canada and the Legislative Framework for Ontario Municipalities
In Canada, regulation of lobbying activities has mainly occurred at the federal and provincial levels. Below are highlights of the review of the federal, provincial and municipal lobbyist registry models, as well as some of the criticisms of these registries that staff has considered in the development of the proposed City of Ottawa model.
Federal Lobbyist Registry
The Lobbyists Registration Act came into force in September 1989 in response to public perception that individuals who were seeking to influence government officials through political or personal contact were doing so without transparency or accountability. The federal lobbyist registry involves the public registration of those individuals who are paid to communicate with public office holders about a particular subject matter. Designated Public Office Holders are generally defined as any individual occupying an elected or appointed position in the Government of Canada, and lobbyists are generally defined as “consultant lobbyists,” “in-house lobbyists – corporate,” and “in-house lobbyists – organizations.”
There have been a number of changes to the Lobbyists Registration Act since its inception, most recently from issues arising from the 2010 allegations that former Member of Parliament Rahim Jaffer and his business partner, Patrick Glémaud, lobbied government officials without registering as lobbyists in the operations of their company, Green Power Generation Corporation. In the wake of these allegations, the Act was amended to expand the definition of Designated Public Office Holder to include all Members of Parliament and all Senators, as well as any staff working in the offices of the Leader of the Opposition in the House of Commons and in the Senate. The expanded definition of Designated Public Office Holder now requires lobbyists to publicly declare meetings with additional government officials.
Enforcement of the federal lobbyist registry is led by the Commissioner of Lobbying, who is responsible for conducting reviews and investigations to ensure compliance with the Act and the Lobbyists' Code of Conduct. The Act requires that, before finding someone in breach of the Code, the person under investigation is provided with an opportunity to present his or her views. The Commissioner must then prepare a Report of Investigation presenting their findings and conclusions, and reasons for these conclusions. The Report on Investigation is then tabled before both Houses of Parliament.
During an investigation, the Lobbying Act prescribes that, if the Commissioner has reasonable grounds to believe that an offence has been committed under the Act or any other act of Parliament, the matter must be referred to a peace officer. This is the only enforcement option available to the Commissioner other than naming lobbyists who breach the Act in a report to Parliament. The peace officer having jurisdiction to investigate the matter, generally the Royal Canadian Mounted Police (RCMP) in the case of the Lobbying Act, will consider the case in consultation with legal counsel at the Department of Justice and federal prosecutors at the Department of Public Prosecutions. Together, they will determine whether or not to lay charges.
In March 2011, the Commissioner of Lobbying, Karen Shepherd, presented a report entitled “Administering the Lobbying Act: Observations and Recommendations Based on the Experience of the Last Five Years” to the Standing Committee on Access to Information, Privacy and Ethics as part of the statutory review of the Lobbying Act. Ms. Shepherd found that overall the Act was functioning well and as it was intended to by its original founders.
However, Ms. Shepherd also noted that there were areas where she felt the Act was inadequate. Among her nine recommendations, she felt that the Act needed a range of penalty options that would bridge the gap between her office’s efforts to educate and correct minor transgressions and the expensive and time-consuming Reports to Parliament or referral of files to the RCMP. Specifically, Ms. Shepherd stated in her presentation that, “[l]obbyists are voluntarily coming forward to disclose that they were late in registering or submitting monthly communication reports. I see this as an encouraging sign that many lobbyists want to comply with the Act. I do not believe the public interest would be well served if I were to refer such files to the RCMP for criminal investigation. For these and other lesser transgressions, I have decided to educate and monitor these cases. I do not see this as letting them off the hook. Employing such alternative measures encourages others to come forward. In addition, as I indicated, individuals subject to education and/or correction continue to be monitored to ensure they remain in compliance.”[8] Ms. Shepherd further stated she did not believe all transgressions required a referral to the RCMP. As such, she would like the ability to post the names of lobbyists who contravene the Act or the Code of Conduct on the website to show there are consequences to not registering.[9]
Another concern is that clarification is required of the Code of Conduct provision known as Rule 8, specifically with regard to the clarity (or lack thereof) of the clause and further how Rule 8 prescribes the political activities of lobbyists.
Specifically, Rule 8 provides that, “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.”[10] In March 2009, the Federal Court of Appeal unanimously ruled that Rule 8 of the Lobbyists’ Code of Conduct meant that lobbyists cannot do things for policy-makers they have lobbied, are lobbying or expect to lobby.[11] In its decision, the Court noted that, “[w]here the lobbyist's effectiveness depends upon the decision maker's personal sense of obligation to the lobbyist, or on some other private interest created or facilitated by the lobbyist, the line between legitimate lobbying and illegitimate lobbying has been crossed. The conduct proscribed by Rule 8 is the cultivation of such a sense of personal obligation, or the creation of such private interests.”[12]
Federal lobbyists continue to have difficulty understanding how this rule applies to political activity and in particular participation in election campaigns. Some lobbyists did not participate in the last election for fear they may have broken the rules.[13] The Government Relations Institute of Canada (“GRIC”), a professional association representing consultant, organizational and corporate lobbyists, recommends the language in Rule 8 “should be replaced with language that mirrors relevant sections of existing legislation governing political activities and conflict of interest.”[14]
Moreover, the Canadian Bar Association (“CBA”) also agreed changes are needed and believes Rule 8 infringes on lobbyists’ constitutional rights. In an opinion on Rule 8, the CBA states:
“Unfortunately, the Guidance on Rule 8 is not sufficiently tailored so as to trench on lobbyists’ freedom of expression as little as possible to achieve its legitimate objectives. It is vague, overreaching, and encourages ex post facto analyses of political activity. It cannot act as a deterrent to improper activities because it does not provide sufficient direction to lobbyists as to which political activities they may safely engage without being afoul of the Code. It is rather a deterrent to all political activities. We recommend that the Commissioner withdraw the Guidance, and enter into discussions with stakeholders about how to make future Guidance clear, effective and Charter compliant.”[15]
For the City of Ottawa proposed model, staff has prepared an expanded definition of public office holder, has included oral communications, and recommended the Integrity Commissioner have the authority to post the names of those lobbyists and public office holders who are non-compliant on the City’s website. In addition, staff has incorporated a section whereby the Integrity Commissioner is required to refer any matter where s/he has reasonable grounds to believe an offence has been committed under any Act to the appropriate authority (i.e. the police).
The proposed model does not include any section related to lobbyists and political activities given the potential Charter issues identified above.
Provincial Lobbyist Registries, including Ontario
Provincial lobbyist registries are also relatively new with the Province of Ontario being the first to establish a registry in 1999. Not all provinces have established a registry. Earlier this year, Guy Giorno, a leading expert on lobbying legislation and lobbyist registration law in Canada, called on Saskatchewan and Prince Edward Island to establish a lobbyist registry. He notes that “Canadians should be proud that our country is a global leader in lobbying transparency. Lobbyist registries operate at the federal level and in six provinces. Two more provinces are almost there: Manitoba's lobbyist-disclosure law has been passed but not yet activated, and legislation is currently before the New Brunswick assembly. Saskatchewan and P.E.I. have been the only hold outs. If Saskatchewan implements a lobbyist registry, then P.E.I. will be isolated.”[16]
The Ontario Lobbyist Registry, like other provincial lobbyist registries in Canada, is modeled on the federal registry. However, a significant difference is that the provincial registry does not have a code of conduct for lobbyists. This is similar to other provincial jurisdictions. While the specific reasons vary, research indicates the general rationale is that establishing a lobbyist registry is sufficient to promote transparency in government and most lobbyists are members of professional associations that already have codes of conduct.
The Ontario Lobbyist Registry is managed and overseen by the Office of the Integrity Commissioner. The Integrity Commissioner, as the Registrar, has powers to refuse to accept a return or document that does not comply with the requirements of the Act. The Integrity Commissioner may also remove a return from the registry if an individual fails to provide required information within specified periods.
Under the Ontario Lobbyist Registry, lobbyists may be subject to fine of up to $25,000 when one of the following offences occurs:
· Conducting lobbying activities and do not file a return within the time frames set out in the Act;
· Failing to provide the required information in a return as stated in the legislation;
· Failing to provide the Lobbyists Registrar with changes to a return, new information or clarification of information requested by the Lobbyists Registrar;
· Making false or misleading statements; or
· Knowingly placing a public office holder in a position of real or potential conflict of interest.
As previously noted, Ontario’s Lobbyist Registration Act, 1998 came into force in January 1999 and was the first provincial lobbyist registry in Canada. The Act was recently amended for the first time in its twelve year history by the Broader Public Sector Accountability Act, 2010. The amendments to the Act articulated the value in conducting regular statutory reviews. The provincial Integrity Commissioner, in her annual report for 2010-2011, noted “the high profile and complexity of issues involving lobbyist activities and procedures continues to escalate.” In order to address the evolving nature of the Lobbyist Registry, the Integrity Commissioner indicated her office would be looking into issues such as whether there should be a lobbyist code of conduct at the provincial level, whether the Integrity Commissioner, as the Registrar, should have investigative or inquiry powers and what tools will best encourage compliance.[17]
In January 2005, Mary Carlson, Director of Policy and Compliance of the British Columbia Office of the Registrar of Lobbyists, noted one of the loopholes with the B.C. Lobbyist Registry is that her office did not have a mandate for actively monitoring lobbying activity and a public complaint was likely the only way inappropriate lobbying would come to light.[18] The legislation was amended in 2009 to provide the Registrar with the authority to conduct investigations, including having the power to compel testimony.[19] In addition to enforcement, Carlson indicated the “biggest loophole is that by the provincial definition, a lobbyist must be paid for his or her efforts.”[20] Changes in 2009 did broaden the definition of lobbying; however, the Act continues to pertain only to individuals who are paid to communicate with a public office holder with intent to influence. Other amendments to the legislation raised new issues from lobbyists. Specifically, concern was raised regarding a new rule that would “prohibit someone from being hired to lobby on an issue on which the person is already providing advice to the government.”[21] According to an advisory bulletin issued by the Office of the Registrar of Lobbyists, this new rule means individuals “must now choose between the roles of paid advisor and lobbyist; they may not be both at the same time on the same subject matter, because holding the two roles simultaneously puts a person in conflict with the Act.”[22]
Quebec is the only Province in which a provincial centralized lobbyist registry system and online services are available at little or no cost to all of its municipalities. The Lobbying Transparency and Ethics Act covers lobbying activities at the provincial and municipal level. The definition of public office holder is what sets the provincial legislation in Quebec apart from those in other provincial jurisdictions in Canada. Under the Lobbying Transparency and Ethics Act, a public office holder is any person responsible for making decisions at the parliamentary, governmental or municipal level including: a government minister, member of the National Assembly, employee of the Government of Quebec or a municipality, mayor, municipal or borough councillor.
The Quebec registry has similar definitions of a lobbyist as the Ontario registry being a consultant lobbyist, an enterprise lobbyist (in-house corporate lobbyist), and an organization lobbyist (in-house organization lobbyist). The registry is overseen by the Lobbyists Registrar who reports directly to the Minister of Justice. The Registrar is responsible for providing the services needed by lobbyists to file their lobbying activities and reviews documentation submitted by lobbyists to ensure all the necessary and appropriate information has been disclosed.
In addition, a Lobbyists Commissioner is appointed by the National Assembly to monitor and control lobbying activities. The Commissioner is independent of the provincial government and may conduct inquiries and investigations if there are reasonable grounds to believe there has been a breach of the Lobbying Transparency and Ethics Act. The Commissioner may impose disciplinary penalties on an individual who is found to have breached the Act or the Lobbyist Code of Conduct. These penalties include a prohibition from registration or a cancellation of entries in the registry concerning the lobbyist. In August 2010, for the first time since the legislation was enacted in 2002, the Commissioner imposed disciplinary sanctions on three people who had lobbied without having registered with the lobbyist registry.
The proposed City of Ottawa Lobbyist Registry includes voluntary lobbyists and a Lobbyist Code of Conduct. Further, an individual who is being paid by the City for advice may not lobby public officials on the same subject matter. It also incorporates a regular review of the Lobbyist Registry and related policies and procedures as part of the governance review process and on an as-needed basis by the Integrity Commissioner.
Municipal Lobbyist Registries and the Legislative Framework for Ontario Municipalities
For municipalities in Ontario, there are very few examples of the regulation of municipal lobbyist activities. In fact, the City of Toronto presently operates the only formal, municipal lobbyist registry in Canada.
Hamilton has had a voluntary registry since June 2004. An individual registers by filling out a Request for Delegation Form including, name, organization, contacts, and reason for delegation request. However, the current online registry has not been updated since December 2009 and only includes one individual.
Surrey, British Columbia adopted a lobbyist registration policy in September 2008. The policy specifically applies to those who lobby City staff and Council in the land use development application process. The policy does not establish different classifications of lobbyist but does exempt certain individuals from the definition of a lobbyist (including public office holders, government officials and employees at the federal, provincial and municipal level and individuals representing various local boards). Lobbyists are required to register their lobbying activity within ten days of an undertaking to lobby. The policy places the onus on lobbyists to register but does not include any penalties for lobbyists who fail to register nor any consequences for staff or Members of Council who interact with unregistered lobbyists. While the registry is available for public viewing, it is only available for in-person review and is not posted online. The City Clerk is responsible for the administration of the lobbyist registry.
Like all other municipalities in Ontario, Ottawa is bound by the rules established for it by the provincial government. While lobbyist registries have existed at the federal level since 1989 and the provincial level since 1999, it has only been in the last five years that they, along with other accountability and transparency mechanisms, have been explicitly permitted within the legislative framework for Ontario municipalities.
Specifically, the 2006 review (Bill 130) of the Municipal Act, 2001 notably added several accountability and integrity measures, some of which were mandatory for municipal councils while others were optional. Under the revised Municipal Act, 2001, Part V.1, entitled “Accountability and Transparency,” sets out the accountability measures and integrity officers that municipal councils have the express authority to employ or appoint. Ontario municipalities have the discretionary authority to adopt a code of conduct and appoint an integrity commissioner, establish a lobbyist registry and appoint a lobbyist registrar, appoint an ombudsman, and appoint a statutory auditor general. These integrity measures were previously considered by Council on November 28, 2007.
It should be noted the accountability and integrity measures in the revised Municipal Act, 2001 are discretionary for all Ontario municipalities except for Toronto. The City of Toronto Act, 2006 requires a mandatory Code of Conduct for elected officials in the City of Toronto, an Integrity Commissioner, a Lobbyist Registry with a Lobbyist Registrar, a Toronto Ombudsman and a statutory Auditor General.
As the only formal municipal Lobbyist Registry, Toronto is an obvious model for other municipalities in Canada to turn to when considering if and how to regulate lobbying in their jurisdiction. However, it is an expensive and complex regime, operating at a cost of over a million dollars a year. In addition, there are questions as to whether or not the Toronto model is either necessary or cost-effective for other municipalities.
Following the enactment of the City of Toronto Act, 2006, Toronto’s online Registry went live in February 2008. The lobbyist control framework in Toronto now requires lobbyists register prior to communicating with public office holders and must register each matter or file on which they intend to lobby. The onus to register rests with the lobbyist.
The definition of a lobbyist in Toronto’s Lobbyist By-law includes three categories of lobbyist: consultant lobbyist, in-house lobbyist, and voluntary unpaid lobbyist. There are exceptions to the definition of lobbyist and generally include government officials, representatives of labour or employee groups and employees for not-for-profit organizations (except those organizations representing a profession, trade, business, industry, for-profit entity, those funded by for-profit entities, those that engage a consultant lobbyist, and where communication involves a grant outside the grant approval or appeal process).
Toronto’s Lobbyist Registry also includes a code of conduct for lobbyists. As part of her recommendations concerning a lobbyist registry, Justice Bellamy recommended a code of conduct for lobbyists to set minimum standards in relation to appropriate behaviour for lobbyists. The code of conduct includes provisions related to: standards of behaviour and honesty; disclosure of identity and purpose; restricted and prohibited activities; confidentiality; and competing interests and improper influence.
Finally, Toronto’s Lobbyist Registry is managed and enforced by a Lobbyist Registrar. The Registrar reports and is directly accountable to City Council (similar to other integrity officials). The Registrar is responsible for:
According to the City’s Office of the Lobbyist Registrar, only one charge has been laid by the Lobbyist Registrar where she had reasonable and probable grounds to believe the lobbyist had failed to provide accurate information to registry staff about the person whom they represented. The charge was later withdrawn when the prosecutor determined there was not a reasonable prospect of conviction. Ultimately, the Lobbyist Registrar permitted the lobbyist to withdraw his registration.
In his report to the Mississauga Judicial Inquiry, former Toronto Integrity Commissioner, Professor David Mullan, offered his perspective about the success of the lobbyist registry in Toronto and the applicability of that model to other municipalities, such as Mississauga. Specifically, he states as follows:
“The City of Toronto’s lobbyist registry appears to have become an integral and efficiently operating part of Toronto’s overall accountability network in just over two years. I say ‘appears’ because my knowledge comes from the Lobbyist Registrar’s Annual Reports for 2008 and 2009, and no other source. I therefore suspect that an assessment of whether the benefits of the regime to the overall transparency and integrity of the conduct of City’s business outweighs the costs of such a regime still awaits a more sustained study as does any assessment of whether it is a model that would be appropriate for any other municipalities in the province, including one the size of Mississauga.”[23]
Ultimately, this view was supported by Justice Douglas Cunningham in his report of the Mississauga Judicial Inquiry. He recommended against establishing a lobbyist registry as follows:
“Given the size of the City of Mississauga and the existence of other measures that can be taken to improve accountability and transparency, the city should not establish a lobbyist registry at this time. In my opinion, it would be premature for the city to create a lobbyist registry. My concern is that it would be a disproportionate response to the issues of accountability and transparency in the circumstances, particularly given the significant costs involved. The financial cost to the City of Toronto for its lobbyist registry has been significant... [and] the effectiveness of the City of Toronto’s lobbyist registry is still unclear.”[24]
That being said, there appears to be an increasing call for transparency at the municipal level, particularly following high-profile judicial inquiries involving the City of Toronto’s computer lease arrangements with MFP Financial Services Ltd. (MFP) and Mississauga Mayor Hazel McCallion`s involvement in matters related to the private business interests of her son, Peter McCallion. The results of these judicial inquiries have informed the direction Ontario municipalities are taking with respect to accountability and transparency initiatives and are discussed briefly below.
Both the discretionary accountability and integrity tools for Ontario municipalities and the mandatory ones for Toronto are directly related to the events that led up to and the recommendations from two City of Toronto judicial inquiries. Therefore, a brief overview of this issue (as well as the events examined in the Mississauga Judicial Inquiry) will help provide context regarding the provincial legislation and Ontario precedents that underpin the forthcoming draft Code of Conduct and the proposed Lobbyist Registry and related policies and procedures recommended in this report.
City of Toronto Judicial Inquiry (two Inquiries, also known collectively as the Bellamy Inquiry or the ‘MFP’ Inquiry)
Section 274 of the Municipal Act, 2001 permits councils to request a judicial review to “investigate any supposed breach of trust or other misconduct of a member of council, an employee of the municipality or a person having a contract with the municipality in relation to the duties or obligations of that person to the municipality.” Toronto’s judicial inquiries arose in 2001, following a Councillor`s questions on what had been considered a routine staff report regarding the procurement of photocopiers and staff`s recommendation to sole-source the contract to MFP. Prior to awarding the photocopier contract to MFP, the City of Toronto undertook a review of its own dealings with MFP. The results of this review led to the Council resolution on February 14, 2002 for a judicial review.
In September 2005, Madam Justice Denise Bellamy delivered her four-volume report to Toronto City Council containing the results of two judicial inquiries. The two judicial inquiries were the Toronto Computer Leasing Inquiry and the Toronto External Contracts Inquiry, collectively known as the “MFP Inquiry” or the “Bellamy Inquiry”. The second Judicial Inquiry was in response to concerns about apparent cost overruns in the City of Toronto’s Information and Technology procurement process. Justice Bellamy made 241 recommendations mostly relating to the broad themes of ethics, governance, lobbying, and procurement (as well as 3 additional recommendations related to Public Inquiries).
As part of the ‘Good Governance’ section of the Toronto Computer Leasing Inquiry, the Executive Resources Group prepared three volumes of research on Lobbyist Registration. The research compared U.S. and Canadian examples of lobbyist registration programs (those in place at the time of the inquiry in November 2003). The three volumes of research were based on a review of documentary resources such as legislation, annual reports and research reports, etc. as well as twenty-nine ‘key informant’ interviews, including current and former public officials in selected jurisdictions, practitioners/lobbyists and ethics advocates. The work of the Executive Resources Group was taken into consideration by Justice Bellamy in making her recommendations to the City of Toronto. In her final report, Justice Bellamy made thirty-two recommendations specifically related to lobbying that are listed in Document 2.
While the MFP Inquiry was concluding its work, Bill 53, the Stronger City of Toronto for a Stronger Ontario Act was adopted on June 12, 2006. It included a number of mandatory accountability and transparency initiatives that were established in response to the issues raised in the MFP Inquiry. As described earlier, the City of Toronto is now required to have a Lobbyist Registry overseen by a Lobbyist Registrar. It is also required to have a Code of Conduct for its Members or Council and appoint an Integrity Commissioner to enforce the Code, an Ombudsman and a statutory Auditor General.
On January 1, 2007, the City of Toronto Act, 2006 came into force. The Act confirmed the Bill 53 amendments as they pertained to integrity, transparency and oversight. Further, it established the position of a mandatory Meetings Investigator to review and make recommendations with respect to complaints about the appropriateness of closed meetings.
These same measures were incorporated in the changes to the Municipal Act, 2001 governing all other Ontario municipalities that came into effect January 1, 2008. The Municipal Act, 2001, Section 223.9 now provides the City with the discretionary authority to establish and maintain a registry of those who lobby public office holders.
City of Mississauga Judicial Inquiry
On November 11, 2009, Mississauga`s City Council requested a judicial inquiry under Section 274 of the Municipal Act, 2001 to investigate issues in connection with the acquisition by the City of Mississauga of approximately 8.5 acres of land in the city centre as well as in connection with the December 2000 Enersource Shareholders Agreement to which the City was a party. Specific issues were raised with respect to Mayor Hazel McCallion`s involvement in these dealings on behalf of the private business interests of her son, Peter McCallion. The Inquiry, led by the Honourable Justice J. Douglas Cunningham, concluded its hearings on February 8, 2011 and issued its report on October 3, 2011.
For the purposes of this report, staff took particular note of both the Inquiry’s report and the two-day expert panel discussion on municipal ethics that occurred on the final hearing days of December 15 and 16, 2010. The expert panel discussion included Professor David Mullan, professor emeritus of law at Queen’s University and the City of Toronto’s Integrity Commissioner from 2004 to 2008; Gregory Levine, former lawyer for the City of Toronto who provided legal advice to the Mayor’s special committee on a code of conduct and the current Integrity Commissioner for Kitchener, Waterloo and West Lincoln; and Dean Lorne Sossin, current Dean of Osgoode Hall Law School. It is apparent that the testimony of these three experts in municipal ethics and a report to the Judicial Inquiry submitted by Professor David Mullan informed Justice Cunningham`s analysis and final recommendations.
Justice Cunningham considered whether a municipal lobbyist registry was appropriate for the City of Mississauga. As noted earlier, he did not support the creation of a lobbyist registry for the City of Mississauga, but did make two recommendations related to lobbying. He recommends the Mississauga Code of Conduct include clear guidelines on how municipal politicians should deal with lobbyists, noting he believes this would serve as a low-cost measure to address concerns about lobbying without establishing a lobbyist registry. He further recommends a Lobbyist Code of Conduct be created to provide clear guidelines on how lobbyists should conduct themselves in dealing with municipal public office holders, and the Lobbyist Code of Conduct be overseen by the City’s Integrity Commissioner who would also be responsible for educating third parties on the Code.
Proposed City of Ottawa Model
The recommendations in this report are based on research and on consideration of the experience, success or lack of success experienced by other governments at all levels. The proposed City of Ottawa Lobbyist Registry has been designed to be accessible, to be easily understood and used by lobbyists and the public and to enhance public trust and accountability. It has been developed to be consistent with the values and the culture of the City of Ottawa and so should not be a hardship for those who must register. It should complement the manner in which business is conducted at the City, not complicate it. In addition, the proposed approach is affordable.
It is important to note the primary goal of the Lobbyist Registry is transparency, and it is only one piece of an entire Accountability Framework that will include a Code of Conduct for Elected Officials, an Integrity Commissioner, a Gifts Registry and a Councillors’ Expense Policy, in addition to the public disclosure of Councillors’ expenses. In this regard, Justice Cunningham made the following observations:
“an effective municipal accountability regime requires a culture of accountability that pervades municipal government. That culture of accountability cannot simply be imposed top-down through legislation; it requires strong leadership from various municipal stakeholders. A balance must be struck that provides consistency, predictability, coherence, fairness, and transparency, as well as sufficient flexibility.”
The proposed Lobbyist Registry will not cover all communications activities with Members of Council and senior staff. In effect, individual citizens will still be able to have private interactions with elected officials and staff on individual issues and cases that are not related to upcoming legislation or are not part of an organized campaign. Similarly, advocacy communications will not have to be registered as these are for the purpose of public education and are not related to specific legislation.
In addition, the proposed Lobbyist Registry will be accompanied by corresponding disclosure and accountability measures for elected officials and their staff, citizen Transit Commissioners and City staff. Some lobbyist registries are criticized for the lack of enforcement of breaches and it can be difficult for governments to effectively sanction those that breach lobbying regulations or the Code of Conduct for Lobbyists. The municipality can, however, effectively sanction its own public officials for their part in a breach if their behaviour towards lobbyists is also regulated and reported. Further, staff believe the ‘dual disclosure’ model being proposed (where both the lobbyist and the lobbied register activity) offers a low-cost way to improve compliance overall.
It should be noted this model is not based on the voluntary registry that was in place in Toronto from 2003 until 2007. In February 2003, Toronto City Council approved the implementation of an interim, voluntary lobbyist registry. The notion was participating councillors would keep a simple register in their office and require all lobbyists who came to meet with them to sign in. At the end of each month, councillors would send a copy of their register to the City Clerk's Office, where it was available for public review.
In practice, a very small number of Members of Council participated, and even fewer on a regular basis. The highest number of Members to participate in a given month was fifteen (of forty-five elected officials). Of the sixty-two months that the voluntary registry was in operation (the current registry went live in February 2008), only twenty-eight of the months had ten or more Members submitting a registry.
The lobbyist registry was also not easily accessible to the public. Only the list of which Members of Council had submitted a registry was posted on the City’s website. The detail of the individual registers submitted to the City Clerk was only available for public viewing by visiting the City Clerk’s Office.
In a paper presented at the 2005 Association of Municipalities of Ontario Annual Conference, Guy Giorno and Andrew Pilliar discussed four explanations for the unsuccessful implementation of Toronto’s voluntary lobbyist registry:
First, some councillors do not support lobbyist registration (on the ground that meeting with the public is part of an elected official’s job) and do not participate in the voluntary system. Second, other councillors do not, on principle, meet with lobbyists, and therefore have nothing to report. Third, some councillors take the position that until there is a formal, binding registry that operates under proper legislative authority, they will not support what they see as a “half measure.” Fourth, some councillors simply have not met with lobbyists during a given month.
For the above-noted reasons, the proposed City of Ottawa Lobbyist Registry will not be voluntary. It will ensure that all organized communications activities with the purpose of influencing decisions at City Hall will be regulated and transparent. It is being designed to be cost-effective and to help “... affect ethical behaviour [as] part of a larger program of ethics policy.”[25] It will be overseen and enforced by an independent Integrity Commissioner, and there will be sanctions for those public office holders and lobbyists that do not comply.
Finally, Mayor Watson has committed to improving accountability and transparency at the City of Ottawa and he was consulted on the recommendations in this report. This is consistent with the Mayor’s statutory role under Section 225(c.1) of the revised Municipal Act, 2001 to provide information and recommendations to the council with respect to the role of council to ensure the accountability and transparency of the operations of the municipality and, as Madame Justice Bellamy noted, “[a] Mayor’s powers may vary by municipality, but the ethical culture of municipal government trickles down from the Mayor’s office regardless of the mayor’s mandated role.”[26]
As indicated, the Lobbyist Registry is only one piece of Council’s Accountability Framework and, like the Code of Conduct, the Gifts Registry and the Expense Policy, it will evolve over time. It will be reviewed and renewed on a regular basis as part of the regular governance reviews.
DISCUSSION
“The fundamental purpose of requiring lobbyists to register is to achieve greater transparency in government decision making and dispel the perception that influence is being brought to bear by private interests unknown to the public…The public has a right to know how decisions are being made and what attempts are being made to influence government decision-makers.” [27]
Madame Justice Denise E. Bellamy
Overview of the Lobbyist Registry
“Rather than waiting for the scandal involving a lobbyist, and then looking for the hammer, why not simply build into the daily practice of engaging in commercial transactions that might touch the city, or city officials, to allow transparency, and a clear set of principles to guide behaviour, and I think that's in the interests of the city, its officials, and in the commercial interests of the third parties involved.”[28]
Dean Lorne Sossin, Dean of Osgoode Law School
It is a responsibility of public officials, those who are elected and those who serve in the administration, to ensure they use their offices to further only the public good and not personal profit or benefit. This tenet is the foundation of ethics rules for both elected officials and civil servants.
All elected officials are accountable directly and only to the public, while City staff are accountable to Council and the public through their management structure. The intent of establishing a lobbyist registry is to provide the public with a level of transparency that does not currently exist. It is not to create a layer of ‘red tape’ for lobbyists or to discourage communication with elected officials and City staff.
The information a lobbyist registry seeks to provide is to identify who is attempting to influence decisions at City Hall and whether there is a monetary or propriety interest motivating these efforts.
Under Section 223.9 of The Municipal Act, 2001, City Council has the power to do the following:
· Define “lobby”;
· Require persons to file returns and provide information;
· Specify the returns and information required as well as the deadlines for submitting same;
· Exempt persons from the requirement to file a return or provide information;
· Specify activities to which a requirement to file a return does not apply;
· Establish a code of conduct for those who lobby public office holders;
· Prohibit former public office holders from lobbying current public office holders for a period defined in the bylaw;
· Impose conditions for registration, continued or renewal of registration;
· Refuse to register a person and suspend or revoke a registration; and
· Prohibit persons who lobby public office holders from receiving payment that is contingent, in whole or in part, on the outcome of lobbying activities.
The City may also establish a Lobbyist Registrar to oversee the lobbyist registry, although staff are proposing that the Integrity Commissioner take on this role, supported as necessary by the Clerk’s Office.
Through their research for the Bellamy Inquiry, the Executive Resources Group identified best practices of lobbyist registration and identified several outcomes expected of lobbyist registries:
The authors suggest the failure for governments to identify the desired outcomes for a lobbyist registry means that the government and various stakeholders (including the public, the media, lobbyists, ethics advocacy groups, etc.) have different expectations of the registry. As the lobbyist registry forms part of the larger, overall accountability framework endorsed by Council, staff have defined the following three outcomes relevant to the recommended model:
The City’s Lobbyist Registry will be focused on providing increased transparency of the lobbyist activities that relate to municipal matters. The primary intent of the registry is not to regulate or moderate behaviour, but rather to account for ethical lobbying, as suggested by Justice Bellamy.
The City’s Lobbyist Registry should enable the public to be informed regarding lobbying activities. The Registry should provide information about who is trying to influence what decisions, who is the focus of the influencing efforts and how often.
Disclosure and transparency are key factors in maintaining public confidence in government.
The proposed Lobbyist Registry for the City is directed at providing the public with more transparent and proactive information.
In addition to clearly identifying potential outcomes of a lobbyist registry, the Executive Resources Group identified two ‘key design best practices’ for lobbyist registries that establish a new, higher standard of disclosure and transparency. The two key design best practices are intended to emphasize the value of identifying the substantive issues that are the focus of the lobbying, and giving the public the tools necessary to hold public office holders accountable for making decisions in the public interest. The two key design best practices are summarized as follows:
1. Disclosure of the general subject of the lobbying is at a high level and does not give the public the information it would need to connect lobbying efforts to actual decisions by public office holders. The intent is to shift the focus from the identity of the lobbyist to the specific matters the lobbyists are attempting to influence.
2. The goal in disclosing which public office holders have been lobbied is meant to complement the disclosure requirements related to the specific subject matter. The intent is to provide the public with the information it would need to evaluate the impact of lobbying efforts on the decisions made by public office holders.
Both of these ‘key design best practices’ have been incorporated in to the recommended model.
Proposed City of Ottawa Lobbyist Registry Model
What is Lobbying?
Generally, lobbying involves communicating with a public office holder in respect of a defined subject matter with the intent to influence and should be distinguished from routine ‘advice seeking’ by members of the public or contacts with staff in conducting official business.
As Justice Bellamy points out, “[l]obbying can be a legitimate way for diverse interests to bring their views before the people who will shape and make decisions.”[29] It is generally accepted that lobbying is a legitimate activity and negative perceptions of lobbying activity relate to a lack of transparency. The federal Lobbying Act sets out four principles that establish the appropriateness of lobbying:
Given lobbying involves communicating with public office holders, it is important to identify what types of communication are considered lobbying. In discussing the former voluntary lobbyist registry in Toronto, Professor David Mullan identified he felt one of the deficiencies in that model was that, “it only applied to meetings in councillors' offices and so meetings on the golf course didn't count for those purposes and -- and that seemed to me to be quite bizarre.”[30]
Lobbying can come in a variety of forms of communication (in-person meeting, telephone call, email, etc.) and in both formal and informal settings (e.g. meetings at City Hall or ward office, conversations at city events, etc.). Staff is recommending a definition of lobbying for the City of Ottawa be broad enough to incorporate a number of communication methods and pertain to instances of lobbying in both formal and informal settings.
The recommended definition for Lobbying is as follows:
“Lobbying” is any communication with a public office holder by someone representing an individual, organization or business with the goal of trying to influence any legislative action including development, introduction, passage, defeat, amendment or repeal of a by-law, motion, resolution or the outcome of a decision on any matter before Council, a Committee of Council, or a Ward Councillor or staff member acting under delegated authority.
These communications can take place at any time, in both a formal and informal setting.
Grassroots lobbying is a form of lobbying that requires an examination all of its own. Grassroots lobbying occurs when lobbying takes the form of a wide-spread appeal to members of the public, either through mass media or direct communication, to communicate with a public office holder in an attempt to influence a decision on a particular matter. Grassroots lobbying can result in mass letter writing and email campaigns, telephone calls to public office holders, and public demonstrations. A grassroots communication campaign is often undertaken over a brief period of time as a quick and influential response to a particular issue.
As grassroots lobbying clearly falls under the definition of lobbying by trying to influence the decision of a public office holder on a specific matter, it is recommended it be included in, and registered with, the Lobbyist Registry. This is particularly important for the model proposed for the City of Ottawa, which is intended to provide the public with a complete picture of all attempts to influence the decision-making process. However, having each individual who lobbies through grassroots communication register as a lobbyist and in turn log their lobbying activity could have a sizeable negative impact on the functionality of the lobbyist registry without, in staff’s opinion, improving transparency. Staff will be recommending a specific process for grassroots lobbying.
The proposed definition of Grassroots Lobbying is as follows:
“Grassroots lobbying” is an organized effort to solicit the public to contact legislators to influence a specific outcome for legislation.
Exemptions to the Definition of Lobbying
Generally speaking, certain communication between stakeholders and public officials is not considered lobbying and will not need to be logged with the Registry as proposed. In effect, these communications take place when the City is requesting feedback from the public or has a process through which stakeholders must communicate with public officials to get information or to conduct business with the City (e.g. apply for a building permit).
Similarly, the definition of lobbying as proposed does not cover residents’ interactions with public officials. For instance, routine contact or seeking assistance from your Ward Councillor (constituency matters) or staff does not need to be logged with the registry. Further, communication restricted to a particular request for information and communication regarding the enforcement of City policies, programs or by-laws are also exempt.
Given the main purpose for the Registry is to provide transparency regarding communications that generally occur in private, forms of lobbying that are part of the public record do not have to be logged with the Registry (e.g. delegations, submissions or petitions to a Committee or Council, comments that form part of the public record of a report to a Committee or Council, etc.).
Another form of communication that is exempted under the City of Toronto Lobbyist Registry is communication with city officials regarding an application for a service, grant, planning approval, permit or other license or permission. Staff has included a similar exemption in the proposed model for Ottawa but note that the exemption only applies to communication that is part of the regular process. Any communication that attempts to modify the regular process, such as requests for extensions or special consideration should be recorded in the Registry.
Planning and Development Applications
Planning-related matters inherently involve a certain level of lobbying. Applicants of planning or development applications, or those representing them, will be advocating for the approval of their respective applications, many of which enhance property values or benefit the applicant in other ways. In some cases, the residents or business community affected may be opposed to a particular application and want to exert some influence to stop or alter the applicant's proposal. However, City staff, applicants and the community need to communicate on planning and development applications as part of regular business, sometimes quite extensively. Much of this communication, while most likely serving monetary interests of a variety of individuals, cannot be separated easily from the regulated application process.
Although Justice Cunningham, in his report on the Mississauga Judicial Inquiry, did not recommend a full lobbyist registry, he did recommend the City of Mississauga adopt a Code of Conduct provision related to lobbying activity, specifically noting such a measure would be beneficial with respect to planning and development matters. Justice Cunningham cited Surrey, British Columbia's lobbyist registry, which is specifically focused on activities related to development issues. The City of Surrey's lobbyist registry is designed to "foster transparency in the lobbying of City staff and Council in the land use development application process.” The only lobbying activity that must be registered is communication with public office holders that relates to a development application for a development permit, a rezoning or an official community plan amendment. The applicant must only register once for each undertaking and is not required to log each communication with public office holders.
The City of Toronto deals with planning and development matters in the opposite way. To begin with, the Office of the Lobbyist Registrar has noted the complexity of the planning and development application process. In response, the Registrar exempted communication on an application with the planning staff assigned to the application from any obligation to report under the lobbyist registry. Specifically, an applicant or their representative may communicate with those planning staff with a role in the processing of a particular planning application during the pre-application consultation, the filing of the application and the application review process without having to register the activity.
While communication with the staff involved in the application approval process is exempt, communication with a Member of Council or a city employee who does not have a role in reviewing the application must be registered with Toronto's Lobbyist Registry.
In comparing the two approaches to planning and development matters, staff suggest the City of Toronto approach makes the most sense for the City of Ottawa. In short, the Surrey lobbyist registry model appears to create some duplication since the development file already includes the name of the applicant and the planner involved with the file and it does not require logging of specific communication on the application. The City of Ottawa's Development Application Search provides the public with a great deal of information on development applications such as the review status and status date. It also provides a direct link to the planner assigned to the application for questions or comments.
Staff recommends the City of Ottawa Lobbyist Registry not include communication that is part of a Council-approved or legislative planning process [i.e. processes mandated by the Planning Act (e.g. zoning), processes initiated by the Official Plan (e.g. the Urban Design Review Panel Process), and other design and approval processes approved by City Council (e.g. the Lansdowne Design Review Panel Process)].
As an example, communication between an applicant (or their representative) and the staff that have a role in the processing of a particular planning application during the formal pre-application consultation, the filing of the application and the application review process is exempt. However, communication outside the normal course of the approval process must be reported. For instance, if an applicant requests to be exempt from a process (e.g. Urban Design Review Panel Process), this communication would have to be registered. Further, the requirement for disclosure for matters outside the standard process applies to all applicants including developers and the organizations within the community.
All communication on a planning matter with Members of Council and/or their staff is not exempt from disclosure and must be reported under the Lobbyist Registry.
With respect to any appeals following Council’s decision (or a decision pursuant to delegated authority) on a planner matter, the Ontario Municipal Board and the Courts expect that the representatives of the parties will be in contact through any process leading to a hearing. Therefore, staff also recommend the City of Ottawa Lobbyist Registry exempt communication between the Legal Representative or agent for an applicant and Legal Services with respect to a planning matter under appeal. However, communication with respect to any such appeals with a Member of Council and/or their staff is not exempt from disclosure and must be reported under the Lobbyist Registry.
Also, all discussion on planning policy matters (e.g. the upcoming review of the Development Charges By-law, consultations regarding Section 37 of the Planning Act related to increased height and density for community benefit, etc.) would not be exempt.
The proposed by-law provision for exempted activities is as follows:
This by-law does not apply to the following activities:
(1) Communication that is a matter of the public record or occurs during a meeting of Council, a Committee of Council or the Transit Commission.
(2) Communication that occurs during a public process such as a public meeting, hearing, consultation, open house or media event held or sponsored by the City or a public office holder or related to an application.
(3) Communication that is restricted to a request for information.
(4) Communication that is restricted to compliments or complaints about a service or program.
(5) Communication with a public office holder by an individual on behalf of an individual, business or organization about:
(a) The enforcement, interpretation or application of any Act or by-law by the public office holder and with respect to the individual, business or organization.
(b) The implementation or administration of any policy, program, directive or guideline by the public office holder and with respect to the individual, business, organization.
(c) A personal matter of the individual, business or organization unless it is communication that is in respect of a matter that falls under the definition of lobbying, that is for the special benefit of the individual, business or organization.
(6) Communication by an applicant, an interested party or their representatives with respect to an application for a service, grant, planning approval, permit or other licence or permission:
(a) With an employee of the City or a Member of Council if the communication is restricted to providing general information on an application, including a proposed or pending application, or to inquire about the application review process.
(b) With an employee of the City if the communication is part of the normal course of the approval process.
(c) With respect to planning and development applications, if the communication is with an employee of the City who has a role in the processing of a planning application during the formal pre-application consultation, the filing of the application and the application review process, including the preparation of development agreements.
(7) Submitting a bid proposal as part of the procurement process and any communication with designated employees of the City as permitted in the procurement policies and procurement documents of the City.
(8) Communication with a public office holder by an individual on behalf of an individual, business or organization in direct response to a written request from the public office holder.
(9) Communication to a Member of Council by a constituent of the Member of Council, or an individual on behalf of a constituent of the Member of Council on a general neighbourhood or public policy issue.
Who is a Lobbyist?
In defining who is a lobbyist, it is important to consider the intent of establishing a lobbyist registry. As noted earlier in this report, staff are suggesting a lobbyist registry ought to be established to provide the public with information on who is lobbying who, on what general issues and with some context in regard to the specific subject matter. These underlying objectives become relevant in how different jurisdictions define who a lobbyist is.
According to research prepared for the MFP Inquiry, U.S. jurisdictions rely on compensation as a key defining component in establishing who is a lobbyist. Along this same line, many jurisdictions establish a minimum threshold of compensation for a lobbyist and below which registration as a lobbyist is not required. The intent is not to disclose all lobbying activity but rather to focus on lobbying activity that involves a certain level of expenditure. For example, the U.S. federal government has set exemption thresholds at $3000 per client for lobbying firms in a quarterly period and $11,500 in total expenses for an organization whose employees are involved in lobbying activities. This emphasis on how much is being spent on lobbying is not found in Canadian models of lobbyist registries. In fact, the authors suggest, “[t]his difference has, at its roots, a fundamentally different public ethic and public policy approach to campaign financing.” As the cost of participating in elections in the U.S. is much higher than compared to Canada, the authors note lobbyists/lobby organizations in the U.S. are believed to play a major role in raising funds for political campaigns.
At the federal and provincial levels in Canada, lobbyists are all defined as paid individuals, though the specifics of compensation are not relevant. Lobbyists are primarily categorized as consultant lobbyists, those who are hired by an organization to provide lobbying services, and in-house lobbyists, who are employed by an organization and whose job responsibilities include a significant amount of lobbying activities. In-house lobbyists are then further divided into two sub-groups: those employed by commercial organizations and those employed by other types of organizations including provincial/industry associations, non-profit organizations, charities, etc. To qualify as an in-house lobbyist, most jurisdictions require an employee who spends a minimum of 20% of their time on lobbying activities to register.
In developing its own lobbyist registry, the City of Toronto expanded the types of lobbyists to include three types of lobbyists: the consultant lobbyist, the in-house lobbyist, and the voluntary, unpaid lobbyist. The three types are specifically identified as follows:
A consultant lobbyist: someone who – for payment – lobbies on behalf of a client (another individual, company, partnership or organization). Additionally, if the consultant lobbyist arranges for a meeting between a public office holder and a third party, that is lobbying.
An in-house lobbyist: an employee, partner or sole proprietor who lobbies on behalf of their own employer, business or organization.
A voluntary unpaid lobbyist: someone who – without payment – lobbies, or causes someone else to lobby, on behalf of a business or organization and has a personal pecuniary or proprietary interest. Additionally, if the voluntary unpaid lobbyist arranges a meeting between a public office holder and a third party, that is lobbying.
The City of Toronto also includes those individuals who lobby on behalf of a business or organization on a voluntary basis. In defining who is a lobbyist, it is also important to recognize that the role of the lobbyist, in terms of possessing knowledge about the legislative and decision making processes of the City, means from time to time the lobbyist may not be directly seeking to influence a particular matter, but rather assisting his or her client or organization in setting up meetings and navigating the process. This is recognized by Toronto’s definitions which require lobbyists to register when their function is to “arrange a meeting between a public office holder and a third party.”
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 not-for-profit organizations, the public will have the opportunity to make a complete assessment of how a decision was potentially influenced in an organized fashion. 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.
The proposed definition of a Lobbyist is as follows:
“Lobbyist” means,
(1) Consultant lobbyist: an individual who lobbies for payment on behalf of a client (another individual, company, partnership or organization). Additionally, if the consultant lobbyist arranges for a meeting between a public office holder and a third party, that is lobbying.
(2) In-house lobbyist: an individual who is an employee, partner or sole proprietor and who lobbies on behalf of their own employer, business or organization.
(3) Voluntary unpaid lobbyist: an individual who lobbies without payment on behalf of a business, organization and not-for-profit organization. Additionally, if the voluntary unpaid lobbyist arranges a meeting between a public office holder and a third party, that is lobbying.
Exemptions to the Definition of a Lobbyist
There are many individuals who communicate with public office holders who are, in most jurisdictions, not considered to be lobbyists. Generally, these individuals are elected or appointed public officials. Canadian jurisdictions are consistent in defining who is not considered a lobbyist when acting in their public capacity, including:
· Members of the Senate or House of Commons of Canada, the legislature of a province or territory, a local or municipal government or their staff;
· Employees of the Government of Canada, a provincial or territorial government, or local or municipal government;
· Members of a the council of a band as defined in Subsection 2 (1) of the Indian Act or of the council of an Indian band established by an Act of Parliament, or their staff;
· Diplomatic agents, consular officers, or official representatives in Canada of foreign governments; or
· Officials of a specialized agency of the United Nations or officials of any other international organization granted privileges and immunities by Parliament.
The proposed by-law provision for exempted persons and organizations is as follows:
This by-law does not apply to the following persons when acting in their public capacity:
(1) Government or public sector, other than the City,
(a) Members of the Senate or House of Commons of Canada, the legislative assembly of a province, the council or legislative assembly of a territory, or persons on the staff of the members;
(b) Members of a First Nation council as defined in the Indian Act or of the council of an Indian band established by an Act of the Parliament of Canada, or persons on the staff of the members;
(c) Employees of the Government of Canada, the government of a province or territory, or a First Nation council;
(d) Members of a council or other statutory body, including a local board, charged with the administration of the civil or municipal affairs of a municipality in Canada other than the City, persons on staff of the members, or officers or employees of the municipality or local board; and
(e) Members of a national or sub-national foreign government, persons on the staff of the members, or officers, employees, diplomatic agents, consular officers or official representatives in Canada of the government.
(2) Without limiting the generality of subsection (1), the following school boards:
(a) Ottawa-Carleton District School Board;
(b) Ottawa Catholic School Board;
(c) Conseil des écoles publiques de l’Est de l’Ontario; and
(d) Conseil des écoles catholiques du Centre-Est
(3) Officials and employees of the City and other municipal bodies :
(a) Public office holders;
(b) Officers, directors or employees of a local board of the City and acting in their public capacity; and
(c) A member of an Advisory Committee, acting in their public capacity and appointed by City Council.
(4) Members, persons on the staff of the members, or officers or employees of provincial or federal crown corporations, crown-controlled corporations or agencies.
Who is Being Lobbied?
A public office holder is an individual who works in the public sector including both elected officials, such as the Mayor or Members of Council, as well as a member of the public administration, being city employees from the City Manager on down to front line staff. With respect to the lobbyist registry, a public office holder is usually an individual who is approached by lobbyists and who generally has a level of final decision-making authority or has the ability to influence decisions. According to research, most Canadian jurisdictions have a similar definition of who is a public office holder. These definitions include: elected officials and their staff, government appointees and employees, including agencies, boards and commissions, and the military/police.
Section 223.1 of the Municipal Act, 2001, provides a basic definition of a public office holder as:
· A member of city council and any person on his or her staff;
· An officer or employee of the City;
· A member of a local board (restricted definition) of the City and any person on his or her staff;
· An officer, director or employee of a local board (restricted definition) of the City; and
· Such other persons as may be determined by city council who are appointed to any office or body by city council or by a local board (restricted definition) of the City.
The recommended definition of a public office holder is based on the definition provided in the Municipal Act, 2001 with some modifications. Staff is also recommending both a broad definition of “public office holder” and a specific definition for “senior public office holder.” The distinction between public office holders and senior public office holders is applicable to the reporting requirements outlined in the next section on registration and compliance.
First and foremost, a public office holder includes Members of Council and their staff. Members of Council are not only part of the decision-making process of City Council as a whole, but individually, Ward Councillors have delegated authority for certain matters (e.g. subdivision agreements and site plan approvals, minor sign variances, etc.). Given their decision-making role as well as the potential influence they yield on other matters, communications between lobbyists and Members of Council are generally the main focus of lobbyist registries. Similarly, communication with the staff of Members of Council must also be disclosed. Councillors’ Assistants and the Mayor’s political staff have direct contact with Members of Council as decision makers and support Members of Council in their role, giving staff the potential to influence the outcome of a matter.
With respect to the Transit Commission, the Commission has final decision-making authority on certain transit-related matters. Therefore, it is recommended the definition of public office holder be specifically extended to include the citizen Transit Commissioners for matters related to their role at the City.
Beyond elected officials and their staff, and citizen Transit Commissioners, the City of Toronto’s Lobbying By-law expands the definition of public office holder to include: a member of the Board of Health and any individual appointed by Council, a Standing Committee or a Community Council under delegated authority, or a local board (restricted definition) to an advisory body to provide advice to Council, the Standing Committee, the Community Council or the local board (restricted definition) or to employees of the City or local board (restricted definition).
At this stage, staff suggests the definition of public office holder not be extended to local boards of the City or members of the City’s advisory committees. Once the lobbyist registry has been in operation for a reasonable period of time and a review of the process has been conducted, it may be that the Integrity Commissioner will feel it is appropriate to recommend extending the definition of public office holder to members of local boards and advisory committees. These individuals, however, will be exempt from registering as lobbyists when communicating with public office holders in their public capacity as a member of a local board or an advisory committee.
Under Part V.1 “Accountability and Transparency” of the Municipal Act, 2001, a board of health, a police services board and a public library board are excluded from the definition of a local board. As such, accountability and transparency measures such as the lobbyist registry do not automatically apply to these entities. Clearly, City Council is authorized to include other persons who are appointed to any office or body by Council such as the Police Services Board, the Board of Health or the Public Library Board. As it was with the Auditor General, staff will work with the respective boards and update the lobbyist registry where these boards seek to be included in the Lobbyist Registry.
Regarding City staff, it is important to note all staff will be considered to be public office holders for the purpose of the Lobbyist Registry. Certain City staff, such as senior management, will be more likely to be the target of unsolicited lobbying. Senior management is generally understood to include members of the Executive Committee (the City Manager, Deputy City Managers, City Treasurer and City Clerk and Solicitor) and the Senior Management Committee (General Managers and Directors). Most senior managers have been authorized to exercise delegated authority with respect to specific matters outlined under the Delegation of Authority By-law. These senior managers have the authority to make final decisions and can be the target of unsolicited lobbying that may attempt to influence their decisions. Senior management also has the role of advising City Council within their respective policy areas and therefore have the potential to significantly influence the outcome of a particular matter. Similar to the manner in which efforts to influence the decisions of elected officials are expected to be disclosed in a lobbyist registry, so too are lobbying efforts involving senior management.
Other City staff below the level of senior management may also be approached by lobbyists and for this reason are included in the definition of public office holder. While the delegated authority of staff below the level of Senior Management Committee might not be to the same degree as senior staff, many other City staff have some amount of influence on decisions being made. This notion is further supported by the fact lobbyists make an effort to communicate with these individuals on particular matters for which they might have influence.
The proposed definition of Public Office Holder is as follows:
Public Office Holders
Public Office Holder means,
(a) A Member of City Council and any person on his or her staff;
(b) A citizen member of the Transit Commission; and,
(c) An officer or employee of the City and specifically includes the following:
(a) The City Manager, the Deputy City Managers, the City Treasurer and the City Clerk and Solicitor;
(b) The City’s Auditor General and Meetings Investigator;
(c) A general manager, director or manager;
(d) A person authorized to act in the place of an official listed in Subsections (a) to (c) by Council or by the City Manager or another official under delegated authority;
(e) Employees in other management positions who are in a position to influence programs and services and have direct contact with Members of Council or the Transit Commission;
(f) Employees who are not in management positions but who are in direct contact with Members of Council or the Transit Commission and whose work for the City includes the following:
i. Advice to Members of Council, to Council or the Transit Commission, including, but not limited to, employees who provide legal, financial, personnel and policy advice; and
ii. Approval or enforcement services, including, but not limited to, employees who provide planning, building, licensing, inspection, grants and purchasing services;
(g) Employees who are in direct contact with Members of Council in the operation of Council, Committees of Council and the Transit Commission; and
(h) Employees who work on municipal elections in a supervisory capacity or who are employed in the Elections Branch of the City Clerk and Solicitor Department.
Senior Public Office Holder means,
(1) A Member of City Council and any person on his or her staff;
(2) A citizen member of the Transit Commission; and
(3) The following officers and employees of the City:
a. The City Manager, the Deputy City Managers, the City Treasurer and the City Clerk and Solicitor; and
b. A general manager or director.
Registration and Compliance
[T]hough it did not work in the City of Toronto quite obviously, I would be much more in favour of at least experimenting with a cheaper form of regulation of lobbying in the form of councillors and the mayor basically publishing regularly a list of people who have lobbied them under whatever definition of lobbying you want to include in your code of conduct, and leave it at that for the moment to see if that works.
Professor David Mullan[31]
The recommended Lobbyist Registry model is unlike that of other models staff has reviewed. In order to develop a low-cost lobbyist registry, staff is recommending a dual disclosure requirement whereby lobbyists and senior public office holders are both required to report lobbying activity. This means, unlike other lobbyist registry systems, Members of Council and the City’s senior management will be required to disclose when they have been lobbied. The dual disclosure requirement is intended to enhance the accountability and transparency of the Registry and serve as an entrenched enforcement mechanism by providing a system of checks and balances.
Requirements for Lobbyists
Prior to undertaking any lobbying activity, lobbyists will be required to register with the Lobbyist Registry and may not communicate with public office holders until registered. A lobbyist must only register prior to lobbying public office holders and is not required to disclose lobbying activity until the activity has taken place.
The specific information required of each specific type of lobbyist will vary somewhat. Generally speaking, lobbyists will be required to provide the following details when registering:
Once a profile has been established, lobbyists will be provided with unique identification and secure access to their registration.
Specific lobbying activity must be disclosed through the lobbyist registry within fifteen business days. Timely disclosure is particularly important at the municipal level as the timing for decision-making is shorter than at other levels of government (i.e. the time between a staff recommendation to a standing committee and a final decision by City Council can sometimes be a matter of days). Staff believes the proposed timelines provide the public with timely and current information regarding lobbying activities while not being overly onerous for lobbyists and senior public office holders.
When logging lobbyist activities, all lobbyists will be asked to identify the general subject matter to which the lobbying related. Subsequently, the user will be required to identify the specific subject matter. As an example, a user might select “Planning and Development” as their general subject and then identify “123 Smith Street Development” as the specific subject matter. Further, consultant lobbyists will be required to identify the client for which they are lobbying.
Furthermore, the City of Toronto incorporates an exemption period for grassroots lobbying. Essentially, a lobbyist must register the intent to lobby through a grassroots lobbying campaign, including the format, time period, and public office holder to be lobbied and a description of the members of public who are the object of the appeal. The Registrar is then authorized to approve an exemption for a period of two weeks. Within that approved period, any person may communicate with public office holders as a direct result of the grassroots campaign and in support of the particular opinion in the grassroots communication without having to register themselves. Following the expiry of the approved period, any person with a pecuniary interest would need to register to communicate on the same subject matter. The Registrar is entitled to make extensions to the exemption period, but not for more than two weeks at a time.
Staff are recommending that the City of Ottawa Lobbyist Registry take the same approach to grassroots lobbying as the City of Toronto by authorizing the Integrity Commissioner to approve an exemption period for a grassroots lobbying campaign prior to the start of that campaign. The organization would be expected to register a grassroots campaign under the standard rules, but individuals participating in the campaign would not have to register for the duration of the exemption period provided by the Integrity Commissioner.
Code of Conduct for Lobbyists
An important component of a Lobbyist Registry is a Code of Conduct for lobbyists. The Code of Conduct provides a standard level of behaviour for lobbyists when conducting lobbying activities.
Both the federal government and the City of Toronto have a Lobbyist Code of Conduct. The Province of Ontario, however, has opted not to establish a code of conduct but may consider one in the future[32]. It is suggested that 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.
As previously noted, while Justice Cunningham did not recommend the establishment of a lobbyist registry for the City of Mississauga, he did suggest a clear and straightforward lobbyist code of conduct could help increase transparency for commercial developers and other third parties that deal with the municipality. Justice Cunningham recommended a Code be established and the Integrity Commissioner be given the responsibility of overseeing the Code and educating third parties of the rules.
A code of conduct for lobbyists has been included in the draft Lobbyist Registry by-law to provide guidance to all lobbyists on the standard of behaviour expected when lobbying public office holders at the City of Ottawa. The proposed Lobbyists’ Code of Conduct requires that lobbyists conduct their activities in an open, honest and transparent manner. Specifically, lobbyists are required to be open and frank regarding their lobbying activities, shall disclose on whose behalf they are lobbying and shall not represent conflicting or competing interests without the written consent of those who interests are involved. Moreover, and in light of the proposed code of conduct provisions for both Members of Council and City staff, lobbyists shall not knowingly place public office holders in a conflict of interest or in breach of a public office holders’ code of conduct.
Finally, the Code of Conduct restricts former City employees from lobbying current public office holders for a period of two years following the conclusion of their employment with the City. This restriction is similar to the manner in which the City’s Re-employment Policy restricts former employees who are in receipt of a severance package from being re-employed with the City until such time as their notice period and/or payment at departure has expired.
The proposed Lobbyists’ Code of Conduct is as follows:
LOBBYISTS’ CODE OF CONDUCT
Lobbyists are expected to comply with the standards of behaviour for lobbyists and the conduct of lobbying activities set out in this Code of Conduct when lobbying public office holders.
1. HONESTY
Lobbyists shall conduct with integrity and honesty all relations with public office holders, clients, employers, the public and other lobbyists.
2. OPENNESS
Lobbyists shall, at all times, be open and frank about their lobbying activities, while respecting confidentiality.
3. DISCLOSURE OF IDENTITY AND PURPOSE
(1) Lobbyists communicating with a public office holder shall disclose the identity of the individual or organization on whose behalf they are acting, as well as the reasons for the communication.
(2) Lobbyists shall register the subject matter of all communication with public office holders that constitutes lobbying under the Lobbyist Registry By-law.
4. INFORMATION AND CONFIDENTIALITY
(1) Lobbyists shall inform their client, employer or organization of the obligations under the Lobbyist Registry By-law and their obligation to adhere to the Lobbyists’ Code of Conduct.
(2) Lobbyists shall provide information that is accurate and factual to public office holders.
(3) Lobbyists shall not knowingly mislead anyone and shall use proper care to avoid doing so inadvertently.
(4) Lobbyists shall not divulge confidential information unless they have obtained the informed consent of their client, employer or organization, or disclosure is required by law.
(5) Lobbyists shall not use any confidential or other insider information obtained in the course of their lobbying activities to the disadvantage of their client, employer or organization.
5. COMPETING INTERESTS
(1) Lobbyists shall not represent conflicting or competing interests without the written consent of those whose interests are involved.
(2) Lobbyists shall advise public office holders that they have informed their clients of any actual, potential or apparent conflict of interest and obtained the informed consent of each client concerned before proceeding or continuing with the undertaking.
(3) Lobbyists shall not lobby public office holders on a subject matter for which they also provide advice to the City.
6. IMPROPER INFLUENCE
(1) Lobbyists shall avoid both the deed and the appearance of impropriety.
(2) Lobbyists shall not knowingly place public office holders in a conflict of interest or in breach of the public office holders’ codes of conduct or standards of behaviour.
7. RESTRICTION ON LOBBYING ACTIVITY
Former employees of the City shall not lobby current public office holders for a period of two years after the date he or she ceases to be employed by the City.
Requirements for Members of Council, their Staff and Citizen Transit Commissioners
As previously noted, Members of Council are defined as public office holders and senior public office holders. As a senior public office holder, Members of Council will be responsible for reporting lobbying activity that involves them.
In addition, as part of the Code of Conduct that staff will be proposing as an additional part of the Accountability Framework, Members of Council will have a responsibility to ensure that those who are lobbying them are aware of their responsibilities to register as a lobbyist. Specifically, it will be expected that Members of Council will not knowingly communicate with a lobbyist who has not registered with the lobbyist registry.
Staff is recommending the following Code of Conduct provision concerning “Conduct Respecting Lobbying” be approved together with the Lobbyist Registry and applied as a practice until the Code of Conduct and the Integrity Commissioner are formally approved and implemented. This provision would also pertain to citizen members of the Transit Commission when acting in their capacity as Commissioners and Members’ staff when acting on behalf of the Member.
Recommended Code of Conduct Provision for Members of Council, their staff and Citizen Transit Commissioners:
Conduct Respecting Lobbying
Members of Council, as public office holders, are routinely approached by various individuals attempting to influence decisions before Council or under the delegated authority of the Ward Councillor. While lobbying is an acceptable practice, disclosure of lobbying activities enhances the transparency and integrity of City business.
In accordance with the City’s Lobbyist Registry, Members of Council are required to routinely disclose instances where they have been lobbied on a particular matter, including the specific matter and date. Regular reviews will be conducted by the Integrity Commissioner to ensure compliance with the Lobbyist Registry.
Further, Members of Council should ensure that individuals who are lobbying them are aware of their requirement to register as required under the requirements of the Lobbyist Registry. Members of Council shall not knowingly communicate with a lobbyist who is acting in violation of the requirements of the Registry. If a Member of Council is or at any time becomes aware that a person is in violation of the rules related to lobbying, the member should either refuse to deal with the lobbyist or, where appropriate, either terminate the communication with the lobbyist at once or, if in the member’s judgment it is appropriate to continue the communication, at the end of the communication, draw that person’s attention to the obligations imposed by the Registry and report the communication to the City Clerk and to the Integrity Commissioner.
Members of Council will be bound by this provision should the draft Code of Conduct be approved by Council and will be accountable for their interactions with lobbyists. Once an Integrity Commissioner is appointed, s/he will be responsible for conducting regular reviews of the Lobbyist Registry to ensure Members of Council are complying with their obligation to report lobbyist undertakings. The Integrity Commissioner will also be responsible for receiving and investigating complaints regarding Members of Council and their conduct respecting lobbyists under the Code of Conduct. In the interim, staff is recommending that any complaints regarding this provision that are submitted in advance of the appointment of an Integrity Commissioner should be directed to the City Clerk and Solicitor.
City Staff who are Senior Public Office Holders
Members of City staff who hold senior positions within the organization are delegated the authority to make final decisions on specific matters as outlined in the Delegation of Authority By-law. Generally, those having delegated authority for approvals at or above the monetary threshold of $50,000 are those at the General Manager and Director level and higher. These senior staff members may also yield influence not only over decisions at their respective levels of delegated authority, but also on decisions before City Council, a Committee of Council (including the Transit Commission) and individual Ward Councillors.
As previously noted, members of city staff who are identified as senior public office holders will be bound by the dual disclosure requirement. City staff from the General Manager/Director level and up will have to disclose all instances where they have been lobbied. The process for logging lobbying activity will be similar to that of lobbyists and all lobbying activity will also have to be disclosed within fifteen business days.
Similar to Members of Council, senior staff are expected to avoid knowingly communicating with a lobbyist who is not registered.
The Employee Code of Conduct presently guides staff on accountability, transparency and how to avoid conflicts of interest. In order to reflect the obligations of senior staff to disclose when they have been lobbied and to avoid communication with unregistered lobbyists, staff recommends the Employee Code of Conduct be amended by adding a specific section on conduct respecting lobbyists.
Other City Staff as Public Office Holders
There are many city staff members whose positions fall below the level of senior management who have some reduced amount of delegated authority or influence on decision-making. Whether it’s through a role in a particular approval process or the provision of advice individually to councillors or senior staff, a Committee of Council or City Council as a whole, these staff may be subject to unsolicited lobbying by interested stakeholders.
Efforts to lobby City staff at all levels shall be logged with the lobbyist registry by the lobbyist as a mandatory requirement. Those staff who are public office holders and feel they have been lobbied shall immediately report the lobbying activity to their supervisor and the senior public office holder through which they report. For instance, those reporting directly to a General Manager or Director shall advise the General Manager or Director as well as their supervisor. In addition, all City staff will be expected to avoid knowingly communicating with an unregistered lobbyist.
Staff recommends the Employee Code of Conduct be amended to reflect the obligation of City staff as public office holders to disclose lobbying to their supervisor and relevant General Manager or Director and to avoid knowingly communicating with a lobbyist who has not registered.
Sanctions and Penalties
In order to control costs and to streamline processes, staff recommends the enforcement of the Lobbyist Registry would initially fall under the authority of an Integrity Commissioner. The appointment of an Integrity Commissioner is to be addressed in a forthcoming report regarding a Code of Conduct for Members of Council.
In contemplating sanctions and penalties for the Lobbyist Registry, staff felt practical and reasonable sanctions should be available to the Integrity Commissioner. At the federal level, the Commissioner of Lobbying recently noted there is a large gap between her role to educate lobbyists regarding minor transgressions and the expensive, time-consuming reports to Parliament required when a formal investigation is undertaken. She has recommended certain matters might fall in the middle of these two extremes and warrant some sort of sanction beyond additional education but not quite deserving of a full-scale investigation.[33]
The Municipal Act, 2001 appears to address this by providing that a municipality may impose certain sanctions as part of a lobbyist registry. 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.
More severe breaches of the Lobbyist Registry or the Lobbyists’ Code of Conduct could warrant a full-scale investigation by the Integrity Commissioner and a report to Council. If, during the course of an investigation, the Integrity Commissioner has reasonable grounds to believe that an offence has been committed under any Act, s/he will be required to refer the matter to the appropriate authority.
Under Section 425 of the Municipal Act, 2001, municipal councils have the authority to deem a contravention of a municipal by-law as an offence. In passing a by-law to establish a lobbyist registry, contraventions of the by-law would be offences under the Provincial Offences Act [Subsection 1(1) - “offence” means an offence under an Act of the Legislature or under a regulation or by-law made under the authority of an Act of the Legislature] and the Integrity Commissioner, as the Lobbyist Registrar, is a provincial offences officer [Subsection 1(1) - “provincial offences officer” means, (e) an officer, employee or agent of any municipality or of any local board of any municipality whose responsibilities include the enforcement of a by-law, an Act or a regulation under an Act, while in the discharge of his or her duties].
Staff recommends the Integrity Commissioner review whether making a contravention of the Lobbyist Registry and/or Lobbyist Code of Conduct as a provincial offence should be included in a future revisions for extreme cases of non-compliance. Staff has not recommended this provision at this time, as it can be costly to pursue a conviction under the by-law and staff believe focussing the enforcement provisions on public office holders is equally effective and much less expensive. Further, the City of Toronto’s Lobbyist Registrar advised that only one such charge has been laid where she felt she had reasonable and probable grounds to believe the lobbyist had failed to provide accurate information to registry staff about the person whom they represented. However, the charge was later withdrawn when the prosecutor determined there was not a reasonable prospect of conviction. Ultimately, the Lobbyist Registrar permitted the lobbyist to withdraw his registration.
For Members of Council, the Council Code of Conduct is expected to set out possible sanctions or penalties for each provision. 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.
Finally, compliance by staff will be covered by amendments to the Employee Code of Conduct. Contraventions of the Employee Code of Conduct are dealt with through the appropriate channels outlined in the corporate policy and procedures regarding discipline of staff. Potential sanctions or penalties include verbal or written reprimand, suspension, and dismissal.
Administration, Oversight and Enforcement
Staff is recommending the oversight and enforcement functions of the Lobbyist Registry and the Lobbyist Code of Conduct fall under the authority of the Integrity Commissioner. The Integrity Commissioner would also be responsible for public education and training on the Registry and related policies. The establishment and appointment of an Integrity Commissioner will be addressed in a separate report regarding a Code of Conduct for Members of Council.
In order to administer the recommended Lobbyist Registry in the most cost-effective manner, staff recommends a model in which City Clerk staff are responsible for the basic administration of the Lobbyist Registry and the Integrity Commissioner (designated as the Lobbyist Registrar), would be responsible for dealing with issues that cannot be resolved at the staff level. Under Part V.1 of the Municipal Act, 2001, the Lobbyist Registrar may delegate any of the powers and duties of the Registrar to any person (other than a Member of Council).
For instance, City Clerk staff would be responsible for monitoring new registrations and lobbying activity entries to ensure that the complete and accurate information is provided. Staff would be responsible for following-up with the relevant lobbyist or public office holder to obtain any outstanding information. If issues cannot be resolved by staff, the matter would be escalated to the Integrity Commissioner for investigation and possible penalty including refusal, suspension or revocation of a registration. Complaints regarding a contravention of the Lobbyist Registry or the Code of Conduct would go straight to the Integrity Commissioner.
Staff is recommending a dynamic, bilingual web-based application for the lobbyist registry and is working with the Information and Technology Services Department to determine the most appropriate solution for the registry. At this point in time, it appears it may be more cost effective and efficient to use an existing solution than to develop an application in-house. Further, in February 2011, staff were directed by a Council motion to fund the Lobbyist Registry out of existing city resources. Once a solution has been identified, staff intends to bring forward a recommendation, with any costs over and above that cannot be accommodated in existing budgets as part of the capital closing report. Staff is targeting the roll-out of the application for end of Q1 2012. This will allow time for training and education for lobbyists and staff and the appointment of an Integrity Commissioner, if approved by Council, in addition to the development of the web-based application.
Should the application not be ready by the time the Lobbyist Registry is implemented, it is recommended that registration and disclosure be accomplished in the same manner as the public disclosure of Members of Council’s office expenses (meaning manually, reported monthly through the Clerk’s office).
In a forthcoming report, staff will be recommending a revamp of the City’s Advisory Committee structure, which would result in fewer committees that would require support from City Clerk’s staff. If approved, it is anticipated the restructuring would free up the necessary personnel resources as well as budget room to accommodate the Accountability Framework.
RURAL IMPLICATIONS
There are no rural implications associated with this report.
CONSULTATION
This report is being tabled at the Governance Renewal Sub-Committee on November 18, 2011 for subsequent consideration at the Sub-Committee’s December 1, 2011 meeting to allow for public review and comment. A further opportunity will be provided at the December 6, 2011 Finance and Economic Development Committee’s consideration of the Governance Renewal Sub-Committee’s recommendations on this report.
Furthermore, as part of this term of Council’s priorities, Mayor Watson has committed to improving accountability and transparency at the City of Ottawa and he was consulted on the recommendations in this report. This is consistent with the Mayor’s role under Section 225(c.1) of the revised Municipal Act, 2001 to provide information and recommendations to the council with respect to the role of council to ensure the accountability and transparency of the operations of the municipality.
LEGAL IMPLICATIONS
There are no legal implications associated with this report.
RISK MANAGEMENT IMPLICATIONS
There are no risk management implications associated with this report.
FINANCIAL IMPLICATIONS
There are no additional financial implications associated with the recommendations in this report.
Accessibility Impacts
There are no accessibility implications associated with this report.
TECHNOLOGICAL IMPLICATIONS
Information and Technology Services has been engaged and staff are working with City Clerk to develop a work plan that ensures ITS can fully support the realization of the City’s Lobbyist Registry.
CITY STRATEGIC PLAN
This report supports the Term of Council Priority related to Governance, Planning and Decision Making (GP1: Improve the public’s confidence in and satisfaction with the way Council works).
SUPPORTING DOCUMENTATION
Document 1 – Draft Lobbyist Registry By-law
Document 2 – Justice Bellamy Recommendations related to Lobbyist Registry
Document 3 – Justice Cunningham Recommendations related to Lobbyist Registry
DISPOSITION
Upon Council approval, the City Clerk and Solicitor Department will continue to work with the ITS Department to implement the Lobbyist Registry solution.
DOCUMENT 1
DRAFT BY-LAW
A by-law of the City of Ottawa to establish a lobbyist registry and establish the position and duties of the Lobbyist Registrar of the City of Ottawa.
The Council of the City of Ottawa enacts as follows:
In this by-law,
(1) “Business Day” means a day when the offices of the City are open during its regular hours of business, other than a Saturday or a Sunday or other holiday.
(2) “Code of Conduct” means the Lobbyists’ Code of Conduct set out in Appendix “A”.
(3) “Communication” means any form of expressive contact and includes oral, written or electronic communication.
(4) “Grass-roots communication” means an organized effort to solicit the public to contact legislators to influence a specific outcome for legislation.
(5) “Lobby” means any communication with a public office holder by someone representing an individual, organization or business with the goal of trying to influence any legislative action including development, introduction, passage, defeat, amendment or repeal of a by-law, motion, resolution or the outcome of a decision on any matter before Council, a Committee of Council, or a Ward Councillor or staff member acting under delegated authority. These communications can take place at any time, in both a formal and informal setting.
(6) “Lobbyist” means,
(a) Consultant lobbyist: an individual who lobbies for payment on behalf of a client (another individual, company, partnership or organization). Additionally, if the consultant lobbyist arranges for a meeting between a public office holder and a third party, that is lobbying.
(b) In-house lobbyist: an individual who is an employee, partner or sole proprietor and who lobbies on behalf of their own employer, business or organization.
(c) Voluntary unpaid lobbyist: an individual who lobbies without payment on behalf of a business, organization and not-for-profit organization. Additionally, if the voluntary unpaid lobbyist arranges a meeting between a public office holder and a third party, that is lobbying.
(7) “Public Office Holder” means
(a) A Member of City Council and any person on his or her staff;
(d) A citizen member of the Transit Commission; and,
(b) An officer or employee of the City and specifically the following:
i. The City Manager, the Deputy City Managers, the City Treasurer and the City Clerk and Solicitor;
ii. The City’s Auditor General and Meetings Investigator;
iii. A general manager, director or manager;
iv. A person authorized to act in the place of an official listed in Subsections (a) to (c) by Council or by the City Manager or another official under delegated authority;
v. Employees in other management positions who are in a position to influence programs and services and have direct contact with Members of Council or the Transit Commission;
vi. Employees who are not in management positions but who are in direct contact with Members of Council or the Transit Commission and whose work for the City includes the following:
· Advice to Members of Council, to Council or the Transit Commission, including, but not limited to, employees who provide legal, financial, personnel and policy advice; and
· Approval or enforcement services, including, but not limited to, employees who provide planning, building, licensing, inspection, grants and purchasing services;
vii. Employees who are in direct contact with Members of Council in the operation of Council, Committees of Council and the Transit Commission; and
viii. Employees who work on municipal elections in a supervisory capacity or who are employed in the Elections Branch of the City Clerk and Solicitor Department.
(8) “Senior Public Office Holder” means,
(a) A Member of City Council and any person on his or her staff;
(b) A citizen member of the Transit Commission; and
(c) The following officers and employees of the City:
i. The City Manager, the Deputy City Managers, the City Treasurer and the City Clerk and Solicitor; and
ii. A general manager or director.
PART I ESTABLISHMENT OF A LOBBYIST REGISTYRY
2. GENERAL
(1) The Lobbyist Registry is established pursuant to Section 223.9 of Part V.1 of the Municipal Act, 2001.
(2) The City Clerk and Solicitor Department shall develop and maintain a registry, under the oversight of the Registrar, in which shall be kept all registrations and returns filed under this by-law.
(3) The registry shall be available for public inspection through electronic, web-based access at all reasonable times.
3. EXEMPTED PERSONS AND ORGANIZATIONS
This by-law does not apply to the following persons when acting in their public capacity:
(1) Government or public sector, other than the City,
(a) Members of the Senate or House of Commons of Canada, the legislative assembly of a province, the council or legislative assembly of a territory, or persons on the staff of the members;
(b) Members of a First Nation council as defined in the Indian Act or of the council of an Indian band established by an Act of the Parliament of Canada, or persons on the staff of the members;
(c) Employees of the Government of Canada, the government of a province or territory, or a First Nation council;
(d) Members of a council or other statutory body, including a local board, charged with the administration of the civil or municipal affairs of a municipality in Canada other than the City, persons on staff of the members, or officers or employees of the municipality or local board; and
(e) Members of a national or sub-national foreign government, persons on the staff of the members, or officers, employees, diplomatic agents, consular officers or official representatives in Canada of the government.
(2) Without limiting the generality of subsection (1), the following school boards:
(a) Ottawa-Carleton District School Board;
(b) Ottawa Catholic School Board;
(c) Conseil des écoles publiques de l’Est de l’Ontario; and
(d) Conseil des écoles catholiques du Centre-Est
(3) Officials and employees of the City and other municipal bodies :
(a) Public office holders;
(b) Officers, directors or employees of a local board of the City and acting in their public capacity; and
(c) A member of an Advisory Committee, acting in their public capacity and appointed by City Council.
4. RESTRICTION OF APPLICATION FOR CERTAIN ACTIVITIES
This by-law does not apply to the following activities:
(1) Communication that is a matter of the public record or occurs during a meeting of Council, a Committee of Council or the Transit Commission.
(2) Communication that occurs during a public process such as a public meeting, hearing, consultation, open house or media event held or sponsored by the City or a public office holder or related to an application.
(3) Communication that is restricted to a request for information.
(4) Communication that is restricted to compliments or complaints about a service or program.
(5) Communication with a public office holder by an individual on behalf of an individual, business or organization about:
(a) The enforcement, interpretation or application of any Act or by-law by the public office holder and with respect to the individual, business or organization.
(b) The implementation or administration of any policy, program, directive or guideline by the public office holder and with respect to the individual, business, organization.
(c) A personal matter of the individual, business or organization unless it is communication that is in respect of a matter that falls under the definition of lobbying, that is for the special benefit of the individual, business or organization.
(6) Communication by an applicant, an interested party or their representatives with respect to an application for a service, grant, planning approval, permit or other licence or permission:
(a) With an employee of the City or a Member of Council if the communication is restricted to providing general information on an application, including a proposed or pending application, or to inquire about the application review process.
(b) With an employee of the City if the communication is part of the normal course of the approval process.
(c) With respect to planning and development applications, if the communication is with an employee of the City who has a role in the processing of a planning application during the formal pre-application consultation, the filing of the application and the application review process, including the preparation of development agreements.
(7) Submitting a bid proposal as part of the procurement process and any communication with designated employees of the City as permitted in the procurement policies and procurement documents of the City.
(8) Communication with a public office holder by an individual on behalf of an individual, business or organization in direct response to a written request from the public office holder.
(9) Communication to a Member of Council by a constituent of the Member of Council, or an individual on behalf of a constituent of the Member of Council on a general neighbourhood or public policy issue.
5. GRASSROOTS EXEMPTION PERIOD
(1) If a lobbyist has registered the intention to lobby a public office holder by means of a grassroots communication, the Integrity Commissioner may approve an exemption period and shall specify the period in writing.
(2) The Integrity Commissioner may approve extensions to the exemption period approved under subsection (1).
(3) Before approving an exemption period under subsection (1) or an extension of an exemption period under subsection (2), the Integrity Commissioner may require additional information on the proposed grassroots communication necessary to provide for additional transparency in the use of this communication technique.
(4) During the exemption period approved under subsection (1) and any extension approved under subsection (2), communications with a public office holder by the members of the public targeted by the grassroots communication do not have to be registered, if the communication is in support of the particular opinion in the grassroots communication and is direct result of the grassroots communication.
(5) Except as provided in subsection (4), a member of the public must comply with the registration requirements of this by-law to communicate with a public office holder on a subject matter, unless the member of the public or the communication is otherwise exempt from the registration requirements.
PART II REGISTRATION AND REPORTING OF LOBBYING ACTIVITY
6. REGISTRATION REQUIREMENT
No personal shall lobby a public office holder without being registered with the Lobbyist Registry unless otherwise exempted in this by-law.
7. CONTINGENCY FEES PROHIBITION
(1) A person, on whose behalf another person undertakes lobbying activities, shall not make a payment for the lobbying activities that is in whole or in part contingent on the successful outcome of any lobbying activities.
(2) A person who lobbies a public office holder shall not receive payment that is in whole or in part contingent on the successful outcome of any lobbying activities.
A senior public office holder shall report all instances where they have been lobbied within fifteen (15) business days of the undertaking.
(1) All lobbyists shall file a return regarding a specific lobbying undertaking within fifteen (15) business days of the undertaking commencing.
(2) Consultant lobbyists shall identify in the return the client for which the lobbying has been undertaken.
(3) Lobbyists shall disclose if they have held a senior position at the City and the date the individual ceased to hold the position.
PART III AUTHORITY OF THE INTEGRITY COMMISSIONER AS REGISTRAR
(1) The City of Ottawa Integrity Commissioner is appointed as the Lobbyist Registrar in accordance with section 223.11 of the Municipal Act, 2001.
(2) If the Office of the Integrity Commissioner is vacant, the City Clerk and Solicitor is authorized to assume the role of Registrar for an interim period.
(1) As the Registrar, the Integrity Commissioner is independent of the City administration.
(2) The Integrity Commissioner shall report to City Council, or to a Committee of council as may be directed by City Council.
12. RESPONSIBILITIES
The Integrity Commissioner is responsible for:
(1) Overseeing the administration of the lobbyist registration system;
(2) Providing advice, opinions and interpretations pertaining to the administration, application and enforcement of this by-law;
(3) Conducting, in private, investigations or inquiries to determine whether contraventions of this by-law have occurred, as permitted under section 223.12 of the Municipal Act, 2001;
(4) Suspending or revoking a registration;
(5) The enforcement of this by-law;
(6) Advising Council on lobbying matters and recommending improvements and amendments to this chapter;
(7) Providing an annual report to Council and any periodic reports and information as the Registrar considers appropriate; and
(8) Performing other duties as may be assigned by Council.
PART IV SANCTIONS AND PENALTIES
(1) The Integrity Commissioner may refuse to accept any registration, return or other document submitted to the Integrity Commissioner under this by-law that does not comply with the requirements of this by-law.
(2) The Integrity Commissioner may suspend any registration for a specified period of time if the Integrity Commissioner finds that the requirements of this by-law have not been met.
(3) If the Integrity Commissioner refuses to accept a return or other document under subsection (1) or suspend registration under subsection (2), the Integrity Commissioner shall inform the individual of the refusal or suspension and the reason for the refusal or suspension in the manner that the Integrity Commissioner determines.
(4) If the Integrity Commissioner refuses or suspends a registration, the Integrity Commissioner shall notify all Senior Public Office Holders and post the refusal or temporary ban on the city’s website.
(1) The Integrity Commissioner may remove a registration or return from the registry if the individual who filed the registration or return if the Integrity Commissioner finds that the lobbyist has not complied with the requirements of this by-law.
(2) When a registration or return is removed from the registry, the individual who filed it shall be deemed, for the purposes of his or her existing and future obligations under this by-law, not to have filed the registration or return.
Pursuant to subsection 223.12(7), should the Integrity Commissioner determine, when conducting an inquiry, that there are reasonable grounds to believe that an individual has contravened any other Act or the Criminal Code (Canada), the Integrity Commissioner shall immediately refer the matter to the appropriate authorities and suspend the inquiry pending the outcome of any resulting police investigation.
Appendix “A”
LOBBYISTS’ CODE OF CONDUCT
Lobbyists are expected to comply with the standards of behaviour for lobbyists and the conduct of lobbying activities set out in this Code of Conduct when lobbying public office holders.
1. HONESTY
Lobbyists shall conduct with integrity and honesty all relations with public office holders, clients, employers, the public and other lobbyists.
2. OPENNESS
Lobbyists shall, at all times, be open and frank about their lobbying activities, while respecting confidentiality.
3. DISCLOSURE OF IDENTITY AND PURPOSE
(1) Lobbyists communicating with a public office holder shall disclose the identity of the individual or organization on whose behalf they are acting, as well as the reasons for the communication.
(2) Lobbyists shall register the subject matter of all communication with public office holders that constitutes lobbying under the Lobbyist Registry By-law.
4. INFORMATION AND CONFIDENTIALITY
(1) Lobbyists shall inform their client, employer or organization of the obligations under the Lobbyist Registry By-law and their obligation to adhere to the Lobbyists’ Code of Conduct.
(2) Lobbyists shall provide information that is accurate and factual to public office holders.
(3) Lobbyists shall not knowingly mislead anyone and shall use proper care to avoid doing so inadvertently.
(4) Lobbyists shall not divulge confidential information unless they have obtained the informed consent of their client, employer or organization, or disclosure is required by law.
(5) Lobbyists shall not use any confidential or other insider information obtained in the course of their lobbying activities to the disadvantage of their client, employer or organization.
5. COMPETING INTERESTS
(1) Lobbyists shall not represent conflicting or competing interests without the written consent of those whose interests are involved.
(2) Lobbyists shall advise public office holders that they have informed their clients of any actual, potential or apparent conflict of interest and obtained the informed consent of each client concerned before proceeding or continuing with the undertaking.
(3) Lobbyists shall not lobby public office holders on a subject matter for which they also provide advice to the City.
6. IMPROPER INFLUENCE
(1) Lobbyists shall avoid both the deed and the appearance of impropriety.
(2) Lobbyists shall not knowingly place public office holders in a conflict of interest or in breach of the public office holders’ codes of conduct or standards of behaviour.
7. RESTRICTION ON LOBBYING ACTIVITY
Former employees of the City shall not lobby current public office holders for a period of two years after the date he or she ceases to be employed by the City.
DOCUMENT 2
Recommendations from the Toronto Computer Leasing Inquiry and Toronto External Contracts Inquiry Related to Lobbying
97. The City should treat lobbying as a potentially helpful practice that should be carefully controlled.
Code of Conduct for Lobbyists
98. The City of Toronto should set out its own code of conduct for lobbyists. That code should set mandatory minimum standards for lobbyists in their dealings with the City. Every lobbyist should agree to be bound by the City’s code of conduct before he or she can begin any lobbying activity.
99. Lobbyists should be held to the highest ethical standards.
100. No lobbyist should ever practise influence peddling. Councillors and staff should not risk compromising their positions by accepting any benefits of any kind from lobbyists.
101. Lobbyists should state clearly whom they are representing and why. They should never misrepresent themselves to the people they are attempting to influence.
102. Lobbyists should not be permitted to work for competing or conflicting interests without the written permission of both.
103. Lobbyists should refrain from placing or proposing to place an elected official or City staff member in a conflict of interest of any sort.
104. Lobbyists should be completely familiar with the City’s ethics, lobbying, and procurement policies and abide by them at all times.
Limitations on Lobbying Activity
105. Lobbyists’ access to councillors and staff should be restricted to regular office hours and locations.
106. Staff reports to Council should list lobbyists who made presentations to staff on the subject matter of the report.
107. There should be no lobbying of any kind at any time during a City procurement process.
108. Legitimate education of decision-makers about the value that a company can offer the City should be considered appropriate; lobbying aimed at influencing the procurement process before it occurs—so that when it occurs, it favours the lobbyist’s client—should be considered inappropriate.
109. Outside of City procurement processes, ethically appropriate lobbying is permitted. However, at no time should lobbying take the form of entertainment or the bestowing of gifts, meals, trips, entertainment, or favours of any kind on staff or councillors.
110. City staff who leave the public service should not be permitted to become lobbyists at the City for at least twelve months after they leave. Former councillors should not be permitted to lobby for twelve months after leaving office.
111. At no time after leaving City positions should former councillors or staff become involved as lobbyists on specific matters on which they worked during their time at the City.
112. Lobbyists dealing with the City should not be permitted to receive contingency fees or any other type of bonus or commission tied to a successful outcome.
113. Professional lobbyists should not engage in any type of political fundraising for candidates or councillors they lobby, beyond making their own donations.
114. City councillors and staff should not under any circumstances endorse or recommend any one specific lobbyist to anyone.
115. The City should maintain a clear distinction between lobbying and charitable events.
Lobbyist Registry
116. The City should establish and maintain a lobbyist registry.
117. The City’s lobbyist registry should cover all who are paid to attempt to influence elected officials or City staff on behalf of others for a specific purpose.
118. No one should be permitted to engage in any lobbying activity at the City without first registering in the lobbyist registry.
119. The following information should be collected in the lobbyist registry.
120. When registering, lobbyists should certify that they have not engaged in political fundraising at the City beyond making their own allowable donations.
121. The City should consider whether councillors and staff should also be required to record basic information on their meetings with lobbyists in the lobbyist registry.
Monitoring, Enforcement, Advice, and Education
122. To oversee the lobbyist registry, the City should have a lobbyist registrar.
123. There should be sanctions for failing to register in the lobbyist registry as required.
124. The lobbyist registrar should prepare an annual report.
125. The lobbyist registrar should have an educational role.
126. The lobbyist registrar should work closely with the integrity commissioner.
127. The lobbyist registry should be readily accessible and user-friendly for both the public and lobbyists.
Periodic Review
128. Lobbying practices, the prevalence of lobbying, and the procurement context in which much lobbying may take place all change over time. Therefore, the City should review lobbying policies comprehensively after three years and then at regular intervals: for example, every five years.
The Honourable Justice Denise E. Bellamy, Report on the Toronto Computer Leasing Inquiry-Toronto External Contracts Inquiry, Volume 4, `Executive Summary`, 2005, Toronto, p. 94.
DOCUMENT 3
Recommendations from the Mississauga Judicial Inquiry Related to Lobbying
The Mississauga Code, should clearly address lobbying. Although I do not recommend that Mississauga create a lobbyist registry because of the expense involved,* the Mississauga Code could be amended to provide guidelines for how municipal politicians should deal with lobbyists, particularly in the context of development issues. I note that Surrey, British Columbia, has adopted such an approach.704 This approach would provide a relatively low-cost measure to address concerns about lobbying and commercial development in the municipality.
Recommendation 22
I recommend that the Mississauga Code be amended to include clear guidelines setting out how municipal politicians may deal with lobbyists.
The Honourable J. Douglas Cunningham, Report of the Mississauga Judicial Inquiry Updating the Ethical Infrastructure, 2011, Mississauga, p. 178.
As noted, I do not recommend that Mississauga create a lobbyist registry because of the expense involved.* However, the creation of a clear and straightforward lobbyist code of conduct could help increase transparency for commercial developers and other third parties that deal with the municipality.715
Recommendation 27
I recommend that Mississauga create a concise lobbyist code of conduct, and that the integrity commissioner be given responsibility for overseeing the lobbyist code and educating third parties about it.
The Honourable J. Douglas Cunningham, Report of the Mississauga Judicial Inquiry Updating the Ethical Infrastructure, 2011, Mississauga, p. 182.
* D. Mullan, Transcript of Expert Panel, December 16, 2010, p. 5950. The associated compliance costs for the municipality and the lobbyists should be limited.
704 G. Levine, Transcript of Expert Panel, December 15, 2010, p. 5641.
715 L. Sossin, Transcript of Expert Panel, December 16, 2010, pp. 5954–55; G. Levine, Transcript of Expert Panel, December 16, 2010, p. 5955.
[1] The Honourable Madame Justice Denise E. Bellamy, Report on the Toronto Computer Leasing Inquiry-Toronto External Contracts Inquiry, Volume 2, `Good Government`, 2005, Toronto, p. 79
[2] The Honourable Madame Justice Denise E. Bellamy, Report on the Toronto Computer Leasing Inquiry-Toronto External Contracts Inquiry, Volume 2, `Good Government`, 2005, Toronto, p. 27.
[3] Rapport Bellamy, Volume II : Good Government (chapitre iv) p. 79
[4] L’honorable juge Denise E. Bellamy, Report on the Toronto Computer Leasing Inquiry – Toronto External Contracts Inquiry, volume 2, Good Government, 2005, Toronto, p. 27.
[5] The Honourable Madame Justice Denise E. Bellamy, Report on the Toronto Computer Leasing Inquiry-Toronto External Contracts Inquiry, Volume 2, `Good Government`, 2005, Toronto, p. 90-91.
[6] City of Toronto website, http://www.toronto.ca/lobbying/basics.htm .
[7] The Honourable Madame Justice Denise E. Bellamy, Report on the Toronto Computer Leasing Inquiry-Toronto External Contracts Inquiry, Volume 2, `Good Government`, 2005, Toronto, (Chapter IV), p. 80.
[8] Evidence of the Standing Committee on Access to Information, Privacy and Ethics. March 23, 2011: 1535
[9] Evidence of the Standing Committee on Access to Information, Privacy and Ethics. March 23, 2011: 1610
[10] Lobbyists’ Code of Conduct, Rule 8 http://www.ocl-cal.gc.ca/eic/site/lobbyist-lobbyiste1.nsf/eng/nx00019.html
[11] Democracy Watch. “Federal lobbying law has huge loopholes that allow for secret, unethical lobbying” http://dwatch.ca/camp/OpEdOct0311.html
[12] Democracy Watch v. Campbell. Federal Court of Appeal: March 12, 2009. http://decisions.fca-caf.gc.ca/en/2009/2009fca79/2009fca79.html
[13] Winnipeg Free Press “Lobbyists want feds to set out clearer rules for what they can and can’t do” http://www.winnipegfreepress.com/canada/breakingnews/lobbyists-want-feds-to-set-out-clearer-rules-for-what-they-can-and-cant-do-132540838.html
[14] Government Relations Institute of Canada. “The Lobbying Act: legislative review. GRIC recommendations” http://gric-irgc.ca//wp-content/uploads/2011/10/111025-GRIC-Presentation-EN.pdf
[15] Canadian Bar Association. “Opinion Respecting the Constitutionality of Rule 8 of the Lobbyists’ Code of Conduct.” http://www.cba.org/cba/submissions/pdf/10-40-eng.pdf
[16] Giorno, Guy. “Taxpayers deserve to know who is influencing government.” http://www.theguardian.pe.ca/Opinion/Letters-to-editor/2011-07-22/article-2669934/-Taxpayers-deserve-to-know-whos-influencing-government/1
[17] Morrison, Lynn. “2010-2011 Annual Report: The Office of the Integrity Commissioner of Ontario” http://www.theguardian.pe.ca/Opinion/Letters-to-editor/2011-07-22/article-2669934/-Taxpayers-deserve-to-know-whos-influencing-government/1
[18] Deveau, Scott. “Do We Really Know Who’s Lobbying.” http://thetyee.ca/News/2005/01/26/DoWeReallyKnowLobbying/
[19] Ministry of Attorney General. “News Release: Lobbyists Registration Act Enhanced, More Accountable.” http://www2.news.gov.bc.ca/news_releases_2009-2013/2009AG0013-000536.htm
[20] Deveau, Scott. “Do We Really Know Who’s Lobbying.” http://thetyee.ca/News/2005/01/26/DoWeReallyKnowLobbying/
[21] Macleod, Andrew. “New Lobbying Rules Stir up a Hall Full of Concerns.” http://thetyee.ca/News/2010/03/12/NewLobbyRules/
[22] Office of the Registrar of Lobbyists. “Contracting Prohibition: Advisory Bulletin.” http://www.lobbyistsregistrar.bc.ca/images/pdfs/New_Contracting_Prohibition.pdf
[23] Mullan, David, “Report to Judicial Inquiry into Matters Involving Mayor of City of Mississauga Appointed Under Section 274 of the Municipal Act, 2001”, November 30, 2010, Kingston, Pg. 18
[24] The Honourable Justice J. Douglas Cunninham, “Updating the Ethical Infrastructure: Report of the Mississauga Judicial Inquiry”, October 3, 2011, Mississauga, p. 165.
[25] The Honourable Madame Justice Denise E. Bellamy, Report on the Toronto Computer Leasing Inquiry-Toronto External Contracts Inquiry, Volume 2, `Good Government`, 2005, Toronto, p. 91.
[26] The Honourable Madame Justice Denise E. Bellamy, Report on the Toronto Computer Leasing Inquiry-Toronto External Contracts Inquiry, Volume 2, `Good Government`, 2005, Toronto, p. 27.
[27] The Honourable Madame Justice Denise E. Bellamy, Report on the Toronto Computer Leasing Inquiry-Toronto External Contracts Inquiry, Volume 2, `Good Government`, 2005, Toronto, p. 90
[28] Mississauga Judicial Inquiry Transcripts (December 15, 2010); 5635: 7-15.
[29] The Honourable Madame Justice Denise E. Bellamy, Report on the Toronto Computer Leasing Inquiry-Toronto External Contracts Inquiry, Volume 2, `Good Government`, 2005, Toronto, p. 80.
[30] Mississauga Judicial Inquiry Transcripts (December 15, 2010) 5640: 8-12
[31] Mississauga Judicial Inquiry Transcripts (December 15, 2010) 5639: 7-16.
[32] Morrison, Lynn. “Office of the Integrity Commissioner of Ontario: Annual Report 2010-2011”. https://lobbyist.oico.on.ca/web-att.nsf/vw/2011/$FILE/AR10-11EN.pdf?OpenElement.
[33] Shepherd, Karen. “Administering the Lobbying Act: Observations and Recommendations Based on the Experience of the Last Five Years”. http://www.ocl-cal.gc.ca/eic/site/lobbyist-lobbyiste1.nsf/vwapj/Administering_LA-eng.pdf/$FILE/Administering_LA-eng.pdf