Lobbyists are "very concerned" about a new interpretation of the Lobbyists Code of Conduct, which states that engaging in "political activities" could be a breach of conflict of interest laws, and it could infringe on their Charter rights, says the head of the association that represents lobbyists.

"Political activity is not defined," said Charles King, president of the Government Relations Institute of Canada. "I agree with the whole premise that you're not supposed to put anyone in a conflict of interest, but being a member of a riding association is political activity. Are you telling me I shouldn't be doing that anymore?"

Mr. King said GRIC is holding a board meeting this week to discuss the interpretation, released Nov. 6.

"This is going to be the No. 1 item that we're going to discuss and we're going to discuss whether we need to seek legal advice to put some clarity to this," he said. "Our members are very concerned."

Rule eight of the Lobbyists' Code of Conduct states 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."

In 2002, then-ethics counsellor Howard Wilson interpreted this to mean that "it is not reasonable to believe that a lobbyist has exercised an improper influence on a minister, placing him or her in a conflict of interest, merely because the lobbyist was assisting the minister in a leadership campaign at the same time that the lobbyist was lobbying the minister's department on behalf of a client. More broadly, I conclude that the mere fact that these two legitimate activities are being pursued by a lobbyist does not, in and of itself, breach the Lobbyists' Code of Conduct."

This interpretation was challenged in the Federal Court of Appeal by Democracy Watch, which ruled that the 2002 advice was "unreasonable."

As a result, on Nov. 6, Lobbying Commissioner Karen Shepherd issued new advice which states that "a lobbyist may be in breach of Rule eight if the lobbyist's actions create a real conflict of interest for a public office holder, or the lobbyist's actions create the appearance of a conflict of interest for a public office holder."

The "guidance" also explained that "real or apparent conflict of interest" includes "the presence of a tension" between the lobbyist and the designated public office holder which could arise from "the provision of a gift, an amount of money, a service, or property without an obligation to repay; the use of property or money that is provided without charge or at less than its commercial value; and political activities."

Several lobbyists told The Hill Times last week that there is no definition for "political activities" and they're worried that it could be interpreted as anything to do with politics, for example, joining a political party, attending a riding association meeting, or stuffing envelopes.

"I can understand about fundraising. Yeah, there probably should be restrictions on lobbyist fundraising for candidates and maybe actively working on the campaigns in a senior position, but any political activity? That means if somebody goes to a riding association meeting or goes to a nomination as a spectator they could fall foul of the code. Well, that doesn't make any sense," said Gord McIntosh, a self-employed lobbyist, who said the rules could be infringing on Charter rights. "It's so vague that they can interpret it in any way they want. I get the impression that there seems to be a mindset that everything's against the rules, we just decide week to week what we're going to enforce or push or how we're going to interpret. I'd be surprised if that stands up in court."

One lobbyist said the Lobbying Commissioner's Office should have directly outlined what a lobbyist could or could not do in terms of political activity. For example, "If you're a lobbyist, you should probably refrain from any cursory political activities. Anything short of that I think is going to cause the same kind of dichotomies and confusion in the Democracy Watch case," the lobbyist said. "Could you carve out volunteering for the riding association in which I live a few hours of week? I don't know if it's worth splitting hairs. I don't know whether it's just better to say none of that stuff. ... There is some room to clarify some of this stuff, but I think we want to do that in the full light of day and not be too restrictive, but make sure the safeguards are there."

Leo Duguay, a lobbyist with the Rothwell Group and former Progressive Conservative MP, said the new guidance issued by the lobbying commissioner is not helpful to government relations practitioners, adding that it could create more problems than it tries to fix. Mr. Duguay said it's not obvious what the problem is to begin with.

"What I see here is the perception of a solution. 'The apprehension of an apparent conflict of interest becomes a conflict of interest.' ... First of all, a conflict of interest is a conflict of interest. It's not apparent, it's not a perception, it is or it isn't and I want to be held to the standard of a conflict of interest, not someone's perception of an apparent conflict of interest," he said.

"If you go back to the basic principles of transparency, honesty or integrity, those are pretty straightforward, and if someone does something to violate those activities, then I would see that as a breech. But I don't think anybody should be submitted to the test of a 'reasonable apprehension of an apparent conflict of interest.' That's not a test. That leaves everybody and their dog open to judging whatever they want to judge. That's not a test."

Pierre Ricard-Desjardins, a spokesperson for the Lobbying Commissioner's Office, said the interpretation was issued as it was in order to "stay flexible and recognize that situations will vary."

Each situation will be assessed on a case-by-case basis because it would be "unfair and way too rigid to have a different approach," Mr. Ricard-Desjardins said. "I think it would be unfair and way too rigid to have a different approach. I think we have to recognize that relations between lobbyists and public office holders may take all sorts of forms and some of them may not constitute at all a conflict of interest. It depends on the circumstances."

Mr. Ricard-Desjardins also noted, however, that "political activities" are defined in explanatory notes found on the commissioner's website.

"The term 'political activities' encompasses a range of tasks from the simple distribution of flyers and posting of signs, to fundraising, or running election campaigns. Some of these activities may be of limited duration, while others may be of a longer, more on-going nature," the website states. "Lobbyists who participate in political activities must ensure that they comply with the disclosure requirements of the [Lobbying] Act in relation to any lobbying activity that could arise before, during or after political activity. In addition, subsection 10.3 of the act states that lobbyists are required to comply with the requirements of the Lobbyists' Code of Conduct."

The guidance also says that "lobbyists should take all necessary measures to avoid any real or apparent conflict of interest involving themselves and their clients, as well as with public office holders with whom they may meet, assist or otherwise communicate resulting from their political activities" but does not say which of the stated activities would constitute a "real or apparent conflict of interest" but rather, "the determination of what constitutes a conflict of interest remains a question of fact in each case. Lobbyists should ensure that their participation in political activities does not cause a tension between the public office holder's duty to serve or protect the public good and his or her private interest or obligation. In particular, lobbyists should ensure that they do not place public office holders in breach of their own code of conduct."

Duff Conacher, coordinator of Democracy Watch, said the interpretation was not too vague because it has a definition of a conflict of interest. In addition, he said, there are other guidelines such as the Elections Act and MPs' and Cabinet ministers' ethics codes which guide which "political activities" lobbyists can engage in without putting decision-makers in a conflict of interest. For example, he said, a lobbyist can still donate up to $1,100 in services, goods, or cash and still be outside of a conflict of interest.

Similarly, if the market rate for stuffing envelopes is $10 an hour, a lobbyist who wants to stuff envelopes should only be able to do so for 110 hours, otherwise they would breach the conflict of interest code and the Elections Act.

"The line will be drawn on a case by case basis, but to say that the guideline itself violates the charter? No," Mr. Conacher said. "It's a reasonable limit [to Charter rights] in a free and democratic society because you do not have a democratic society if you have politicians and government officials making decisions while they're in conflicts of interest. .... [Lobbying Commissioner Karen Shephard] can't draw that line so specifically. She's drawn it specifically enough... It's not so vague that it would be unconstitutional."

Some lobbyists were not convinced, however, saying the new interpretation is still also open to interpretation.

"They should give specific examples. Putting out an interpretation bulletin that I then have to interpret? Thanks for nothing," one lobbyist said, noting that even lobbyists who do pundit work on TV for their respective parties could be interpreted as crossing the conflict of interest line. "What if a minister's in trouble, and the lobbyist gets on TV and bails them out? What's that worth? Well, it could be the minister's career. You don't think they're going to answer the phone if that person calls them?"

Tim Powers, vice-president of Summa Strategies, said it's simply a matter of judgment. "Lobbyists should exercise their judgment and common sense when it comes to political activity. However, I think any sort of strict regulations that could potentially prohibit political involvement could be undemocratic," he said. "Sadly lobbyists are often wrongly used by all parties as symbols of suspicion in our system. In reality, in cases like the sponsorship scandal, those who have acted inappropriately were not lobbyists but advertisers or people in other lines of work."

Mr. McIntosh noted that public servants won the right to be "politically active" and even run for elected office because the courts ruled that not allowing them to do so is a violation of the Charter of Rights. "The government could not stop public servants from joining riding association or working on people's campaigns. Are they trying to say that registered lobbyists have less rights than a civil servant or any other citizen? I don't think you can fool with the Charter like that," he said.

bvongdou@hilltimes.com

The Hill Times