2016 Lobbyists Act Legislative Review. Recommended Amendments to the Alberta Lobbyists Act and the Lobbyists Act General Regulation

Transcription

1 2016 Lobbyists Act Legislative Review Recommended Amendments to the Alberta Lobbyists Act and the Lobbyists Act General Regulation Submitted by the Office of the Ethics Commissioner to the Standing Committee on Resource Stewardship December 1, 2016

2 Table of Contents Executive Summary of Recommended Changes Pages 3 4 A. Recommended Changes to the Lobbyists Act (1) High Priority Recommendations.Pages 5 21 (2) Changes to Improve Administration of the Act.Pages (3) Minor or Technical Changes to the Act..... Pages B. Recommended Changes to the Lobbyists Act General Regulation (1) High Priority Recommendations.....Pages (2) Minor or Technical Changes to the Regulation.Pages

3 Executive Summary of Recommended Changes A. Recommended Changes to the Lobbyists Act (1) High Priority Recommendations (a) Remove 100-hour lobbying threshold for organization lobbyists (Page 5) (b) Change current exemption for non-profit organizations (Page 9) (c) Introduce meeting registry with a requirement for lobbyists to record meetings held in last 30 days with certain public office holders (Page 13) (d) Clarify the definition of lobby by including grassroots communications (Page 14) (e) Reduce frequency of filing and clarify the filing date for organization lobbyists filing renewals (Page 17) (f) Add restriction on gifts from lobbyists (Page 19) (g) Prohibit lobbyists from working on a contingency fee basis (Page 21) (2) Changes to Improve Administration of the Act (a) Clarify requirement for consultant lobbyists to file registrations (Page 22) (b) Define voluntary organization, or remove it from definition of organization (Page 23) (c) Shorten timeline for lobbyists to respond to Registrar s inquiries (Page 24) (d) Provide ability for Registrar to issue interpretative bulletins and advisory opinions (Page 25) (e) Provide Registrar with ability to refuse to accept a return if previously issued administrative penalty is still outstanding (Page 26) (f) Update requirement to report government funding on lobbyist returns (Page 27) (g) Make exemption to lobbying where a request for input is initiated by public office holder more restrictive (Page 28) (h) Replace duplicate definitions of former public office holder in Schedule 1 and 2 with a single definition (Page 29) (i) Add requirement for consultant lobbyists to report the end date of undertaking (Page 30) (j) Make Act reviewable every 7 years instead of every 5 years (Page 32) (3) Minor or Technical Changes to Act (a) Section 4(3) transitional section to be omitted (Page 33) (b) Section 5(3) transitional section to be omitted (Page 33) (c) Section 6(8) transitional section to be omitted (Page 33) (d) Schedule 2, subsection 2(i) correct minor error in provision (Page 34) 3

4 Executive Summary of Recommended Changes (cont d) B. Recommended Changes to the Lobbyists Act General Regulation (1) High Priority Recommendations (a) Include preparation and travel time in time spent lobbying (Page 35) (b) Update list of prescribed Provincial entities in Schedule 1 (Page 37) (c) Update list of exempted entities in Schedule 2 (Page 39) (d) Move certain provisions from Regulation into Act (Page 40) (2) Minor or Technical Changes to Regulation (a) Section 3 correction of minor error in provision (Page 42) 4

5 A. Recommended Changes to the Lobbyists Act Note: Where specific examples of amendments to sections reflecting our recommendations have been provided in this document, these are provided for discussion purposes only, and are subject to review and comment by legislative drafters. (1) High Priority Recommendations (a) Remove 100-hour lobbying threshold for organization lobbyists Relevant Section Section 1(1)(h) provides that: 1(1)(h) organization lobbyist means, subject to subsection (2), an employee, officer or director of an organization who receives a payment for the performance of his or her functions, or a sole proprietor, or a partner in a partnership, (i) (ii) who lobbies or whose duty is to lobby on behalf of the organization at least 100 hours annually, or whose lobbying or duty to lobby on behalf of the organization together with the lobbying or the duty to lobby of other persons in the organization amounts to at least 100 hours annually; Issue Under section 1(1)(h) of the Act, organization lobbyists are not required to register under the Act until they have exceeded 100 hours of lobbying per year (either through one employee, or collectively through multiple employees). Section 2 of the Regulation further specifies that this 100-hour threshold does not include preparation time. In our view, this 100-hour threshold is too high of a threshold, particularly as it does not include preparation time. In practical terms, an organization would need to engage in 100 one-hour meetings in person, or 400 fifteen-minute phone calls, before meeting the threshold to register under the Act. Organizations may therefore engage in a significant amount of lobbying without being required to register under the Act, and it is possible that some may specifically arrange their affairs so that they come close to, but never exceed, this amount of lobbying annually, therefore never triggering the requirement to register under the Act. 5

6 Such a threshold is also difficult for organization lobbyists to monitor, particularly if they have multiple employees from their organizations engaged in lobbying. As a result, despite this threshold, many organization lobbyists choose to register at the outset of engaging in any lobbying activities so they do not have to count hours and risk not registering at the exact time they reach this threshold. The threshold is also impossible for the Registrar to monitor. Although the Registrar may investigate where it is alleged that a lobbyist has exceeded the threshold without filing a registration, investigations are both rare and resourceintensive. The current threshold system is therefore very much based on lobbyists self-monitoring how many hours they spend on lobbying per year. Consultant lobbyists are required to file a registration every time they enter into a new undertaking to lobby on behalf of a client, within 10 days of entering into the undertaking, and there is no minimum threshold. There should be no difference between consultant lobbyists and organizational lobbyists. Entities are either lobbying or they are not. For transparency s sake, if an entity s directors, officers or employees lobby the Government for any amount of time as part of their paid duties, the entity should be required to register. It should be noted that removing the threshold does not affect the current exemptions under the Act, which would still apply. For example, the Act does not apply with regard to communications between a constituent and his or her MLA (unless it is regarding a private bill for the special benefit of that constituent). By removing the 100-hour lobbying threshold, Alberta can be a leader in implementing changes to its legislation to achieve better transparency of lobbying activities in Alberta. Approach in Other Jurisdictions Canada Recent changes to Ontario s Act (July 1, 2016) changed the lobbying threshold to a 50-hour lobbying threshold, requiring organization lobbyists to register if any one or more employees or paid directors of an organization, alone or collectively with all other employees and paid directors, spends 50 hours a year lobbying one or more Ontario public office holders. Previously, the lobbying threshold for organization lobbyists in the Ontario Act was that an employee of a corporation or partnership was required to register if he or she spent 20 per cent or more of his or her time over any three-month period lobbying one or more Ontario public office holders. Newfoundland and Nova Scotia use an approach similar to Ontario s former approach: the thresholds are based on percentage of time spent lobbying. However, Quebec and Canada use a significant part of duties approach. 6

7 Canada has issued an Interpretation Bulletin stating that significant part of duties is considered to be 20% of overall duties. The officer responsible for filing is to estimate the time spent on lobby-related activities, or estimate the proportion of an employee s duties that are related to lobbying activities. To do this they are advised to use one-month periods when doing their estimates to determine whether the threshold is being met. In our view, both the percentage-based and significant duties-based approaches present complexities in interpretation, and serious difficulties in monitoring compliance, particularly with larger organizations. British Columbia, Saskatchewan and Manitoba have a 100-hour threshold, all of which include preparation time. Saskatchewan s additionally includes travel time. Jurisdiction Applicable Lobbying Threshold AB 100 hours annually, not including preparation time. BC 100 hours annually, including preparation time. SK 100 hours annually, including preparation time, time spent communicating with public office holders, and travel time. MB 100 hours annually, including preparation time. ON 50 hours annually for all types of in-house lobbyists, preparation time is not included. QC Threshold: significant part of whose job or function consists in lobbying. To determine if this threshold is met the senior officer must file a declaration upon determining if two tests are met (a qualitative aspects and a quantitative aspects test). NL Threshold: if duties to lobby, by one or more employees, calculated over a 3 month period would equate to 20% of time at work of one full-time employee. NS Threshold: significant part of duties as an employee is to lobby. Significant is defined as 20% of time at work during a 3 month period. NB Threshold: if duties of one employee to lobby constitutes a **not yet in significant part of duties; or if total time lobbying by one or force more employees would constitute a significant part of the duties of one employee as determined in accordance with the FEDERAL ACT United States regulations (there are no regulations as of yet). Threshold: if those duties constitute a significant part of the duties of one employee. Significant is defined in Interpretation Bulletin as 20% of overall duties, and includes preparation time and travel time. It should be noted that many States in the United States do not tie the definition of lobbyist to the amount of hours a person lobbies. Instead, the key 7

8 consideration is whether (and in some cases how much) compensation is received by a person to undertake lobbying activities. The National Conference of State Legislators describes the approach in the United States as follows: The definition of who is a lobbyist usually revolves around compensation. Most states define a lobbyist as someone who receives any amount of compensation or reimbursement to lobby. Among the exceptions are Hawaii, Minnesota and New York. These states stipulate threshold amounts of money and time spent on lobbying, and, if these thresholds are reached, an individual becomes a lobbyist. (at Recommended Amendment If an organization pays one or more employees, officers or directors to engage in any amount of lobbying on behalf of the organization, we recommend that they should be required to register under the Act. There is no cost to register, and with our new system the registration processes and system technology have been improved so it is easy to register. The current 100-hour threshold in our view thwarts the Act s intended purpose of promoting transparency with regard to the lobbying activities currently occurring in Alberta. We therefore recommend that section 1(1)(h) be amended to remove this threshold. 8

9 (b) Change current exemption for non-profit organizations Relevant Sections 3(1) This Act does not apply to any of the following when acting in their official capacity: (i) directors, officers or employees of an organization referred to in section 1(1)(g)(iv) not constituted to serve management, union or professional interests nor having a majority of members that are profit-seeking enterprises or representatives of profit-seeking enterprises; Section 1(1)(g)(iv) states: (g) organization includes any of the following, whether incorporated, unincorporated, a partnership or a sole proprietorship: Issue. (iv) a non-profit organization, association, society, coalition or interest group; Under section 3(1)(i) of the Act, non-profit groups (whether organizations, societies, coalition or interest groups) are only required to register if they are constituted to serve management, union or professional interests or if they have a majority of members that are profit-seeking enterprises or representatives of profit-seeking enterprises. We have encountered numerous situations where non-profit groups that have paid staff engaged in lobbying activities on behalf of the organization (in some cases lobbying being the organization s primary mandate or purpose) are not required to register under the Act because they are exempted under this provision (they do not fall within the particular category of non-profit organization that is required to register under the Act.) We are of the view that the current exemption in section 3(1) is overly complex and would greatly benefit from being clarified and simplified. It also does not provide enough transparency to the public of significant lobbying activities occurring in the non-profit sector. We therefore recommend that the current exemption in section 3(1)(i) be removed and replaced with a simplified exemption applicable only to charitable non-profit organizations. To fall within the category of charitable a non-profit 9

10 organization must be constituted for exclusively charitable purposes and devote its resources to charitable activities that further those purposes. Under this approach, only charitable non-profit organizations that have 4 or less employees or paid directors would be exempt from registering unless those persons lobby or have the duty to lobby, either individually or collectively, for 30 or more hours per year, including preparation and travel time. Therefore, if a charitable non-profit organization has 5 or more employees or paid directors (whether part-time or full-time) who lobby or have the duty to lobby for any amount of time, the organization would not be exempt from registering, and would be subject to the same registration requirements that for-profit organizations are subject to under the Act. Volunteers, as well as directors who do not receive a salary but are only reimbursed for expenses, are not captured under the Act and would not count towards the 5 employee-threshold. Non-profit organizations that do not serve a charitable purpose and have employees or paid directors who lobby or have the duty to lobby for any amount of time would also not be exempt from registering, regardless of how many employees they have. In our view, these amendments would provide a clearer, more simplified, approach for non-profit organizations that better achieves the purposes of the Act in promoting greater transparency, as it ties the requirement for non-profit organizations to register to the activity of lobbying. However, there would still be an exemption for smaller charitable non-profit organizations who engage in some but not a significant amount of lobbying. The registration process itself is not onerous - it is done online using a modern system with new technology, without cost to registrants, and our office is available to assist with questions, or if any problems are encountered by users. Approach in Other Jurisdictions The Saskatchewan, Manitoba and Quebec Acts have the same exemption for non-profit organization as Alberta s Act. However, 6 jurisdictions do not exempt non-profit organizations from registering under their lobbying Acts, including British Columbia, Canada, Ontario, Nova Scotia, New Brunswick (not yet in force) and Newfoundland and Labrador in these jurisdictions non-profit organizations are subject to the same registration requirements as for-profit organizations. Recommended Amendment To reflect this new approach, section 3(1) could be amended as follows: 10

11 3(1) This Act does not apply to any of the following when acting in their official capacity: (i) directors, officers or employees of an organization referred to in section 1(1)(g)(iv) provided that the organization is constituted to serve exclusively charitable purposes and has 4 or less employees or paid directors who work part-time or full-time, unless those employees or paid directors lobby or have the duty to lobby, either individually or collectively with other employees in the organization, for more than 30 hours annually. Consequential Amendments If this change is made, we would also recommend two additional changes be made: (i) Add an exemption to the Act to exclude from the definition of lobby any written applications made by non-profit organizations for grant funding. Subsection (E) of the definition of lobby includes communications to influence the awarding of any grant or financial benefit by or on behalf of the Government or a prescribed Provincial entity. This section may be problematic for non-profit organizations as many of these organizations regularly apply for grants to sustain their organizations. To ensure these are specifically excluded, we recommend that an exemption for written grant applications be added to the definition of lobby. However, other written or oral communications made with a public office holder outside of a written grant application to influence the awarding of such a grant would still be captured under subsection (E) of the definition of lobby. (ii) Expand the payment exemption in section 6(2) of the Act to exempt certain funds received by non-profit organizations. Under section 6 of the Act, no person shall lobby if they hold a contract to provide paid advice to the Government or a prescribed Provincial entity, and no person shall enter into such a contract if they lobby. A contract for paid advice is defined in section 6(1) as an agreement or other arrangement under which a person directly or indirectly receives or is to receive payment for providing advice to the Government or a prescribed Provincial entity. (emphasis added). Under section 6(2) of the Act, payment does not include reasonable remuneration received for services on a board, commission, council or other similar body established by or under the authority of an enactment on which there are at least 2 other members who represent other organizations or interests. If more non-profit organizations are included 11

12 under the Act due to the exemption for non-profit organizations being changed in the Act, we would recommend that section 6(2) also be expanded to exclude from the definition of payment certain funds, including grant funds or such other funds as may be provided by Government or prescribed Provincial entities to a non-profit organization to operate government-related programs, so that such payments are exempt from the contracting prohibition in section 6(2) of the Act. 12

13 (c) Introduce meeting registry with a requirement for lobbyists to report meetings held in last 30 days with certain public office holders Relevant Section There is currently no applicable relevant section. Issue While no other provinces have yet introduced this requirement, under the Canada Lobbying Act, lobbyists are required to file communication reports on the 15 th day of each month to record all meetings held with certain designated public office holders. Requiring that such meetings be regularly reported under the Alberta Act will provide much greater clarity with regard to what specific lobbying activities are occurring with certain public office holders, as lobbyists would be required to report these meetings within 30 days after the meeting date. Our new registry has been built with this meeting registry included as part of the registry. If this amendment is approved, this functionality therefore already exists in the new registry and needs only to be switched on. Recommended Amendment It is our recommendation that the Act be changed to require lobbyists to record in a meeting registry the particulars of the subject matter of the meeting, and the date and attendees of any meetings held for lobbying purposes with certain public office holders, including the Premier, a Minister, a Member of the Legislature, a Deputy Minister, an Assistant Deputy Minister, any political staff in the Premier s or a Minister s office, a Senior Officer of a prescribed Provincial entity, or a Chair of a board, commission or council established by Government. We do not recommend that all meetings with all public office holders be included in the registry. We feel that this would require too many resources for both lobbyists and our office to maintain and monitor and the purposes of such a registry can be achieved by requiring reporting of meetings with senior officers only. Requiring that meetings with senior public office holders as indicated above to be reported will be significant progress towards achieving the Act s objective of transparency. 13

14 (d) Clarify the definition of lobby by including grassroots communications Relevant Sections Lobby is defined in s.1(1)(f) of the Act as: (i) in relation to a either a consultant lobbyist or an organization lobbyist, to communicate with a public office holder in an attempt to influence (A) the development of any legislative proposal by the Government or a prescribed Provincial entity or by a Member of the Legislative Assembly, (B) the introduction of any bill or resolution in the Legislative Assembly or the amendment, passage or defeat of any bill or resolution that is before the Legislative Assembly, (C) the development or the enactment of any regulation or any order in council, (D) the development, establishment, amendment or termination of any program, policy, directive or guideline of the Government or a prescribed Provincial entity (E) the awarding of any grant or financial benefit by or on behalf of the Government or a prescribed Provincial entity, (F) a decision by the Executive Council or a member of the Executive Council to transfer from the Crown for consideration all or part of, or any interest in or asset of, any business, enterprise or institution that provides goods or services to the Crown or a prescribed Provincial entity or to the public, or (G) a decision by the Executive Council or a member of the Executive Council to have the private sector instead of the Crown provide goods or services to the Government, and (ii) only in relation to a consultant lobbyist, (A) to arrange a meeting between a public office holder and any other individual, or (B) to communicate with a public office holder in an attempt to influence the awarding of any contract by or on behalf of the Government or a prescribed Provincial entity; Grassroots communication is defined in s.1(1)(e) of the Act as follows: 1(1) (e) grassroots communication means appeals to members of the public through the mass media or by direct communication that seek to persuade members of the public to communicate 14

15 directly with a public office holder in an attempt to place pressure on the public office holder to endorse a particular opinion. Schedule 1, s.2(q) and Schedule 2, s.2(p) are the only sections of the Act which currently refer to grassroots communications: Schedule 1, section 2(q) Consultant Lobbyist Return 2. The designated filer shall set out in the return for the purpose of section 5 the following information: (q) the techniques of communication, including grassroots communication, that a consultant lobbyist named in the return has used or expects to use to lobby; Schedule 2, section 2(p) Organization Lobbyist Return 2. The designated filer shall set out in the return for the purpose of section 5 the following information: (p) the techniques of communication, including grassroots communication, that any organization lobbyist named in the return has used to lobby during the period for which the return is filed or expects to use to lobby during the next 6- month period; Issue As noted above, the term grassroots communication is only referred to in the section of the Act addressing reporting requirements for returns if lobbyists engage in grassroots communication, they are required to report it as a technique of communication on their returns. Nova Scotia is currently the only jurisdiction to specifically include grassroots communication in their definition of lobby, defining lobby as to communicate with a public office holder, directly or through grassroots communication, in an attempt to influence. The Federal Act, and the Acts of Newfoundland and Labrador, Nova Scotia, Ontario, and Saskatchewan also reference grassroots communication in their Acts, but as with Alberta s Act, it is included as a type of reportable communication, instead of being included directly in the definition of lobby. 15

16 The inclusion of grassroots communication as a reportable technique of communication without directly including it within the definition of lobby has created both confusion and ambiguity for those jurisdictions that have Acts that take this approach. To address this ambiguity, some jurisdictions, including Canada and Ontario, have issued interpretation bulletins to clarify that engaging in grassroots communications is considered to be lobbying, and is not just a technique of communication. On May 4, 2016 the Alberta Ethics Commissioner issued a decision with regard to Robin Campbell which analyzed the wording of the Act, and found that it is implicit in the Alberta Lobbyists Act that communicating with a public officer indirectly through a grassroots communications campaign in an attempt to influence certain matters as set out in the Act is lobbying for the purposes of the Act, and is more than just a technique of communication. Recommended Amendment We recommend that the definition of lobby be amended to add similar wording to Nova Scotia s Act, which specifically includes grassroots communication in the definition of lobby. This will remove any ambiguity with regard to whether engaging in grassroots communication is lobbying under the Act. 16

17 (e) Reduce frequency of filing and clarify filing date for organization lobbyists filing renewals Relevant Section Section 5(1)(b): Issue Duty to file return: organization lobbyist 5(1) The designated filer of an organization that has an organization lobbyist shall file with the Registrar a return in the prescribed form and containing the information required in Schedule 2 (a) within 2 months after the day on which an individual in that organization becomes an organization lobbyist, and (b) within 30 days after the expiration of each 6-month period after the date of filing the previous return. (emphasis added) There are 2 issues with this section for which we would like to recommend changes. The first issue is the frequency of filing semi-annual returns. Currently, organization lobbyists are required to file semi-annual returns to update their registration every six months. Our office then reviews and approves these registrations, and they are posted online. In their returns, the lobbyists need to report on their lobbying activities for the past 6 months, and their intended lobbying activities for the next 6 months. Lobbyists are also required to update their registration in between filing semi-annuals renewals within 30 days of the information in the return changing. We have found that in the vast majority of cases, the activities reported for the past 6 months and next 6 months are identical. The majority of lobbyists activities do not change significantly for each six-month period. However, many resources are spent by both lobbyists and our office alike filing and processing returns every 6 months. After careful consideration, we are of the view that requiring organization lobbyists to file only one annual return upon the anniversary date of their initial filing date, but retaining the requirement that Notices of Change be filed within 30 days of a change occurring, will achieve the same result of transparency with less resources spent by all stakeholders involved, particularly if a requirement to report monthly meetings with certain public office holder is introduced. The Notices of Change will continue to ensure that the registrations are kept up to date between annual filings. 17

18 Quebec also takes this approach, as it requires in-house lobbyists to file returns only once annually, within 60 days of the organization s financial year-end. The second issue we have encountered is that the current requirement that a return be filed within 30 days after the expiration of each 6-month period after the date of filing the previous return creates confusion for lobbyists at times, as the next filing date will change if a return is filed early (which most are), as it is based on the filing date of the previous return. It is effectively, a rolling date, based on the wording of this section. To provide some stability for organization lobbyists with respect to their semiannual renewal dates, our current practice, and computer system, is set up so that organization lobbyists have 2 set semi-annual renewal dates per year, which are set at the outset based on the date of their initial filing. This prevents the semi-annual due dates for the return from constantly changing depending on the date the previous return was filed. Lobbyists have appreciated this consistency as it is easier for them to monitor their semi-annual filing due dates. Whether or not the frequency of filing returns is changed from every 6 months to every year, we would recommend that the timing for filing be changed so that is calculated from the date of filing of the initial return, rather than from the filing date of the previous return. Recommended Amendment We accordingly recommend that section 5(1) be amended to require that returns only be filed annually, and to provide stability to the return due dates, as follows: Duty to file return: organization lobbyist 5(1)The designated filer of an organization that has an organization lobbyist shall file with the Registrar a return in the prescribed form and containing the information required in Schedule 2 (a) (b) within 2 months after the day on which an individual in that organization becomes an organization lobbyist, and on or before each anniversary date of filing the initial return. 18

19 (f) Add restriction on gifts from lobbyists Relevant Section There is currently no applicable relevant section. Issue In our recent recommendations to the Special Select Committee with regard to amendments to the Conflicts of Interest Act, we suggested that MLAs, deputy ministers, members of the Premier s or a Minister s staff and designated office holders not be allowed to accept gifts from lobbyists totalling more than $100 per year. We are recommending a similar provision be added to the Lobbyists Act to restrict a lobbyist from offering a gift of more than $100 to one of these public office holders. Newfoundland is currently the only province that has specifically restricted gifts from lobbyists in its lobbying legislation (section 22 of the Lobbyist Registration Act). The Federal Conflicts of Interest Commissioner has recently limited certain public officer holders from accepting gifts from lobbyists in an interpretation bulletin. There is no dollar limit to this restriction but only light refreshments are allowed. Recommended Amendment We are recommending that an actual monetary limit to gifts from organizations or individuals engaged in lobbying activities be stated in the Act so there is absolute certainty on this issue. Setting a limit of $100 per year would prohibit lobbyists from offering high-value gifts but still allow various industry associations to host information sessions for MLAs. While this amendment mirrors our recommendations to the Conflicts of Interest Act, it is also a stronger approach than only amending the Conflicts of Interest Act, as it places the restriction directly on lobbyists, who must be in compliance with the Lobbyists Act (in contrast with the Conflicts of Interest Act, which places the onus on the public office holder to not accept such a gift). An exception would have to be made for registered charities (registered with the Canada Revenue Agency) that wish to invite these public officer holders to events. We therefore recommend that a new provision be added to the Lobbyists Act to prohibit organization lobbyists, consultant lobbyists, clients of consultant lobbyists, or employees, directors or officers of an organization that employs one or more organization lobbyists from offering a fee, gift or other non- 19

20 monetary benefit, aside from reasonable hospitality not exceeding $100, to any of the following public office holders: (a) (b) (c) (d) a member of the Legislative Assembly, a deputy minister, a member of the premier s or a ministers staff, and designated office holders as defined in section 25.2 of the Public Service Act unless the organization or person engaged in lobbying activities is a charitable organization registered with the Canada Revenue Agency or employed by a charitable organization registered with the Canada Revenue Agency. 20

21 (g) Prohibit lobbyists from working on a contingency fee basis Relevant Section: Schedule 1, section 2(k): Consultant Lobbyist Return 2 The designated filer shall set out in the return for the purpose of section 4 of this Act the following with respect to the undertaking:. (k) if applicable, whether the payment to the consultant lobbyist is, in whole or in part, contingent on the degree of success in lobbying as describe in section 1(1(f) of this Act; Issue If consultant lobbyists work on the basis that they are not paid unless their efforts at lobbying provide the results the client is seeking from the Government, they are currently required to report this in their return under schedule 1, section 2(k) of the Act. However, we feel that consultant lobbyists should be facilitators and not have remuneration attached to success with the Government. The Federal Government and Nova Scotia have already taken this approach. Section 5(2)(g) of the Federal Lobbying Act requires that consultant lobbyists report in their returns the fact that the undertaking does not provide for any payment that is in whole or in part contingent on the outcome of any matter described in subparagraphs (1)(a)(i) to (vi) or on the individual s success in arranging a meeting referred to in paragraph (1)(b) (emphasis added). Section 5A of the Nova Scotia Lobbyists Registration Act states that a consultant lobbyist shall not receive any payment that is, in whole or in part, contingent on the consultant lobbyist's degree of success in lobbying and also prohibits clients of lobbyists from making a such a payment to a lobbyist (under section 5A(2)). Recommended Amendment Consultant lobbyists should not in our view be permitted to accept clients on a contingency fee basis, and a provision should be added to the Act to disallow it. 21

22 (2) Changes to Improve Administration of the Act (a) Clarify requirement for consultant lobbyists to file registrations Relevant Section: Section 4(1): Duty to file return: consultant lobbyist 4(1) The designated filer in respect of an undertaking entered into by a consultant lobbyist shall file with the Registrar a return in the prescribed form and containing the information required in Schedule 1 with respect to the undertaking not later than 10 days after entering into the undertaking. Undertaking is defined in section 1(1)(n) as follows: Issue s.1(1)(n): undertaking means, with respect to a consultant lobbyist, an undertaking to lobby on behalf of a client. We have interpreted section 4(1), in conjunction with the definition of undertaking in the Act, to mean that a consultant lobbyist must file a return within 10 days of agreeing to lobby on behalf of a client, regardless of whether or not that lobbying has occurred yet. This has been accepted and is commonly understood by registered consultant lobbyists in Alberta. However, we continue to receive calls on this issue for those who are new to our registry and are unclear whether the 10 days extends from the time they enter into the agreement with a client, or from the date they engage in the lobbying activities. Recommended Amendment To clarify section 4 (1) of the Act in terms of whether or not they are required to file a return but have not yet engaged in any lobbying activities, we recommend that section 4(1) of the Act be amended to clarify that a consultant lobbyist is required to file a return not later than 10 days after entering into the undertaking whether or not the lobbying activity has occurred. 22

23 (b) Define voluntary organization, or remove it from definition of organization in Act Relevant Sections Section 1(1)(g) defines organization as including a voluntary organization (in subsection (i)) and also as including a non-profit organization, association, society, coalition or interest group (in subsection (iv)): Issue s.1.(1)(g) organization includes any of the following, whether incorporated, unincorporated, a partnership or a sole proprietorship: (i) a business, trade, industry, enterprise, professional or voluntary organization or institution; (emphasis added) *** (iv) a non-profit organization, association, society, coalition or interest group; As voluntary organization is not defined in the Act, it is not clear what a voluntary organization is. For example, is it an organization that only has volunteers, and no paid staff? If an organization has mainly volunteers but some paid staff, does it fall within this category? In our view, the specific reference to voluntary organization in section 1(1)(g)(i) creates confusion as it is not clear what organizations this term will specifically capture. It also appears to be redundant given that an organization that is voluntary in nature would also be a non-profit organization, which are already included in subsection (iv) of the definition of organization. Recommended Amendment As the term voluntary organization is not clearly defined, and appears to be a redundant addition to section 1(1(g)(iv) of the Act, we recommend it either be clearly defined, or removed from this subsection of the Act. 23

24 (c) Shorten timeline for lobbyists to respond to Registrar s inquiries Relevant Section Issue Subsequent Filings s.10 (1) A designated filer who files a return under section 4 or 5 shall provide the Registrar with the following information within the applicable period: *** (c) any information requested by the Registrar to clarify any information provided by the designated filer under this section, within 30 days after the request is made. The above 30 day timeline for lobbyists to respond to the Registrar s inquires is in our view too long of a period of time for lobbyists to respond to inquiries. In the majority of our correspondence we have been requesting that the inquiry be addressed within 7 days, depending on the nature of the issue, and the vast majority of lobbyists comply with this request. With consultant lobbyists for example, they are required to file their initial registration for new clients within 10 days of entering into an undertaking with the client. If there is an issue with their registration that our office corresponds with them about, under this section of Act it could be as long as 40 days past the start of the undertaking before they are even required to respond to the inquiry, and a response alone does not necessarily equate to a resolution of the issue. In our view, this section should be changed so that lobbyists are required to respond to the Registrar s inquiries within 10 days after the request is made. However, the Registrar would have the ability to extend this deadline if the circumstances warrant. Recommended Amendment We recommend that section 10(1) of the Act be amended as follows: Subsequent Filings s.10 (1) A designated filer who files a return under section 4 or 5 shall provide the Registrar with the following information within the applicable period: *** (c) any information requested by the Registrar to clarify any information provided by the designated filer under this section, within 10 days after the request is made unless the Registrar provides an extension to the designated filer in writing. 24

25 (d) Provide ability for both the Ethics Commissioner and Registrar to issue interpretative bulletins and advisory opinions Relevant Section Advisory opinions and interpretation bulletins 14(1) The Ethics Commissioner may issue advisory opinions and interpretation bulletins with respect to the enforcement, interpretation or application of this Act or the regulations under this Act. Issue (2) Advisory opinions and interpretation bulletins issued under subsection (1) are not binding. The Registrar currently does not have the ability to issue formal advisory opinions or interpretation bulletins under the Act. However, the Registrar regularly provides advice and opinions on interpretation of the Act to lobbyists as part of the Registrar s duties. As an administrative matter, it is recommended that the Registrar be provided with authority to issue advisory opinions and interpretation bulletins. Recommended Amendment We would recommend that section 14 be amended to provide the Registrar with authority to also issue advisory opinions and interpretation bulletins in addition to the Ethics Commissioner. 25

26 (e) Provide Registrar with ability to refuse to accept a return if previously issued administrative penalty is still outstanding Relevant Section Issue Registrar s.11(6) The Registrar may (a) verify the information contained in the return filed or other document submitted under the Act, (b) subject to subsection (7), refuse to accept a return or other document that does not comply with the requirements of this Act or the regulations or that contains information not required to be provided or disclosed under this Act, and (c) remove a return from the registry if the designated filer who filed the return does not comply with section 10(1)(c). Lobbyists who lobby without filing a return being filed are guilty of an offence under section 19(2) of the Act. Although the Registrar may refuse to accept a return that does not comply with the Act, or remove a return if a lobbyist does not respond to a request for information by the Registrar under s.10(1)(c), there is currently no clear authority for the Registrar to refuse to accept a return where the designated filer has not paid an administrative penalty previously imposed by the Registrar. Recommended Amendment We would recommend that another subsection be added under section 11(6) to provide the Registrar with clear authority to refuse to accept a return where the designated filer has not paid an administrative penalty previously imposed by the Registrar under the Act. 26

27 (f) Update requirement to report government funding on lobbyist returns Relevant Sections Schedule 1 - Consultant Lobbyist Return 2 The designated filer shall set out in the return for the purpose of section 4 of this Act the following with respect to the undertaking: (m) the name of any government or government agency that funds the client, in whole or in part, and the amount of the funding; Schedule 2 - Organization Lobbyist Return 2 The designated filer shall set out in the return for the purpose of section 5 the following information: (l) the name of any government or government agency that funds the organization, in whole or in part, and the amount of the funding; Issue The above sections require that consultant lobbyists report government funding received by their client, and that organization lobbyists report government funding received by their organization. However, there is no time period specified for which the funding must be reported. This has created some confusion for lobbyists and we periodically receive questions on this issue. Recommended Amendment We recommend that the above 2 sections be amended to require that any government funding received by the client of a consultant lobbyist, or by an organization lobbyist in the 12 months prior to filing a return, should be reported on returns to provide clarity for lobbyists on this issue. Any changes to funding would still need to be reported as a change in the registration within 30 days after the change occurs under section 10(1)(a) of the Act. 27

28 (g) Make exemption to lobbying where request for input is initiated by public office holder more restrictive Relevant Section Section 3(2)(c): Issue 3(2) This Act does not apply in respect of a submission made in any manner as follows:. (c) to a public officer holder by an individual on behalf of a person or organization in response to a request initiated by a public office holder for advice or comment on any matter referred to in section 1(1)(f)(i); The above exemption in the Act, which exempts from application of the Act any submission made in response to a request for advice or comment initiated by a public officer holder, is in our view too broadly worded. Recommended Amendment We recommend that this exemption be narrowed to limit and clarify which communications are exempted from the Act under this section. In our view, communications exempt under this section should be limited to situations where a public officer holder has initiated a written request for advice or comment on a specific matter or issue that falls within the categories of matters within section 1(1)(f)(i); and a person has responded directly to the public officer holder on that particular matter or issue. For additional clarity, the following communications would be captured under this exemption: A posting by a department or a prescribed Provincial entity (PPE) on its website for input from the general public on a matter would fall within the category of written request, whether or not a specific public officer holder is identified at the author of the posting. A direct response to a written request initiated by a public office holder would include not only written communications made directly to that public office holder (eg. by letter/fax/ ) but also responses provided by a person directly through that government or PPE website in response to a posting by that department or PPE on its website. These amendments in our view will provide some limitations as well as additional clarity on what requests initiated by public office holder are exempt from application of the Act under this section. 28

29 (h) Replace duplicate definitions of former public office holder in Schedule 1 and 2 with a single definition Relevant Sections Issue Schedule 1 - Consultant Lobbyist Return 1(3) For the purpose of section 2(l) of this Schedule, former public office holder means (a) a former member of the Executive Council, (b) a former member of the Premier s and Ministers staff as defined in the Conflicts of Interest Act, (c) any individual who formerly occupied a prescribed position with a prescribed Provincial entity, (d) a former designated office holder as defined in Part 2 of the Public Service Act, and (e) any individual who (i) formerly occupied a senior executive position in a department, whether by the title of chief executive officer or some other title, or (ii)formerly occupied the position of assistant deputy minister or occupied a position of comparable rank in a department. Schedule 2 - Organization Lobbyist Return 1(2) For the purpose of section 2(k) of this Schedule, former public office holder means (a) a former member of the Executive Council, (b) a former member of the Premier s and Ministers staff as defined in the Conflicts of Interest Act, (c) a former designated office holder as defined in Part 2 of the Public Service Act, (d) any individual who formerly occupied a prescribed position with a prescribed Provincial entity, and (e) any individual who (i) formerly occupied a senior executive position in a department, whether by the title of chief executive officer or some other title, or (ii)formerly occupied the position of assistant deputy minister or occupied a position of comparable rank in a department. The two definitions above are identical, expect that the order of subsection (c) and (d) is reversed. Recommended Amendment It is recommended that these duplicate provisions be removed, and replaced with a single definition in the Interpretation part of the Act. 29

30 (i) Add requirement for consultant lobbyists to report the end date of undertaking Relevant Sections Schedule 1 - Consultant Lobbyist Return 2 The designated filer shall set out in the return for the purpose of section 4 of this Act the following with respect to the undertaking: *** (e) The date the undertaking was entered into; Subsequent Filings 10(2) Within 30 days after the completion or termination of an undertaking for which a return was filed, the designated filer who filed the return shall inform the Registrar of the completion or termination of the undertaking. Issue Section 2(e) of Schedule 1 currently requires only the start date of the undertaking to be reported in a consultant lobbyist return. However, our office also requires that consultant lobbyists enter the undertaking end date on their registration, and there is a specific field for lobbyists to enter the end date of their undertaking that has been there since the outset of the Act and registry in Under section 10(2) of the Act, lobbyists are also required to inform us within 30 days of the undertaking expiring or ending. This is done by the designated filer filing a Notice of Termination, which removes their registration from the public registry once approved by our office. Requiring designated filers to report the undertaking end date at the outset of filing their registration helps us to ensure compliance with this 30-day requirement to report the expiry or termination of the undertaking, as it informs us when the 30-day period to file a Notice of Termination starts and provides a way to monitor to ensure a Notice of Termination is filed within 30 days of that end date. If we do not know the end date at the outset of registration, we are not able to monitor if the lobbyist complied with the 30 day requirement to file a Notice of Termination to remove the registration from the active registry. 30