Information & Ethics Committee on Feb. 2nd, 2012

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you, Madam Chair.

Welcome to our witnesses here. It's certainly good to have your perspective here. You are on the ground doing this on a daily basis, and it's nice to see.

I'm going to start off with a general question. Basically we're looking at a five-year review here of what's been in place so far. Notwithstanding the recommendations you have made overall, I'm looking for some general comments. Would you say that the result of the legislation and the administration of the legislation has been relatively successful to date?

[Charles King]

I would agree with that. I think it has been very successful.

[John Capobianco]

I would as well. As I said, we actually agree with having rules. I think it's just a question of having them so that.... You know, there are times we have to review them and make sure the rules are working well, but we believe in the fact that there's transparency and accountability.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Very good. Thank you.

I'm going to go back to some of the recommendations. GRIC was very clear in some of its recommendations here. Some of them overlap actually with the recommendations that were made by the commissioner as well. We'll talk about that. We'll elaborate on that. If I have some time, I'll move over.

I'm looking at recommendation two. I'm a little bit concerned about this, because as a public office holder myself, I keep track of what I consider to be arranged meetings, which is when people call up and request a meeting in my particular office, they come over, they give me their business cards, and I keep track of that.

What I'm seeing here, though, is that I might not be able to reconcile that set of records that I keep for myself with the actual set of records that are actually filed with the ethics commissioner. Am I accurately understanding the nature of the recommendation you're making? Is the nature of your recommendation such that a cross-reference of the records that I keep of who I actually meet with—because the person who arranged the meeting might not be the person I actually met with.... If I understand that recommendation correctly, you're saying very clearly here, I think, that the circle needs to be squared. Is that right?

[Jim Patrick]

Yes, absolutely. If you pick up four business cards from four people in your office, then four names should be on the report at the end of the month. Right now, it's only the CEO's name.

We've had cases.... A CEO of a fairly prominent Canadian company passed away, and because of bureaucratic delays the impression on the public record was that he continued to take meetings with public office holders six months after he had gone to the great beyond.

If the actual lobbyists who work for that company were named on the reports, the transparency would be increased. It would be evident who was actually in that meeting.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Well, I think that's great.

From an administrative perspective from your end, then, this isn't going to be a significant burden?

[Jim Patrick]

No. Right now it takes about five minutes to fill in the report on a meeting.

To go to the point that was made earlier, the lobbying commission really has listened to concerns about the burden, and they've really improved and streamlined the reporting process. If it were a matter of ticking off.... Within my organization, we have all registered lobbyists already listed on our file, but we don't have to say which of us actually go to the meeting. It would just be a matter of ticking a box.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Okay, but you also have a disclaimer at the end of that recommendation that says “with a possible set of limited exemptions where such disclosure would not be in the public interest”. Can you give me an example of where that would be the case?

[Jim Patrick]

Yes, I think there are cases where the name of the individual or their title could have the effect of divulging sensitive information. We give the example in our submission of two vice-presidents from two companies who both have responsibility for mergers and acquisitions and who go in and meet the competition commissioner at the same time. Somebody could look at that and, rightly or wrongly, conclude that those companies were about to merge. That could affect their stock prices.

We think there should be a process to determine what types of exemptions there should be, but off the top of my head, I think you should be able to go to the commissioner and say: “Look, this is our concern, and instead of reporting the meeting in 30 days, can we report it in 45, in 60...?” Disclose it, but it's the public reporting aspect that would, with the discretion of the commissioner, perhaps be delayed if it wouldn't be in the public interest to report it in that timeframe.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

That's very interesting. Do you suppose there should be some type of caveat, then?

I mean, it's nice to have lines in the sand. It's nice to have hard numbers. You can say 30 days and you can say 60 days, but even 60 days might not be enough. If you put something like that in the legislation, you may still have sensitive information divulged inappropriately if that period isn't long enough. Is there any other mechanism you can see that might work? I mean, the consent of the parties within a certain much broader timeframe or something like that, would that be...?

[Jim Patrick]

It could be left to the commissioner's discretion, depending on the circumstance.

[Charles King]

But as long as she has the information, people have disclosed it. She knows what's aware and—

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Yes, we're talking about the public disclosure aspect of it, right?

[Charles King]

Yes.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

The commissioner's office is aware of it, so it's all above board on that particular perspective. We're simply talking about the last step, which is the public—

[Charles King]

It's the last step, and she has the discretion to decide how to proceed.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Okay.

I want to go now to the example you gave where the tests seemed to be different on accountability for public office holders and lobbyists. I find it a little bizarre, to be quite honest with you, that if an investigation of a meeting by the commissioner clears any wrongdoing of the public office holder, the lobbyist is not cleared from incidents arising from the same meeting. How prevalent is this?

[Jim Patrick]

Not very. Most lobbyists follow the rules closely enough that there's only a handful of cases the commissioner has had to investigate in the first place.

There was a case on the rules governing political activities of lobbyists. The commissioner's interpretation came into effect in 2009. A lobbyist was found guilty retroactively for events that took place in 2004, guilty of having placed a minister in a real or apparent conflict of interest. That minister had already been cleared by the Ethics Commissioner of ever having been in a conflict of interest in the first place.

The key here is that the Conflict of Interest Act as it applies to the minister tests for real conflict of interest, and the Lobbying Act, the commissioner's guidance, and the code of conduct test for a real or an apparent one. So I could apparently put you in a conflict of interest you were never in.

We think the language there should be harmonized. The test on both sides of the coin should be for real conflict of interest.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you. I think that's very helpful. There seems to be a principle of natural justice at play here, so I appreciate that. I think that's an excellent recommendation.

The other thing I want to talk to you about is a little personal for me as a public office holder. It's the cooling-off period of five years. Of course we took a lot of pride as a government in introducing the Federal Accountability Act and making some of the changes we've had here. I'm just wondering what the perceived need is to have public office holders.... Is it simply, as you stated, a matter of harmonization with some of the provincial legislation? Or is there, in your opinion, from your expertise...? I mean, I haven't been a lobbyist; I've only been lobbied as a public office holder—

[The Chair, NDP, Jean Crowder]

Sorry, Mr. Calkins, your time is up. Please ask a brief question, with a brief response.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

I've been interrupted and I've lost my train of thought.

I just want to know, because it seems to me that this would actually create more competition in the marketplace for people who are professional lobbyists and for people like me who exit my profession. What is the need for doing this? Is there anything else driving it other than what has been stated so far?

[Jim Patrick]

The act calls for a cooling off period. Whatever it is—five years—and whatever line or whatever the number is, we'll tell people they should follow it. PAAC has a very specific recommendation that it would be reduced, I believe. We have a more general recommendation that this committee go back and look at what the objectives were in setting a cooling off period and whether five years is the exact amount of time that needs to be in place to meet them.

[The Chair, NDP, Jean Crowder]

Great, thank you.

We'll go to Mr. Andrews, for seven minutes.

[Scott Andrews, Liberal, Avalon, NL]

Thank you, Madam Chair.

It has been a very interesting discussion this morning. We're really getting down to the nuts and bolts of this and getting a good understanding of it.

Let me start off talking about the 20% rule. The lobbying commissioner has requested that we eliminate it altogether—the significant parts of duties. I think, Charles, you guys put a little provision on that. You don't want it removed altogether. I'm trying to be clear what the lobbying commissioner wants and what her witnesses want with this 20% rule.

[Charles King]

Our recommendation is specifically for designated public office holders who leave and go to work for corporations as corporate lobbyists. Basically what the 20% rule allows is that if you spend less than 20% of your time lobbying or doing lobbying activity, you don't need to register or to declare those meetings. Our view is that the act was very clear on the five years for designated public office holders. There were no ifs, ands, or buts when you leave. If you worked in the system, you were captured by the five years with no exemptions. What you got is a situation where people will go in and work as a corporate lobbyist, and they'll hide under the 20%. They do less than 20%, so their advice that they are being given by their legal departments is that they don't need to register, so why do it? Our view is that it's a big loophole. Plug that hole. If you were a DPOH, you're bound by the five-year rule. There are no ifs, ands, or buts.