Information & Ethics Committee on March 4th, 2013

[Jim Patrick]

Yes, we noted earlier recommendations from previous witnesses that you should be examining a sliding scale based on the actual job that somebody had and how long they had it, instead of a one-size-fits-all cooling-off period for everyone, or a series of one-size cooling-off periods for everyone. Right now, the same individual can be subject to a one-year, a two-year, and a five-year cooling-off period with respect to the department they worked for, departments they dealt with significantly, and the entire federal government in some combinations. That's a lot of cooling-off for the junior analyst from the bureau of weights and measures.

There are proposals on the table to apply the full cooling-off period to everyone. We think that has probably gone too far. There are proposals to reduce it for everyone. We think that's probably going too far in the other direction.

There is a lot of merit, I think, to tailoring the cooling-off period to how long someone has been in the job and what the nature of their job actually was. We think the appropriate vehicle to introduce that would be the Conflict of Interest Act.

We think the five-year cooling-off period in the Lobbying Act should be removed when you examine the amendments to the act that the government will bring forward to respond to last year's report. That five-year cooling-off period for designated public office holders should be removed and put into the Conflict of Interest Act, and the concept of a sliding scale should be carefully examined by the committee to see if it couldn't be better tailored to the specifics of somebody's employment rather than trying to capture everybody with one tool or oftentimes a multitude of different tools.

The other thing that I guess we'd mention that goes to the concept of a cooling-off period is the 20% rule. We mention that in our remarks, I believe. We're on record as saying that you should eliminate the 20% rule as it applies to corporate in-house lobbyists.

Right now, if I determine that I lobby 20% of the time, I can't work for a trade association, and I can't work for a consultant lobbying firm, but I can work for a publicly traded company as long as I self-determine that I only lobby 19% of the time. I think that is meant as a guideline. It has been treated as a loophole. Again, I know that I'm talking about the Lobbying Act here, but that will be one of your next projects. We can't recommend strongly enough that this loophole be closed.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Thank you very much.

[The Chair, NDP, Pierre-Luc Dusseault]

We will now go to Mr. Andrews.

[Scott Andrews, Liberal, Avalon, NL]

Thank you.

This is a very interesting discussion that is getting down to the brass tacks of where we're trying to go with this and how we're trying to get our heads around it.

I'd like to carry on with just a couple of questions from Patricia in talking about post-employment restrictions. You're suggesting that they be streamlined. How exactly do we streamline them? You just mentioned taking the five-year restriction and putting it in the Conflict of Interest Act. How does that streamline? Is that what you mean by streamlining?

How do we streamline the two? As we know, people can go to the conflict of interest commissioner and try to establish that they're not in a conflict, but then when they go off and do their work they don't live up to what they told the conflict of interest commissioner. Then again, some of these public office holders don't even know that what they're doing is lobbying.

[Jim Patrick]

That's right.

[Scott Andrews, Liberal, Avalon, NL]

So help us out here as to how they would streamline it.

[W. Scott Thurlow]

The answer is yes. The first thing is to start with one act. You pick one, whether it's the Lobbying Act or the Conflict of Interest Act, and then you go from there. Then you take the existing menus of the various post-employment guidelines and, as parliamentarians, you ultimately decide what will apply to yourselves and what should apply to everyone else who works in the federal public service.

I think this committee will agree that if you are in a senior ranking position in a ministry, you're going to have a different standard in terms of the impact you will make on a decision than you will if you're further down the pole in that same department. I think the original post-employment guidelines that were administered under the Conflict of Interest Act recognized that difference.

What we're saying is that creating a third sliding scale as it relates to designated public office holders under the Lobbying Act confounds that problem and also acts as a barrier to post-employment for the individuals as they are promoted through the public service. I think one area that hasn't gotten a lot of study, both by the public service and by Parliament, is the impact that the lobbying rules have had on individuals as they proceed through the public service. There are probably people who have made a very difficult decision to take that next step and move up in the public service ranks knowing that the impact will affect them after they leave the public service.

[Scott Andrews, Liberal, Avalon, NL]

What should the impact be? Is it two years? Is it five years? Then when you look at parliamentarians, we seem to be held to the top bar. What are our employment chances afterwards when this all shakes out?

[Jim Patrick]

I think yours will be very good.

[Some hon. members]

Oh, oh!

[Jim Patrick]

I think what you want to eliminate is the opportunity for regulatory comparison shopping.

I had a young man come in my office one day looking to move out of government into the private sector. I said, “You worked for a minister within the last few years.”

He responded: “Yes, but I worked in the constituency office. So I asked the Conflict of Interest Commissioner if it's okay if I work somewhere like the CWTA, and it would be because I'd only be unable to go back to her department for a year.”

So I asked: “What did the lobbying commissioner say?”

He said: “Well, I haven't asked her because I got the answer I wanted from the Conflict of Interest Commissioner, and my father told me, 'Stop selling once you've made the sale'”.

[A Voice]

Oh, oh!

[Jim Patrick]

We weren't hiring at the time, so it was a moot point. But it made me uncomfortable that one person could go shopping for the answer he wanted from different officers of Parliament based on the same set of facts. We've seen other more publicized cases than that where designated public office holders—and there's no question that they were designated police office holders.... In the case I'm thinking of, the person worked for a party leader, but they weren't hired under a particular section of the Public Service Employment Act, but by Parliament. Therefore the cooling-off period didn't apply, whereas it may apply to other people in the office. I'm not suggesting it was the right interpretation or the wrong interpretation, but it shows that there is room for different interpretations.

The recommendation on the table from an earlier witness is a maximum five years. From there we're looking at somebody who was—and I'll make it up here—the Minister for Weights and Measures. Maybe you say that the minister had a very narrowly defined portfolio. Maybe that minister can't lobby the bureau of weights and measures for five years. That I think most people would agree with.

Now if you turn to the complete other end of the cabinet table, the department of something that has nothing to do with weights and measures, well, maybe there's room to say, “Okay, one year across everything”. However it's put together, it has to be consistent, and I think it needs to be clear, and it all needs to be done within the Conflict of Interest Act, not spread across two acts.

[Scott Andrews, Liberal, Avalon, NL]

When you come to the 20% rule, you guys are recommending getting rid of the 20% rule altogether, because some people, as I think you said, use it as a loophole. They can rejig it because the 20% is self reported, including how they calculate the 20%. They could think, “Oh, I'm not calculate my travel time” and all of that. It's very, very confusing.

How is that so misunderstood? Why do they use it as a loophole? Is it just because they can?

[W. Scott Thurlow]

Well, I think the reason it's misunderstood is that there hasn't been a lot of definition applied to it. I've written in the past that different people have taken different interpretations of it because it is incumbent on them to self-report. I mean, 19% of your time means everything you did after breakfast on Monday, and that's it, okay? But that's still one day a week, when you effectively think about it, that you're spending your time lobbying.

I think that as you provide people, especially lawyers like me, with tools to interpret statutes in a way that can benefit them, they will use it. Certainty of law is the most important thing that we can have in this regard, and I think it's very important to achieve that certainty.

[Scott Andrews, Liberal, Avalon, NL]

What do you folks think about the penalties? Right now someone could break both conflict of interest rules and there's no mandatory minimum, there's no nothing, it's just a slap on the wrist from the commissioner. They're not really impacted. It's a one-day news story and it's not really a penalty.

[Jim Patrick]

You need to bear in mind that for a professional lobbyist, it's a one-day news story, but the reputational aspect is that someone has then had their name put in a report to Parliament.

[Scott Andrews, Liberal, Avalon, NL]

Let me just take it from a lobbyists' perspective to a business perspective. You're a business person, you're in business, and it's about your own business or the company that you work for.

[Jim Patrick]

You have the two acts, and under one you get the strongly worded letter from the Commissioner of Lobbying and your name is put on a report to Parliament, and under the other I think you're looking at $200,000 and—

[W. Scott Thurlow]

Yes. The fine and/or jail time can be very significant.

[Scott Andrews, Liberal, Avalon, NL]

Under the Lobbying Act?

[W. Scott Thurlow]

Yes, for violating it.

[Scott Andrews, Liberal, Avalon, NL]

Should we have the same fines and that under the Conflict of Interest Act?

[W. Scott Thurlow]

Again, my view would be as long as they're the same, that's the way to go, just so that they are clear and predictable and there isn't an opportunity to leverage one act against the other to justify behaviour.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you.

I will now yield the floor to Mr. Carmichael for seven minutes.