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
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 22–32
(3) Minor or Technical Changes to the Act..………...…Pages 33–34
B. Recommended Changes to the Lobbyists Act General
Regulation
(1) High Priority Recommendations………..…….……..Pages 35–39
(2) Minor or Technical Changes to the Regulation…….Pages 42–43
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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)
(b)
(c)
(d)
Section 4(3) – transitional section to be omitted (Page 33)
Section 5(3) – transitional section to be omitted (Page 33)
Section 6(8) – transitional section to be omitted (Page 33)
Schedule 2, subsection 2(i) – correct minor error in provision (Page 34)
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Executive Summary of Recommended Changes (cont’d)
B. Recommended Changes to the Lobbyists Act General Regulation
(1) High Priority Recommendations
(a)
(b)
(c)
(d)
Include preparation and travel time in “time spent lobbying” (Page 35)
Update list of prescribed Provincial entities in Schedule 1 (Page 37)
Update list of exempted entities in Schedule 2 (Page 39)
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)
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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)
who lobbies or whose duty is to lobby on behalf of the
organization at least 100 hours annually, or
(ii)
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.
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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.
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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
regulations (there are no regulations as of yet).
FEDERAL
Threshold: “if those duties constitute a significant part of the
ACT
duties of one employee”. “Significant” is defined in
Interpretation Bulletin as 20% of overall duties, and includes
preparation time and travel time.
United States
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
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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
http://www.ncsl.org/research/ethics/50-state-chart-lobby-definitions.aspx)
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.
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(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:
….
(iv) a non-profit organization, association, society, coalition
or interest group;
…
Issue
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
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
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
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.
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(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 15th 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.
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(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
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 6month 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
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.
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(e) Reduce frequency of filing and clarify filing date for
organization lobbyists filing renewals
Relevant Section
Section 5(1)(b):
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)
Issue
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.
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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)
within 2 months after the day on which an individual in that
organization becomes an organization lobbyist, and
(b)
on or before each anniversary date of filing the initial return.
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(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 non19
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.
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(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
(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:
s.1(1)(n): “undertaking” means, with respect to a consultant lobbyist, an
undertaking to lobby on behalf of a client.
Issue
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
(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)):
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;
Issue
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
(c) Shorten timeline for lobbyists to respond to Registrar’s inquiries
Relevant Section
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.
Issue
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
(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.
(2) Advisory opinions and interpretation bulletins issued under
subsection (1) are not binding.
Issue
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
(e) Provide Registrar with ability to refuse to accept a return if
previously issued administrative penalty is still outstanding
Relevant Section
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).
Issue
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
(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
(g) Make exemption to lobbying where request for input is
initiated by public office holder more restrictive
Relevant Section
Section 3(2)(c):
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);
Issue
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/email) 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
(h) Replace duplicate definitions of “former public office holder”
in Schedule 1 and 2 with a single definition
Relevant Sections
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.
Issue
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
(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
2009.
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
Even though this has always been a part of the registration form, the Act does
not specifically say they need to report to undertaking end date in their
registrations.
Recommended Amendment
We accordingly recommend that Schedule 2, section 2(e) be amended to
specifically require that the end date also be reported in registrations.
This proposed amendment will reflect our current practice, achieve better
transparency with regard to the dates of the undertaking and assist our office
with monitoring compliance with section 10(2) to ensure registrations are kept
up to date in the system.
31
(j)
Make Act reviewable every 7 years instead of every 5 years
Relevant Section
Review of Act
21
Within 2 years after this Act comes into force and every 5 years after
that, a special committee established by the Legislative Assembly
shall begin a comprehensive review of the Act and shall submit to the
Legislative Assembly, within one year after beginning the review, a
report that includes any amendments recommended by the
committee.
Issue
Section 21 currently requires that the Act be reviewed every five years. We
would recommend that the Committee consider extending the review process
to every 7 years instead of every 5 years. We feel that such a time period for
review will still be frequent enough to capture necessary amendments to
periodically update the Act.
Recommended Amendment
We recommend that section 21 be amended to change the review period from
every 5 to every 7 years.
32
(3) Minor or Technical Changes to the Act
(a) Section 4(3) of Act – transitional section to be omitted
Section 4(3) of Act should be omitted as it is transitional in nature and is no
longer required.
Section 4(3): If, on the coming into force of this section, a consultant
lobbyist is performing an undertaking, the designated
filer shall file a return with the Registrar in accordance
with subsection (1) not later than 30 days after the day
on which this section comes into force.
(b) Section 5(3) of Act – transitional section to be omitted
Section 5(3) of Act should be omitted as it is transitional in nature and is no
longer required.
Section 5(3): If, on the coming into force of this section, an organization
has an organization lobbyist, the designated filer of the
organization shall file a return with the Registrar in
accordance with subsection (1) within 2 months after the
day on which this section comes into force and after that
in accordance with subsection 1(b).
(c) Section 6(8) of Act – transitional section to be omitted
Section 6(8) of Act should be omitted as it is transitional in nature and is no
longer required.
Section 6(8): If, on the coming into force of this section, a person
lobbies and holds a contract for providing paid advice,
the person must, within 60 days of the coming into force
of this subsection,
(a) cease to hold the contract, or
(b) cease to lobby.
33
(d) Schedule 2, s.2(i) of Act – correct minor error in provision
Schedule 2, subsection 2(i) should be changed to state “and” instead of “or”
between subsection (i)(i) and (i)(ii), as lobbyists are required to report their
lobbying activities for both the period for which the return is filed, and the next
six-month period.
Here is the current wording:
2
The designated filer shall set out in the return for the purpose
of section 5 the following information:
(i) particulars to identify the subject-matter concerning which
any organization lobbyist named in the return
(i) has lobbied during the period for which the return is
filed, or
(ii) expects to lobby during the next 6-month period,
and any other prescribed information respecting the
subject-matter;
34
B. Recommended Changes to the Lobbyists Act General
Regulation
(1) High Priority Recommendations
(a) Include preparation and travel time in “time spent lobbying”
Relevant Section
Section 2 of the Lobbyist Act General Regulation:
Time spent lobbying
2 For the purposes of determining whether lobbying amounts to at least
100 hours annually under section 1(1)(h) of the Act, time spent lobbying
is indicated by the time spent communicating with a public office holder
but does not include time spent preparing for the communication.
Issue
Section 2 of the Lobbyist Act General Regulation specifies that time spent
preparing for the communication is not to be included when calculating if the
lobbying threshold (currently 100 hours for organization lobbyists) has been
met. As a result, many activities that are directly related to lobbying are not
counted towards this threshold, including time spent preparing emails and
letters to be sent to public officer holders. The threshold is accordingly
calculated based mainly on time spent engaged in oral communications with a
public office holder.
However, a significant amount of lobbying occurs through written
communications as well. If a lobbyist sends a written communication to a public
office holder, because the time to prepare that written communication is not
included in determining if the threshold has been met, it is only the time it takes
for the public officer to read the communication that counts towards the
threshold.
Of the four jurisdictions having a 100-hour lobbying threshold (Alberta, British
Columbia, Saskatchewan, and Manitoba), Alberta is the only one that does not
35
include preparation time in determining if the threshold amount of hours has
been met.
Recommended Amendment
If a 30 hour lobbying threshold is introduced for charitable non-profit
organizations that have 4 or less employees or paid directors, we would
recommend that section 2 of the Regulation be also amended to address the 30
hour threshold (rather than the 100-hour threshold, which we have
recommended be removed) and include both preparation and travel time when
determining if the threshold amount of hours has been met.
An example of revised wording for section 2 to reflect this change is as follows:
Time spent lobbying
2 For the purposes of determining whether lobbying amounts to at least
30 hours annually under section 3(1)(i) of the Act, time spent lobbying
is indicated by the time spent communicating with a public office holder
and includes time spent preparing for the communication and time
spent traveling.
36
(b) Update list of prescribed Provincial entities in Schedule 1
Relevant Section
Prescribed Provincial entity
4(1)
For the purposes of the Act, the Provincial entities referred to in
Schedule 1 are prescribed Provincial entities.
Schedule 1 of the Lobbyist Act General Regulation currently lists over 250
prescribed Provincial entities.
Issue
Although the Lieutenant Governor in Council has authority to update this list
under section 20(a) of the Act, such updates are not done with enough
frequency to ensure the list is kept current. The list of prescribed Provincial
entities in Schedule 1 is therefore in need of more frequent update to capture
name changes, remove those entities no longer in existence, and add those that
are created or established. Alternatively, a new process to define such entities
should be established in lieu of a set list of entities being attached as a Schedule
to the Regulation.
Recommended Amendment
Currently, this list of prescribed Provincial entities can only be updated by an
amendment to the Regulation made by the Lieutenant Governor in Council
pursuant to section 20 of the Act. We would suggest that rather than a set list of
prescribed Provincial entities being attached as a Schedule to the Act, that one
of two alternative approaches be considered.
The first approach would be to define “prescribed Provincial entity” in the Act,
and incorporate in that definition other lists of provincial entities that are regularly
published and updated by the Government.
The second approach would be to define “prescribed Provincial entity” in the
Act, but incorporate in that definition set criteria for such entities, and entities
meeting this criteria would be prescribed Provincial entities under the Act.
Whichever definition is used, an exemption process would also need be
established for those entities seeking to be exempt from being a prescribed
Provincial entity under the Act. Under this process an entity could apply to the
Ethics Commissioner for an exemption.
37
(a) Using a definition that incorporates from other lists
Currently, the definition of “Provincial entity” in the Act includes the following
entities:
 any body or entity referred to the List of Government Entities set out in
the most recent Government Estimates, and
 any body or entity set out in the most recent Government of Alberta
Annual Report.
However, both of these lists contain significantly less entities that the list of
entities in Schedule 1 of the Lobbyists Act so would not be suitable lists on
their own to incorporate into the definition unless combined with other lists
that are updated regularly by Government, to ensure that the appropriate
entities are captured. If this approach were to be taken, care would need to
be taken to ensure the lists referred to capture the required prescribed
Provincial entities.
(b) Creating a set-criteria definition
An alternative approach would be to include in the definition set criteria for
a prescribed Provincial entity. Any bodies or entities meeting this definition
would therefore be prescribed Provincial entities under the Act.
(c) Exemption process
Whichever approach to the definition is taken, an exemption process should
be established so that if any entity that falls within the definition feels it
should be exempted from application of the Act, it could apply to the Ethics
Commissioner for a formal exemption under the Act. An exemption process
would be established by the Office of the Ethics Commissioner.
The specific details of establishing a definition for prescribed Provincial
entity and the exemption process would need to be determined and clarified
further upon consultation on this issue with Justice, legislative drafters and
any other departments as may be appropriate. While there are challenges
with both approaches to defining a prescribed Provincial entity, either would
be an improvement over the current process, which is not working
effectively.
38
(c) Update list of exempted entities in Schedule 2
Relevant Section
Prescribed Provincial entity (Section 4 of Regulation)
4(2) For the purposes of the Act, the Provincial entities referred to in
Schedule 2 are not prescribed Provincial entities.
There are 9 entities listed Schedule 2 of the Lobbyist Act General Regulation:









Alberta Treasury Branches
ATB Insurance Advisors Inc.
ATB Investment Management Inc.
ATB Investment Services Inc.
ATB Securities Inc.
Credit Union Deposit Guarantee Corporation
Gainers Inc.
N.A. Properties (1994) Inc.
Alberta Gaming and Liquor Commission
Issue
This list of exempted entities is in need of review and updating.
Recommended Amendment
We recommend that at least one entity be removed from this list: Alberta
Gaming and Liquor Commission (AGLC). In our view the AGLC should not be
exempted from being a prescribed Provincial entity, and if a person lobbies the
AGLC, that person should be required to include this as lobbying under the Act.
The other entities on the list should be reviewed as well, to determine if they
should continue to be on the list of exempted entities, or be removed.
It should be noted that if an alternative approach is taken with regard to defining
which entities are included and which are excluded (creating a definition of
prescribed Provincial entities in combination with an exemption process), then
the list in Schedule 2 would not be necessary, and would be replaced with this
alternative process to determine which specific entities are excluded.
39
(d) Move certain provisions from Regulation into Act
Certain sections of the Regulation should, in our view, be moved into the Act.
These provisions are key provisions, and moving them into the Act will create a
more fulsome Act as well as be more convenient for those trying to understand
the lobbying rules in Alberta. Currently, lobbyists must go back and for the
between the Act and Regulation to determine the full scope of their obligations,
and in some cases are not aware that provisions are in the Regulation.
We recommend that consideration be given to moving the following provisions
of the Regulation into the Act:
Time spent lobbying
2
For the purposes of determining whether lobbying amounts to at least
100 hours annually under section 1(1)(h) of the Act, time spent
lobbying is indicated by the time spent communicating with a public
office holder but does not include time spent preparing for the
communication.
Former public office holder
3
For the purposes of section 1(3)(c) of Schedule 1 to the Act and
section 1(2)(c) of Schedule 2 to the Act, the following positions are
considered to be prescribed positions:
(a)
(b)
the highest-ranking executive of a prescribed Provincial
entity;
the next highest-ranking executive to the highest-ranking
executive of a prescribed Provincial entity.
Notice of administrative penalty
6(1) For the purposes of section 18 of the Act, an administrative penalty
is payable in respect of a contravention of any of the following
sections of the Act:
(a) section 4;
(b) section 5;
(c) section 6;
(d) section 10.
(2) A notice of administrative penalty must be given in writing and must
contain the following information:
(a) the name of the person required to pay the administrative
penalty;
(b) the particulars of the contravention;
40
(c)
(d)
the amount of the administrative penalty and the date by
which it must be paid;
a statement of the right to appeal to the Court of Queen’s
Bench.
Amount of administrative penalty
7 The amount of an administrative penalty shall be determined by the
Registrar, who shall take into account the following factors:
(a) the severity of the contravention;
(b) the degree of wilfulness or negligence in the
contravention;
(c) whether or not there was any mitigation relating to the
contravention;
(d) whether or not steps have been taken to prevent
reoccurrence of the contravention;
(e) whether or not the person who received the notice of
administrative penalty has a history of non-compliance;
(f)
whether or not the person who received notice of
administrative penalty reported himself or herself upon
discovery of the contravention;
(g) whether or not the person who received notice of
administrative penalty has received an economic benefit
as a result of the contravention;
(h) any other factors that, in the opinion of the Registrar, are
relevant.
Appeal of administrative penalty
8(1) A person who is served with a notice of administrative penalty may
appeal the Registrar’s decision to impose an administrative
penalty by filing an application with the Court of Queen’s Bench
within 30 days from the date the notice of administrative penalty
was served.
(2) The application shall describe the notice of administrative penalty
and state the reasons for the appeal.
(3) A copy of the application shall be served on the Registrar not less
than 30 days before the appeal is to be heard.
(4) The Court may, on application either before or after the time
referred to in subsection (1), extend that time if it considers it
appropriate to do so.
(5) On hearing the appeal, the Court of Queen’s Bench may confirm,
rescind or vary the amount of the administrative penalty.
41
(2) Minor or Technical Changes to the Regulation
(a) Section 3 – correction of minor error in provision
Section 3 of the Regulation currently refers to section 1(2)(c) of Schedule 2 to
the Act but should refer to s.1(2)(d) of Schedule 2 to the Act instead.
Regulation:
Former public office holder
3 For the purposes of section 1(3)(c) of Schedule 1 to the Act and
section 1(2)(c) of Schedule 2 to the Act, the following positions are
considered to be prescribed positions:
(a) the highest-ranking executive of a prescribed Provincial entity;
(b) the next highest-ranking executive to the highest-ranking
executive of a prescribed Provincial entity.
Act:
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.
The mirror provision to Schedule 1 section 1(3)(c) above is found in Schedule
2, section 1(2) (d) (rather than section 1(2)(c) as section 3 of the Regulation is
currently referring to). See below:
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Schedule 2 - Organization Lobbyist Return
1(2) For the purpose of section 2(k) of this Schedule, “former public office
holder” means
(a)
(b)
(c)
(d)
(e)
a former member of the Executive Council,
a former member of the Premier’s and Ministers’ staff as defined
in the Conflicts of Interest Act,
a former designated office holder as defined in Part 2 of the
Public Service Act,
any individual who formerly occupied a prescribed position
with a prescribed Provincial entity, and
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.
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