Some insiders say FAA has created large world of unregistered lobbying Tory MP Tom Lukiwski says if Rahim Jaffer had registered as a lobbyist he could have avoided a lot of issues. By BEA VONGDOUANGCHANH Published April 26, 2010    4 Comments

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Former Conservative MP Rahim Jaffer may have been thrust into the national spotlight on allegations he was involved in unregistered lobbying activities, but some Ottawa insiders and stakeholders say three years after the Federal Accountability Act was passed, it didn't stop former ministers, ministers of state, deputy ministers, and their senior staffers from joining government relations firms as strategic advisers, nor did it stop people from lobbying under the radar because of the "20 per cent rule." Some insiders say it's creating a large world of unregistered lobbying.

Mr. Jaffer and Mr. Glémaud appeared before the House Government Operations and Estimates Committee last week to explain why their company, Green Power Generation Corporation, which specializes in "helping to commercialize innovative technology solutions that are profitable and good for the environment" is pitching projects to the federal government for funding under the Green Infrastructure Fund. Both men said they were not lobbying and did not register as lobbyists but approached Conservative MP Brian Jean (Fort McMurray-Athabasca, Alta.) with proposals for $212.5-million in funding for three projects. Mr. Jaffer and Mr. Glémaud said they did not get paid to make their presentation and say that their submissions to Mr. Jean were fact finding missions.

In his testimony, Mr. Jaffer, who is married to former minister of state for the status of women Helena Guergis (Simcoe-Grey, Ont.), who was fired by Prime Minister Stephen (Calgary Southwest, Alta.) and booted out of caucus over unspecified "serious allegations" from a third party, said that his only contacts with the current Conservative government were in casual, social situations. A Toronto businessman, Nazim Gillani, however, claims that Mr. Jaffer, who was an MP for 11 years, represented himself to him as someone who could help secure federal funds for green projects. Mr. Jaffer denied that claim, and said he has only previously given advice to people seeking information on the machinery of government.

Conservative MP Tom Lukiwski (Regina-Lumsden-Lake Centre, Sask.), who sits on the House Government Operations Committee, said Mr. Jaffer and Mr. Glémaud should have been prudent and registered as lobbyists to avoid any appearance of wrongdoing. "I think had they done that, a lot of the issues we've seen over the course of the last few days and weeks might not have appeared," he told The Hill Times last week.

The Lobbying Commissioner's Office is currently investigating the allegation that Mr. Jaffer and Mr. Glémaud broke lobbying rules. Despite their situation, however, other lobbyists say there are flaws in the lobbying rules. For example, employees of for-profit organizations only have to register if lobbying takes up more than 20 per cent of their work. In addition, backbench and opposition MPs and Senators are not covered under the Lobbying Act which prevents designated public office holders from lobbying the federal government for five years after leaving public office. Another loophole experts cite is the fact that lobbying does not have to be registered if the person doing the lobbying was not paid (financial or non-financial) to do it.

Another example industry experts say is a loophole in the provision that allows designated public office holders to join government relations firms as long as they are not directly lobbying. These are the people who fall into the "strategic advisory" role. Often they are high-profile former Cabinet ministers or staffers who leave the Hill and are hired in the private sector for their knowledge of how government works. Some lobbyists say it's "realistic" to expect someone with a wealth of knowledge through their experience to offer expertise in order to make a living once they leave public life as do people in any other profession who change occupations.

Gord McIntosh, a former Canadian Press journalist and now a self-employed lobbyist, told The Hill Times recently that people simply can't "unknow" information. "Somebody quits journalism and goes to work for Hill and Knowlton doing media relations, well they're using their experience and knowledge to make a living, right? Should that be disallowed?"

One lobbyist said these types of strategic advisers in a firm are very valuable. The lobbyist, who did not want to be identified, said someone like Derek Burney, a senior strategic adviser at Ogilvy-Renault who was a former assistant deputy minister, former chief of staff to former prime minister Brian Mulroney, and a former ambassador to the U.S., is "a fountain of wisdom for the firm and their clients" and if anyone wants "to do an acid test on whether something will fly or not, five minutes on the phone with Derek is worth more than that investment of time."

This is why, although former designated public officers under the new lobbying rules, can no longer directly lobby the government, some firms are still willing to hire them. "If you're experienced, then they will hire you, even if they have to hire someone else to make phone calls on your behalf," Mr. McIntosh said. "It's worth it to some people."

Democracy Watch coordinator Duff Conacher said this type of activity should be more clearly regulated. He said that while former designated public office holders who leave public life and start working at government relations firms as strategic advisers are not in contravention of the five-year lobbying ban, they could potentially be violating the new Conflict of Interest Act for public office holders, which was also created under the Federal Accountability Act.

Under the post-employment rules of the Conflict of Interest Act, former ministers are subject to a two-year ban against dealing with their former ministries, and political staff are subject to a one-year ban. Sec. 33 of the act states that "no former public office holder should act in such a manner as to take improper advantage of his or her previous public office." Mr. Conacher said Conflict of Interest and Ethics Commissioner Mary Dawson should make it clear what this section means when it comes to lobbying rules. "What is 'improper advantage'? Well, I think you could make an argument that joining a lobbying firm that lobbies your former office is taking improper advantage," he said noting also that section 34(2) of the act states that "no former public office holder shall give advice to his or her client, business associate, or employer using information that was obtained in his or her capacity as a public office holder and information that is not available to the public."

Tim Powers, vice-president of government relations firm Summa Strategies, told The Hill Times that dispensing advice is not necessarily the same as lobbying. "If one is providing advice on how to deal with government and manage an issue while engaging in no direct or indirect advocacy at all then I believe it is legitimate. The key is transparency on all sides," he said.

Some recent former public office holders who now work at government relations firms include former deputy minister Peter Harder, who is a senior policy adviser at Fraser Milner Casgrain, LLP; former human resources minister Monte Solberg, who is now a senior strategic adviser at Fleishman-Hillard; and former chief of staff to government House leader Jay Hill (Prince George-Peace River, B.C.) Yaroslav Baran, who is a principal at Earnscliffe Strategy Group.

In an interview, Mr. Baran said that he knows what the law is, supports it and takes the allegation that strategic advisers may be doing something improper very seriously. "People should be really careful before they make spurious allegations trying to undermine somebody's professional integrity," he said, noting that he spoke with Ms. Dawson about his post-employment plans before joining Earnscliffe.

He said also that Earnscliffe is not simply a lobbying firm but also a strategic communications practice which deals with branding issues and improving public communications. "Some of it deals with public policy, a lot of it does not and I'm not the only one in the company who works in the strategic communications practice," he said, adding that since he's been there, he's written press releases, reports and articles about democratic development abroad, designed logos and has developed web content. "That's not lobbying."

Mr. Baran said he does not register as a lobbyist simply because he is not a lobbyist. "These are entirely separate areas of activity. So far as strategic communications is concerned, sections 33 and 34(2) deal with proprietary information. Are writing skills and an ability to analyse proprietary?" he said. "I won't speak to what other people may or may not be doing. I know what I do. I've worked for most of my career in communications and that's what I do now."

Mr. Harder was not available for an interview, and Mr. Solberg declined to be interviewed. Others, such as Mr. Burney and Hill and Knowlton senior vice-president Elizabeth Roscoe, who served as chief of staff to former minister Barbara McDougall and who both served on Prime Minister Stephen Harper's (Calgary Southwest, Alta.) transition team, are not subject to the new rules.

Ian Brodie, former chief of staff in the PMO, was senior counsel at Hill and Knowlton, and also fell into the new rules. Mr. Brodie now lives and works in Washington as a strategic planning adviser to the Inter-American Development Bank.

In response to an interview request regarding Democracy Watch's claim, Jocelyne Brisebois, a communications officer in Ms. Dawson's office, said last week that the commissioner was unavailable for an interview and that the "act prohibits our office from providing information about individuals and we can't comment on hypothetical cases."

NDP MP Pat Martin (Winnipeg Centre, Man.) agreed with Mr. Conacher. He said the relationship between lobbyists who are former public officials and the government they left is still a very close one. "Let's take that Green Fund for example. I have no doubt that the Green Infrastructure Fund is vague and nebulous by design. In order to apply, you really have to go find a well-connected Tory lobbyist to weave your way through to even provide an application," he said. "It's inside information that you gleaned while you were a public office holder. If it's not public information, then yeah, you've crossed the line."

Joe MacDonald, past-president of the Public Affairs Association of Canada, said it's difficult to know what advice is actually being given and therefore suggesting people are acting inappropriately is unwarranted. "In my experience, those providing strategic counsel are helping map out the most efficient and effective way to present a case to policy makers and politicians. 'Inside information' most often consists of a suggesting to meet with Person A rather than Person B because Person A has more direct involvement with the issue at hand—hardly a conflict of interest. In the end, accusations such as this serve only to damage reputations."

Mr. Conacher disagreed, however, saying loopholes were left in the acts so that unregistered lobbying could continue.

Mr. McIntosh said Mr. Conacher's comments are an example of a "gotcha perspective" on the law, which is not accurate. "That's the problem with the gotcha perspective. It assumes that everything is inherently crooked or self-serving. Well, no it's not."

bvongdou@hilltimes.com

The Hill Times