The Government of Alberta has proposed significant amendments to the Lobbyists Act, 2007, c. L-20.5 (the “Act”).
If you or your employees, officers, or directors communicate with Alberta government officials, these amendments may apply to you. Many of the new rules could take effect as soon as this summer.
This lobbying law update is intended as general guidance only. If you have specific questions or concerns, or want to confirm that your organization’s corporate policies and procedures are in line with the amended Act, please contact Renee Reichelt, Awi Sinha, Adam Goldenberg, or Jessica Firestone. We would be pleased to assist you.
Bill 11, the Lobbyists Amendment Act, 2018, passed first reading in the Legislative Assembly of Alberta on April 11, 2018. In introducing the legislation, the province’s Minister Responsible for Democratic Renewal, Christina Gray, cited “significant amounts of lobbying activities [that] go unreported”. The bill’s stated objective is to rectify this gap in transparency.
The Alberta government hopes to see the bill become law before the end of the current legislative session, in early June 2018. Most of the measures will come into force as soon as Bill 11 receives Royal Assent.
1. More organizations will need to register
The most significant proposed change is a lower, 50-hour registration threshold for corporations, non-profits, and other entities that employ in-house, or “organization” lobbyists. If your organization has one or more paid employees, officers, or directors who collectively devote (or are bound to devote) at least 50 hours per year to lobbying in Alberta, then the organization, through its most senior paid officer, will be required to register with the province’s Ethics Commissioner.
This new, 50-hour threshold cuts the current registration threshold of 100 hours in half. Failure to register may result in fines of up to $100,000, which may be levied against an organization’s chief executive personally.
Bill 11 will also expand the scope of activity that counts towards the 50-hour threshold. Time spent preparing for communications with a public office holder, as well as time spent actually communicating with a public office holder, will both now be included in the tally.
Note, however, that it is not considered lobbying when an organization’s paid employees, officers, or directors communicate with public office holders in respect of the awarding of government contracts. Time spent preparing for and participating in public procurement processes will thus not count towards an entity’s 50-hour registration threshold.
2. More “public office holders”
The meaning of “public office holder” is of central importance to understanding whether a particular communication constitutes “lobbying” for the purposes of the Act. Communications with individuals who do not come within the Act’s definition of “public office holder” cannot be “lobbying”, and so will not count towards the new 50-hour registration threshold.
Bill 11 will expand and clarify the Act’s definition of “public office holder”. Once the amendments come into force, “public office holders” will expressly include: (i) Members of the Legislative Assembly and their staff; (ii) Cabinet ministers; and (iii) staff in the Premier’s Office and Ministers’ offices; (iv) individuals appointed to certain boards, committees, or councils; and (v) any employee, officer, director or member of a provincial government department or certain public sector entities.
You should assume that, if you or one of your employees, officers, or directors is communicating with someone who receives an Alberta government paycheque, they will likely be lobbying. The time they spend preparing for and participating in these communications will therefore count towards your organization’s 50-hour registration threshold.
3. Stakeholders beware
The Act, in s. 3(2)(c), currently exempts a submission to a public office holder “in response to a request initiated by a public office holder for advice or comment”. Bill 11 would eliminate this exemption. Instead, the Act will exempt submissions made by an individual “if the individual is participating on a board, commission, council, or other similar body”. It will no longer be enough for the government to have initiated the communication; to be exempt, the communication will have to be made as part of a formal process, and by an individual appointed to a particular position related to that process.
This change will be an important consideration for organizations that participate in government-led stakeholder consultation processes. Where, previously, communications to government officials in the context of such consultations would not have been considered lobbying, they now likely will be. As such, preparing for and attending a meeting at the government’s invitation may count towards the 50-hour registration threshold under the amended Act.
That said, the following will remain excluded from the definition of lobbying:
· mere requests for information or clarification from public office holders — i.e., communications that are not intended to influence decisions;
· submissions made on the public record in formal proceedings; and
· communications concerning the enforcement, interpretation, application, implementation, or administration of existing laws, regulations, policies, and programs.
4. Grassroots campaigns will be included
As it stands, the Act’s definition of “lobbying” does not specifically include attempts to influence government decisions indirectly, through “grassroots communication”. However, the Act indicates elsewhere that grassroots communication is a technique that may be deployed — and must be reported — by lobbyists. The implication is that communicating with public office holders through members of the public may be considered lobbying under the Act.
Bill 11 will make this express. Organizations that attempt to influence public policy by appealing to the public to put pressure on public office holders will be lobbying in doing so. Time spent preparing and executing this kind of grassroots advocacy campaign will count towards the 50-hour registration threshold. That said, the proposed amendments will also narrow the Act’s definition of “grassroots communication” to exclude an organization’s communications with its own members, officers, employees, partners, or shareholders.
5. No more gifts
Lobbyists of any kind, whether “consultant” or “organizational”, will be prohibited from giving or promising gifts, favours, or other benefits to public office holders whom they are lobbying or whom they intend to lobby, if either: (i) the public office holder is not permitted to accept the gift; or (ii) giving the gift would put the public office holder in a conflict of interest. Note that, with respect to the federal Lobbyists’ Code of Conduct, the federal Commissioner of Lobbying takes the view that a lobbyist may place a public office holder in a real or apparent conflict of interest simply by picking up the cheque at lunch.
In our experience, prohibitions such as this one can cause consternation on the part of organizations seeking to ensure compliance. Can I buy a cup of coffee for a public servant with whom I am working on a project? May I invite a Cabinet minister to join our firm’s table at a charity gala? And so on. It is always advisable to err on the side of caution, even at the risk of over-compliance. It is also important to put in place clear internal policies that mandate best practices by employees, officers, and directors.
6. Contingency fees will be prohibited
The proposed amendments will prevent “consultant lobbyists” — i.e., lobbyists who undertake to lobby on behalf of a paying client — from receiving fees that are contingent in whole or in part on the degree of success of their lobbying. Clients of consultant lobbyists will be prohibited from making any such payments.
Bill 11 does, however, offer some wiggle room to consultant lobbyists and their clients who are in existing contingency fee arrangements. They will have two years after the amendments come into force to become compliant.
The bottom line
The proposed amendments to the Act would close existing loopholes, lower the threshold for registration, and restrict lobbyists’ activities and remuneration. Beyond the changes described above, Bill 11 will also: (i) empower the Minister responsible for the Act to exempt individuals or entities from the Act’s application; (ii) enhance the notice requirements and appeal rights associated with the Commissioner’s power to impose administrative penalties; and (iii) exempt those recognized as Elders by their Aboriginal community from the Act.
These changes stand to make a significant difference in how Alberta’s government and private individuals and organizations interact with one another. If you, your employees, or directors engage with the Legislative Assembly or other Alberta public officials and provincial entities, be sure you understand how these forthcoming rules will affect the ways in which you do business.