Alberta is now one of 6 provinces, including the Federal government, to adopt legislation that regulates lobbyist registration. The new Alberta Lobbyists Act (the “Act”) and Regulations came into force on the 28th of September 2009 and is intended to provide public access to information regarding individuals and organizations seeking to influence government decision-makers by:
- Establishing a lobbyist registry, whereby information regarding paid lobbyists and their activities must be provided to the Registrar of the lobbyist registry and such information will be made available to the public;
- Prohibiting both lobbying and providing paid advice to government or a prescribed Provincial entity1 on the same issue, at the same time; and
- Requiring the release of government or prescribed Provincial entities contract payment details to individuals or organizations on a regular basis. This Bulletin outlines who is a lobbyist, what is lobbying, how and when to register, what information is required, contracting prohibitions, and penalties under the Act.
WHO IS A “LOBBYIST”
You are a CONSULTANT LOBBYIST if you have been hired by a client, in return for payment2, to lobby on their behalf, or if you have been engaged by a consultant lobbyist or a prescribed Provincial entity to carry out lobbying activities. You could be self-employed or employed by a firm that provides lobbying services to the firm’s clients. Lawyers, accountants and other service professionals are caught under this definition if they engage in lobbying.
You are an ORGANIZATIONAL LOBBYIST if you are a paid employee, officer or director of an organization3, or a sole proprietorship, or partner in a partnership, who lobbies or whose duty is to lobby on the organization’s behalf and it amounts to at least 100 hours annually. The threshold is met if two or more people in the organization, combined, lobby in excess of 100 hours – each person who lobbies will be listed in the return despite the number of hours lobbied.
The new Alberta Lobby Registrar has suggested in a recent speech that organizations may want to use their discretion and register as a precaution if they are uncertain about meeting the 100-hour threshold or if they do not want the burden of tracking time. It is advisable that clients develop a procedure to collect information and track their organization’s employees, officers or directors’ lobbyist activities, if they do not register. The Registrar has advised that if he has any indication that an unregistered organization may have surpassed 100 hours of lobbying, he will investigate. It will therefore be important to have evidence to prove otherwise.
WHAT IS “LOBBYING”
For both a consultant or an organization lobbyist, “lobbying” means communicating with a public office holder4 in an attempt to influence:
- the development of any legislative proposal by the Government or a prescribed Provincial entity or by a MLA;
- the introduction, amendment, passage or defeat of any bill or resolution in or before the Legislative Assembly;
- the development or enactment of any regulation or any order in council;
- the development, establishment, amendment or termination of any policy, program, directive or guideline of the Government or a prescribed Provincial entity;
- the awarding of a grant or financial benefit by or on behalf of the Government or Provincial entity;
- a decision by the Executive Council or 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
- a decision by the Executive Council or member of the Executive Council regarding privatization of any goods or services to the Government,
And only in relation to a consultant lobbyist, lobbying includes:
- arranging a meeting between a public office holder and any other individual, or
- communicating with a public office holder in an attempt to influence awarding of any contract by or on behalf of the Government or a prescribed Provincial entity.
Lobbying must attempt to influence, with the exception of arranging a meeting (in the case of consultant lobbyists) and it does not matter whether the attempt to influence is successful.
The medium of communication is irrelevant as the Act applies equally to phone calls, letters, e-mails, and meetings. For instance, any spontaneous communication, even a quick email or a simple phone call, must be reported by a consultant lobbyist if it concerns a new undertaking.
The venue of communication is irrelevant since lobbying could occur in a public office holder’s office, at a private party or function, a stakeholder’s business premises, or a casual meeting at a bar so long as the lobbyist attempts to influence the public office holder on an issue.
Lobbying also includes “grass roots communication” where a lobbyist appeals to members of the public through mass media or direct communication, and tries to persuade the public to communicate directly with a public office holder to pressure that public office holder into endorsing a particular opinion.
EXEMPTIONS FROM THE REGISTRATION REQUIREMENT
A. STATUTORY EXEMPTIONS FOR ALL LOBBYISTS:
The Act does not apply to a submission made:
- in proceedings that are a matter of public record to a committee of the Legislative Assembly or any other body having jurisdiction or powers conferred by the Act;
- to a public officer holder concerning the enforcement, interpretation or application of any Act or regulation, or concerning the implementation or administration of any policy, program, directive or guideline;
- to a public office 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 that is listed as a lobbying activity below; or
- to a MLA in his or her capacity as a MLA by one of his or her constituents (unless the submission concerns the introduction, passage or amendment of a private bill for the special benefit of that constituent).
B. THE THRESHOLD EXEMPTION:
This exemption only applies to organization lobbyists. Employees or directors who lobby for a combined total not exceeding 100 hours annually do not need to register. Communicating does not include time spent preparing for the communication. Preparing for a meeting, travel time, and other miscellaneous activities are not included.
C. THE PUBLIC INTEREST EXEMPTION:
This exemption only applies to organization lobbyists. Not-for-profit organizations’ Board of Directors, officers and employees are exempt if they do not serve management, union or professional interests and do not have a majority of members that are profit-seeking enterprises. However, employees and directors of not-for-profit organizations serving industry, unions or professional interests will need to register if they are paid lobbyists.
HOW AND WHEN TO REGISTER
The online public registry is managed by the Office of the Ethics Commissioner and found at http://www.lobbyistsact.ab.ca/. There is also a useful “Frequently Asked Questions” section on the website to answer questions concerning registration procedures. Online registration is encouraged as the $150 fee for filing via fax or mail is waived if the return is filed electronically. The public can search the online registry for free, but if disclosure could reasonably be expected to threaten an individual’s safety, certain information may be kept confidential.
Consultant Lobbyists: The designated filer must file a return within 10 days of the undertaking. Only one initial return needs to be filed for each undertaking even if there are multiple lobbying activities. Every time a new undertaking is commenced for an existing client, a new return must be filed. If the Registrar requests further information about a return, the designated filer must provide the relevant information within 30 days. If there is a change to a return’s information, the designated filer must file a Notice of Change within 30 days. The Registrar must be informed within 30 days after an undertaking’s termination or completion.
If a consultant lobbyist is lobbying on a matter when the Act came into force, the designated filer must file a return with the Registrar by October 28, 2009.
Organization Lobbyists: The designated filer must file a return within 2 months after the day an individual became a lobbyist for the organization. If there are two or more lobbyists, they may all be registered on the same return. If the Registrar requests further information about a return, the designated filer must provide the relevant information within 30 days. If there is a change to a return’s information, the designated filer must file a Notice of Change within 30 days. The Registrar must be informed within 30 days after a lobbyist ceases lobbying or ceases to be employed by the organization named in the return. Even if an organization’s lobbyist activities remain the same every year, a return must be renewed every 6 months. The Semi- Annual Renewal must be filed within 30 days after the previous return’s expiration.
If an organization employs an organization lobbyist when the Act came into force, the designated filer must file a return with the Registrar by November 28, 2009.
The Designated Filer is the organization’s senior officer, occupying the highest ranking position receiving payment for performance of his or her functions. If there is no senior officer, then each individual lobbyist must file. A provision is being made for a “primary contact” to be designated within a firm to allow that primary contact to update multiple registrations relating to that firm after the designated filer has completed the initial registration.
WHAT INFORMATION IS REQUIRED
Information required for both consultant and organization lobbyists includes:
- Name of the lobbyist and the organization/client for whom they work;
- Name of department/Provincial entity employing a public office holder who will be lobbied;
- Whether a MLA or Cabinet Member, or a member of their staff, will be lobbied;
- Subject-matter of the lobbying activities and particulars of any relevant legislative proposal, regulation, order in council, policy, program, grant, benefit or contract;
- If the lobbyist is a former public officer holder5 – the nature and term of office held;
- Name of any government/government agency that funds the client and the amount of the funding;
- Name of any individual/organization contributing $1000 or more towards the lobbying;
- Communication techniques, including whether grassroots communication will be used;
- Declaration that the lobbyist or anyone associated with them is not lobbying and holding a contract for providing paid advice to government on the same subject-matter; and
For consultant lobbyists only: whether their fee is contingent on the lobbying’s success and the name and address of any individual that control’s the client’s activities.
For additional information with respect to registration requirements, please visit the registry office website.
The Act prohibits an individual or any other associated person6 from lobbying on a subject matter and holding a contract for providing paid advice to government or prescribed Provincial entity, on the same subject matter, at the same time. An individual cannot simultaneously act as both lobbyist and paid government advisor on the same subject matter. Moving sequentially from one role to the other, or lobbying on one issue, while providing paid advice on a different issue, is not prohibited.
If on the coming into force of the Act, a person or a person associated with that person, holds a contract for providing paid advice on a subject-matter and either the person or associated person lobbies on the same subject-matter, the person holding the contract must cease to hold it or the person lobbying must cease to lobby on that subject-matter by November 27, 2009.
A lobbyist may be subject to a fine if that person fails to properly register in a timely manner; fails to provide required information to the Registrar on an ongoing basis; knowingly makes false or misleading statements; or fails to comply with prohibitions under the Act. The maximum fine for a first offence is $25,000 and $100,000 for a second or subsequent offence. A person convicted of an offence under the Act may also be prohibited from lobbying for up to 2 years.