‘Divided loyalties’: Ethics watchdog wants ‘cooling-off’ period for lobbyists who engaged in political activity

By Sabrina Nanji June 29, 2020

For the first time, Ontario’s ethics watchdog is offering up advice on lobbyists’ political activity. 

In his annual report released last week, integrity commissioner J. David Wake said lobbying work undertaken by political partisans can create a conflict of interest for public office holders. That’s because they may have a sense of obligation to those who supported them on the political side. 

“This sense of obligation could cause them to favour the interests of the lobbyists or the lobbyists’ clients improperly,” Wake wrote in the report.

He went on to say that when a lobbyist “undertakes political activities on behalf of a public office holder — and then lobbies the public officer holder or their staff — the lobbyist’s activities may create a conflict of interest.”

In these cases, an MPP may have “divided loyalties,” which are “at the heart of conflict of interest,” according to the watchdog.

Generally, that “sense of obligation” decreases over time and so Wake recommends a mandatory “cooling-off” period of up to one year between political activity — such as a senior role on a campaign team — and any lobbying of the MPP in question.

That aligns with the one-year break limiting ex-staff from lobbying the offices in which they worked. Wake also warned former staffers about lobbying their ex-bosses, noting that sometimes the minister for whom the staff worked may have moved to another portfolio. 

“Technically they would not be in breach of the restriction on lobbying one’s former minister, but, as Lobbyists Registrar, I caution ministers’ staff in that situation that they may be at risk of not being in compliance,” the report states. “Under [the Lobbyists Registration Act], lobbyists are prohibited from placing a public office holder in a position of real or potential conflict of interest. This can occur as a result of a personal or political relationship developed while employed as a minister’s staff.”  

The watchdog’s office hasn’t issued an “Interpretation Bulletin” — broad advice to lobbyists and advisers — on the subject of political activity because those situations are best dealt with on a case-by-case basis. 

Instead, Wake said it’s important to put out general principles based on his investigations (which he isn’t empowered to fully disclose). 

Lobbying activity way up, as are investigations into it
Meanwhile, Wake noted a 73-per-cent increase in registrations over the past four years since the Lobbyists Registration Act was beefed up, including with stricter reporting requirements. There are now more than 3,000 people signed up to lobby the provincial government. 

Investigations involving that lobbying activity are also on the rise: there were 29 conducted this past year, versus only one four years ago.  

The Standing Committee on the Legislative Assembly will conduct a review of the 2016 changes before July 1, 2021, and Wake said political activity would be a good place to start. 

On the MPP ethics front, Wake’s office has been busier this year too. He noted a “substantial increase” in the number of MPP expense claims in the past year, all of which were compliant with the rules. 

The commissioner also took over the Office of the Conflict of Interest Commissioner in 2018, which Wake called a “sensible merger” of two bodies that deal with public sector ethics. Wake recommended streamlining the process for investigations, currently a two-step method that sees him referring public servant disclosures to senior officials for investigation, which Wake reviews. Sometimes the official will refer the investigation back to Wake, which he says is a process unique to Canada.