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Federal Commissioner of Lobbying Karen Shepherd Continues Error-Filled and Negligent Record of Her Predecessors

Set out below is a letter-to-the-editor by Democracy Watch Coordinator Duff Conacher which was published in the September 20, 2010 issue of the Hill Times

I was quoted as saying that federal Commissioner of Lobbying Karen Shepherd's new clarification of her guideline on Rule 8 of the Lobbyists' Code of Conduct is correct and "sets out the proper sliding scale" (Lobbying Commissioner's Rule 8 clarification still unclear, says CBA - Aug 30).

However, what I actually said was that the Commissioner's clarification has some problem areas.

First, the clarification correctly states that giving a significant gift or doing a favour for a public office holder and, at the same time or afterwards, lobbying the office holder is a violation of Rule 8.

However, Commissioner Shepherd erred when she failed to include in the clarification that lobbying a public office holder and then giving them a gift or doing them a favour would also violate Rule 8.

As well, I stated that Commissioner Shepherd erred when she included being a member of a riding association in her list of examples of activities by lobbyists that would more likely violate Rule 8 (as Michael Osborne's pointed out in his article -- Are lobbyists citizens - September 6).

However, I very much disagree with Mr. Osborne's claim that riding associations "do not directly advance the interests of MPs in either the electoral or financial sense."  Of course they do, as everything they (and party headquarters) do is directly connected to ensuring the MP has the resources and campaign that will win the next election.

As a result, Commissioner Shepherd was correct that lobbyists violate Rule 8 if they are significantly active in a riding association of an office holder they are lobbying.  But she should have also included in the clarification that giving a gift or doing a significant favour for an office holder's party (for example, serving on the national executive or in the party's campaign "war room") would also violate Rule 8.

Commissioner Shepherd has taken more than a year to issue a clear clarification and overall guideline on Rule 8, but it still contains key errors (and more examples of activities that do or do not violate the rule are also needed).

Commissioner Shepherd has also taken more than two years to rule on five past complaints filed by Democracy Watch with her predecessors, Ethics Counsellor Howard Wilson and Registrar of Lobbyists Michael Nelson, between 2001 and 2004.  Commissioner Shepherd's 2009 Annual Report stated that she was still reviewing the complaints, but her 2010 Annual Report does not mention them -- an apparent attempt to "disappear" the complaints.

As well, Commissioner Shepherd has taken almost a year to rule on two other complaints Democracy Watch filed with her.

In 2004 and 2009, Democracy Watch won court cases against Ethics Counsellor Wilson and Registrar Nelson -- and the courts ruled that both had issued rulings that were deeply flawed, and had been negligent by delaying ruling on complaints.  In 2004 the court also issued an order that Democracy Watch's five complaints (and all other complaints) must be ruled on fairly and impartially and in a reasonable time period.

It would be very unfortunate if Democracy Watch has to pursue yet another court case against Commissioner Shepherd if she does not issue correct rulings soon on its seven longstanding complaints, and a correct guideline on Rule 8.

Commissioner of Lobbying Karen Shepherd's weak enforcement record

Democracy Watch's opinion is that Commissioner of Lobbying Karen Shepherd has not been enforcing the Lobbying Act (Act) and the Lobbyists' Code of Conduct (Lobbyists' Code) effectively, as follows:

  • Commissioner Shepherd does not randomly audit anyone's activities, including former public office holder's activities, to ensure they are complying with the rules she enforces that: require anyone paid to lobby to register and disclose details about their lobbying (sections 5, 7 and 7.1 of the Act); prohibit any registered lobbyist from being paid a contingency (success) fee (section 10.1 of the Act); prohibit former public office holders from being a registered lobbyist for five years after they leave office (section 10.11 of the Act), and; prohibit lobbyists from proposing or doing anything that puts a public office holder in a conflict of interest (Rule 8 of the Lobbyists' Code); 
  • Commissioner Shepherd has set up the Registry of Lobbyists in a way that does not require lobbyists to disclose the details of the subject matter of their lobbying in their monthly communication returns -- even though the Lobbying Act  requires disclosure of details about the subject (in clauses 5(3)(a)(iii) and 7(4)(a)(iii));
  • Commissioner Shepherd has taken almost one year to rule on complaints that included all the key facts about fundraising events held last September by Conservative Cabinet minister Lisa Raitt and Conservative Parliamentary Secretary Rick Dykstra, and;
  • Commissioner Shepherd has taken more than two years to rule on five past complaints filed by Democracy Watch concerning favours lobbyists have done for past public office holders, and has not even contacted Democracy Watch about the complaints.

For more details, go to Democracy Watch's Government Ethics Campaign page