More than 85 secret, unethical lobbying situations possible since 2004 -- Commissioner of Lobbying must disclose secret rulings, and find wrongdoing lobbyists guilty of violating Lobbyists' Code

Since 2004, secret rulings have let at least 32 lobbyists off the hook because the RCMP and Crown refused to prosecute -- Commissioner of Lobbying has failed to rule publicly in all 32 cases that the lobbyist violated Lobbyists' Code

Commissioner has also failed to rule publicly on more than 55 cases since 2004

Since 2004, at least 17 lobbyists have been caught lobbying but let off the hook with secret rulings because of loopholes in the Lobbying Act

Group calls on House Committee to question Commissioner about cases and rulings on Thursday, and to recommend closing loopholes and strengthening enforcement, and calls on Auditor General to audit Commissioner of Lobbying, RCMP and Crown prosecutors for weak enforcement of the Act and Code

Monday, February 13, 2012

OTTAWA - Today, Democracy Watch and the national Government Ethics Coalition called on the federal Commissioner of Lobbyists Karen Shepherd to disclose the identities of the 32 lobbyists who have been found violating the Lobbying Act since 2004 but not prosecuted, and to find them guilty of violating the Lobbyists' Code of Conduct (which requires lobbyists to comply with the spirit of the Act), and to issue public rulings on the more than 55 situations that have not been ruled on since 2004 (See Backgrounder below for details about the cases and rulings since 2004).

The Commissioner has disclosed a summary of 72 cases on her website from April 2004 to March 2011, and in 32 of the cases the lobbyist was found to have violated the Act, but was let off the hook by the Commissioner and/or RCMP and Crown prosecutors.  The Commissioner subsequently failed to find those 32 lobbyists guilty of violating the Lobbyists' Code.  The 32 lobbyists have never been identified, nor have public rulings been issued about their cases.

The Commissioner has also disclosed charts that show that 53 cases of administrative reviews, and nine investigations (for a total of 62 cases), were not ruled on by the Commissioner from April 2004 to March 2011.  Of the 53 reviews, 29 have been awaiting rulings since March 2007, almost five years.  Of the nine investigations, six have been awaiting rulings since March 2008, almost four years. 

Democracy Watch waited until late 2011 and early 2012 -- seven to 10 years total -- for rulings on five complaints it filed with the Commissioner's office from 2001 to 2004, an extremely long delay that the Commissioner acknowledged last March in a letter (PDF) to Democracy Watch.  The five rulings on Democracy Watch's complaints were part of the backlog of 62 cases mentioned above, and as a result the Commissioner still needs to issue public rulings for more than 55 other outstanding cases.

In addition, in the summary of cases since 2004 on the Commissioner's website are 17 cases in which the lobbyist was found not to have violated the Act because of loopholes that allow for secret, unethical lobbying of the federal government (similar to the situation involving Bruce Carson, former top advisor to Prime Minister Harper).

The House Committee on Access to Information, Privacy and Ethics is currently reviewing the Act, and to end this sham enforcement Democracy Watch and the Coalition urged the Committee last Thursday to recommend strong changes to close the loopholes in the Act, and to require the Commissioner and RCMP and Crown prosecutors to enforce the Act properly (See detailed list of much-needed changes below).

Democracy Watch called on the House Committee to question Commissioner Shepherd about the cases, and the loopholes, when she testifies this Thursday. 

Democracy Watch is also calling on the Auditor General to conduct a performance audit of the Commissioner of Lobbying office, and RCMP and Crown prosecutors, similar to that completed for the now disgraced former Public Sector Integrity Commissioner's office, and sent a 12-page letter to Commissioner Shepherd and the Auditor General setting out details and rulings Democracy Watch believes Commissioner Shepherd has been legally required to disclose publicly in the past four years in order to properly perform her duties as an Officer of Parliament.

"Commissioner of Lobbying Karen Shepherd must end the sham enforcement of the federal lobbying law by disclosing the identities of the more than 30 lobbyists who have violated the law since 2004, by finding wrongdoing lobbyists guilty with public rulings, and by issuing public rulings on the more than 55 outstanding cases," said Duff Conacher, Board member of Democracy Watch and Chairperson of the 31-member group, nation-wide Government Ethics Coalition.  "Given that this enforcement record is as bad as the former disgraced Integrity Commissioner, the Auditor General must audit the performance of the Commissioner and, after the Auditor reports, the House of Commons should consider the dismissal of the Commissioner."

"Secret, unethical lobbying of the federal government is still legal, even by Cabinet ministers the day after they leave office, and so the lobbying law must changed to close loopholes and strengthen enforcement to finally stop this dangerously undemocratic lobbying by powerful lobbyists," said Conacher. "To end the negligent pattern of enforcement of the federal lobbying law and code, the Commissioner of Lobbying must be required to conduct regular, random audits, and to investigate and rule publicly whenever there are questions about violations, and the Commissioner must be given the power, and required, to fine anyone who violates the law or code, and the Commissioner should not be eligible for a second term in office because that creates an incentive to please the Prime Minister and Cabinet by covering up secret, unethical lobbying."

Commissioner Shepherd has been with the lobbying enforcement office since 2004, became acting Commissioner in July 2007, and full Commissioner in 2008.

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FOR MORE INFORMATION, CONTACT:
Duff Conacher, Coordinator of Democracy Watch
Chairperson of the Government Ethics Coalition
Tel: (613) 241-5179  
dwatch@web.net

Commissioner of Lobbying Karen Shepherd's weak enforcement record

To see the Commissioner of Lobbyists' 2010-2011 Annual Report, click here; 2009-2010 Annual Report, click here, and 2008-2009 Annual Report, click here

To see the Registrar of Lobbyists' 2007-2008 Annual Report, click here, and 2006-2007 Annual Report, click here

Democracy Watch's Government Ethics Campaign

Democracy Watch's Money in Politics Campaign

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Background on Extremely Weak Enforcement of Lobbying Act and Lobbyists' Code of Conduct from 2004-2012
On March 23, 2011, Commissioner Shepherd disclosed to the House Access, Privacy and Ethics Committee a somewhat detailed summary of her enforcement actions over the past three years, and the enforcement actions of her predecessor Registrar of Lobbyists Michael Nelson from April 2004 to April 2008.

However, Commissioner Shepherd's summary raises as many questions as it answers.  It does not disclose the identities of lobbyists who have been let off the hook by the Registrar and Commmissioner and the RCMP and Crown prosecutors.  Commissioner Shepherd submitted to the Committee a 9-page chart of the Administrative Reviews her office has completed since 2004, and a 2-page chart of Investigations both ongoing and completed.

Even more incredibly, Commissioner Shepherd has refused for the past month to disclose pages 7-8 of the chart to Democracy Watch.  As well, Commissioner Shepherd continues to refuse to disclose whether she has received and rejected other complaints without conducting an administrative review or  investigation.  As a result, the exact total number of lobbyists let off the hook by Commissioner Shepherd remains unknown.

Democracy Watch's analysis of the facts and figures of Commissioner Shepherd's and Registrar Nelson's records disclosed in March 2011 to the House Committee (the records cover the time period from April 2004 to March 18, 2011 -- the statistics since March 2011 are currently being kept secret by Commissioner Shepherd), is as follows:

• Registrar Nelson ruled on only 26 of 69 cases that came to his attention (22 review rulings (which remain secret), and 4 investigation rulings which were made public (all concerning Mr. Neelam J. Makhija));
• Of the 22 review rulings, from 2006 to 2008 Registrar Nelson let 6 lobbyists off the hook because of the 20% loophole in the Lobbying Act; 3 off the hook because of the unpaid lobbying loophole, and; 3 off the hook because the violation was minor (Registrar Nelson did not disclose the identities of any of the 12 lobbyists);
  
• Democracy Watch's five complaints filed from 2001 to 2004 with the office were finally ruled on in late 2011-early 2012 by Commissioner Shepherd (8-10 years after the complaints were submitted);
• Commissioner Shepherd inherited 43 cases from Registrar Nelson when she became Commissioner in July 2008, 37 cases at the review stage, and 6 investigations;
• Commissioner Shepherd has undertaken 66 new case reviews, and 9 new investigations (but there could be more cases, as Commissioner Shepherd continues to refuse to disclose whether she has received and/or rejected other complaints without conducting either a review or investigation);
• Of her 103 total case reviews, Commissioner Shepherd has completed only 58 (so 45 are still to be completed), and of her 15 total investigations, she has completed 6 and stopped 3 (so 6 are still to be completed);
• Of the 58 completed case reviews, Commissioner Shepherd and RCMP and Crown prosecutors have let 29 lobbyists off the hook even though they violated the Act, and 8 were let off the hook because while they were lobbying the Act did not apply to them because of loopholes;
  
• So, overall, since 2004 more than 50 cases have still not been ruled on publicly, at least 17 lobbyists have been caught lobbying but let off the hook because of loopholes in the law; secret rulings have let at least 32 lobbyists off the hook because the RCMP and Crown refused to prosecute; the Commissioner has failed to rule publicly in these 32 cases even though the lobbyist clearly violated Lobbyists' Code, and; the Commissioner has also failed to rule publicly on more than 50 cases since 2004;
• As a result, possibly more than 80 secret, unethical federal lobbyists have been let off the hook since 2004.

See the Commissioner of Lobbying's March 2011 reports on the Commissioner's website as follows:

• Statistics and reasons why lobbyists were let off-the-hook from April 2004 to March 2011;
  
• Charts showing reviews and investigations initiated and completed from April 2004 to March 2011;
• Chart showing details of administrative reviews completed from April 2004 to March 2011, and;
• Chart showing details of investigations (ongoing and completed) from April 2004 to March 2011.
  

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Democracy Watch's opinion is that Commissioner of Lobbying Karen Shepherd has not been acting properly as an Officer of Parliament, nor has she been effectively enforcing the Lobbying Act (Act) and the Lobbyists' Code of Conduct (Lobbyists' Code), as follows:

• as detailed in the above news release,  Commissioner Shepherd's disclosure record of how many complaints she has received, as well as reviews and investigations she has initiated, and her rulings on each situation, is worse than the former disgraced federal Integrity Commissioner;
  
• 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 misled the media, and the public, about loopholes in the Lobbying Act;
• Commissioner Shepherd has issued a legally incorrect, and incomplete, guideline on Rule 8 of the Lobbyists' Code of Conduct., and;
• Commissioner Shepherd issued a weak ruling (PDF) last March in the case of Rogers Communications Inc. giving Conservative Parliamentary Secretary Rick Dykstra's riding association a discount to rent a box in the Rogers Centre for a fundraising event, as well as access to Blue Jays batting practice for attendees.
  

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• close the loophole that currently allows corporations to hide the number of people involved in lobbying activities (employees of corporations who lobby less than 20% of their work time are not required to be listed in the corporation's lobbying registration);
• require lobbyists to disclose their past work with any Canadian or foreign government, political party or candidate;
• require lobbyists to disclose all their government relations activities (whether paid or volunteer and on no matter what issue (NOTE: currently unpaid lobbyists are not required to disclose, nor lobbyists who lobby about the enforcement of laws or administration of programs) involving gathering inside information or trying to influence policy-makers (as in the U.S.) -- or require all government decision-makers to disclose all their contacts with anyone trying to influence them (as the Conservatives promised they would in the 2006 federal election);
• require lobbyists to disclose the amount they spend on lobbying campaigns (as in 33 U.S. states);
• the search page for Lobbyist Registry must be changed to allow for searches by any data field in the registry (currently, the database can only be searched by the name and client(s) or organization of the lobbyist, the department being lobbied and the subject matter, and the lobbying time period);
• prohibit lobbyists from working for government departments or serving in senior positions for political parties or candidates for public office (as in New Mexico and Maryland), and from having business connections with anyone who does;
• close the loophole MPs added to their MPs Code in May 2009 that allows lobbyists to provide unlimited volunteer services of any kind in secret to any MP without any conflict of interest being created, and make the MPs Code a law;
• ban all senior politicians, staff, appointees and senior government officials from lobbying (paid or unpaid) for five years for anyone they had dealings with during their last five years in office (currently former senior politicians and only full-time government officials only have to sit out for one to two years), and ban all junior politicians, staff appointees and officials from doing the same for one to three years depending on their decision-making power;
• anyone participating in the "employment exchange program" (who are mainly people from large corporations) must be covered by the five-year ban on senior public office holders becoming lobbyists;
• ban lobbyists from becoming members of Cabinet for at least four years after they are elected as a federal politician;
• the Commissioner of Lobbying must be required to conduct random audits of everyone covered by the Lobbying Act and the Lobbyists' Code of Conduct;
  
• prohibit the Commissioner from giving secret advice;
• ensure that the Commissioner must investigate and rule publicly on all complaints (including anonymous complaints) and empower the Commissioner to investigate and rule on complaints even if the police are investigating the lobbyist for a violation of another law at the same time;
• require the Commissioner to disclose the identity of rule-breakers (although Democracy Watch's position is that she is legally required to disclose this information in her annual report), and empower the Commissioner to penalize rule-breakers, even for violations of the Lobbyists' Code with significant fines;
  
• ensure all Commissioner decisions can be reviewed by the courts;
• give opposition party leaders a veto over the appointment of the Commissioner of Lobbying;
• the Commissioner of Lobbying must be required to submit public, bi-annual reports to a parliamentary committee that include details about the wrongdoing alleged in each complaint; the date each complaint is received; when each investigation began and finished; when the Commissioner received the investigation report; when the Commissioner/courts ruled and ruling details; how many people formally trained/informed by the Commissioner's Office; number of information requests received by subject and other core operational information;
• have Parliament (as opposed to Cabinet) approve the Commissioner's annual budget (as is currently the process for the Ethics Commissioner);
• as with the Conflict of Interest and Ethics Commissioner position, any person nominated and chosen to be the Commissioner of Lobbying must be required to have legal experience enforcing ethics rules or laws to ensure proper enforcement of the Lobbying Act and the Lobbyists' Code of Conduct, and;
• make the Lobbyists' Code a law.

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