Friday, October 16, 2009

OTTAWA - Today, Democracy Watch released the letters it has sent to the federal Commissioner of Lobbying, Conflict of Interest and Ethics Commissioner, and Commissioner of Canada Elections requesting that they investigate and rule on a fundraising event it believes was held by Conservative Parliamentary Secretary and MP Rick Dykstra (and possibly other Conservatives) at the Rogers Centre on September 6, 2009.

• To see the letter to the federal Commissioner of Lobbying, click here;
• To see the letter to the federal Conflict of Interest and Ethics Commissioner, click here;
• To see the letter to the Commissioner of Canada Elections, click here;
• NOTE: To see a second news release about the situation issued November 3, 2009, with new information and new letters sent to the three commissioners, click here.
  

Democracy Watch has been provided with what appears to be a genuine copy of an invitation sent by email by Mr. Dykstra for a fundraising event it appears was to benefit Mr. Dykstra’s riding association, and indirectly the Conservative Party of Canada, and possibly other of its candidates and riding associations (Democracy Watch does not know if other Conservative MPs also sent out the invitation).

The invitation states that the event was to be held in the Owner’s Box at the Rogers Centre in which Mr. Dykstra would have “the opportunity to host 60 friends” and that “Included with your contribution to my federal association is a ticket to the game, access to the owner’s suite, beverages and food during the entire game.”  According to the Rogers Centre website, the Centre has been owned by Rogers since February 2005.

The email also states that invitees will have “the opportunity to attend batting practice, meet with the President of Blue Jay Operations, ministers from the federal government and players from the Blue Jays” baseball team.  According to Rogers website, the Blue Jays team has been owned by Rogers since September 2000.  Democracy Watch does not know which Blue Jays players were made available to meet attendees.

Democracy Watch also does not know which (if any) Cabinet ministers actually attended the event.
   
Democracy Watch has been told by Rogers Centre staff that the Owner’s Box cannot be rented, but that the Luxury Suites that are available for rent at the Rogers Centre (of which the Owner’s Box is one) can be rented for approximately $175 per person attending a Toronto Blue Jays game (which covers the costs of the game ticket and the rental of the suite -- any food or beverages cost extra).
   
Given that the Owner’s Box cannot be rented, Democracy Watch’s opinion is that the Conservatives could not have paid full value for the use of the Owner’s Box, and that it is reasonable to conclude that the value of being able to hold an event in it is much greater than the per person rental cost for any of the other Luxury Suites which are available to the public for rental.
   
As well, Democracy Watch’s opinion is that the other perks offered in return for the donation should add to the total value of the benefit provided to attendees.
   
Democracy Watch does not know whether Mr. Dykstra, his riding association, the Conservative Party of Canada or some other entity paid Rogers for these perks offered to attendees.
   
The invitation states, referring to attendees of the event, that “Your assistance and attendance is deeply appreciated.  Fundraising is a key aspect to the success we have achieved in the last two elections and your commitment means a great deal.”
   
It is not known if anyone at Rogers or the Rogers Centre provided any services in organizing the event, nor whether the Conservatives paid for any services provided.  Democracy Watch contacted several members of the Canadian Society of Professional Event Planners and was told that the service of registering people for such an event has a commercial value of $1,500 to $2,000, and the services involved in overall organization of such an event have a commercial value of $4,000 to $5,000.
   
At the time of the reported fundraising event, Rogers Communications Inc. was registered under the federal Lobbying Act to lobby Canadian Heritage (PCH), Canadian Radio-television and Telecommunications Commission (CRTC), Foreign Affairs and International Trade Canada (DFAITC), Industry Canada (IC), Prime Minister's Office (PMO), Privy Council Office (PCO), Public Safety and Emergency Preparedness Canada, and the House of Commons and the Senate of Canada (Registration numbers 722074-4903-9 (in-house corporation registration) and 780389-11623-9 (Registration of consultant lobbyist Gerald Kerr-wilson on behalf of his client Rogers)).
   
Under these two registrations, Rogers has disclosed under the Lobbying Act several communications since March 2009 with public office holders who are covered by the Conflict of Interest Act, including on March 24th with Bill King, Chief of Staff, Minister of Industry (Communication number 4903-101577); on April 21st with Industry Minister Tony Clement and others (Communication number 4903-105134); and on May 13th with Heritage Minister James Moore and his Chief of Staff Ian Todd and his Senior Policy Advisor Tanya Peatt (Communication number 4903-110490).
   
Democracy Watch has searched Mr. Dykstra’s website (http://www.rickdykstra.ca) and found no mention of the fundraising event, which seems to indicate that the invitation was sent to a select list of people, and not to all of Mr. Dykstra’s constituents or to the general public.

In Democracy Watch's opinion, the fundraising event raises serious questions because according to the invitation it was partly held in the Owner's Box of the Rogers Centre (which, according to Rogers Centre staff, cannot be rented and can only be used with the exclusive permission of Rogers Communications Inc., the owner of the Rogers Centre, which makes it a very valuable gift that cannot be paid for) and because it also involved, according to the invitation, other perks that were not paid for by the attendees through their donation to Mr. Dykstra's riding association.

"Democracy Watch's opinion is that given federal ethics rules for politicians and lobbyists, and federal political donation rules, and given related federal court rulings, the fundraising event raises serious questions that merit investigation by the federal Lobbying Commissioner, Ethics Commissioner and Commissioner of Canada Elections," said Duff Conacher, Coordinator of Democracy Watch.

Democracy Watch's opinion is that the valuable contributions that appear to have been made to the Conservatives by Rogers Communications Inc. through the fundraising event also raise serious questions for the following reasons (all of which are detailed in the letters sent today to the federal Commissioner of Lobbying, Ethics Commissioner and Commissioner of Canada Elections):

Based on its very close review of the federal Conflict of Interest Act and federal Ethics Commissioner's 2008 Guideline on Gifts (including Invitations, Fundraisers and Business Lunches) under that Act, and relevant court rulings, Democracy Watch’s opinion is that the only gifts and/or contributions that are permitted to be given to federal Cabinet ministers (including Parliamentary Secretaries) under the Canada Elections Act exemption in clause 11(2)(a) of the Conflict of Interest Act are money, property or the use of property or services provided by an individual up to the contribution limit of $1,100 (or equivalent commercial value) annually, and volunteer labour provided by an individual outside of their area of work and outside of their working hours.

Based on its very close review of the federal Conflict of Interest Code for Members of the House of Commons (the MPs Code) and relevant court rulings, Democracy Watch’s opinion is that it is a violation of the MPs Code for an MP to accept any gift of money, property or the use of property or services (volunteer or otherwise, such as fundraising) from a registered lobbyist, as such a gift can reasonably be seen to be given to influence the MP’s exercise of their public duties.

And based on its very close review of the federal Lobbying Act and Lobbyists' Code of Conduct and relevant court rulings (including the Federal Court of Appeal's unanimous ruling in March 2009), Democracy Watch’s opinion is that it is a violation of Rule 8 of the Lobbyists’ Code for any lobbyist (whether legally and properly registered under the Act or not) to provide, directly or indirectly, to any public office any more money than is allowed to be contributed annually under the Canada Elections Act, or any more property or use of property the commercial value of which exceeds the annual contribution limits under the Canada Elections Act, or any services (whether paid or volunteer) that are significant enough to create within the public office holder a personal sense of obligation to the lobbyist.

Rule 8 of the 12-year-old federal Lobbyists' Code of Conduct (Lobbyists’ Code) states:

"8. Lobbyists shall not place public office holders in a conflict of interest by proposing or undertaking any action that would constitute an improper influence on a public office holder."

The Federal Court of Appeal's March 2009 unanimous ruling stated that Rule 8 of the Lobbyists' Code simply "prohibits lobbyists from placing public office holders in a conflict of interest" because "Any conflict of interest impairs public confidence in government decision-making" (para. 48).

The Court of Appeal's ruling went on to clarify specifically that "A lobbyist's stock in trade is his or her ability to gain access to decision makers, so as to attempt to influence them directly by persuasion and facts.  Where the lobbyist's effectiveness depends upon the decision maker's personal sense of obligation to the lobbyist, or on some other private interest created or facilitated by the lobbyist, the line between legitimate lobbying and illegitimate lobbying has been crossed."

The Court of Appeal's ruling follows the same logic, and sets the same ethical standard, as the federal Conflict of Interest and Ethics Commissioner's 2008 Guideline on Gifts (including Invitations, Fundraisers and Business Lunches), which covers gifts of money, property or services as defined under the Conflict of Interest Act and strongly reaffirms that federal Cabinet ministers and other senior government officials (and their family members) essentially cannot accept any gifts or favours from anyone who is trying to influence, or will be trying to influence, or has or will have dealings with, the minister or government official, even if the lobbyist is a friend or a relative. (NOTE: the Ethics Commissioner's guideline is based upon the principles of the science of influence and persuasion -- for more details, click here)

The Guideline on Gifts offers examples of gift givers who the Commissioner views as giving gifts or doing favours in order to influence a minister or government official, including anyone who is associated with, or lobbying for, any entity that has or may have dealings of any kind with the government institution(s) that the minister or official directs (p.5).
   
"We believe that, together, the Federal Court of Appeal's ruling and the federal Ethics Commissioner's guideline strongly reaffirm the standard that federal politicians and government officials and their family members cannot accept gifts or favours from people who are lobbying them, and that people who are lobbying cannot give gifts or do favours for politicians and officials or their family members," said Duff Conacher, Coordinator of Democracy Watch.

The Guideline on Gifts contains the following key statements (among others):

• "The purpose of prohibiting public office holders or their family members from receiving gifts is to preserve confidence in the integrity of public decision-making.  The determining factor is whether the gift might reasonably be seen to have been given to influence the public office holder's decision-making.” (pp. 4-5);
• "It is important to consider who is offering the gift and why it is being offered. The donor's existing, or future relationship to the public office holder is of particular relevance." (p. 5);
• "A public office holder or family member should consider why a gift is being offered. If a gift is being offered by someone whose interests could be affected by a decision the public office holder may be called upon to make, then the Act will likely apply and prohibit its acceptance." (p. 5), and;
  
• "If a friend is offering a gift in a context not normally associated with gift-giving and the friend is also doing or likely to do business directly or indirectly with the public service entity of the public office holder, then the gift should not be accepted." (p. 7)
  

The Preamble of the federal Lobbyists' Code states that together it and the Conflict of Interest Act and other ethics codes for public office holders (politicians, their staff and government officials) “play an important role in safeguarding the public interest in the integrity of government decision-making”.  Therefore, Democracy Watch has always argued that the interpretation of Rule 8 of the Lobbyists' Code must be based on public office holders' ethics rules.

There are rules that clarify what types of influence are improper and cause conflicts of interest in the two-year-old Conflict of Interest Act, and in the four-year-old Conflict of Interest Code for Members of the House of Commons and in the four-year-old Conflict of Interest Code for Senators and in the 12-year-old federal Values and Ethics Code for the Public Service.

Specifically, all of these codes state that it is improper to receive a gift of money, property or services that could influence a decision.  Given that lobbyists, by definition, try to influence the decisions of public office holders, Democracy Watch believes that a proper application of the Court of Appeal's interpretation and application of Rule 8 of the Lobbyists' Code  prohibits lobbyists from providing money, property or services to public office holders because that can create, in the words of the Court of Appeal, a “personal sense of obligation” by the public office holder to the lobbyist or a “competing private interest” (paras. 52-53).

For all these reasons, Democracy Watch believes that is reasonable for the Commissioner of Lobbying, the Ethics Commissioner and the Commissioner of Canada Elections to investigate the fundraising event.