Do you need a Municipal Lobbyist Registry?

Transparency in municipal government is generally achieved by requiring council’s discussion and decisions to occur during properly constituted public meetings. For example, in Ontario, open meeting rules are enforced by the Ontario Ombudsman (or municipally appointed Ombudspersons). Municipal codes of conduct also set standards for municipal councilors’ behaviour including conduct at meetings, rules for gifts, protection of confidential information, and improper use of municipal property.

Municipal governments not required by provincial or territorial law to establish a lobbyist registry must consider models that comply with the laws that govern municipal powers (for example, The Cities Act in Saskatchewan, the Municipal Government Act in Alberta, and the Local Governance Act in New Brunswick). Well-meaning council members and administrators may unwittingly impose restrictions or obligations they do not have the power to enact. For instance, in 2018, a Halifax, Nova Scotia review concluded that the Halifax Regional Municipality Charter must be amended or the province’s Lobbyists’ Registration Act must be expanded to local governments to create a lobbyists registry.

While registries are useful, they may not be necessary for all local governments. It is worth considering other mechanisms that instill public confidence and support open and transparent decision-making processes.

Statutory Authority

Enabling statutes in each province and territory regulate how municipalities operate. Some include language permitting lobbyist registries and others require it. Québec, for example, regulates lobbyists at both the provincial and local levels through its Lobbying Transparency and Ethics Act.

In Ontario, the Municipal Act, 2001, authorizes municipalities to establish lobbyist registries. Although it is compulsory in Toronto, several other municipalities have created lobbyist registries, including the cities of Brampton, Hamilton, Ottawa, and Vaughan, the Town of Collingwood, and the Region of Peel.

No other provincial or territorial legislation requires or sets out a framework for municipal lobbyist registries. However, even in the absence of legislation, Surrey, Winnipeg, and Edmonton have established processes and procedures responding to their local needs.

Surrey established a Lobbyist Registration Policy in 2008, listing all persons who attempt to influence decisions of City government in relation to land use development applications. In 2017, Winnipeg created a Voluntary Lobbyist Registry permitting lobbyists to register their activities. The Edmonton Mayor’s Office voluntarily implemented a lobbyist registry for the 2017-21 term with information on individuals meeting with the Mayor’s Office.

Scope of Lobbyist Registry

The scope of the registry depends on how “lobbying” is defined and who is considered a “lobbyist” and “public office holder.” In Ontario, section 223.9(2) of the Municipal Act, 2001, requires municipalities to define the term “lobby.”

Toronto’s Municipal Code defines “lobby” as “to communicate with a public office holder on any of the following subject matters”, including:

• Development, introduction, passage, defeat, amendment or repeal of a bylaw, bill or resolution;
• Development, approval, amendment or termination of a policy, program, directive or guideline;
• Procurement of goods, services or construction and awarding a contract;
• Approving, approving with conditions, or denying an application for a service, grant, planning approval, permit or other licence or permission; and
• Awarding any financial contribution, grant or other financial benefit by or on behalf of the City, a local board or the Board of Health.

In Brampton, lobbying is defined as “when an individual who represents a business or financial interest communicates with a public office holder with the intent to influence a decision on governmental matters outside of normal processes".

The Edmonton Mayor’s Office gives the following summary:

1. You will be considered a lobbyist if you wish to meet with the Mayor or the Mayor’s Office staff outside of a formal public meeting with the intent of influencing or changing:
   • An existing City of Edmonton program or policy
   • An upcoming or future Committee or City Council

Surrey focuses on “information about persons who may attempt to influence decisions of City government through the use of paid lobbyists in relation to land use development applications.”

The City of Winnipeg defines a lobbyist as “an individual who, when representing a financial or business interest, or the financial interest of a not-for-profit with paid staff, communicates with a Member of Council or City staff with the intent of influencing a decision on governmental matters outside of the standard process.”

Québec’s process is prescribed at the provincial level. The legislation defines lobbying as:

2. Any oral or written communication with a public office holder in an attempt to influence or that may reasonably be considered by the initiator of the communication as capable of influencing a decision concerning
   1. the development, introduction, amendment or defeat of any legislative or regulatory proposal, resolution, policy, program or action plan,
   2. the issue of any permit, licence, certificate or other authorization,
   3. the awarding of any contract, otherwise than by way of a call for public tenders, or of any grant or other financial benefit or the granting of any other form of benefit determined by government regulation, or
   4. the appointment of any public office holder within the meaning of the Act respecting the Ministère du Conseil exécutif (chapter M-30) or the appointment of any deputy minister or other holder of a position referred to in section 55 of the Public Service Act (chapter F-3.1.1) or any holder of a position referred to in section 57 of that Act, constitutes lobbying or a lobbying activity within the meaning of this Act.

The arranging by a lobbyist of a meeting between a public office holder and any other person is considered to be a lobbying activity.

Who is a Lobbyist?

Registries typically distinguish between different types of lobbyists to capture lobbying activities of a variety of individuals. Common types of lobbyists listed in municipal registries across Canada are:

• Consultant Lobbyist – lobbies for payment on behalf of a client (another individual, company, partnership or organization).
• In-House Lobbyist – employee, partner or sole proprietor who lobbies on behalf of their own employer, business or organization.
• Voluntary, Unpaid Lobbyist – lobbies without payment on behalf of an individual, business or other organization for their benefit.

In addition, municipalities must consider whether professionals such as lawyers, accountants or engineers ought to be captured by a registry. Otherwise, they are inadvertently targeted by an open definition of lobbyist because they give opinions and present arguments to advise and, by default, influence, decision makers. Certain professionals should be excluded to allow them to undertake their independent role of providing advice to inform decision makers. In particular, solicitor-client privilege must be respected so that all parties, including municipalities, can exercise their right to communicate in confidence with their lawyer.

To balance competing objectives, Brampton’s lobbyist registry states that the registry applies not only to professional lobbyists but to anyone who represents an entity’s business or financial interest and tries to influence a municipal decision (see Part IV – Exemptions).

The Mayor’s Office in Edmonton casts a wide net and requires everyone meeting the Mayor or Mayor’s Office staff outside a formal public meeting with the intent of influencing or changing any city program, policy, upcoming committee or city council decision be considered a lobbyist.

Québec’s legislation includes consultant lobbyists, enterprise lobbyists and organization lobbyists (see Section 3) and excludes other government entities and agencies from registering as lobbyists (see Section 7). Despite the exception, professionals, including lawyers, are captured by the provincial legislation if they are hired to lobby on behalf of another person in return for compensation.

Who is a Public Officer Holder?

Municipalities creating lobbyist registry bylaws should include definitions of who is likely to be influenced in the decision-making spectrum. Brampton’s registry states that a “public office holder” is:

• a member of council and any person on their staff;
• an officer or employee of the city;
• a member of a local board or committee established by council and any person on their staff;
• an accountability officer appointed under the Municipal Act, 2001, including but not limited to: Auditor General, Integrity Commissioner, Lobbyist Registrar, Ombudsman, and Closed Meeting Investigator.

Other considerations

In a jurisdiction where provincial legislation offers guidance, the statutory framework is the starting point for implementation of lobbying requirements. If the statute does not include specific language, broad grants of authority or peace, order and good governance language to frame the bylaw or policy should be considered. In either situation, there are further considerations:

Will registration be voluntary or mandatory?

If it is voluntary, the municipality should promote this requirement or include it in council’s decision-making process. If it is mandatory, council must consider how to force compliance, particularly if the governing legislation is silent in this regard.

What must be reported?

One must be mindful of what is practical to manage and report. The more aggressive the measures, the more resources will be required to monitor, document and report lobbyist activities.

When is registration required?

In Toronto, lobbyists must register in advance and give details of the meeting. In Ottawa, section 6(1) of the Lobbyist Registry By-law states that registration is required only after the fact and within 15 days of the communication.

Who must report on lobbying activities?

Under federal lobbying rules, the chief executive officer of a company files one report for all employees. In Ottawa, however, each employee must file a separate report.

Is access to registry on-line?

This question is resource-based and a municipality must determine not only who will manage a registry, but its accessibility. For example, Québec has a provincial database that is easily accessible and searchable.

Will there be a cooling-off period for former public office holders before they can lobby the municipality they just left?

Brampton’s by-law prohibits a former public office holder from lobbying for 12 months after the end of their employment with the city. Provincial and federal legislation includes similar sections. Councils must determine what is reasonable for their municipality.

Offences and Enforcement

A significant challenge with municipal lobbyist registries is addressing violations and enforcement. Municipal governments in jurisdictions that do not require lobbyist registries – depending on their municipal legislation – would be hard pressed to impose penalties in the absence of a compulsory registry.

Toronto’s by-law contains significant offences and penalties in Article VII. Upon first conviction of an offence, an individual is subject to fine of up to $25,000 and subsequent convictions are subject to a fine of up to $100,000. Brampton and Collingwood rely on suspensions for non-compliance. Winnipeg’s voluntary registry contains no penalties and encourages registration to enhance the transparency and integrity of conducted business.

If a municipality’s legislation includes offences, it must consider the scope of these offences, its resources and its capacity to monitor and enforce them. Toronto has numerous resources and authority to conduct inquiries and refer matters to the police. For smaller jurisdictions with finite resources, the ability to conduct inquiries may be limited. Other municipalities without provincial or territorial legislation may avoid penalties given their uncertain jurisdiction.

Costs and Resource Considerations

While a municipal lobbyist registry raises significant resource implications, different options are available to reduce costs. For example, while Toronto’s registry has a Lobbyist Registrar and full-time staff, most other jurisdictions, such as Ottawa, have adopted a computerized database to monitor lobbying activities and use existing staff where possible instead of a lobbyist registrar and support staff.