Yes, You Are A Lobbyist
An Overview of the City of Toronto Lobbyist Registry and How it Applies to You and Your Client Tim Murphy March 5, 2008
Definition of Lobbying
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Lobbying Is… •
Communicating outside of a public process (via oral, written or electronic method)
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About matters of interest or benefit to the lobbyist or their client, business, or organization
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With respect to a by-law, bill, or resolution, or on any matter that requires a decision by City Council, a local board, or a delegated decision maker
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Lobbying is Communicating Regarding •
policies, programs, directives and guidelines
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the procurement of goods and services and awarding of contracts
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applications for a service, grant, planning approval or licence
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awarding any financial contribution, grant, or financial benefit by or on behalf of the City
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transferring from the City any interest in, or asset of, any business or institution
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determining the model and method of delivering a service 4
Examples of Lobbying •
a vendor communicates with a public office holder about a prospective, pending, or active procurement process or budget decision in which it has an interest
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an applicant seeking a permit, licence, grant, or City approval communicates with a public office holder outside the formal process about commercial of business matters
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a constituent communicates with a public office holder in an attempt to advance decision making in favour of their commercial or business interests 5
Examples of Lobbying (continued): •
where employee or labour groups that represent employees of the City or local board communicate with a public office holder on any matter other than labour relations
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a representative of a company or an association representing business communicates with a public office holder on behalf of the organization to present their point of view
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Intent to Lobby Irrelevant •
Ontario: lobbying requires communication in an attempt to influence certain activities
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Toronto similar to Federal: merely communicating with a public office holder on one of the listed subject matters is sufficient
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Other Kinds of Activity that Require Registration •
lobbying catches grass roots efforts
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grass roots efforts: encouraging members of the public or an organization to communicate directly with public office holders
e.g. via letter writing and fax campaigns, telephone calls to public office holders, and public demonstrations
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Definition of Lobbyist
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Consultant Lobbyists •
a consultant lobbyist is any individual that is paid to lobby on behalf of his or her clients whether those clients are for-profit or not-for-profit entities
e.g. where a lawyer is hired to arrange meetings and promote the client’s planning application
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Consultant Lobbying •
includes arranging a meeting and almost all communication outside of a public process except requests for, or responses to, written requests for information, providing feedback, and personal communications
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excluded from the definition is an individual who is paid to accompany an applicant or their representative to a meeting with a public office holder regarding an application if:
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the application is for a service, grant, planning approval, permit or other licence other permission
the individual provides technical or other background information on the application, but does not promote the merits of the application or advocate approval of the application
where a lawyer communicates with a public office holder in the interests of his or her client in any other circumstance, he or she best avoids potential liability for him/herself and the client by filing a return 11
In-House Lobbyists •
an in-house lobbyist is anyone employed by a business or a professional, business, industry, trade, labour or not-forprofit association to lobby on behalf of their employer (applies even for just a single communication)
e.g. where an employee of a vendor with an interest in an active procurement process communicates with a public office holder
e.g. where a CEO of a company intervening on policy or budget matters, who has a business or commercial interest in the outcome, communicates with a public office holder 12
Voluntary Lobbyists •
Federal and Ontario: no requirement that a lobbyist acting without payment register
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Toronto: any individual that lobbies on behalf of a business or notfor-profit organization without payment must nonetheless register, with some limited exceptions
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Contingency Fees Prohibition •
cannot make or receive payment for lobbying activities contingent on a successful outcome
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Registration •
lobbyists must register before engaging in lobbying activities
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where any of the information on the registry changes, lobbyists must amend their registration within two business days
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returns need not necessarily be amended for every communication: one return can cover multiple communications relating to the same subject matter
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in any event, must confirm registration information annually
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can only register online, but free of charge 15
Shorter Filing Deadline in Toronto •
Ontario and federal systems: can file a return ten days after commencing lobbying
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Toronto: must file a return before a lobbyist communicates with public office holders
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Ontario and federal systems: thirty days from the change to file subsequent changes or new information
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Toronto: changes must be reported in two business days 16
Information Required for the Return •
identification and contact information for each of the lobbyist, client,
business or organization for which the lobbying is taking place •
if the client is a corporation, the name and business address of the parent corporation and those subsidiaries which directly benefit from the lobbying
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identification and contact information of any entity or organization that, to the knowledge of the individual filing the return, contributed $750 or more toward the lobbying activities
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subject matter of the lobbying activity to be undertaken 17
Information Required for the Return (continued) •
name of the division or program of the City or local board that the lobbyist expects to lobby
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name of the Member of Council or local board the lobbyist expects to lobby
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communication methods that the lobbyist expects to use and techniques of communication (including grassroots lobbying)
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information about any elected, appointed or other senior City or local board position previously held by the lobbyist 18
Who Registers •
consultant lobbyists have the responsibility for filing their own returns
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for in-house lobbyists, the most senior officer or staff of the organization is required register on behalf of the organization
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voluntary lobbyists register as consultant lobbyists unless they are undertaking the lobbying as part of their employment duties (i.e. are in-house lobbyists)
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Lobbyist Code of Conduct •
all lobbyists are required to give a declaration that they will comply
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Code includes provisions relating to: honesty, purpose and disclosure of identity (regarding the entity the lobbyist is representing), compliance with communication policies, prohibited activities, competing interests, and improper influence
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Wrinkles
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Not-For-Profit Organizations •
generally, not-for-profit organizations (and their members and officers) will not be required to register
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registry will be required in certain circumstances, including where the organization:
is funded by a for-profit business to advance the financial or commercial interests of the business
engages a consultant lobbyist on its behalf (consultant required to register)
lobbies for the grant it applied for outside of the approved application or appeal process 22
Confidentiality •
lawyers are obligated to reveal their client’s identity
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no name inquiries are possible but narrow, i.e. regarding how a by-law applies or will be administrated
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corporate structure and controlling individuals of a company may also have to be revealed
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enquiries are possible but Registry Office is likely to be overloaded and under-funded
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Exemptions •
information requested by or from a public office holder
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providing feedback on services or programs
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communicating about a personal matter
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Practical Tips •
When in doubt, register
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Get client consent: include it in your retainer agreement as you must reveal your client’s identity and that of affiliated entities
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Register ‘defensively’: list all councillors and anyone possibly relevant: it’s safer that way
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Register as early possible: you must register before you lobby so don’t let administrative backlogs get in your way
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Watch for affiliates and related companies when registering
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Planning process problems: talk to the Registrar. There is considerable uncertainty and changes may be forthcoming so let her know your problem. 25
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