Rule 8 - Improper Influence - Lobbyists and Leadership Campaigns

September 2002

During the past year there were a number of allegations that lobbyists would be in a possible conflict of interest if they were registered under the Lobbyists Registration Act (LRA) to lobby a federal department at the same time that they were involved in assisting the Minister of that department on a possible bid for the leadership of the Liberal Party. As Ethics Counsellor and responsible for the Lobbyists' Code of Conduct, I was asked to examine the application of the Lobbyists' Code to this situation, in particular Rule 8 - Improper Influence.

It quickly became evident in analysing the matter that the responsibility of resolving any conflict of interest rested with the Minister seeking the leadership of the Liberal party and not with the lobbyist who was both lobbying the Minister's department and involved in the Minister's leadership campaign.

The Conflict of Interest and Post-Employment Code for Public Office Holders (Conflict of Interest Code) places an obligation on Ministers to "arrange their private affairs in a manner that will prevent real, potential or apparent conflicts of interest from arising". The pursuit of the leadership of a political party is a private interest, unrelated to their official duties as Ministers. In recognition of this the Prime Minister, on June 11, 2002, issued Guidelines on the Ministry and Activities for Personal Political Purposes.

 These Guidelines directly address the question of lobbyists as follows:

Ministers also need to be mindful of situations where individuals involved in the Minister's campaign, whether as fundraisers, organizers or strategists, may be registered under the Lobbyists Registration Act to lobby the Minister's department. This again is a situation which can give rise to the appearance of a conflict of interest and needs to be resolved by the Minister in the public interest by declining the active support of the individual on the campaign. Alternatively, the individual might choose not to lobby the department so long as he or she was involved in the campaign. Either step would resolve the matter. In cases where there is any ambiguity, reference should be made to the Office of the Ethics Counsellor.

The full text of the Guidelines can be found at: http://strategis.ic.gc.ca/epic/internet/inoec-bce.nsf/en/oe01210e.html

The Conflict of Interest Code thus places responsibility on the Minister to resolve the conflict posed by having a lobbyist, who is working on his or her campaign, lobbying the Minister's department at the same time. Nonetheless there continue to be allegations that the Lobbyists' Code of Conduct, specifically Rule 8 - Improper Influence, is also applicable and places a specific obligation on the lobbyist to personally avoid this situation. I consider it in the public interest to directly address the application of this Rule and whether it applies. Briefly my conclusion, as I will explain, is that the Lobbyists' Code of Conduct does not apply.

Rule 8 of the Lobbyists' Code falls under the general heading of Conflict of Interest and reads as follows:

8. Improper Influence

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.

This rule does not simply state that lobbyists shall not place a public office holder in a conflict of interest by their actions. Rather it states that they shall not place a public office holder in a conflict of interest by proposing or undertaking any action that would constitute an improper influence on a public office holder.

It is important to be clear about the nature of these two activities; first, lobbying a Minister's department on behalf of a client and, second, working on the Minister's campaign. Lobbying public office holders, as stated in the Preamble to the LRA, "is a legitimate activity". What the LRA requires is that this activity be registered with the Lobbyist Registration Branch of my Office. The second activity is assisting the Minister of the department in his or her leadership campaign. The pursuit of the leadership of the Liberal Party is, as I have indicated above, a private interest and it is obviously a democratic right for the lobbyist, as an individual, to assist the Minister. We are thus dealing with two separate legitimate activities neither one of which, taken by themselves, "would constitute an improper influence" on the Minister.

Does the fact, however, that both activities are being pursued at the same time raise the question of "improper influence"?

What constitutes "improper influence" is an expression which has not received a great deal of judicial consideration in Canada. One decision did define the expression. This is a 1943 decision on a collective bargaining dispute from the Ontario Supreme Court (Lakeshore Workmen's Council v. Lakeshore Mines Ltd., [1943] O.J. no. 266). The tribunal stated that:

What is "improper influence" is a question of fact in each particular case, but whatever the acts or attitude which it is alleged in any particular case constitute improper influence, they must, in order to be thus designated, be such that either individually or collectively, they interfered with the decision, judgment or action of the members of the bargaining agency, either to the prejudice of those members, or those whom they represent, or at least to the extent that the members of the agency are embarrassed in making the decisions, or taking action. [emphasis added]

In the United States, Black's Law Dictionary, Fifth Edition, 1979 defines ‘improper influence' as equivalent to ‘undue influence'. This in turn is defined in the following fashion:

"Any improper or wrongful constraint, machination, or urgency of persuasion whereby the will of a person is overpowered and he is induced to do or forbear an act which he would not do or would do if left to act freely. Influence which deprives person influenced of free agency or destroys freedom of his will and renders it more the will of another than his own. Misuse of position of confidence or taking advantage of a person's weakness, infirmity, or distress to change improperly that person's actions or decisions."

The Seventh Edition, 1999, more succinctly, again equates ‘improper influence' to ‘undue influence' and defines the phrase as the "improper use of power or trust in a way that deprives a person of free will and substitutes another's objective."

These set a very high, but fair, standard for determining whether a lobbyist has put a public office holder in a conflict of interest by "proposing or undertaking any action that would constitute an improper influence" on this individual. This standard must be set high to avoid allegations being made that a lobbyist has breached the Lobbyists' Code of Conduct simply by virtue of carrying out a legitimate lobbying activity in a normal professional fashion.

My conclusion is that it is not reasonable to believe that a lobbyist has exercised an improper influence on a Minister, placing him or her in a conflict of interest, merely because the lobbyist was assisting the Minister in a leadership campaign at the same time that the lobbyist was lobbying the Minister's department on behalf of a client. More broadly, I conclude that the mere fact that these two legitimate activities are being pursued by a lobbyist does not, in and of itself, breach the Lobbyists' Code of Conduct.

To deal with any allegations that have already been made, or may be in future, that Rule 8 has been breached, the Office of the Ethics Counsellor takes the position that what constitutes an improper influence on a public office holder is a question of fact in each particular case. Factors to be considered in assessing whether a lobbyist has proposed or undertaken any action that would constitute an improper influence on a public office holder include but are not limited to:

• whether there has been interference with the decision, judgment or action of the public office holder;
• whether there has been a wrongful constraint whereby the will of the public office holder was overpowered and whether the public office holder was induced to do or forbear an act which he or she would not do if left to act freely; and
• whether there has been a misuse of position of confidence or whether the lobbyist took advantage of a public office holder's weakness, infirmity or distress to alter that public office holder's actions or decisions.