Report on Investigation — The Lobbying Activities of Michael McSweeney (Page 5 of 8)
The Lobbyists' Code of Conduct investigation of Michael McSweeney covered his lobbying activities on behalf of the Cement Association of Canada during the period surrounding the fundraiser, and involved an examination of the lobbying activities of Mr. McSweeney and the CAC, and information and materials regarding the organization of the fundraiser on behalf of the Halton Conservative Association, interviews with a number of public office holders and persons involved in the Halton Conservative Association, an examination of the Registry of Lobbyists and an examination and analysis of information obtained during the course of the administrative review.
Following the investigation, a copy of the Investigations Directorate's report was sent to Mr. McSweeney to give him an opportunity to present his views, as required by subsection 10.4(5) of the Lobbying Act, and in accordance with the principles of administrative fairness. He provided his response in letters from his legal counsel dated August 23 and 30, and December 13, 2010.
I considered both the report of the Investigations Directorate and Mr. McSweeney's views in making my findings and reaching my conclusions, which are set out in this Report on Investigation.
Lobbyists' Code of Conduct
Rule 8 reads as follows:
Rule 8 – Improper Influence (Conflict of Interest)
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.
Interpretation of Rule 8
Guidance has been provided to lobbyists regarding Rule 8 since 2002. The former Ethics Counsellor examined the application of the Lobbyists' Code of Conduct, in particular Rule 8, to a situation that had been referred to him: allegations that registered lobbyists had breached the Lobbyists' Code of Conduct by lobbying a federal department at the same time they were involved in assisting the Minister responsible for that department on a potential bid for the leadership of a political party. The Ethics Counsellor issued guidelines entitled "Rule 8 – Improper Influence – Lobbyists and Leadership Campaigns" (the "2002 Guidelines") 6.
The 2002 Guidelines were the subject of the March 2009 decision of the Federal Court of Appeal in Democracy Watch v. Campbell and Attorney General of Canada (Registrar of Lobbyists). 7 In that decision, the Federal Court of Appeal held that the interpretation of Rule 8 based upon those 2002 Guidelines by my predecessor, the Registrar of Lobbyists, was unreasonable.
In my Guidance on Conflict of Interest – Rule 8 (Lobbyists' Code of Conduct), published November 6, 2009, I provided guidance to lobbyists regarding the interpretation and application of Rule 8, based upon the Court's direction in that decision. In the Annex to that Guidance 8, I expanded upon my reasoning, explaining that:
The following consideration factored into the Commissioner's guidance regarding Rule 8 of the Lobbyists' Code of Conduct:
Conflict of interest may exist because of a "reasonable apprehension" of an apparent conflict of interest, rather than a demonstration of interference with the public duties of a public office holder.
The determination of what constitutes an improper influence upon a public office holder must remain a question of fact in each case. Depending on the specific circumstances, a competing obligation or private interest could arise from factors such as, but not limited to:
- the provision of a gift, an amount of money, a service, or property without an obligation to repay;
- the use of property or money that is provided without charge or at less than its commercial value; and
- political activities.
Lobbyists should endeavour to conduct themselves in the highest ethical manner thus avoiding situations which could create a real or apparent conflict of interest for a public office holder.
I also interpreted "real or apparent conflict of interest" as follows:
A conflict of interest can be created by the presence of a tension between the public office holder's duty to serve the public interest and his or her private interest or obligation created or facilitated by the lobbyist.
I take the view that this interpretation flows directly from the manner in which the Federal Court of Appeal summarized the concept of improper influence in its March 12, 2009 decision:
"Improper influence has to be assessed in the context of conflict of interest, where the issue is divided loyalties. Since a public office holder has, by definition, a public duty, one can only place a public office holder in a conflict of interest by creating a competing private interest. That private interest, which claims or could claim the public office holder's loyalty, is the improper influence to which the Rule refers." 9
From my perspective, the risk of creating the appearance of a conflict of interest is proportionate to the degree to which a lobbyist's actions advance the private interest of a public office holder and the degree to which that lobbyist may interact with the public office holder as a consequence of their employment or undertaking.
In conducting this investigation, I asked the Investigations Directorate to examine whether Mr. McSweeney placed Minister Raitt in a conflict of interest, including the appearance of a conflict of interest.
7 – supra, footnote 1 Back to text
8 – Reasoning Underlying the Commissioner's Guidance on Conflict of Interest – Rule 8 (Lobbyists' Code of Conduct) Back to text
9 – supra, footnote 1, at paragraph 52 Back to text