1. What is up with DPOHs?
- Under the Lobbying Act, “designated public office holders” (DPOHs) are senior decision-makers in the federal government.
- DPOHs are a sub-group of “public office holders” (POHs) and include virtually all employees of the federal government, whether elected or appointed.
- The Lobbying Act requires lobbyists to register when they engage in lobbying activities. In general, registrable lobbying activities involve communicating, for payment, with a POH, on a registrable subject matter (see Examples requiring registration ). The Lobbying Act also requires lobbyists to report every time they engage in an oral and arranged communication on a registerable subject matter with a DPOH. These monthly communication reports must be filed by the 15th of the month following the date of the communication.
- It is important for senior executives to also note that the Lobbying Act places a five-year post-employment restriction on lobbying for former DPOHs. Former DPOHs are prohibited from engaging in any lobbying activities as consultant lobbyists or in-house lobbyists for organizations for five years after they cease exercising their duties as a DPOH. Additionally, former DPOHs may not engage in lobbying activities as in-house lobbyists for corporations if those activities constitute a significant part of their work.
2. Who is a POH?
- Under the Lobbying Act, public office holders (POHs) include:
- all employees of federal government departments and agencies
- Members of Parliament and Senators, and their staff
- persons appointed to any office or body by or with the approval of the Governor-in-Council or a minister of the Crown
- officers, directors or employees of any federal board, commission, or other tribunal as defined in the Federal Courts Act
- members of the Canadian Armed Forces and the Royal Canadian Mounted Police
- Please note that the following are not POHs under the Lobbying Act:
- employees of Crown Corporations, Joint Enterprises, or Shared-Governance Corporations, except for those who are Governor-in-Council appointees
- justices of the Supreme Court of Canada, Federal Court judges, and Tax Court of Canada judges
- the Governor-General of Canada, Lieutenant Governors, and Territorial Commissioners
3. Why is this important?
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- When an “oral and arranged communication” with a DPOH takes place, lobbyists are required to file a monthly communication report. The Commissioner of Lobbying may ask a DPOH to confirm the accuracy of a monthly communication report.
- As a best practice, DPOHs may wish to keep records of these meetings in the event the Office of the Commissioner of Lobbying (OCL) requests confirmation of the information reported by lobbyists. There is no legislated or regulatory requirement for a DPOH to maintain a record of their meetings. However, DPOHs are required to respond to the Commissioner’s requests to confirm the accuracy and completeness of a lobbyist’s report under the Lobbying Act.
4. Are you a DPOH?
- Essentially, all Assistant Deputy Ministers (ADM’s) and Deputy Ministers (DM’s) and equivalents are DPOHs. The Commissioner of Lobbying has published an Interpretation of “Comparable Rank” for Designated Public Offices) which lists what positions are considered of comparable rank to a designated public office holder.
- For a position to be considered of comparable rank to an associate or assistant deputy minister, it must meet the following criteria:
- The position must be classified at the EX-04 level or higher; OR
- The position’s salary must be at the EX-04 minimum or higher, exclusive of performance pay. This excludes EX-03s whose salaries have crossed into the EX-04 salary band through duration in the position; and
- The position must report directly to a DPOH.
- Some government organizations even maintain a list of who is considered a DPOH, such as Global Affairs Canada has done:
https://international.gc.ca/gac-amc/publications/transparency-transparence/dpoh-tcpd.aspx?lang=eng - When you sign your letter of offer, you should be informed that your position falls into this category.
5. What is a “registerable lobbying activity”?
- Registrable lobbying activity can be summed up as being paid to communicate with legislators, ministers, bureaucrats and political staff about:
- changing legislation or regulations,
- changing policies or programs,
- obtaining government financial benefits,
- and – in the case of consultant lobbyists – arranging meetings with public officials and seeking “contracts” for clients.
- A monthly report is necessary if an in-house or consultant lobbyist engages in oral and arranged communication (e.g., a meeting, telephone call, video conference) with a DPOH concerning:
- the development of any legislative proposal by the Government of Canada or by a member of of the Senate or the House of Commons,
- the introduction of any Bill or resolution in either House of Parliament or the passage, defeat or amendment of any Bill or resolution that is before either House of Parliament,
- the making or amendment of any regulation as defined in subsection 2(1) of the Statutory Instruments Act,
- the development or amendment of any policy or program of the Government of Canada,
- the awarding of any grant, contribution or other financial benefit by or on behalf of Her Majesty in right of Canada, or
- the awarding of any contract by or on behalf of Her Majesty in right of Canada.
- What about if the DPOH initiates the contact with the lobbyist?
- Generally no report is required for oral and arranged communication initiated by DPOHs related to the development of legislation, regulations, or policies and programs. However, oral and arranged communications relating to financial benefits and contracts must be reported even when initiated by DPOHs.
6. What does it all mean?
- While you are a DPOH, individuals may seek you out for the purpose of seeking your assistance in making, developing or changing legislation (or legislative proposals), regulations, policies or programs. Or, they may be seeking the award of a federal grant or other financial benefit. If they are a consultant lobbyist, they may be trying to obtain the award of a federal government contract and might be arranging a meeting between a DPOH and the consultant lobbyist’s client.
- DPOHs should be prepared to confirm their status under the Lobbying Act to external parties, so that these parties can decide if they need to register a communication.
- It is the responsibility of the lobbyist alone to determine if a conversation should be listed on a monthly communication report. All arranged verbal conversations with DPOHs must be reported, with the exception of verbal discussions arranged by public office holders about the development of policy, programs or legislation. Discussions about contracts and financial benefits that are arranged by public office holders must be reported.
- Therefore, DPOHs who have been lobbied may be identified in the Registry of Lobbyists, available to the public. You can check to see if you are listed in a report by going to https://lobbycanada.gc.ca/app/secure/ocl/lrs/do/advSrch?lang=eng
- The Commissioner of Lobbying may request any current or former DPOH’s to verify information that relates to them. Not every monthly communication report will necessarily be verified. The Commissioner will decide when to request verifications, how DPOHs will respond and what steps should be taken if a DPOH disagrees with the information in the return.
- DPOHs should make every effort to respond fully and accurately to enquiries from the Commissioner, using information that they have available.
- When scheduling meetings, it is important that DPOHs keep an accurate calendar with the names of individuals present, the organizations they represent and a broad description of the subject discussed. This practice should allow DPOHs to verify a monthly communication report when called upon by the Commissioner of Lobbying.
- The Lobbying Act, however, does not require DPOHs to maintain separate lists of meetings with lobbyists, and does not alter government record-keeping practices and policies.
- If a DPOH fails to respond to the Commissioner or responds in an unsatisfactory way, his or her name and the details of the communication may be published by the Commissioner in a report to Parliament.
7. What is an “oral and arranged communication”?
- Running into someone at the grocery store by chance is not something that needs to be reported by a lobbyist. That said, if the chance encounter leads to the two of you heading off for coffee, it would most likely become arranged. It is important to remember that your actions not be seen as interfering with your ability to fulfill the duties of your government position or does not conflict with the interests of the Crown.
- The Commissioner’s interpretation bulletin on Communicating with Designated Public Office Holders gives additional examples on what constitutes oral and arranged communication.
8. Designated Public Office Holders and the Five-Year Prohibition on Lobbying – What does the prohibition on lobbying mean?
- Former designated public office holders and members of a Prime Minister’s transition team are prohibited from carrying on most lobbying activities for a period of five years after they cease being a DPOH.
- In the five-year period immediately after leaving a designated public office the Act stipulates that a former designated public office holder cannot:
- work as a consultant lobbyist;
- work for a not-for-profit organization and carry out lobbying activities on behalf of that organization; or
- work for a (for-profit) corporation if lobbying constitutes a significant part of that individual’s work.
- The Commissioner of Lobbying may grant an exemption if doing so would not be contrary to the purposes of the Lobbying Act. More on this at https://lobbycanada.gc.ca/eic/site/012.nsf/eng/h_00012.html
- The five-year post-employment prohibition doesn’t stop former DPOHs from working after leaving their office as long as their duties don’t require them to lobby the federal government. For further information on the post-employment prohibition and the exemption process, please contact the Office of the Commissioner of Lobbying. Tel: 613-957-2760 or Email: QuestionsLobbying@ocl-cal.gc.ca
9. How do I know if I have been listed in a monthly communication report?
- If a lobbyist had listed your name on his/her monthly communication report, your name is listed in the Monthly Communication Report listing available at:
https://lobbycanada.gc.ca/app/secure/ocl/lrs/do/dpohLstg
10. As a DPOH, how long do I need to maintain meeting information?
- In the case of an audit by the Commissioner of Lobbying it will be particularly important to have an adequate and accurate report available should the lobbyist recall/record information about the meeting that is at odds with your recollection. It has been suggested by some lobby groups that the records should be maintained for 10 years from the date of the meeting. That said, the Office of the Commissioner of Lobbying offers the following:
- There is no regulated retention period under the Lobbying Act for DPOHs to keep information on meetings that the DPOH would have had with lobbyists. Our suggested best practice is for DPOHs to keep information on meetings for a one year period. The OCL regularly verifies the accuracy of monthly communication reports with DPOHs. We normally conduct our verifications within six months of the date of the communication so a one year retention period is sufficient for our verification purposes.
- DPOHs may also want to check whether their department’s disposition authorities specify a retention period for information on meetings or meetings with lobbyists.
- Even a retired DPOH may be asked by the Commissioner to provide details of a meeting held with a lobbyist while they were a DPOH.
RESOURCES
TEN THINGS YOU SHOULD KNOW ABOUT LOBBYING – A PRACTICAL GUIDE FOR FEDERAL PUBLIC OFFICE HOLDERS
https://lobbycanada.gc.ca/eic/site/012.nsf/eng/00403.html
DESIGNATED PUBLIC OFFICE HOLDER REGULATIONS https://laws.justice.gc.ca/eng/regulations/SOR-2008-117/
COMMUNICATING WITH DESIGNATED PUBLIC OFFICE HOLDERS
https://lobbycanada.gc.ca/eic/site/012.nsf/eng/00120.html
REQUEST FOR EXEMPTION
https://lobbycanada.gc.ca/eic/site/012.nsf/eng/h_00012.html
LOBBYING ACT
https://laws.justice.gc.ca/eng/acts/L-12.4/
ANNEX
Subsection 2 of the Lobbying Act:
“designated public office holder” means
(a) a minister of the Crown or a minister of state and any person employed in his or her office who is appointed under subsection 128(1) of the Public Service Employment Act,
(b) any other public office holder who, in a department within the meaning of paragraph (a), (a.1) or (d) of the definition department in section 2 of the Financial Administration Act,
(i) someone who occupies the senior executive position, whether by the title of deputy minister, chief executive officer or by some other title, or
(ii) is an associate deputy minister or an assistant deputy minister or occupies a position of comparable rank, and
(c) any individual who occupies a position that has been designated by regulation under paragraph 12(c.1). (titulaire d’une charge publique désignée)
Portions of Sections 5 and 7 of the Lobbying Act:
Registration of Lobbyists
Consultant Lobbyists
Requirement to file return
5 (1) An individual shall file with the Commissioner, in the prescribed form and manner, a return setting out the information referred to in subsection (2), if the individual, for payment, on behalf of any person or organization (in this section referred to as the “client”), undertakes
(a) to communicate with a public office holder in respect of
(i)the development of any legislative proposal by the Government of Canada or by a member of the Senate or the House of Commons,
(ii) the introduction of any Bill or resolution in either House of Parliament or the passage, defeat or amendment of any Bill or resolution that is before either House of Parliament,
(iii) the making or amendment of any regulation as defined in subsection 2(1) of the Statutory Instruments Act,
(iv) the development or amendment of any policy or program of the Government of Canada,
(v) the awarding of any grant, contribution or other financial benefit by or on behalf of Her Majesty in right of Canada, or
(vi) the awarding of any contract by or on behalf of Her Majesty in right of Canada; or(b) to arrange a meeting between a public office holder and any other person.
In-house Lobbyists (Corporations and Organizations)
Requirement to file return
7 (1) The officer responsible for filing returns for a corporation or organization shall file with the Commissioner, in the prescribed form and manner, a return setting out the information referred to in subsection (3) if
(a) the corporation or organization employs one or more individuals any part of whose duties is to communicate with public office holders on behalf of the employer or, if the employer is a corporation, on behalf of any subsidiary of the employer or any corporation of which the employer is a subsidiary, in respect of
(i) the development of any legislative proposal by the Government of Canada or by a member of the Senate or the House of Commons,
(ii) the introduction of any Bill or resolution in either House of Parliament or the passage, defeat or amendment of any Bill or resolution that is before either House of Parliament,
(iii) the making or amendment of any regulation as defined in subsection 2(1) of the Statutory Instruments Act,
(iv) the development or amendment of any policy or program of the Government of Canada, or
(v) the awarding of any grant, contribution or other financial benefit by or on behalf of Her Majesty in right of Canada; and
(b) those duties constitute a significant part of the duties of one employee or would constitute a significant part of the duties of one employee if they were performed by only one employee.
Restriction on Lobbying Activity
Five-year prohibition — lobbying
10.11 (1) No individual shall, during a period of five years after the day on which the individual ceases to be a designated public office holder,
(a) carry on any of the activities referred to in paragraph 5(1)(a) or (b) in the circumstances referred to in subsection 5(1);
(b) if the individual is employed by an organization, carry on any of the activities referred to in paragraph 7(1)(a) on behalf of that organization; and
(c) if the individual is employed by a corporation, carry on any of the activities referred to in paragraph 7(1)(a) on behalf of that corporation if carrying on those activities would constitute a significant part of the individual’s work on its behalf.
Exception
(2) Subsection (1) does not apply in respect of any designated public office that was held only because the individual participated in an employment exchange program.
Exemption
(3) On application, the Commissioner of Lobbying may, on any conditions that the Commissioner specifies, exempt an individual from the application of subsection (1) if the Commissioner is of the opinion that the exemption would not be contrary to the purposes of this Act having regard to any circumstance or factor that the Commissioner considers relevant, including whether the individual
(a) was a designated public office holder for a short period;
(b) was a designated public office holder on an acting basis;
(c) was employed under a program of student employment; or
(d) had administrative duties only.
Publication
(4) The Commissioner shall without delay cause every exemption and the Commissioner’s reasons for it to be made available to the public.
2006, c. 9, s. 75.
Application for exemption
10.12 (1) Any person who is subject to this Act as if they were a designated public office holder by reason of subsection 2(3), may apply to the Commissioner for an exemption from section 10.11.
Commissioner may exempt
(2) The Commissioner may, on any conditions that the Commissioner specifies, exempt the person from the application of section 10.11 having regard to any circumstance or factor that the Commissioner considers relevant, including the following:
(a) the circumstances under which the person left the functions referred to in subsection 2(3);
(b) the nature, and significance to the Government of Canada, of information that the person possessed by virtue of the functions referred to in subsection 2(3);
(c) the degree to which the person’s new employer might gain unfair commercial advantage by hiring the person;
(d) the authority and influence that the person possessed while having the functions referred to in subsection 2(3); and
(e) the disposition of other cases.
Publication
(3) The Commissioner shall without delay cause every exemption and the Commissioner’s reasons for it to be made available to the public.
Audit
(4) The Commissioner may verify the information contained in any application under subsection (1).
Schedule of Designated Public Office Holder Regulations (SOR/2008-117)
POSITIONS AND CLASSES OF POSITIONS DESIGNATED AS OCCUPIED BY DESIGNATED PUBLIC OFFICE HOLDERS
Positions and classes of positions:
1. Chief of the Defence Staff
2. Vice Chief of the Defence Staff
3. Chief of Maritime Staff
4. Chief of Land Staff
5. Chief of Air Staff
6. Chief of Military Personnel
7. Judge Advocate General
8. Any position of Senior Advisor to the Privy Council to which the office holder is appointed by the Governor in Council
9. Deputy Minister (Intergovernmental Affairs) Privy Council Office
10. Comptroller General of Canada
11. Any position to which the office holder is appointed pursuant to paragraph 127.1(1)(a) or (b) of the Public Service Employment Act
12. 7.1 (1) The Governor in Council may appoint persons to the following positions and fix their remuneration: (a) deputy minister, associate deputy minister and positions of equivalent ranks;
(b) deputy head, associate deputy head and positions of equivalent ranks;
13. The position of member of the House of Commons
14. The position of member of the Senate
15. Any position on the staff of the Leader of the Opposition in the House of Commons or on the staff of the Leader of the Opposition in the Senate, that is occupied by a person appointed pursuant to subsection 128(1) of the Public Service Employment Act
