The Conservative Party’s victory in the October 24 British Columbia provincial election will trigger a flurry of outreach to newly elected Members of the Legislative Assembly (MLAs), the appointment of new political staff, the departure of experienced advisers from government, and a realignment of relationships across Victoria.
Organizations planning to engage the incoming government, and individuals contemplating their own employment prospects, should be aware of the various legal obligations that govern these transitions.
Be Prepared to Be Registered as a Lobbyist If You Communicate with the New Government
The arrival of a new government brings a rush to connect with new MLAs, ministers, parliamentary secretaries and political staff. In British Columbia, these early introductions and relationship-building efforts can constitute lobbying under the Lobbyists Transparency Act and trigger onerous registration and reporting obligations.
A communication with a public office holder constitutes lobbying if made in an attempt to influence:
- The development or amendment of legislation or regulations.
- The development, amendment or termination of a government program or policy.
- The awarding or amendment of a government contract, grant or financial benefit.
- A privatization or outsourcing decision[1].
Lobbying also includes arranging a meeting between a public office holder and another individual for the purpose of attempting to influence any of the above decisions[2].
British Columbia, unlike most other Canadian jurisdictions, requires registration of in-house lobbying following any amount of lobbying activity, subject to limited exceptions[3].
Organizations with existing lobbyist registrations should not assume that existing registrations accurately reflect the realities of a new government. New ministries, new mandate letters, new policy priorities and new lines of communication can require organizations to update their registrations quickly to remain compliant with the law.
Did Campaign Activities Create Additional Compliance Risks?
Lobbyists should not assume that relationships formed during the campaign can automatically be translated into advocacy opportunities.
The Lobbyists Transparency Act prohibits a lobbyist from offering or giving a gift or other benefit to a public office holder that they lobby[4]. The prohibition is not confined to conventional gifts, and activities undertaken outside the ordinary lobbying relationship can raise questions about whether a gift or benefit has been provided.
The gifting prohibition is subject to a complex and narrow exception for certain gifts or benefits. However, in order to rely on the exception, both qualitative and quantitative criteria must be met. Specifically, the gift or benefit must arise from protocol or social obligations that normally accompany the public office holder’s duties, and the total value of gifts or benefits is subject to a $100 limit over a 12-month period[5]. Registrar guidance also applies a presumptive, but rebuttable, $40 standard when assessing whether a gift or benefit could “normally accompany” the protocol or social obligations connected to the duties of office[6].
You should not lobby a public office holder to whom you have given a gift or benefit without first seeking legal advice.
If you or anyone in your organization contributed to a political campaign, then you may also be required to disclose certain political contributions if you lobby the government.
Businesses and lobbyists should seek advice on whether political contributions, volunteer activities or other forms of political support provided by employees, officers, or directors require disclosure under applicable lobbying laws or result in any lobbying prohibitions.
Joining a Minister’s Office or Accepting a Public Appointment
Before accepting a position in the new government, consider how the rules may affect your future employment plans, particularly if you expect to lobby after leaving government or work for an organization that regularly deals with the province.
Political staff members are subject to a variety of legal and ethical obligations, both during their time in office and beyond[7]. Among other obligations, political staff must:
- Arrange their affairs to avoid actual or perceived conflicts and disclose actual, perceived or potential conflicts to their manager or the Premier’s Chief of Staff[8].
- Avoid using government resources or their position to advance private interests, including giving preferential treatment benefiting themselves, relatives or friends[9].
- Protect confidential information and avoid disclosing it to anyone who is not authorized to receive it. This includes a lifelong prohibition on using information obtained while employed by the Government in future business or personal dealings[10].
- Ensure outside employment, business and volunteering do not create actual or perceived conflicts, interfere with official duties, or improperly use government resources[11].
- Refrain from making any public statements where the comments could reasonably be perceived as an official act or representation of the Government, unless authorized to do so[12].
- Comply with restrictions on accepting gifts and benefits[13].
Businesses and Organizations Should Seek Advice Before Hiring Former Elected Officials or Political Staff Members
The transition period following an election creates unique issues for departing political staff and outgoing MLAs who will now begin to explore opportunities outside of government.
The Lobbyists Transparency Act prohibits former cabinet ministers, their staff, parliamentary secretaries, and certain senior civil servants from lobbying the Government for a two-year cooling-off period[14]. The restriction is broad: during that period, they cannot lobby B.C. public office holders, including public servants, even on matters unrelated to their former ministry or responsibilities[15].
In British Columbia, lobbying includes arranging meetings. A mere introduction can therefore engage the prohibition even if someone else makes the substantive pitch.
Obtaining an exemption from this two-year prohibition is possible, though proper representations will need to be made, and permission obtained from the Registrar of Lobbyists in advance.
A former political adviser may bring valuable policy expertise, strategic insight and government experience. However, organizations should seek advice on whether a proposed role can be performed by a former public office holder without contravening post-employment restrictions (including the lifelong prohibition against using confidential information obtained while in Government).
Before You Make Your Next Move
Whether you are considering joining the new B.C. government, leaving public office for the private sector, hiring a former public office holder, or engaging with new decision-makers, the transition period can create compliance obligations that pose serious legal and reputational risks.
Getting it wrong can be costly. The Registrar of Lobbyists has broad powers to impose administrative penalties of up to $25,000 for each contravention, though typically penalties do not exceed $5,000. Administrative enforcement is the usual response to contravention, though the Act also provides for enforcement by prosecution in the courts. The Registrar can impose a prohibition on lobbying for up to two years following a conviction[16]. Beyond legal consequences, non-compliance can carry significant reputational risk for your organization.
Fasken’s Political Law team advises corporations, industry associations, government relations professionals and public office holders on Canada’s lobbying, conflicts of interest and public sector ethics laws, including the rules governing political activity and transitions into and out of government.
