FAA Makes It Tough To Recruit Top Talent In Ministerial Offices
The Hill Times,
February 13th, 2006
By Kady O'Malley
The Conservatives' new Federal Accountability Act bans ministerial staffers from lobbying for five years. Lobbyists say it's overkill. Lawyers say it's not actually law.
The new Federal Accountability Act is being hailed as the biggest, most significant and most positive development in years, but lobbyists and veteran political players also say the five-year ban on lobbying is "over the top," will, in a perverse way, encourage more lobbying and it will make it difficult for the new Conservative Cabinet to recruit staffers in top ministerial offices.
Although it was largely overlooked amid the stormy response to Prime Minister Stephen Harper's (Calgary Southwest, Alta.) controversial Cabinet choices, the same day that Mr. Harper and his team were sworn in, the Conservative government took the first step towards the implementation of the Conservative accountability platform.
Under the revised Code of Conduct for Public Office Holders, released by the Prime Minister's Office last Monday to coincide with the swearing-in of the new Cabinet, former public office holders, ministerial staffers, Governor-in-Council appointees and senior public servants will be prohibited from lobbying the federal government for a full five years after leaving the public sector.
The five-year ban was one of the highlights of the Conservatives' campaign pledge to increase government accountability and tighten ethics requirements.
The new restrictions, which are not expected to be retroactive, will have little impact on existing lobbyists, or former Liberal staffers who may now be seeking employment in the private sector.
But the changes will almost certainly make it difficult for the incoming Conservative government to recruit staff for its new ministers, said Gowlings partner Sean Moore, a lobbyist who has written extensively about advocacy and government.
"For existing lobbyists like me, it is in our economic interest to support what the government is doing," he noted. "But it's not a good idea, and the only people who are going to pay the price is the government itself. It's an enormous disincentive for qualified individuals, which the government will need to work as political assistants and advisers."
A five-year ban is "over the top," said Mr. Moore. "It's excessive. I'm not sure you'll find many jurisdictions that are comparable. For example, the current lobbying reform proposals in the United States don't go beyond two years, and that's a far more important forum."
The change won't just make it hard for the government, he said, it will result in bad public policy.
"This will keep the government from hiring some of the people that it should have working for it. They're going to have a tough time. The political staff cadre is going to be comprised entirely of recent college graduates," said Mr. Moore.
"Anecdotally, we are already hearing about a large number of people who have been offered jobs directly by ministers but they are turning them down because of the five-year rule," said Temple Scott associate Bill Milliken, a former senior assistant to then-Liberal minister John Manley.
"We are also hearing about some people who were senior aides while the Conservative Party was in opposition who are considering bailing rather than going into ministers' offices now so they are not subject to the five-year rule. They want a future, and with the government in minority there is no security of employment," said Mr. Milliken.
In addition, he said, "It may result in a situation where all the lobbyists in town are former MPs and staffers--mostly Liberal, who will be occupying all the positions in the business. Political staffers will be people who can't get jobs with a future related to influencing politics--something that most young people who work for MPs and ministers are there to do. It will severely limit the gene pool of people who know how government works and can help people deal with the complexities of government. That's the real role of lobbying."
The ban may also discourage otherwise qualified individuals from seeking public office, Mr. Milliken predicted--and will do nothing to help rebuild trust in government.
"There may be some deluded people who sense it is perceived to clean up a mess--just like some people think that because hand guns are banned no one will illegally use a gun. There are people who won't register as lobbyists, and there are people who won't obey the five year rule. It will result in an even lower quality of potential candidates for public office and for those that work for them," said Mr. Milliken.
Like his colleagues, Hillwatch lobbyist Scott Proudfoot agreed that the changes might well make it more difficult to attract people to government.
He predicted that the issue might come up when the Federal Accountability Act goes to committee later this year.
"If there's a concern about getting good people in, and giving them reasonable options when they leave, the government would revisit this when the accountability package goes to committee. I would hope that they would do so, and listen to submissions and witnesses with an open mind," said Mr. Proudfoot.
Former-Grit MP-turned-lobbyist Joe Jordan, who joined Ottawa-based government relations firm Capital Hill last year, noted that as a former Parliamentary secretary, he would have been covered under the new code had it been in place when he left office. He said he has some reservations about the five-year ban.
"When you get into a political role, you have no job security. You're not working a 40-hour week, and if you're limited in your options after you leave, people may not do it at all. We may end up reducing the quality of the people that do those jobs. Essentially, the notion is that you have a five-year total blackout, a total ban. If that's the direction they're going, I'm of the view that it is using a sledgehammer to kill a flea. It's already been publicly reported that there were a number of people in the Conservative war room who ran an extremely competent campaign, and who would have been of great use to the new Prime Minister, who have chosen not to do so because of the ban," Mr. Jordan said.
In fact, even under the five-year ban, he noted, "you can still consult until the cows come home with clients, which is a lot of the value that is brought to the table by government relations people."
Although much of the recent controversy over the so-called 'revolving door' between government and the lobby business has focused on former politicians and ministerial staffers, the code also applies to senior public servants--deputy and associate deputy ministers, secretaries and deputy secretaries and all other deputy heads--as well as all full-time or salaried Governor in Council appointments.
"It sort of tightens the tap on talent, not just for ministerial staffers but for public servants as well," noted Mr. Proudfoot.
"The recruitment pool becomes a lot smaller. All the focus is on staffers, but this also applies to senior officials, and both are important," said Mr. Proudfoot.
Although he said he's not sure whether the change will make it harder for the public service to recruit new staffers, he said he believes that it could have a profound impact on those already inside the public sector.
"It will be felt by public servants who may not want to do their full term, and who may want to eventually leave the public service, and go work for an association. This is now not an option for them. If you're a lawyer in the public service at a senior level, and you say that you want to go practise law with a large law firm, your utility and your employment options will be limited," said Mr. Proudfoot.
In fact, he predicted that it would be associations, not lobby firms that bear the brunt of the restricted hiring pool.
"The groups that will be really affected by the restrictions on senior public servants are the associations that hire people out of that strata, and who have gotten really good people that way. Look around the current association space--all those people who come out of the public service. That would not be possible under this regime. They would have to go for other types of jobs. It's not like everyone who is in a ministers' office or the public service wants to become a consultant lobbyist or join an association. But for some people, it's not a bad choice, and it's no longer there," said Mr. Proudfoot.
Mr. Jordan, meanwhile, pointed out that the change could also mean the end of executive exchanges between the government and the private sector.
"In the United States, they make much more use of executive interchange, which is bringing people from outside into the public sector, but we also have a program here. My concern would be whether this will have an impact there as well. If you look at the demographics, we have the baby boomers retiring, and we're going to have to bring in resources to replace that group. If you can't go back to your job afterwards, or go back with limitations on what you can do, it may have the unintended consequence of discouraging these exchanges," Mr. Jordan said.
As it stands now, the changes to the code won't be put to committee for further scrutiny unless the proposals are formally added to the Federal Accountability Act package.
The Code of Conduct is set by an Order in Council, and does not require Parliamentary approval.
However, unless the changes are backed up by regulatory or legislative amendments, the code has no force of law, and enforcement could be difficult, said top labour lawyer Dougald Brown, an associate at Nelligan O'Brien Payne in Ottawa.
"One of the issues with the Code of Conduct is whether and how it can ever be enforced legally, because it is only a code, not law," said Mr. Brown.
For the five-year ban provision, he said, the onus would be on the government not to deal with people who are in violation of the code.
"It really can't be enforced directly on the individuals. Once a person leaves, there is no contractual or legal relationship left," said Mr. Brown.
Mr. Brown said that enforcement of the code has always been a problem. In the past, he said, the government has tried to get around it with procurement contracts that require companies bidding on contracts to confirm that they're not using anyone who is not in compliance. But as far as legal enforcement, he said, a specific contract would have to be in place, as the case with non-compete clauses in the private sector.
"The code would have to be made legally binding in some fashion, and there are various ways that they could do that. They might be able to do it through regulations, if there is legislation that would authorize such a change, because you can't just make a regulation," said Mr. Brown.
As a practical matter, he said, the government could send out a directive saying that anybody who gets a contract with the government would have to certify that it has not used any lobbyists who were employed by the government within the past five years.
"They could go after the potential clients instead, but again, that's an indirect way of trying to enforce it. If the code is embodied in legislation or regulation, the only way of challenging it is really through the Charter of Rights, and trying to get it set aside. But if it isn't, it might be possible to argue that restrictions would be unenforceable under common law. In the private sector and commercial world, there are established doctrines and principles about how far parties can go to restrict trade and employment opportunities," said Mr. Brown.
The changes to the Code of Conduct are the prelude to what is expected to be the major legislative initiative for the Conservative government in office: the Federal Accountability Act, which Prime Minister Harper has promised to introduce as soon as the House of Commons resumes sitting on April 3.
But putting the rhetoric aside, there is nothing in the proposed FAA that is bad for the lobbying community, said Mr. Moore.
"It's not getting tough with lobbyists. There is nothing in it that is bad for lobbyists, but there is a lot of stuff that is bad for the clients of lobbyists, and in many respects, the Federal Accountability Act is going to fuel demand for them. It jacks up the transactional cost of dealing with government every time you add another audit process, or another requirement for reporting or more information, or further restrictions on grant applications. All of these factors are being accreted, and it makes it more incomprehensible to most people, so in a perverse way, it will encourage lobbying," said Mr. Moore.
He added: "Huge parts of the Federal Accountability Act make terrific sense. It is the biggest, most significant and most positive development in years in many of these areas, but there are some glaring problems that are going to give whatever government is in power, including this one, more difficulty than they deserve."
Mr. Jordan said he supports any changes to the current regime that will increase accountability and transparency. But he worries that some of the reforms that have been proposed may have unintended consequences.
"Some of these proposals operate under the premise that the government relations sector isn't bringing anything to the picnic. As an industry, we have to work to make it clear that's not the case. You can find people who circumvent the rules anywhere. But if you accept that the government relations component brings business views into the policy making process, and you accept that as a good thing, you have to look at what the world is going to be like if this comes in." email@example.com The Hill Times