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Lobbying loophole lets ex-government staff off hook

Former government employees, including a Vancouver mayoral candidate, are escaping penalties for improper lobbying because of what the province’s lobbyist watchdog calls a “significant loophole.
Photo - B.C. legislature
B.C. legislature in downtown Victoria.

Former government employees, including a Vancouver mayoral candidate, are escaping penalties for improper lobbying because of what the province’s lobbyist watchdog calls a “significant loophole.”

The registrar of lobbyists, Michael McEvoy, said he was left with no choice but to reverse a $2,000 fine levied against Hector Bremner, who worked for a Liberal cabinet minister in 2015. And McEvoy said he was similarly forced to exempt a B.C. Building Trades lobbyist from a two-year cooling off period after she worked for an NDP cabinet minister.

“It’s apparent that there was an oversight in the drafting of this legislation because it seems to preclude the very people the legislature intended to cover,” McEvoy said. “In other words, if you leave the employ of a cabinet minister, you are allowed to lobby those members because they are still in office.”

Attorney General David Eby said in a statement the government will move to close the loophole during the fall session of the legislature when it plans other reforms of the lobbying law.

B.C.’s lobbying law requires people to register as lobbyists and declare whether they are a “former public office holder” — either a government staffer or an elected MLA. Those past officials, who might have insider knowledge of government operations that they could exploit for profit, are banned from lobbying the province for two years.

But McEvoy said he’s uncovered a wording problem in the law that went undiscovered for eight years. “It’s been a bit of a ticking time bomb.”

The issue centres on the legislation’s repeated and explicit use of the word “former” in its definition of a cabinet minister. According to McEvoy, its means only “former” staff of “former” ministers must declare and cool off for two years. It doesn’t prohibit former staff from lobbying current ministers who are still in office, said McEvoy.

“On its face, the definition creates a significant loophole for any individual seeking to lobby, who was formerly employed by a cabinet minister still in office,” McEvoy wrote in a letter to Eby.

“It allows the individual to escape the two-year lobbying prohibition and the obligation to publicly declare their past government connections in the lobbyists registry. That is because both of those matters depend on the individual being a former public office holder.”

Bremner, who is running for mayor under the new YES Vancouver party, was fined $2,000 in February for registering as a lobbyist for the Steelhead LNG project in February 2015 and declaring he was not a former public office holder even though he’d worked as an executive assistant to three cabinet ministers, including the former natural gas minister Rich Coleman.

Bremner asked for the penalty to be reconsidered in March. McEvoy ruled that because of the loophole, and the fact Coleman was a minister at the time of Bremner’s lobbying, the fine would be overturned.

Concerns over Bremner’s lobbying and consulting work appeared to play a role in his dispute with the Non-Partisan Association and the party’s refusal to let him to stand as its mayoral candidate earlier this year.

The loophole also allowed Brynn Bourke, who was a ministerial assistant to Citizens’ Services Minister Jinny Sims in 2017, to return to her job as a lobbyist for the B.C. Building Trades without a two-year cooling off period. The Building Trades were a key part of a recent NDP government announcement that major construction projects, like the Pattullo Bridge replacement, will be built using union-only labour, potentially affecting billions of dollars of future work.

“I suspect that the legislature did not intend to exclude these individuals from the definition of ‘former public office holders,’ ” McEvoy wrote. “Indeed, such cases represent the very mischief the legislation was designed to eliminate. But I can’t ignore the act’s clear and unambiguous language, whether or not it accords with the policy intent of the legislature.”

McEvoy said he doesn’t have the wiggle room to follow the spirit of the act instead of the wording.

“Decisions released [Wednesday] by the registrar of lobbyists will have immediate and negative consequences for the regulation of lobbying activities in B.C.,” Eby said in a statement.

Until the legislation is amended, McEvoy admits, the loophole will allow the very kind of lobbying that was supposed to be prohibited.