- Aziza Asat
Somewhere upstairs inside Halifax City Hall resides the municipality’s guest book. Its expensively heavy pages, bound in Oxford-blue leatherette, are half-filled with autographs from visiting dignitaries and VIPs who have glad-handed with mayors over the past 16 years. Anyone can view the guest book, although the commissionaires at the front desk couldn’t remember the last time someone asked. Lovely bit of ceremonial flare that it is, the guest book doesn’t include the names of any business owners, consultants or lobbyists showing up to City Hall looking to curry favour. It’s those names not written down—of the private interests looking to subtly influence public decisions—that we should be worried about.
When Richard Butts abruptly left his job as chief administrative officer with HRM to become president of Clayton Developments back in December, alarms were sounded by both city councillors and members of the public. How could Butts, armed with years of insider expertise and municipal contacts, walk out of City Hall one day and take a position with the city’s biggest development firm the next? Easily, as it turns out. Butts broke no rules of his contract, nor any municipal bylaws or provincial legislation. That’s a regulatory gap HRM admits it needs to fix. Senior officials say the next CAO’s contract will likely include provisions for a cooling-off period, barring whoever’s hired from jumping ship to a private company that works with or lobbies the municipality. It’s a step in the right direction, but there are still plenty of blind spots.
One of which is not knowing who’s meeting with HRM officials and for what purposes. As Halifax glides along on a wave of population growth and rapid development, we have no idea who’s whispering in city hall’s ear. Across the country, other cities are increasingly turning to public lobbyist registries to shed light on this very problem. It might not be needed here in Halifax, but better the municipality have a lobbyist registry it never needs than not have one when the fix is in.
Realistically, there is only one group of industry players that are going to put any concentrated effort into lobbying city hall and that’s property developers. More often that’s about speeding up the municipal process rather than overturning public opinion. Everyone wants their particular project approved faster, and they aren’t shy to ask about it. Squeaky wheels are greasy like that.
Richard Butts says that in his five years with the city there were some developers who would call him up dozens of times about their proposals. Clayton, he says, only called three or four times. Butts has been too busy settling into his new job to call HRM himself. The former CAO says he’s had no contact with city hall since leaving two-and-a-half months ago, but that’s bound to change. Clayton, in partnership with Cresco Holdings, is currently developing the Parks of West Bedford mini-city that will ultimately house 20,000 people and is worth a reported $1.5 billion. West Bedford is, in the municipality’s own words, the most complex development agreement HRM has ever been involved in.
When that much is on the line, someone with extensive knowledge of the inner workings of the planning department and multiple city hall contacts is an attractive hire. Butts doesn’t see it as a conflict of interest, though.
“Nobody’s defined for me what the conflict they saw is,” he says. “Definitely one of the things I brought was relationships, but I don’t think that was anywhere near the determining factor. Do I think I can influence somebody to change policy? No, I don’t think I could.”
Truthfully, that may be because no one will take his calls. For better or worse, Butts spent his five years at City Hall tightening business practices and cutting costs wherever a budget “efficiency” could be found. That didn’t win him any popularity contests. Councillors criticized his ever-tightening grip both in the media and during public meetings. His managerial style may also have played a part in the bloodletting last fall when several senior HRM officials abruptly left or announced their resignations. To be fair, those efforts also helped the municipality evolve (sometimes too far) into a more professional operation. In any case, mayor Mike Savage isn’t concerned about Butts’ new job.
“He’s an honourable guy, and it’s an honourable company he’s going to. So I don’t have a problem with that,” Savage said shortly after the CAO’s departure in December.
Impeachable personal honour wouldn’t have to be the only defence against unethical lobbying efforts, though, if there was a registry documenting any emails, phone calls and meetings with government officials in a transparent list of who’s attempting to influence public decisions. It could also impose cooling off periods for government officials and prevent councillors and HRM managers from switching teams so easily.
So why don’t we have one? Savage, who as mayor has helped build open data initiatives for the city and pushed for campaign finance reform, says HRM has “mused about” a lobbyist registry before, but never seriously considered it.
“I don’t see [lobbying] as a huge problem in Halifax,” Savage says. “But there is the obvious question of how do we know? I don’t think it’s a big problem, but none of us can know completely who everyone’s talking to.”
“Bullshit,” says Guy Giorno. “There’s lobbying everywhere.”
Giorno is partner with international business law firm Fasken Martineau, an ex-Conservative party campaign chairman and the former chief of staff to prime minister Stephen Harper. He’s also no stranger to the muddy ethics when business meets politics. Just last year, for example, then-finance minister Joe Oliver came under fire for skirting around the federal tendering process by sole-source awarding Giorno $9,200 to write two speeches—one of which was never used.
Judge that for what you will, but Giorno is also one of Canada’s loudest advocates for lobbyist registries. His firm regularly publishes reports on lobbying laws across the country, and he’s quick to argue that democracy functions better when people know who’s paid to influence decisions.
Butts’ honourable nature, Giorno says, is irrelevant in the grand scheme of things.
“We don’t base our laws on individual people and their character,” he says. “We have consistent standards so that individual character is not relevant.”
That’s not to suggest that Clayton or any other developers are up to anything nefarious, or that public employees who leave for the private sector are doing so on a quid-pro-quo basis. Intent, says Giorno, doesn’t matter nearly as much as effect.
“It’s commonly understood that to maintain public confidence in the integrity of government, in the process,” he says, “we should simply remove people from situations where they are going to work for people they dealt with closely, because that means there’s no question.”
Let’s pretend you own a small donair business. Having city council declare donairs the town’s official food would be great PR for your company—particularly if you were looking to expand nationally. Given the significance of this decision, you might want to meet with the mayor to explain the importance of donairs. Maybe you would phone city councillors as well to make sure they fully understand the historical significance of donairs. Maybe that influences those politicians’ decisions, maybe it doesn’t. Either way, very little of that information is recorded and what is will be redacted for privacy reasons and only accessible through a lengthy Freedom of Information process.
This hypothetical isn’t about King of Donair, by the way. Owner Norman Nahas insisted to The Coast that he “didn’t recall” scheduling a private meeting with the mayor before last fall’s donair vote (as documented in redacted emails obtained by The Coast).
That’s a ridiculously low-stakes example, sure. Here’s another scenario: Go back to 2008 and the expression of interest for a downtown convention centre which would eventually become the Nova Centre. Under the rules of Nova Scotia’s tendering process, once bids have been submitted “Any attempt on the part of the [developer]...to contact any of the following persons with respect to this EOI or the Project may lead to disqualification.” That no-contact list includes any members of the provincial or municipal government. As The Coast reported in 2010, between the convention centre deadline for submission in May and December 2008 when a winning bid still hadn’t been announced, Argyle Development’s Joe Ramia met with Halifax mayor Peter Kelly three separate times. Kelly said the meetings weren’t a breach because the two men didn’t discuss the convention centre. One was about the National Portrait Gallery, said Kelly, the remaining two were about other developments Ramia was involved with.
Sometimes individuals and small business owners want to voice their concerns about a matter to their elected representatives. They should be able to. Sometimes an enterprise’s CEO or the expensive consultant they hire want to do the same. The only differences between the two scenarios are the millions in cash and public accountability that’s at stake.
The newly amalgamated City of Toronto was only a year old in 1999 when a $43-million contract for computer services somehow doubled without its council’s approval. The judge presiding over the subsequent public inquiry found a culture of back-room deals and political cronyism, and recommended a registry to document who was lobbying whom. Toronto’s lobbyist registry, the first of its kind in the country, was finally created in 2008.
It’s still a work in progress, says registrar Linda Gehrke, but through great effort it’s made the planning process considerably more transparent. That benefits the public, and the developers.
“Lobbying is a legitimate activity,” Gehrke says. “It’s a citizen’s right to petition the Crown. It’s not that lobbying is in itself bad. It can be a potentially helpful, useful practice, but needs to be carefully controlled.”
Reform in one place tends to triggers reform elsewhere, and lobbyist registries are growing in popularity amongst Canadian municipalities. In addition to federal and provincial regulations, lobbying of municipal officials now has to be reported in Montreal, Ottawa, Hamilton, St. John’s and more (see sidebar). Many of those municipal acts include cooling off periods for senior officials. The city of Brampton’s new lobbyist registry, for example, prohibits a former official from lobbying the city for a full 12 months after the end of their employment.
At this point, it’d be too late for a lobbyist registry prevent Richard Butts’ career change, or document the phone calls and meetings that went into the Nova Centre, Washmill Lake or probably the upcoming Cogswell Interchange redevelopment. But Halifax is still going through a growth spurt. This is a town where one-third of campaign contributions during the last municipal election came from property developers. It’d be better for everyone—developers and the government—to have the meetings about those projects documented and transparently available to the public.
As with anything, there are caveats. A registry shouldn’t stop the regular public from connecting with their councillors, and should include exemptions for community not-for-profits, First Nations councils and small businesses under a certain financial threshold.
There’s also the administrative cost to set up a registry that may barely be used. But Halifax doesn’t need a staffed registrar office like Toronto. A computerized database could ease both input and public navigation. There’s another even easier option, too. Simply expand the oversight of Nova Scotia’s lobbyist act down to include HRM.
The only problem is that legislation sucks.
For laws to be effective, they have to be enforced. So either the enforcement of Nova Scotia’s Lobbyist Registration Act needs improvement or every consultant registered in this province is remarkably honest. Both Halifax Regional Police and the RCMP confirm there have been no reported violations of the Act from any of Nova Scotia’s 887 registered lobbyists ( 186 currently active) since the legislation was created in 2001. Anyone found in violation of the act is handed a summary conviction and a fine of no more than $25,000 for the first offence, and no more than $100,000 for any subsequent offences.
The office of the Conflict of Interest Commissioner also confirms there have been no violations from government officials of the Conflict of Interest Act since that piece of legislation was enacted in 2010. A clerk at the COI office took a random guess that they receive around 50 conflict of interest complaints about public officials in any given year but couldn’t offer any other details. Merlin Nunn, Nova Scotia’s conflict of interest commissioner since 1997, doesn’t file any annual reports and the rulings he issues are confidential. He also refuses to take any media calls, though nothing in his job description precludes him from doing so. “It’s his choice not to,” says the COI clerk.
It’s not just Nova Scotia, either. Lobbyist legislation as a whole seems defined by its toothlessness. The Federal Lobbying Act was created in 1988, and so far over 30 lobbyists have been found in violation but only one has been charged and that didn’t happen until 2013. Even Toronto, which has had 30 infractions involving 16 lobbyists in nine different cases, has only been able to issue a single $1,000 fine. The Registrar in Toronto only has six months from the time of a violation to produce any charges which makes prosecution, according to Gehrke, “very difficult.”
The province, for what it’s worth, says it’s never looked into or discussed extending the Lobbyist Registration Act down to the municipal level. Though, given the spotless records of all lobbyists and government officials in Nova Scotia, it might not make much of a difference if they did.
The influence of lobbyists and consultants inside Halifax City Hall may be minor. Halifax might be better served reinforcing transparency rules already in place rather than creating something new.
The real problem is that we can’t find the right answer if we don’t know the problem. The private meetings are all off the books. In that world it’s hard to trust that every decision from city hall always has been and always will be free from outside influence. Councillors listening to expert industry opinions might vote differently. Senior public officials might speed up some applications over others. Whether that’s ethical or unfair is immaterial; it’s the framework that goes into public decisions and should be transparently documented for that same public.
The municipality’s growing and the potential for corruption is going to grow with it. A municipal lobbyist registry for HRM might be an imperfect solution, but in all likelihood it’s better than not knowing. It could also enforce those cooling off periods, though Richard Butts cautions they too might not be needed. Clayton Development’s new president says it’s very rare for someone to move from public service to the private sector like he did.
“I think that if you look closely at that you won’t find many examples,” says Butts. “So I would be worried about trying to make the exception the rule.”
There is one other example that comes to mind. Mike Hanusiak was Halifax’s general manager of development services before leaving municipality in 1998, taking a job two years later as senior vice president and general manager of the Shaw Group’s property firm—Clayton Developments.
“At the end of the day I think everybody wants to make Halifax a better place to do business,” says Butts, “and I think we’ll all work together and accomplish something over a period of time.”
- Aziza Asat