Fall 2003 - Volume 6 Number 1
From Comprehensiveness (Complacency) to Competition (Conniving): An Examination of the Legal Context for Government Relations in the Ontario Post-Secondary Sector1 , B.A., M.A.
'A public record of paid lobbyists will ensure that the process of lobbying government is kept open and transparent and that the public interest is protected from undue influence"
"Lobbying is a legitimate activity. The Act provides lobbyists with free and open access to government while safeguarding the integrity of public office holders and protecting them from undue influence. The lobbyists registration system provides the public, public office holders and lobbyists with the opportunity and means to know who is talking to who in government about what"
"It is a registration system, not a regulation..."
It seems that one cannot go a day without some political scandal occupying the front pages of the newspapers. Typically issues of conflict of interest arise where the judgment of elected and non-elected officials alike is brought into question. One such incident that has gained substantial notoriety is the MFP inquiry that is currently underway in the City of Toronto. This is a good example of people operating above, around, or in the absence of clear, articulated rules. Would this have happened with clearer rules/regulations?
The issue that is at the heart of this paper is an emerging one. As colleges and universities compete for students, faculty, funding and research grants, they are becoming increasingly competitive and aggressive. While in the past their reliance on government funding had been quite stable and predictable, more and more governments are introducing competitive processes for getting those monies. Programs such as capital projects grants (as under the Ontario SuperBuild Program) require colleges and universities to submit proposals as part of a competitive process and not all proposals receive funding, or all the funding that they were seeking. In addition, as the Ontario government allows for further differentiation among post-secondary institutions (and awards this status in a competitive way), more colleges and universities are simply seeking favourable decisions from government. Beyond the competitive processes described above, colleges and universities are having to deal with less government funding which has meant that they have to work harder to get more. In order to succeed, colleges and universities are lobbying government, both as part of their associations, and as individual institutions (ACCATO, 2003).
The purpose of this paper is to consider the legal context within which government relations exists in the post-secondary sector in Ontario. Specifically, this paper will examine an emerging practice within colleges and universities the purchase of tickets to political events/fundraisers. In order to understand this context better, this paper will present the findings of a survey of 23 Ontario colleges and all 18 universities and consider/discuss areas of reform.
This paper will argue that, in the absence of any government direction, there ought to be policies adopted by all colleges and universities to address this issue. Further, more colleges and universities should conduct their business in an open and transparent manner.
This paper seeks to answer three fundamental questions; do colleges and universities have official policies for the purchase of tickets to political fundraising events, is their behaviour consistent with those policies, and what, if any, should be the role of government in regulating this behaviour.Literature Review
The literature on this subject matter is of mixed value. Much of the literature on lobbying has focused on the efforts of interest groups or associations of people or organizations seeking to alter government policy. As Odegard points out, "It is through such organizations that the ordinary citizen finds his true representation. Public opinion in any other sense than organized group opinion is pretty much a phantom" (Odegard in Metz, 1972). There is considerable literature about interest groups in general terms, much of which comes from the United States and the United Kingdom. Unfortunately, much of this literature was written back in the early 1960s and 1970s (Bacharach, 1981(b); Berry, 1989; Bentley, 1967; Castles, 1967; Deakin, 1966; Grossman and Helpman, 2001; Jordan and Richardson, 1987; Rivers, 1974; Smith, 1995). Much of this work tries to describe and explain their role and function, along with a considerable effort on developing typologies to categorize interest groups. In some cases authors attempted to provide a "how to" look at interest groups (Alinsky, 1989; Dubs, 1989; Hall, 1974; Miller, 1987; Stevenson, 1995). Some of the British and American authors tried to go beyond the introductory work on what interest groups are and what they do, to come up with theories to explain behaviours by introducing theories of political markets (Hayes, 1981). Other authors have tried to position their research on "uncovering" a secret world of lobbying, presumably one that exists "under the radar" of the average citizen (Crawford, 1974; Hollingsworth, 1991). In terms of the history of interest groups and lobbying in the United States, the work of two researchers stands above the rest for its thoroughness and detail in documenting many of the key watersheds and nuances in the evolution of interest groups (Clemens, 1997 and Zeigler, 1964).
In Canada, the work on interest groups has been profoundly affected by the efforts of two political scientists, Paul Pross and Robert Prethus. The work of Prethus began by looking at how interests groups function in Canadian federalism and in particular in Canadas Westminster model of government (Prethus, 1973). Pross was the first to write about and produce an elaborate and comprehensive examination and typology of interests groups in Canada and his works stands to this very day as the single most important contribution to understanding interest groups in Canadian history (Pross, 1975 and 1986). Since that time, others have built on the work of Pross and Prethus and have adopted particular foci that have further contributed to the knowledge in this field. Others have tried to push the understanding of the behaviour of interest groups further (Hunnius, 1971; Mawhinney, 2001; Philips, 1993; Schwartz, 1983; Stanbury, 1993)
Some more recent work in Canada, the United States and the United Kingdom has focused on what has become quite a novel way of looking at organized interests and lobbying, and that is the notion of "policy communities" or "policy networks" (Banting, 1991; Coleman and Jacek, 1989; Marsh, 1998).
Very little of the work in the United States and the United Kingdom on interest groups and lobbying has focused on education, and where it has, it has primarily focused on elementary-secondary education (Bacharach, 1981(a)).
In terms of literature on interest groups and lobbying in the area of Canadian education, the same holds true (Bedard and Lawton, 2000; Dolmage, 1992; Downie, 1992; Duane et al., 1984; Kaplan, 2000; Lam, 1990).
In terms of issues around the legal context that interest groups operate in, there is scant literature. There is work done surrounding the ethics of the public sector and public sector management (Greene and Shugarman, 1997; Kernaghan and Lanford, 1990). However, although there is an act that governs lobbying in Ontario (and indeed Canada) the Lobbyist Registration Act, 1998 there has been little written outside of newspaper columns and opinion pieces.Historical Context
The context in which Ontario colleges and universities are operating is changing in two fundamental ways. First, increasingly Ontario colleges and universities are becoming more differentiated (Skolnik, 1986). While in the past, there was little difference between schools, there is increasingly so. Second, public funding for post-secondary education in Ontario has been decreasing. This has meant that colleges and universities have had to become competitive in order to attract the best students, faculty, research grants, as well as corporate and private individual donations. As part of this new reality, colleges and universities are becoming more active on two fronts; resource development (in order to raise monies from private and individual sources) and increasing their efforts in lobbying the government for favoured treatment. Beyond what has traditionally been the role of the President of a college or university as "champion" of advancing the cause or reputation of the particular school, colleges and universities have begun to hire professionals to do this work. Some, such as the University of Toronto, have brought the expertise in-house, by the establishment of the position of Vice-President of Government Relations. Others are choosing to use consultant lobbyists who are hired for particular expertise and access on a case-by-case basis. Under either scenario, in trying to compete for the governments attention and money, colleges and universities are actively engaged in government relations strategies, that employ many of the same tactics as have been used by the private sector for years. One of these tactics includes purchasing tickets to political events/fundraisers to gain additional access to key politicians and to curry favour for their financial support. Although lobbying of this sort is not new in the private sector, it is in the broader public sector.Regulation of Lobbying
In 1989, the federal government enacted the Lobbyists Registration Act and in 1998 the Ontario government enacted the Lobbyists Registration Act. The intention of both Acts is to establish a public registry of lobbyists that ensures that the government is conducting its business in an "open, accountable and accessible manner" (Province of Management Board Secretariat,1998). In addition, both Acts establish significant fines (up to $25,000) for those who fail to register, make false or misleading statements. Although both the provincial and federal Acts are very similar, this paper will focus on the Ontario legislation.What is lobbying?
The Guidelines to the Lobbyist Registration Act produced in January 1999 state that: lobbying occurs when a paid lobbyist communicates with a public office holder in an attempt to influence:
The Act defines "lobbyist" quite broadly as including anyone who attempts to influence government policy or the awarding of contracts. Pursuant to Section 1 (1)(a) of the Act, lobbying occurs when a lobbyist, who is paid, communicates with a public office holder in an attempt to influence the development, introduction, passage, defeat or amendment of any legislative proposal, or bill, or proposal, or regulation or policy. Under Section 4 (10) of the Act there are two types of lobbyists consultant lobbyists, which include those who are external to the organization, but paid to act/lobby on their behalf and in-house lobbyists who are those that are employed by corporations or non-commercial organizations and who lobby public officials as a significant portion of their duties (20% of his or her duties over a three-month period) or their employment responsibilities. Consultant lobbyists are required to file or register with the Lobbyists Registrar within ten days of the commencement of an undertaking to lobby on behalf of a client, and any changes to the registrations, such as termination or completion must be reported within 30 days. In-house lobbyists for commercial entities (partnerships and corporations) are required to register within two months of the commencement of lobbying. The Act requires that any ongoing efforts must be registered on a yearly basis.Differences between the Federal Act and the Ontario Act
The Ontario Act was written based on the federal Act, but there are three significant differences between the two regimes. First, because of an ambitious plan on the part of the provincial government in the first term of office (1995-1999) to consider/execute a number of privatizations, any discussions of the potential "transfer" of Crown interests in a business, enterprise or institution, or any Cabinet decision to "have the private sector instead of the Crown provide goods or services to the Crown" must be included as a reason for registration (Section 1 (a)(v)).
Second, under Section 1 (1) of the Ontario Act the definition of organizations that lobby has been expanded, compared to that of the federal Act. In Ontario, organizations that work at a "territorial" level not simply provincial or federal must be included/registered. Also, pursuant to Section 1(1), the Ontario Act expands the definition of ?organization? to include educational, agricultural, fraternal and even athletic groups.
Third, pursuant to Section 18 (5), the Ontario Act goes beyond the federal Act by making it an offense for a lobbyist to "knowingly place [a] public office holder in a position of a real or potential conflict of interest." This does not appear in the federal Act, although the concept is embodied in the provincial Members Integrity Act, 1994 and the Federal Conflict of Interest Act, 1999.What Information Must be Disclosed/Required?
Pursuant to Section 4 (4) of the Act, lobbyists are required to provide their name and business address, along with the name and address of clients, the name and address of the person to whom the lobbyist reports, the business address of each subsidiary with a direct interest in the outcome as well as the name and address of the parent company. If a coalition is formed to advocate on behalf of the client or will be the beneficiary of a decision, the names and addresses of all those are required. Lobbyists must also disclose the subject-matter of the lobbying, the name of the agency/ministry/board or commission that is being lobbied, the names of any M.P.P.s (and their staff) that may be involved as well as the communication methods/techniques that will be used.Methodology
Beyond an examination of the literature and an analysis of the legal context, this paper includes primary research. During the period of June 23 to July 1, 2003 a survey was conducted of the publicly funded colleges and the universities in Ontario. The survey consisted of telephone interviews with the senior officer of each institution responsible for the maintenance of policies of the Board of Governors (or its equivalent). There were two formal questions and one open-ended question. The first question was "Does your institution have a written policy dealing with the purchase of tickets to political fundraisers/events or other donations to political parties?" and the second question was "Does your institution purchase tickets to political fundraisers/events or donate money to political parties, candidates or elections?"
There are a number of weaknesses with the methodology chosen. First, there are a number of other questions that would have been of interest to this researcher that could have been included in the survey. The survey instrument did not include a whole series of other questions for two fundamental reasons. First, early conversations suggested that because of the period chosen for the research (June-July) there were an inordinate number of senior college/university officials away on vacation and a short, very focused survey had more likelihood of success than a longer one. Second, this researcher was hoping that the seemingly innocent nature of the questions might lead the respondents to be more forthcoming and clear. Very early on, it became clear that if there was a very long, formal series of questions, that organizations would establish a very thorough, elaborate internal process to respond and that would have not only guaranteed less clarity, but also have delayed the findings for a number of weeks.
As suggested above, one of the problems with the survey method is that colleges and universities are not likely to answer the questions clearly for two reasons. First, it gives away part of their competitive advantage (i.e., what are they doing to compete/succeed) and second, much of this behaviour is either in a grey area in terms of policy, or potentially might be an uncomfortable news story should the public learn of the use of tax dollars to curry favour of politicians. There is a problem with anecdotal evidence, but it does help to fill in the picture that is left between what is the official response of the colleges and university and what is in fact part of regular operations. As for presenting the anecdotal evidence, I have agreed to keep the identity of the respondents confidential, but will share the nature of what I have learned from them without attribution.Colleges of Applied Arts & Technology
With the exception of one college that is currently drafting a policy for consideration, all 23 Ontario colleges surveyed reported that they did not have a formal written policy governing the purchase of tickets or contributions to political events, candidates or elections. It is clear from the open-ended discussions after the two formal questions were completed, that there are a number of reasons for this. First, many of the colleges indicated that there is no written policy because they did not want to bring attention to a practice that they believe ought to continue to exist "below the radar". That is to say, they argued that there might be criticism or "bad optics" if college officials were seen to use public monies to support political candidates or parties, even if it were in pursuit of advancing the interests of the college. Second, not having a policy meant that there was more discretion on behalf of the president and the college executive to respond as they saw appropriate at the time, without restriction or reporting encumbrances. Third, they felt that while a policy would probably be a "good idea", it would be difficult to capture what could be better managed on an ongoing, case-by-case basis at the discretion of the President and senior executive. They argued that by writing and approving a policy it down it would make changes over time more difficult. Fourth, many reported that while they did not have written policies, informally they did have policies and that the system functioned sufficiently without a formal written policy.
The second question produced more interesting and varied responses. Half of the colleges indicated that they do purchase tickets for events, fundraisers etc. and the other half indicated that they do not.Universities
The survey of Ontario universities yielded a number of interesting findings. Of the 18 publicly funded universities in Ontario, only three reported having written policies dealing with the purchase of tickets to political events, fundraisers on donations to candidates. These are Laurentian, Nipissing and Trent. The policies from Nipissing and Trent are virtually identical, so clearly one followed the other in their preparation (by virtue of their approval dates, one might surmise that Nipissing was first in October 1999 and Laurentian second on September 2000). The policy for Nipissing reads as follows:Nipissing University
Policies & Procedures
Guidelines for Support for Political Events
The senior administration of the university should be encouraged and supported to represent the university at major political fundraising activities. The following should guide decisions in this regard:
It is clear from the Nipissing policy that they have tried to define and limit the activity of purchasing tickets and political donations by limiting the universitys activities by limiting the frequency of purchase/attendance to one major activity per year for each of the political parties (not to exceed $400/event), by limiting approvals through requirements of attendance to be the President or designate (which means the President decides what events are supported financially by the university and who attends), that tax receipts are the property of the university, and that the Chair of the Board be informed of all such purchases. The Nipissing policy does not allow for direct political donations to any political parties.
The Laurentian policy is identical with the exception of the item #2 in the Nipissing policy. That is, there is no limit to the number of activities and no limit to the cost of the ticket. The Laurentian policy reads as follows:Laurentian University
Guidelines for Financial Support for Political Events
The senior administration of the university should be encouraged and supported to represent the university at political fundraising activities. The following should guide decisions in this regard:
When Trent University was surveyed, they indicated that they in fact do have a policy about the purchase of tickets to political events/fundraisers and submitted the following as such:Trent University
Board of Governors Policy on Institutional Gifts
As a non-profit organization with major income from governments and with significant support from private gifts, Trent University does not make cash gifts from its operating funds to other non-profit organizations or to charitable organizations unless these gifts are deemed to assist in achieving the academic purposes of Trent University. (February, 1987)
While this does not, at first glance, appear to deal specifically with the purchase of tickets to events/fundraisers, Trent insists that it does guide their behaviour in that regard. The problem with a policy of this nature is that it really does not mean anything unless you want it to. Therefore, in many regards it allows an organization to point to it as though they have a policy, to enact it if they really want to thwart someones participation, or proceed arguing that it would "assist in achieving the academic purposes" of the university.
One stark difference between the universities and the colleges is that nearly half of the universities responded that they do purchase tickets to political events/fundraisers. Many of those surveyed expressed the same frustration as heard from the colleges and a group has recently been established out of McGill University called the "Government Relations Officers (GRO) Group" which is intended to share information among its members about promoting institutions of higher learning to the government. GRO has indicated that the issue of being able to purchase tickets to political events/fundraisers is a common problem for government relations professionals that see this type of behaviour as critical to conducting their business and being competitive. The problem, as they see it, is that there is a double standard - so many other colleges and universities across the country are doing it, despite the fact that many have policies forbidding the practice.
What is ironic is that the preamble to both the Nipissing and Laurentian policies states that "the senior administration of the university should be encouraged and supported to represent the university at political fundraising activities." As described above, there really is no encouragement to attend because there are a number of restrictions which, in theory would mean that very few administrators would attend very few events.Analysis/Findings
It was in the unofficial portion of the interview, after the formal questions were asked that participants volunteered information. There were ten important lessons that I learned from these respondents. First, one of the most common ways of concealing the purchase of tickets to political fundraising events is to hire a consultant for government relations and have the consultant purchase the tickets so that there is no record of the purchase having been made directly by the college/university and it does not appear on the books. The second most common way to avoid purchasing them directly is for the college/university president/senior administrator to be a guest of someone else. In some cases it is a board member whose firm/company purchases tickets, or in other cases it is a firm/company who is a partner/supplier of the college/university. In the case of attending events as the guest of a supplier or potential partner, this brings up issues of conflict of interest regarding the acceptance of gifts. The issue of accepting gifts may well raise additional concerns that should be further examined.
Second, respondents indicated that they found that there was increased pressure to attend such functions, and in an environment that is increasingly competitive, they felt they needed to attend. As mentioned above, a group of government relations professionals at colleges and universities has recently formed, and they have had detailed discussions about this dilemma and it is an ongoing problem for their members.
Third, although they did in many instances attend these events, they indicated that they felt that they were doing something wrong or clandestine by either having to hide the expense, or purchasing the ticket themselves and being reimbursed by the college/university.
Fourth, a number of the respondents indicated that when they purchased the ticket to a political fundraiser/event, they kept the income tax receipt for the amount that was deemed to be a contribution, because it could not be used by the college/university and would otherwise go to waste. All of the respondents who indicated they engage in this type of activity felt that although there was a problem with this in theory, if the college/university could not use the receipt then there was no reason to "let it go to waste".
Fifth, beyond the duplicity between the truth and what colleges/universities are saying, some are taking very vocal stances against participating in purchasing tickets to such events. Perhaps this was because they were responding formally to a survey that would compare and contrast all colleges/universities, or perhaps they wanted to be seen to be above a certain type of behaviour. In either case, there was definitely a difference in respondents in terms of saying "no" or "hell no".
Sixth, there were those that indicated that they do not have a policy, and that they do not engage in such activities, who I can say with confidence do participate openly in these events. One additional weakness of this methodology is that I did not examine the donors lists to determine if individuals donated money (via the purchase of a ticket) and did not attend the event. There are a number of reasons for this. First, that was beyond the scope of this paper. Second, it would be very difficult to identify all officers of colleges/universities and cross reference that list with those who purchased tickets, because clearly where colleges/universities are purchasing tickets, they are not doing it directly (as discussed above) but by having individual officers do so, or in some cases having consultants do the purchasing.
Seventh, at least half of the participants indicated that they wished the rules were both clear and consistent amongst colleges/universities. The general feeling is that "everyone is doing it" and that "if you cant beat them, join them".
Eighth, while college and university presidents and administrators feel very comfortable with the role of champion of their institution to the community in general, and to potential corporate partners/donors specifically, they have indicated that they are uncomfortable in engaging in lobbying efforts that involve contributions to candidates or political parties. While they are prepared to compete against their sister institutions for government money by improving the knowledge of the government about their institutions, they do not think there ought to be any foray into the political arena.
Ninth, universities who have had to compete for research funding seem more predisposed to competing via the act of lobbying than do colleges, although the "official" responses indicate that there is not a greater percentage actually doing it as compared to colleges. Given the fact that colleges do not have the same history of competing for research grants (although this is starting to change) and given that colleges as an entity are closer to government than universities (Crown agencies vs. private, not-for-profit corporations), perhaps this is really a significant part of the explanation.
Tenth, clearly the discussion of this issue makes people uncomfortable. One reason for this is because institutions are indeed operating in a grey area, or potentially because it is has to do with competitive advantage. One alternate explanation might be that administrators may have enjoyed considerable freedom from scrutiny from their boards and opening up this topic may either split opinion, mean that their hands are tied, or that they are forced to keep doing it in some new, more clearer way.Summary/Conclusions
In her 2001-2002 annual report to the legislature, Lynn Morrison, Registrar of the Lobbyists Registration Office when describing the purpose of the Lobbyist Registration Act states:
Lobbying is a legitimate activity. The Act provides lobbyists with free and open access to government while safeguarding the integrity of public office holders and protecting them from undue influence. The lobbyists registration system provides the public, public office holders and lobbyists with the opportunity and means to know who is talking to whom in government about what (Lobbyists Registration Office, 2001-2002, p.1)
Perhaps the best way to describe what the Act tries to do is strike a balance between the publics right to know and the competitive advantage.
As the post-secondary sector continues to evolve and differentiate, there will continue to be an emphasis on competing in an arena that continues to grow more and more aggressive and competitive. As post-secondary institutions consider how to get their proposal funded over others, how to get approvals for their programming, or how to get favourable decisions for their project, lobbying will be a key strategic activity to ensure success. One of the things that the introduction of the Lobbyist Registration Act was intended to do is shed some light on the activities of lobbying such that what is otherwise a "legitimate activity?" is not sullied. It occurs to me that lobbying is indeed a "legitimate activity" but what is needed is less duplicity and more openness and transparency. The Lobbyist Registration Act provides the framework for such openness and transparency. What it requires is people to act in good faith. What is necessary is an open discussion of these issues. Perhaps then students and the community at large will determine whether colleges and universities have conducted themselves appropriately in pursuit of their goals.Footnotes 1. Some explanation of the title is necessary. Colleges and universities in Ontario have been described as "comprehensive" which means that they have all traditionally been of similar quality, all offering most programs/courses. Because of this, one could argue that they were "complacent" when it came to their sources of funding, and not having to spend much effort to attract students, staff or funding. Since differentiation and decreases in government funding, colleges/universities are "competing" against each other for students, staff, funding, research grants, etc., more than ever. Given the focus of this paper the questionable behaviour exhibited by colleges/universities in the area of lobbying, I have suggested, rather sarcastically that they may have moved from ?complacency? to "conniving". References ACAATO. (2003). Advocacy in an Election Environment: A Pre-election/Election Strategic and Tactical Guide for Ontarios Colleges of Applied Arts and Technology.
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Peter P. Constantinou has a B.A. and M.A. in public policy and administration and is currently completing his doctorate at the Ontario Institute for Studies in Education at the University of Toronto, where his research focuses on how colleges and universities engage in government relations. He is the Director of Government Relations, Resource Development, Seneca College and can be reached at (416) 491-5050 ext. 6423 firstname.lastname@example.org
• The views expressed by the authors are those of the authors and do not necessarily reflect those of The College Quarterly or of Seneca College.
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