Previous Version of Interpretation Bulletin, Acting Appointments in Designated Public Office Holder Positions (July 2009)

Purpose of Bulletin

This interpretation bulletin is issued by the Commissioner under the authority of subsection 10(1) of the Lobbying Act (hereafter "the Act"). Its purpose is to provide the Commissioner's interpretation of acting appointments that may place individuals in designated public office holder positions for short periods of time. For purposes of this interpretation bulletin the term "acting" also refers to "interim" positions.

Legislative Context

The Federal Accountability Act (S.C. 2006, c.9) made a number of amendments to the Lobbyists Registration Act, including renaming it the Lobbying Act and introducing the term "designated public office holder" (DPOH). The Act and the Designated Public Office Holder Regulations designate a number of senior public officials as DPOHs. Across the public service, senior public office holder positions are known by varying titles. Subsection 2(1) of the Act, which lists those positions that will be included in the definition of "designated public office holder," captures this reality by including positions of "comparable rank" to associate deputy ministers and assistant deputy ministers. The Commissioner has issued an Interpretation Bulletin entitled "Interpretation of "Comparable Rank" for Designated Public Offices" that provides specific criteria to identify positions of comparable rank to the DPOH positions included in the definition of DPOH in the Lobbying Act and in the Designated Public Office Holder Regulations.

Acting Appointment Interpretation Approach

The Lobbying Act recognizes that there may be persons who are in DPOH positions on an "acting basis." As the Lobbying Act provides no specific provision defining an "acting" appointment in a DPOH position, the Commissioner of Lobbying is able to provide this interpretation.

In interpreting the term "on an acting basis," the Commissioner has taken an approach which sets out very specific criteria for easy identification of whether an acting appointment is a DPOH for purposes of the Lobbying Act, while allowing for the possibility of further, specific interpretations of any unique situations where doubt may remain about the DPOH status. In setting the criteria, the Commissioner interpreted that Parliament's intent was to designate those who:

• hold positions which, by any title, have decision-making or advisory responsibilities at the Deputy Minister, Deputy Head, Associate Deputy Minister, Assistant Deputy Minister or comparable rank, and
• are remunerated at least as much as the minimum salary of an Assistant Deputy Minister.

Conditions for Designating an Individual in an Acting Appointment as a DPOH

An individual in an acting appointment will be designated as a DPOH if both of the following conditions are present:

• The acting position is a DPOH position as defined in the Lobbying Act, designated by regulation or is a position of comparable rank.
• The duration of the acting appointment is longer than four months over a twelve month period.

If both of these conditions are present, the individual acting in such a position will be designated a DPOH, effective the day after the four month threshold is reached. They will be designated as a DPOH for as long as they hold the position.

In any case in which a department or agency considers that an acting appointment should not be designated as a DPOH, the Commissioner of Lobbying will consider the specific case when reasons are provided to the Commissioner in writing.

Designating acting appointments in DPOH positions will begin on May 4, 2009. Only acting appointments that began on or after this date (including extensions) will be considered for designation.

For further information, please contact:

Office of the Commissioner of Lobbying of Canada
255 Albert Street
10th Floor
Ottawa, Ontario K1A 0R5
Tel.: 613-957-2760
Fax: 613-957-3078
Email: QuestionsLobbying@ocl-cal.gc.ca

Karen E. Shepherd
Commissioner of Lobbying
July 2009