Concern over conflict of interest between public duty and private interest are topical in Canadian public life today, but they are hardly new to issues of governance. Plato, for example, in his ideal Republic of ancient Greece, recognized the need to ensure that private interests not conflict with the welfare of the whole Commonwealth. [The Republic, Book II, Ch. X] In his Republic, Plato called for a special group of governing Guardians, who had attained the self knowledge of good and evil to contemplate public duty and life. To ensure that those who would govern avoided conflicts of interest, Plato’s Guardians were not to be allowed either private property or families: “to free the Guardians from the temptation to prefer self interest to those of the whole community.” [The Republic, Book II, Ch. XVI] This public sector monasticism of The Republic may appear somewhat harsh as rules for undertaking public life today. Yet it highlights the level of concern public sector ethics and conflict of interest in governing has generated historically.
In Canadian terms, Prime Minister Sir John A. Macdonald’s solicitation of almost $400,000 in campaign funds from railway promoters for the 1872 Canadian General Election, and the subsequent awarding of the initial Pacific railway contract to these same promoters, produced Canada’s first major post-Confederation scandal. The ’Pacific Scandal’ of 1873 allowed political cartoonists of the day, such as John Bengough of The Mail, to bemoan that the Government seemed “to have lost all idea of justice, honour and integrity”. (Sept. 26, 1873) Macdonald’s conflict of interest also resulted in the resignation of Canada’s very first national Government. It was not to be the country’s last lesson in conflict of interest.
What has been most interesting about the recent reflections on conflict of interest in government over the past couple of decades is how far the public debate has ranged from earlier responses to Macdonald’s conflict, and what governments in Canada have felt forced to do in responding to increasing agenda pressures to establish limits and penalties for situations of conflict of interest for public servants, whether appointed or elected.
Perhaps most important in these recent discussions has been the expansion of what is included under the contemporary rubric of conflict of interest in Canada. In definitional terms and categorization, current debate has tended to be very inclusive. The public sector ethical questioning and standards has moved a long way from Plato’s guardians; it has also gone considerably beyond (what might be termed) the Dalton Camp Rule. Stated simply, the Camp Rule is that if you have to explain the difference between good and bad, between self interest and public duty, to senior public servants and politicians/Cabinet Ministers, then statutory requirements, regulations and codes of conduct are not likely to end problems of conflict of interest in public life.
Yet while this is substantially true and largely reflective of a more traditional view of government, the modern reality is that most Canadian jurisdictions, from municipal through provincial to national, and a broad range of professions, have felt compelled to set out in some codified manner prescriptions for public (and sometimes private) behaviour. Through an examination of the responses of different Canadian governmental authorities to conflict of interest, this article examines a number of essential elements of the Canadian public ethics and conflict of interest dilemma. These include the following:
- differing definitions;
- various rationales;
- assorted classifications;
- multiple disclosure requirements;
- alternative review mechanisms; and
- diverse penalties.
Some conclusions are then drawn from the more recent experience over conflict of interest in the British Columbia government and from efforts to find solutions to such conflicts. Finally, a number of lessons are also drawn from comparisons with other provinces in Canada.
In seeking to define conflict of interest one of the key issues to be addressed is the compatibility of individual and organizational ethics in public settings. The Dalton Camp rule assumes a high degree of compatibility. Implicit in this definitional quest is the concept of “official duty”. Conflict of interest emerges where:
“a public official has a private or personal interest sufficient to influence the objective exercise of his or her official duties.” [Kernaghan and Langford, “Conflict of Interest”, in The Responsible Public Servant, same authors, IRPP/IPAC, 1990, p. 134.]
The directive on conflict of interest contained in the American Society for Public Administration code of ethics (adopted in 1985) is most simply stated:
“Avoid any interest or activity that is in conflict with the conduct of our official duties.”
The ASPA’s implementation guidelines instructs that “public employees should not undertake any task which is in conflict or could be viewed as in conflict with job responsibilities.” [Emphasis added]
The latter raises the first definitional hurdle, namely the distinction between actual conflict, the appearance of conflict and the potential for conflict. The (Parker) commission of inquiry into the facts of allegations of conflict of interest concerning the honourable Sinclair M. Stevens in the mid-1980s sought to distinguish these three types of conflict of interest. In his 1987 report, Mr. Justice Parker defined these as follows:
- real conflict of interestThere are “at least three prerequisites… to… real conflict of interest. They are: the existence of a private interest; that it is known to the public office holder; and that it has a connection or nexus with his or her public duties or responsibilities that is sufficient to influence the exercise of those duties or responsibilities.”
- apparent conflict of interest”An apparent conflict of interest exists when there is a reasonable apprehension, which reasonably well-informed persons could properly have, that a conflict of interest exists.”
- potential conflict of interestA potential conflict “exists as soon as the public office holder can foresee that he or she has a private economic interest that may be sufficient to influence a public duty or responsibility.” For Mr. Justice Parker,
“as soon as a real conflict of interest is foreseeable, the public office holder must take all appropriate steps to extricate himself or herself from the predicament.” Significantly, Parker argued that “the line is crossed and a situation of real conflict ensues… if the caution signs are ignored and (a)… duty… (is) discharge(d)… that could affect or be affected by the private interest.”
In the 1991 Hughes Inquiry on the Sale of Fantasy Gardens in B.C., issues of potential, apparent and real conflict were central to the findings. While discussed below in more detail, the potential conflicts related to the “private economic interests” of B.C.’s then Premier. A similar financial component is included in the International City Management Association’s (ICMA) code of ethics and guidelines:
“Members should not invest or hold any investment, directly or indirectly, in any financial business, commercial, or other private transaction that creates a conflict with their official duties.” Kernaghan and Langford have reminded students of this issue that “the term is often defined more broadly (than economic interest) to refer to the use of public office for any kind of private or personal gain.” [The Responsible Public Servant, p. 137, emphasis added]
In terms of developing some definitional clarity, this additional sense highlights some of the conceptual difficulties. In the mid 1970s, the Institute of Public Administration of Canada, commissioned a study on ethical conduct: guidelines for government employees. This early work by Ken Kernaghan led to the statement of principles regarding the conduct of public employees, developed through a series of local, regional and national meetings of the Institute of Public Administration of Canada in 1985–6. The statement defined conflict of interest in the form of a series of normative negatives:
Public employees should not engage in any business or transaction or have any financial or other personal interest that is, or may appear to be, incompatible with the performance of their official duties.
Public employees should not, in the performance of their official duties, seek personal or private gain by granting preferential treatment to any persons.
Public employees should not solicit nor, unless duly authorized, accept transfers of economic value from persons with whom they have contact in their official capacity.
Public employees should not use, or permit the use of, government property of any kind for activities not associated with the performance of their official duties, unless they are authorized to do so.
Public employees should not seek or obtain personal or private gain from the use of information acquired during the course of their official duties which is not generally available to the public.
The IPAC Principles determined that, like its American counterpart, appearances of conflict were a significant component of conflict control codes. It is a view shared by provincial definitions of conflict of interest across Canada. In Saskatchewan’s conflict of interest guidelines, for example,
…a conflict of interest is any situation in which a public employee, either for himself/herself or some other person(s), attempts to promote a private or personal interest which results or appears to result in the following:
(i) an interference with the objective exercise of his/her duties in the public service;
(ii) a gain or an advantage by virtue of his/her position in the public service. (Emphasis added)
In Ontario’s Members’ conflict of interest act, passed during the Liberal Administration of David Peterson in 1988,
…a member has a conflict of interest when the member makes a decision or participates in making a decision in the execution of his or her office and at the same time knows that in the making of the decision there is an opportunity to further his or her private interest.
Here, interests may be more than financial, but conflicts must be real.
In the case of British Columbia, the government opted for conflict of interest guidelines put in place in January, 1987 following the October, 1986 election of the Bill Vander Zalm Government. These guidelines applied to Ministers and Parliamentary Secretaries, and required these officials to
…ensure that their ability to exercise their duties and responsibilities is not affected, and does not appear to be affected, by either financial interests of their own or members of their immediate family unit. (Emphasis added)
Nor shall Ministers “be involved in day to day activities of a business or a professional nature where such activity is likely to conflict with their public duties.”
The sum of the various definitions of conflict of interest can best be concluded with the current debate in B.C. over the issue, and in the changes added with the new NDP Administration in Ontario. In July, 1990, the Vander Zalm Government of B.C. added a members’ conflict of interest act to their existing Premier’s Guidelines for Ministers/Parliamentary Secretaries. In this legislation, the more restrictive definition of financial interest is broadened, as is the application of rules for all MLAs. At this point, the definitions states that
…a member has a conflict of interest when the member makes a decision or participates in making a decision in the execution of his or her office and at the same time knows that in the making of the decision there is the opportunity to further his or her private interests.
If there is a slight déja vu quality to this B.C. conceptualization of conflict of interest, then the lesson of policy diffusion where one jurisdiction copies heavily from another has been learned. Dale Poel, in writing about such phenomenon more that a decade ago, simply was anticipating B.C.’s “plagiarism” of Ontario’s 1988 definition. The fact that Ontario had moved on to a much more comprehensive definition with the addition of new premier’s guidelines with respect to conflict of interest for Ministers/Parliamentary Assistants just meant that such policy diffusion is not instantaneous. In the current Ontario Guidelines, put in place after the election of the Bob Rae NDP Government, a number of fundamental principles are established as part of the definitional effort: “Ministers shall not use their public office in a way that furthers or appears to further their private interests.” Further:
A private interest is any interest financial or non-financial, direct or indirect, personal or pertaining to another that is not a public interest.
This is a more inclusive definition, gathering most of the components of real/potential/apparent conflict and distinguishing forms of conflict other than financial self interest. It is also consistent with B.C. NDP criticism of the 1987 premier’s guidelines and the 1990 members’ conflict of interest legislation, as too limited in scope. Interestingly, on his Spring, 1991, confirmation as B.C.’s Conflict of Interest Commissioner, Ted Hughes commented that it would be advantageous to revise the current provincial legislation to include the broader definitions of the 1987 premier’s guidelines.
The only definitional point to add is made by Kernaghan and Langford:
It is important to recognize, especially with the growing emphasis on avoiding even apparent and potential conflicts of interest, that some definitions of what constitutes a conflict have become very broad, perhaps unduly so. (The Responsible Public Servant, p. 138)
As they note, the expansion of the definition has not meant an end to uncertainty as to its meaning and application. In looking at rationales for such efforts, some explanation for the continuing uncertainty emerges.
Public perceptions about abuse of office by elected and administrative public officials owe a considerable debt to the politics counselled by Nicollo Machiavelli in the 16th century. In The Prince, Machiavelli sought to separate political activity from moral considerations morality was only to relate to politics and government when it served political ends.
In trying “to write something of use” to those in government, Machiavelli defined “political man” as essentially “wicked”, and since political faith would not be kept by others, a prince need not keep faith with them. In ethical terms, while
a prince need not have… good qualities… it is essential that he appear to have them…. It is good to appear clement, trustworthy, humane, religious and honest, and also to be so, but always with a mind so disposed that, when the occasion arises not to be so, you can become the opposite…. A prince should stick to the path of good, but if the necessity arises, he should know how to follow evil. (The Prince, Ch. VIII)
Lord Acton’s dictum of the 19th century that “power corrupts; absolute power corrupts absolutely” would seem a logical extension of the Machiavellian political precepts. It was in reaction to such understandings and to widespread conceptions of extensive corruption in government that the administrative reform movement at the end of the last century began. One of its initiators was Woodrow Wilson. In an 1887 article in Political Science Quarterly entitled “The Study of Administration”, Wilson argued that “it is getting harder to run a constitution than to frame one”. His solution was to propose “a science of administration which shall seek to straighten the paths of government, to make its business less unbusinesslike, to strengthen and purify its organization, and to crown its duties with dutifulness.” (PSQ, vol. 2, June, 1887, pp. 197-220)
These early reform efforts sought to separate administration from politics. In seeking to combat the corruption of machine politics, and the likes of Boss Tweed (with his distinction between honest and dishonest graft), the reformers stimulated important changes in governmental life. The most significant result was the development of a more professional, specialized, expert and politically neutral public service. This “purification” of administrative components of governing was bolstered by the “management movement” with its emphasis on bureaucratic efficiency.
Yet, while successful in returning values and duty to administrative life, the politics/administrative dichotomy that emerged as a result tended to view “politics” as what was “wrong” with government. As described by senior Conservative Party executive members of Wanstead and Woodford, Winston Churchill’s former constituency in Northeast outer London, “the only thing wrong with the local government is that the Labour Party introduced politics into it”. Indeed.
The solution need not be complete acceptance of the dichotomy, nor to conclude, as some have done, that “public misconduct… exists in all countries, at every level of government, and in the delivery of all scarce public goods and services. It is deeply-rooted, cancerous, infectious and impossible to eradicate.” (Gerald Caiden, “Abuse of Public Trust: Fact or Way of Life?” USA Today Magazine, July, 1990, pp. 58-60) Rather, the question is how to acknowledge the entirely proper, and necessary, role of politics in government, and ensure public confidence and trust in those who govern.
Many of the efforts to control conflicts of interest have started from the premise that ensuring this public confidence and trust is the essential rationale for all efforts to codify rules to address such unethical behaviour in all public officials, appointed and elected. That was the clear intention of Ontario Premier Bob Rae. In announcing his December, 1990 Guidelines, Rae sought “to ensure public confidence and trust in the integrity of government”. The B.C. NDP’s good government package also emphasizes “public trust” as its prime rationale.
More specific rationales relate to ensuring that conflict of interest not produce private gain of either an administrative or criminal nature. In the B.C. NDP’s draft legislation on conflict of interest, the rationale includes a determination “that politicians… not use elected positions for the gain of themselves or their families… not favour their friends… not cheat and lie….” Members convicted “of an offence involving dishonesty or violence or related to his or her public duties” would have their seat declared vacant. [Though they would subsequently be eligible to seek reelection under the proposed law.]
Here, the rationale is much more specific, and relates to issues of public honesty and justice, and to controlling serious abuse and conflict. Kernaghan and Langford note that at the black end of the conflict spectrum in circumstances of bribery, influence peddling and the like criminal sanction is appropriately the norm, with the rationale to curtail benefits from such behaviour. At the grey point on the spectrum for example, where an appearance of more minor conflict has emerged, such as accepting of a gift of limited value various administrative sanctions, such as a warning, may appropriately apply. What emerges from the discussion of rationale is agreement that a considerable range of conflict of interest situations exist.
Existing legislation in Canada covers a variety of conflict of interest matters. Initially, only serious offences were legislated. These covered significant incidents of conflict, such as bribery, in any jurisdictional setting and are dealt with in the Criminal Code of Canada. Newer laws have sought to control noncriminal conflicts of interest. This burgeoning legislative response on the part of a host of jurisdictions is to the more grey areas of public behaviour regarding conflict between public duty and private benefit.
Kernaghan and Langford have identified eight categories of conflict of interest. These cover the range from criminal to administrative in terms of both seriousness and sanction:
- self-dealing”Self-dealing refers to a situation where one takes an action in an official capacity which involves dealing with oneself in a private capacity and which confers a benefit on oneself.” (K & L, p. 142) Conflict guidelines such as those introduced in B.C. in 1987, extend this definition to include other family members and, in the 1990 Ontario guidelines, other associates. The most comprehensive current “solution” to such potential/practice is in the Ontario guidelines. Premier Bob Rae has stated this simply: “[T]he most appropriate way for members to avoid conflict is to divest themselves of potentially conflicting interests.” Current Ontario practice also requires Ministers/Parliamentary Assistants “to divest themselves of all financial interests, including business interests, which cause or could appear to cause a conflict….” though where hardship might occur, a holding may be kept, with the public interest protected by full public disclosure and scrutiny.
- Accepting benefitsThe IPAC statement of principles directs that “public employees should not solicit nor, unless duly authorized, accept transfers of economic value from persons with whom they have contact in their official capacity.” Such benefits range from token gifts to significant “transfers” prohibited by the criminal code. As Kernaghan and Langford point out, the latter instances are seldom difficult to determine; it is those lesser instances that have been problematic. Kernaghan and Langford note the old federal government norm of allowing gifts that could be consumed within a twenty-four hour period. Current efforts on benefits seek a more specific guideline. In existing B.C. legislation, only “gifts or personal benefits… received as an incident of the protocol or social obligations that normally accompany the responsibilities of office” are allowed. Any such benefit over the value of $250 requires full disclosure to the Conflict Commissioner. Under the Federal Conflict Code, the value is set at $200; in Ontario, it is a $100 limit.
As Kernaghan and Langford have argued, such limitations still leave a variety of problematic areas. Here the essential control would appear to be to ensure scrutiny of benefits by administrative superiors, and as with federal and B.C. requirements, the lodging of such information with an oversight official. Such provisions are the requirement for all benefits for employees of Metropolitan Toronto.
- influence peddlingThis is “the practice of soliciting some form of benefit… in exchange for the exercise of one’s official authority or influence on their behalf”. (K & L, p. 145) Ontario’s 1987 legislation specifies that “a member shall not use his or her office to seek to influence a decision, to be made by another person, to further the member’s private interest”. The same provision exists in B.C.’s 1990 Conflict Act. According to Kernaghan and Langford, the key component in such issues is the “soliciting of benefit”. It is this notion that the IPAC principles sought to address. In more serious forms, criminal code sanctions exist to deal with such matters.
- using government propertyIn its simplest form, this may involve using government telephones for personal use, or the archetypal “taking pencils home” from the office. In more serious iterations, it might involve significant private use of government vehicles, aircraft, computers, etc.
Kernaghan and Langford concluded that “the important point here is that government property not be used for private gain”. They add that, as with benefits, the administratively convenient solution is to ban all such uses. The IPAC statement of principles added a provision to provide for some common sense exceptions: “public servants should not use, or permit the use of, government property of any kind for activities not associated with the performance of their official duties, unless they are authorized to do so.”
- using confidential informationThe ASPA’s code of ethics standard is to “respect and protect the privileged information to which we have access in the course of our official duties.” The ICMA’s code adds that “members should not disclose to others, or use to further their personal interest, confidential information acquired by them in the course of their official duties.” A similar provision is included in the IPAC principles.
In legislative form, similar stipulations exist. In B.C.’s 1990 Conflict of Interest Act, for example, “insider information” abuse is prohibited: “a member shall not use information that is gained in the execution of his or her office and is not available to the general public to further or seek to further the member’s private interest.” (Section 3) As with other legislative provisions, this B.C. section is a direct re-citation of Ontario’s 1987 Bill 1 (Section 3) The B.C. NDP Draft Act extends the personal gain component to preclude “the gain of any other person.” (Section 16)
As Kernaghan and Langford have argued, “the offence lies in using (insider) information… for private gain.” These stipulations are separate from the public disclosure of confidential information by a governmental official. In recent Nova Scotia cases, the latter has resulted in charges of privacy violations, and in the resignation of a Minister of the Crown. Regarding abuse of “insider information” for personal gain, the intention is to ensure a level playing field. Controls also have a good deal to do with the maintenance of public confidence in the integrity of public officials. (K & L, p. 147)
- outside employmentThe International City Management Association’s code of ethics directs that:
“members should not engage in, solicit, negotiate for, or promise to accept private employment, nor should they render services for private interests or conduct a private business when such employment, service or business creates a conflict with or impairs the proper discharge of their official duties.
As such, it is a fairly complete statement on the issues of “moonlighting”. All codes recognize that there is nothing inherently wrong with outside employment except where it conflicts, or appears to conflict, with public responsibilities. In instances where it relates to appearances, the matter is more complex. A recent local example related to the problems of outside employment of a City of Vancouver police officer. The officer was involved `off duty’ in a rock band. The activities of the officer did not run seriously afoul of senior departmental officials until the group, Urban Heat, produced a rock video with the officer performing in his City police uniform. Disciplinary action was taken as the senior management felt that this outside employment was deemed to be in conflict with “the proper discharge of… official duties.” There was also a sense that public perceptions and departmental image were affected.
Taylor and Filmer have found that there are also “upsides” to some moonlighting’ activities of public servants: the most obvious are improved morale and a decline in staff turnover. (in “Moonlighting: The Practical Problems”, Canadian Public Administration, 29, Winter, 1986) The ICMA anticipated such “benefits” when they noted that: “teaching, lecturing, writing and consulting are typical activities that may not involve conflict of interest or impair the proper discharge of… official duties.”
The ICMA code also provides the most obvious means of ensuring no conflict in such off duty work: “prior notification of the governing body is appropriate in all cases of outside employment.” Yet cases of denial of such approval where administrative reasoning appears arbitrary can create a whole new set of bureaucratic problems.
- post employmentOne of the newest areas of conflict of interest review relates to post employment. The current federal conflict of interest and post employment code states the concern: “[P]ublic office holders shall not act after they leave public office, in such a manner as to take improper advantage of their previous office.”
Kernaghan and Langford list a variety of recent (pre-code) instances of subsequent employment by senior public officials/ministers with organizations under their previous public office perusal. Public Administration literature already has identified the problems of “capture” of government officials, particularly in areas of regulation. When “future employment” in such situations emerges, public interest in such examples rises, and public confidence in prior administrative decisions and fairness by such officials is potentially undermined.
Hence, efforts to control what Kernaghan and Langford call “one of the most difficult to regulate… the post employment problems…” continue. Under the 1987 Ontario legislation, no former minister can “accept a contract or benefit” awarded by the Cabinet or a Ministry, “make representations on his or her own behalf” regarding such a contract/ benefit or “make representations on another persons behalf”, except in terms of “further duties to the Crown” or if in a situation of general competition. In B.C., former ministers must not “take advantage of information and influence acquired while they held office” and are prevented from lobbying or accepting government contracts for a period of twelve months after leaving office. 1991 Post Employment Draft legislation would prevent such activity for 24 months for ministers, and 12 months for officials/parliamentary secretaries.
The key dilemma here, as discussed by Kernaghan and Langford, is:
How can an appropriate balance be struck between the right of public servants to move between public and private sector employment and the need to prevent abuse of confidential information and preserve public trust in the integrity of public officials?
Legislation to date would appear less than successful in finding that delicate balance.
- personal conductIn the age of the Charter, individual freedom would appear substantially a matter of personal choice, except where, as Mill argued, a greater good is impaired. In Ontario, Premier Bob Rae established that: “ministers shall at all times act in a manner that will bear the closest scrutiny.”
For Kernaghan and Langford, the question was whether “public servants (are) entitled to the same privacy as other citizens.” Under Ontario’s new fundamental principles on conflict of interest the answer would appear to be an expectation of a superior standard of personal conduct. For example, ministers charged with and federal, provincial or municipal offence (other than a minor traffic violation), or if the subject of any disciplinary proceeding of a profession or trade “shall immediately advise the Premier and abide by his advice.”
There are two key circumstances where personal conduct may create a conflict situation according to Kernaghan and Langford:
(a) “when a public servant’s conduct makes him or her vulnerable to pressure to use his or her public office improperly” (as with drug addiction); and (b) “when a public servant’s conduct brings significant discredit to the government or to a particular department and thereby undermines public trust in public officials.” (K & L, p. 152)
The solution regarding personal conduct, according to Kernaghan and Langford is that: “each case of questionable or improper personal conduct involving public servants needs to be carefully considered on its merits.” (K & L, p. 153)
The matter of disclosure raises several issues: what needs to be disclosed, how, and to whom are the most apparent. Related to this are concerns of divesting of financial interests for Ministers.
In British Columbia, the current conflict law requires that all MLAs disclose: “the nature of the assets, liabilities and financial interests of the member (and family) and private corporations controlled by any of them.”
This must be done within 60 days of being elected, and thence annually. The disclosure is confidential and filed with the Conflict Commissioner, who then prepares a public disclosure statement “containing all relevant information provided.” This is then to be available to the public.
This disclosure procedure is essentially similar to the Ontario 1987 Conflict Act provisions, though the latter lists a series of minor exemptions from disclosure, such as income sources of less than $1,000 annually,pension rights, home mortgage information, RRSP/Canada Savings Bond, etc., related information, cash “on hand/on deposit” etc. The requirements of the B.C Act have been criticized by the provincial NDP for allowing for the potential to shift disclosure assets within any year, and for a “fixed, clean reporting date.” In the NDP Draft Bill disclosure requirements would be ongoing, and any changes would have to be declared and made public. Disclosure would also include any indirect interests, such as where a member holds 5%+ of a particular stock, or acts as a director/ officer/partner/creditor, etc. The draft conflict bill also provides for all disclosure information as public record information.
In the Rae Ontario guidelines, ministers are also required to disclose to the Premier any changes to assets, liabilities and financial interests, and any bids/contracts made by a member (or family). Such changes are provided to the Conflict Commissioner and declared to the public. In addition, ministers are forbidden to acquire direct or indirect interest in any land in the province except for a residence/recreational property or existing farm. In both B.C. and Ontario legislation where trusts are established to manage a member’s interests, such trusts must be approved by the Commissioner and be at “arms length” from the member. Any changes in trust assets must be disclosed to the Conflict Commissioner.
In the B.C. Act and NDP Draft Conflict Bill, any member must absent him/herself from decision-making where a potential conflict exists. In the NDP Bill, as in the Rae Ontario Guidelines, each such declaration must be filed, with full public disclosure of this information; in such instances for Cabinet Ministers, public disclosure would follow the announcement of the Cabinet decision involved.
The most comprehensive provisions are that all significant personal assets/interests must be declared; they are to be matters of public record; there is to be ongoing disclosure; it is to be to a Conflict Commissioner; and it will
“include equivalent information on family members. In more complete formats, it may also include significant divestment provisions. The intention of such a disclosure regime is “to increase public confidence in the integrity of government.” (Ontario guidelines)
To ensure the broadest compliance with disclosure provisions, the NDP good government package also adds a mandatory orientation session for all Cabinet Ministers, and whenever six or more MLAs request such an orientation. As an innovation to conflict legislation, the proposal has much to recommend it. The only question would be, why not make such an orientation mandatory for all MLAs?
There are a limited number of options for review of conflict of interest matters. The B.C. NDP draft bill would provide for the broadest public scrutiny of potential conflict. In existing legislation, only an MLA or the Cabinet can initiate a request to investigate to the Conflict Commissioner, and there is no necessity for a public process; that is up to the Commissioner, and decisions of the Commissioner are not open to challenge.
In the 1990 B.C. Members’ Conflict of Interest Act,
“the cornerstone… is the appointment of a Commissioner who, like the Auditor General and Ombudsman, is an independent officer of the Legislative Assembly” with “three separate but related roles”:
to act “as an advisor to members”;
“to meet at least annually with each member to review the disclosure of the member’s interests and general obligations imposed by the Act”; and
“to undertake inquiries into alleged contraventions of the Act.”
The initial draft of the existing law had a “gag” order, not allowing questions/legislative discussion if a matter had been referred to the Commissioner. This provision was deleted at the committee stage since it could provide for political abuse of the process by starting an investigation according to a political timetable and thereby forestall any subsequent questioning.
In the Ontario Conflict Act, initiation has also been left to members/Cabinet, or by legislative resolution. In the B.C. NDP proposed conflict law, any voter could initiate a conflict inquiry, not to a Commissioner as the bill did not provide for one, but on application to the B.C. Supreme Court (with a $300 fee and affidavit). Subsequent review would be by the Judiciary.
The upside to public confidence in scrutiny procedures envisaged by the NDP is that matters of conflict of interest are the concern of all citizens; and initiation is their prerogative. Amongst the downsides are the fact that the $300 court fee would be a “social class” impediment, and given the already heavily burdened judiciary in Canada, judicial review of all such cases would be a worrisome addition to the court docket. The most obvious compromise would seem to be the addition of a Conflict Commissioner office to the draft legislation. As with other legislative officers such as the Ombudsman, all party approval would be an adequate protection for legislative support and public confidence.
Comprehensive legislation would include several factors:
- public initiation could be kept as a useful addition to member/Cabinet initiation procedures;
- requests would go to a Conflict Commissioner. Such a process would ensure broad public access as with the Ombudsoffice;
- vexatious initiations could be dealt with efficiently, again as with the Ombuds legislation;
- the Commissioner would report to the legislature, though there might be some provision for judicial review, as occurs under the federal Access to Information Act. Here, initial requests go to the Commissioner; failure to resolve significant outstanding issues might have a judicial airing. This would provide for a final judicial review in certain circumstances yet not overburden to court system; it would also increase public confidence in the process.
Early fears by civil servants of Ombudsoffices as potentially too intrusive and disruptive to an essentially secretive process of governance, have largely given way to a healthy and mature bureaucratic/public dialogue between Ombudsofficers and government departments/agencies. A review of Canadian provincial ombuds reports over the past quarter century [there is as yet no federal ombudsoffice] also substantially supports the conclusion that we have a professional public service serving the public interest well. And as ombudsoffices have matured, they have initiated broader administrative audits of “types” of problem areas, rather than continuing to confine themselves to individual complaints of bureaucratic maladministration. Under a Conflict of Interest Commissioner scheme, as envisaged above, such preventive work would also likely produce a high level of legislative compliance and acceptance of conflict avoidance.
Where compliance with conflict of interest rules fail, then sanctions exist to promote more appropriate behaviour, and to extract penalties from situations of private gain over public duty. In B.C., current Conflict legislation provides for penalties to be applied by the legislature, on the recommendation of the Conflict of Interest Commissioner. These include reprimands, suspensions for a period of time, fines of up to $5,000, or the declaration of the seat as vacant. Ontario provides for similar penalties in their Conflict Act.
The most useful change to penalty provisions is that envisaged by the NDP good government package. Here, the draft conflict of interest bill adds the notion of restitution:
“[A]ny person, whether the person is or was a member or minister or not, (who) has realized a pecuniary gain in any transaction to which a violation of this (conflict) Act relates” may have any affected person/party, including the B.C. Government, “apply… for an order of restitution.” Apart from ensuring that private gains from abuse of public office may be returned to the state, this restitution provision also should ensure that the basic rationale for such legislation is served namely, to ensure there is public confidence and trust in the governmental process.
At a time when Canada’s Citizen Forum is telling us that there is a national “desire for a more responsive and open political system”, where there is a substantial perception of “disgraceful behaviour” amongst our political leaders, and where there is a desire to make governments “not merely accountable at election time”, efforts to provide publicly accepted means for controlling conflict of interest can only add to attempts to resolve some of our deep dissatisfactions with the state of public life in Canada. Plato could have envisaged no less! Nor could Pogo have envisaged any more!!