One session at the 37th
Canadian Regional Conference of the Commonwealth Parliamentary Association
featured a discussion of conflict of interest guidelines. The session, held
on July 27, 1998 was chaired by Jocelyn Burgener MLA (Alberta). The
topic was introduced by Lindy Kasperski MLA (Saskatchewan) and several members
from other jurisdictions also participated. The following extracts, based
on the transcript for the session, raise many interesting questions in this
Lindy Kasperski (Saskatchewan): Although far from an
expert on this topic I will try to introduce the topic and provide some
background for discussion. Let us begin with the question of definition
and here I rely on a recent work by political scientists Ian Greene and David
Shugarman, Honest Politics: Seeking Integrity in Canadian Public Life.
A conflict of interest between
public and private interests occurs when a public official is in a position to
use his or her public office to gain personal benefit or benefits for his or
her family or party that are not available to the general public. Conflicts of
interest are unacceptable in a society that values the rule of law: the law is
to be applied equally to everyone except in the case of justifiable exceptions
written into the law. Moreover, public officials who use their positions to
provide special benefits to themselves, their families, or their political
friends undermine the principle of social equality. We expect public officials
— whether they are permanent or contracted public servants, elected
representatives or senators — to serve the public interest. Where there is a
conflict between the public interest and private, family, or party interests,
the public interest should always prevail.
These are general principles and
there is little consensus about exactly how these principles should apply to
different and individual cases. That is where the rules of ethical politics
come into play. Ethical rules represent the political system’s current efforts
to reconcile general principles with society’s expectations about appropriate
behaviour of public officials.
This study on conflict of
interest goes on to outline a four-tier hierarchy of conflict-of-interest
violations. At the top are conflicts involving financial benefit to a
public official. These traditionally have been covered by the Criminal Code.
Second in the hierarchy are
conflicts without direct financial benefit to elected officials. This type of
conflict of interest involves influencing decisions that benefit family,
friends or business associates. If public officials fail to remove themselves
from the potential conflict of interest, then they can be guilty of a real
conflict of interest even if they do not receive any direct financial benefit.
The third level of
conflict-of-interest violation is violation of conflict of interest guidelines
without a real conflict having occurred. Most conflict-of-interest codes now in
Canada require public officials to make a confidential or a public disclosure
of non-personal assets and liabilities. This information enables ethics
counsellors and conflict-of-interest commissioners to provide specific advice
about how to avoid conflicts of interest. Failure to make full disclosure is a
breach of the rules even if the assets and liabilities would not result in a
conflict of interest.
Fourth in this hierarchy of
violations is the apparent conflict-of-interest situation. Even when all the
rules have been complied with, most conflict-of-interest guidelines state that
public officials have the responsibility to show publicly that they are
attempting to act impartially at all times.
Recently, public sentiment seems
to expect public officials to have a duty to avoid these apparent conflicts of
interest. This potential conflict of interest can become a real conflict unless
the public official takes action to avoid any situation by disposing of
relative assets or withdrawing from certain public duties or decisions.
Let me now give a brief
background on federal and provincial conflict-of-interest rules. At the federal
level the first written guidelines for cabinet ministers in this country came
into effect in 1964. As of 1996 there were still no written guidelines for MPs
and senators, although there has been recently considerable debate in various
Commons committees, especially since 1988. These original guidelines that were
developed by the Pearson government were really in effect until 1973, when
public concern was raised by several allegations of conflict of interest
involving federal cabinet ministers. In that year Allan MacEachen, President of
the Privy Council, produced a green paper containing draft legislation designed
to prevent conflicts of interest among MPs and senators, including cabinet
ministers. According to this paper, all public office-holders are trustees of
the public interest and if they allow their private interests to take
precedence over public interests, a conflict of interest has occurred.
The recommendations of the
MacEachen report focused on preventing situations in which members could derive
personal financial gain from public office. However, the legislation that was
recommended in this report never did materialize.
The Trudeau government used a
set of written guidelines in the form of a letter to cabinet ministers which
contained some specific conflict-of-interest guidelines reflecting the
MacEachen report, but that was all. The guidelines provided for the disclosure
of non-personal assets and the choice of either selling assets with
conflict-of-interest potential or placing them in a blind trust.
In 1974 the federal government
also created what is known as the OADRG – Office of Assistant Deputy Registrar
General – which was created to process compliance documentation.
In 1979 the Joe Clark government
broadened the guidelines to apply to spouses and dependent children of cabinet
ministers. The guidelines were also made public for the first time. The
application of the guidelines to spouses proved very controversial at the time
and in 1980 the Trudeau government removed the applicability of the
conflict-of-interest guidelines to spouses.
In 1983-84, in response to a
much-publicized conflict-of-interest allegation another federal task force on
ethical conduct was created, jointly chaired by Michael Starr and Mitchell
Sharp. This report was one of the most comprehensive attempts at documenting a
conflict-of-interest definition of its time. The report clearly stated that
conflict-of-interest rules are intended to promote impartial decision-making
and equality of treatment. This task force also envisaged a legislative code of
ethical conduct applicable to practically all public office-holders, not just
ministers. The proposed statute envisioned in the report would also create an
office of public sector ethics to aid in enforcing and interpreting the code.
This report was not acted upon.
The Mulroney government at the time chose instead to issue another set of
conflict-of-interest guidelines which were in the form of guidelines for
cabinet ministers only.
Both these Trudeau and Mulroney
guidelines contained detailed rules concerning the handling of assets in order
to prevent personal profit from public office and the granting of special
favours to friends and associates. Neither contained, however, a definitive
definition of “conflict of interest.”
In response to numerous, highly
public conflict-of-interest allegations in 1986 and 1987, the Mulroney
government tightened up the rules surrounding blind trusts and required spouses
and dependent children to again disclose their assets to the appropriate
Since its election in 1993, the
current Liberal government appears to have been moving towards the development
of a comprehensive code of conduct for ministers, MPs and senators. A new
ethics counsellor, Howard Wilson, replaced the ADRG office in 1994. He
helped to develop a revised conflict-of-interest code for public officials
which has been in effect since June 1994.
The provinces in many respects
have followed a parallel course to what has been happening at the federal
level. The first province to come up with legislated conflict-of-interest
guidelines was Newfoundland and Labrador. In 1973 they passed an act which left
enforcement duties under the control of the provincial Auditor General. That
was recently changed recently and these enforcement duties were transferred to
the Chief Electoral Officer of the province of Newfoundland and Labrador.
Two other provinces, notably New
Brunswick in 1978 and Nova Scotia in 1987, passed conflict-of-interest
legislation which became enforceable by a designated judge. In two other
provinces, Manitoba in 1983 and Prince Edward Island in 1986, the respective
Clerks of the Legislative Assembly were responsible for enforcement.
was further enacted in Ontario in 1987, British Columbia in 1990, Alberta in
1991 and Saskatchewan in 1994. In these four provinces the appropriate
legislation is enforced by an independent conflict-of-interest commissioner or
an ethics counsellor.
Herb Dickieson: (Prince Edward Island). Many times the
identification of a potential conflict of interest will come from another
member of the Legislature. I wonder what should be the burden of proof placed
on the person who is making the accusation of conflict of interest? What
standard should be set for that?
Presently on Prince Edward
Island the investigation and review take place by members of the Legislature.
What seemed to happen is that you have the lining up of forces. On one side are
those with the party of the person who is being accused. On the other, people
from the other parties. Possibly a more independent commissioner or someone
like that might be better, more objective in terms of determining conflict of
interest. Is that the way it exists in other provinces?
Sue Olsen: (Alberta) I do not think we should have
conflict-of-interest legislation that is so onerous we cannot live by it. We
had an eminent persons panel review conflict-of-interest legislation in our
province and in other provinces. They came up with 26 recommendations, some of
which the government side has accepted. The one I do feel they should accept
and would like to see accepted is the apparent conflict of interest. I think
that allows us to be a little more vigilant with our own responsibilities and
what we have to do. We have many instances where it may appear that there is
something there or the public may view us as having done something that’s
inappropriate. I think the use of the word “apparent” allows us to be even more
vigilant than we are.
Currently, we have a very simple
issue, where I have written to a minister who gave the president of her
constituency association a contract with Travel Alberta. There may be nothing
wrong with that, but I have written and asked for an outline of the terms of
that contract and how that contract came to be, because it is highly
suspicious. It raises flags for me and for the public. For us to be seen doing
an unbiased job, it would be prudent to make public now that we know what that
particular contract tendered, the terms of the contract, those kinds of things.
There may not be an issue, but those are things the public looks at.
Gary Lunn, MP: My concern federally with the
ethics commissioner or conflict commissioner is that it is a prime
ministerial appointment. First, I think the people who have been appointed have
been doing a great job, but I am curious to know what it is like in the
provinces that have undertaken to have a commissioner or an adviser. Second, I
believe there needs to be some process where all parties are involved in these
appointments to ensure that there is complete transparency and to ensure in the
public’s eyes that there is complete neutrality. That is a concern I have had
raised by my constituents.
We do have very credible people
who are appointed, but so often in the public’s eye, because it is a
government appointment and even as you say — I believe there needs to be an
all-party committee with a veto, so it is approved unanimously by all
parties. I have had these concerns come from my constituents in Saanich-Gulf
Speaker Ken Kowalski: (Alberta) In Alberta, an all-party
committee of the Alberta Legislative Assembly undertakes a publicly advertised
process to choose the ethics commissioner. It has members of all parties of the
House. It is an independent committee. It reports back to the Legislative
Assembly which endorses the nominee and the contract is signed by the Speaker.
The person selected as the first-ever ethics commissioner in the province of
Alberta is a former leader of an opposition party in the Legislative Assembly.
Debby Carlson: (Alberta) While it is an all-party
committee that selects the person and it is a national competition, once again
we’re dealing with the appearance of conflict here because we do not have a
majority or even representation on the committee. I think the issue for debate
here is, how do you get fair representation that not only satisfies all members
in the Legislature but also the public?
Ed Picco: (Northwest Territories) Policing your
own is very difficult in any walk of life, and that includes politics. For
example, in the Northwest Territories, in the breakwater project in my riding,
where there is a limited number of contracts, I knew the scope of the project
and the budget amounts before being approved in the budget. It would have been
very easy for me to call a supposed blind trust partner and say, “Bring in an
extra T-7 and bid X number of dollars on said project.”
Also, in the Northwest
Territories the conflict-of-interest filings are done by each member with an
honour system. I guess that is to say that they’re not being checked by a third
party or an independent person. The reality is that the public at large has so
much current cynicism towards politicians that not only do you have to be
perceived to be clear of conflict but you also have to demonstrate it on an
almost daily basis.
Allegations of conflict could be
made, for example, in the Northwest Territories by anyone in the general public
at large, and that could end up having X number of complaints of conflict,
causing the government to be impeded in its legislative agenda. Also, since we
have no party politics, a complaint becomes non-partisan, so it is not a
Conservative against a Liberal, as an example. But it can become personally
The optimum would be to find
legislation that is not onerous enough to stop government from doing its job
but is officious enough to carry on the mandate required of disclosure to the
public at large so it allows the public trust to be fulfilled without
hamstringing the government. I say this in all seriousness when we look at the
approach being brought forward in legislation and what has been written about
in the public at large over the last couple of years. For example, John Crosbie
in his recent biography talks about the implementation of the blind trust
policy in the federal government, which he said matter of factly did not work
because the blind trust of course is only blind to the person who cannot see
it, not necessarily to the person involved in it.
As politicians, we are trusted
with guarding the public purse. Indeed, my friends and fellow politicians, the
cynicism out there suggests in a political way that sometimes the position we
are in puts us in a conflict. In our jurisdiction, that conflict is quite
prevalent because of our small population number and the number of contractors
that can do public work and public contracts.
When you bring up an idea or a
subject like this as politicians, it can be very touchy. The reality is that
unless you have an alternative solution to the problem, it is hard to
debate it. I do not have a solution to the problem of how you would disclose
without a third party to investigate the claims being made. When I file my
conflict-of-interest guidelines and I say that my wife is holding X number of
shares in a corporation in which I have a fiduciary interest, there is in
actuality no one to check that. It is on an honour basis.
Conrad Santos (Manitoba): I have to ask two
interrelated questions. If conflict-of-interest rules involve the delicate
balancing of the public’s right to know, as is stated in the paper, and the
legislators’ right to privacy on the other hand, are the citizens who are the
beneficiaries of all these trustees entitled to know both the basic
philosophical premises of our decisions as well as the factual basis of our
decisions, in an open way? That’s the first question.
The second question: If citizens
are so entitled, should we or should we not study and adopt the Swedish
Constitution and practice of having everything open, every government decision
and information open to the citizens, voters and taxpayers, including cabinet
decisions, unless it can be justified by specific official secrecy legislation,
subject to the circumscribed instances such as national security or common
trade secrets protection?
Who will guard the guardians? I
think we should divest ourselves of all interests. This might be extreme.
During the tenure of office we cannot own any property, tangible or intangible.
Then we should be pensioned off for life.
Dan D’Autremont (Saskatchewan): We in Saskatchewan have
an ongoing battle every year with the conflict-of-interest commissioner because
of the complexity of the forms and the time it takes to fill them out. It seems
that every year we have to go back and reinvent the wheel and fill out all the
same forms again. It really makes you wonder whether this exercise has to be
carried out in such complexity every year. Why cannot you simply indicate any
changes after the first year?
When you look at the forms, how
personal should they be? Do you have to indicate to the last cent how much
money you have in your bank account, or how much money you may or may not have
charged up on your credit cards? That is what our forms call for. I think there
is a need to make these forms and these requests practical. The fact that I may
have $1.97 in a bank account is not really going to influence my voting on any
piece of legislation dealing with any of the five major banks.
These forms have to be done in a
practical manner and in a manner that allows the members to participate in a
fairly simple area. Quite a number of people have to hire accountants to deal
with these forms. In a lot of cases, our conflict-of-interest form takes longer
to fill out than does your income tax. It makes you wonder whether perhaps we
have gone too far in the actual practical forms that we were dealing with.
The member from the Northwest
Territories brought forward some interesting questions, some of the things that
have been bothering me. Just where is that conflict-of-interest line? I am a
farmer. Does that mean I have to abstain from all discussions and all votes
dealing with agricultural issues in the province of Saskatchewan? Agriculture
is the number one industry in Saskatchewan. Am I to abstain from ever discussing
or voting on the issue that is of prime importance not only to my constituents
but to the province as a whole? I think not. I think the expertise, whatever
that might be, that I can bring to that discussion is totally relevant to the
debate in the House.
There are between 60,000 and
90,000 farmers in Saskatchewan. If a piece of legislation is being brought
forward that particularly points me out as a beneficiary, I certainly should
step aside and it would be a conflict if I did not. But how do I direct a
government program that affects 60,000 to 90,000 and benefit to a greater
extent than all the other farmers do? I guess that is where you draw the line:
Do you benefit equally as the large number of others involved in the same
Should teachers be excluded from
voting or debating any item dealing with education? I think not. I do, though,
perhaps have some questions when it comes to lawyers and loopholes.
It is important that we keep the
conflict of interest as simple as possible to encourage willing participation.
In Saskatchewan we have a third-party conflict-of-interest commissioner who was
chosen after a process involving both of the opposition parties as well as the
government. While it does not spell out in the legislation that it has to be by
unanimous consent, I believe that at the end of the day it was.
John Ningark (Northwest Territories): My question has
more to do with a person who is deemed to have broken the code of ethics. I
believe there are times as politicians when we have to follow public opinion,
and other times you have to take your own judgement to make decisions. We are
asked to make decisions at times in the House regarding what to do with a
person who is deemed to have broken the law. What is the right thing to do? I
would like to know from my colleagues, what is the right thing to do: ask the
person in question to step down from the office or remain in the office without
the portfolio? Or do we as politicians, who are elected to make decisions on
behalf of the public, decide what to do with that person who is deemed to have
broken the law?
David Chomiak (Manitoba): When I studied at law
school, I was struck by how often our professors would say, “When you are not
clear what a statute indicates ask, what was the intention of the legislator.”
I often look around at my colleagues during caucus and say, “What is our
intention here?” and they all look at me with bedeviled looks.
What is our intention with
conflict-of-interest legislation and conflict-of-interest guidelines? In fact,
that is the issue. Our intention is to somehow demonstrate to the public that
we are no better and no worse and we are making the appropriate ethical
decisions based on decisions they are making.
While we were having this
discussion, I looked through the Manitoba guidelines, which are very stringent
and which include disclosure. It is very interesting. I looked through the
definition of “gift.” I am quickly adding up that boat ride that was laid on
yesterday, this afternoon’s lunch and some of the other things. It probably
would come to a value of over $250, which would mean I probably would have to
disclose this based on the definition of “gift” in the Manitoba guidelines.
That is part of the dilemma one falls into when one statutorily delineates what
conflict of interest is, never mind a definition of what is apparent conflict
of interest, which I think deals with the ethical issues and which is something
we have to deal with on an individual basis.
Aside from the issue of what our
intention is in dealing with conflict of interest, I think we should not lose
sight of the fact that conflict-of-interest legislation is designed for
disclosure. I think that deals with the issue of agriculture in Saskatchewan.
The fact is, we were elected and we were required to disclose what our assets
and our income are. For better or for worse, in most cases most of our electors
do not know that, but we are forced to file public documents which indicate
where our interests are and where they lie, and a judgement can be made based
on our disclosures as to how and whether we were voting appropriately.
In dealing with conflict of
interest, we must not forget the issue of disclosure, which is mandated in most
legislation, that really does go a long way towards providing the public and
the electorate with an idea of where we are coming from and where we are going.
Disclosure should not be overlooked in terms of this discussion.
Speaker John McKay (New Brunswick):. On the issue of the
conflict of interest, we may be somewhat missing the point here. I do not think
that disclosure is in itself a remedy for conflict of interest. We have some
people who would not care if the whole world knew they were into the till, as
long as they did not have to go to jail for it.
I think the issue here is what
to do with people who are in a definite position to enhance their pocketbook as
a result of their decisions, whether it is the Premier of the province or a
civil servant who has access to key, sensitive, confidential information which
he can use to his advantage, not necessarily while in government but when he
gets out of government.
What kind of legislation do you
have in place that deals with the politician who lays up treasures in heaven in
anticipation of the day when he is going to get out of office and reap the
benefits? We do not have any control over that in New Brunswick right now but
we have to address that issue because it is a real issue. When you are in a
position to enhance the prospects of certain companies and then after you are
out of office they reward you by placing you on various boards of directors as
appreciation for your help while you were in office, what legislation is there
in place to deal with that? I think this is the issue.
We do not have this issue
resolved in New Brunswick right now. We are going to deal with it. It is being
referred by the Legislature to the Legislative Assembly committee, and we are
very interested in what is being discussed here. But I think the nuts and bolts
of this is, how do you get control of people who have a direct influence on
decisions that can benefit them personally?
Beth MacKenzie (Prince Edward Island). In 1990-96 I was
employed as a registered nurse in the Queens region. I ran for office in November
1996 and was successful. It took about a year after being elected before I felt
I had time and had got caught up and would like to do some on-call work. I
contacted my manager.
My nurse’s contract only allowed
a nurse to take a leave of absence for a term of public office; that’s how I
was able to maintain my job for me to return to at the QEH. But now that I’m on
a leave of absence, I’m not entitled to work at the Queen Elizabeth Hospital
because I’m on this leave of absence. I cannot go in and do a night shift. I
cannot do any on-call work. At the last minute, at 10 o’clock at night if they
need someone for a night shift and they cannot reach them, if I were available
to come in, I cannot be employed because I’m on a leave of absence.
The director of human resources
for the Queens region even went to the Deputy Minister of Health and Social
Services for direction. The deputy minister felt that I was in conflict of
interest by the guidelines of our province, the fact that public perception
might feel I was using my position to pick up extra work, and therefore I
should think very long before I started to attempt to go back and do any
nursing shifts. I can do private work or I can go to a nursing home outside of
the Queens region where I live.
I feel the conflict of interest
has affected me personally. Our salaries on Prince Edward Island are paid — it
is looked at as a part-time job. I work more than part-time, and if you are
able to pick up an additional shift, it is a little bit of extra income. Given
the fact that the door has been closed, I find it very difficult to encourage
other nurses to come into politics with the threat of losing your education.
As an RN, in a five-year period
you must work 100 shifts. If I should decide to run for a second term in
office, I will not have had my 100 shifts in as an RN, so therefore my
education is obsolete. I really have given up quite a bit to come into public
office, and as time goes on we will have to face a few battles and see if we
can get some new directions.
Gary Severtson (Alberta): I have some concern that
maybe we are going too far if we want to limit who can sit in our legislatures
and the House of Commons. I think democracy requires having all walks of life
represented. Whether you own property or are a nurse or whatever, you should be
able to come to the Legislature with no fear of losing the ability to earn
money afterwards. I think we have to be careful that we do not go too far.
Then when we go on to perceived
or apparent conflict of interest, if we went around the room, it would vary how
apparent conflict of interest is perceived. It is in the eye of the beholder,
and I think we have to be really careful when we get into this.
I just hope that everybody would
think when we bring something up to the commission on conflict that it is real
and not work for political gain, because in the end I think we bring ourselves
all down by accusing conflict of interest if it is just to get political
points. I think all sides are guilty of that.
Sue Barnes, MP: I find the office of the ethics
counsellor very useful to use on a confidential basis. I have no knowledge,
actually, whether that is a totally confidential service. For instance, if
something came up and somebody wanted access to the notes of the ethics
counsellor, I do not know if those are privileged notes; it is not a
solicitor-client relationship, that I’m aware of.
I was a parliamentary secretary,
so every once in a while I would want to do something for a constituent but I
did not know if I could do it. Whether it was a constituent who wanted me to
write to a commission or a board or something or if we had a municipal election
and I wanted to do something actively for someone. I used the commission like
my own personal shield or defence, because the ethics counsellor never gave you
anything verbally. You might discuss it verbally, but it always came back as
advice in writing that you signed for.
The other thing I want to say is
that a couple of years ago I had occasion to chair a committee on corruption in
government for the Inter-Parliamentary Union in Romania. We were talking about
corruption. One of the things, especially in developing world countries, is it
was not so much the disclosure of assets on your way in, but disclosure of
assets on your way out that was the primary consideration, because really the
intent is to not personally gain by way of your office.
Speaker Glenn Hagel (Saskatchewan): We are inclined at times
to forget that the conflict-of-interest commissioner can provide very important
political insurance for ourselves. We are inclined when talking about this to
focus on the nuisance and our feelings about intrusion into our privacy, but it
should also be noted that the other side of the coin is that it can be the
conflict-of-interest commissioner who provides us the protection against unfair
accusations about conflict of interest.
Wise indeed is the member who,
when anticipating being accused of something, heads it off by getting to the
conflict-of-interest commissioner first and asking for a private written ruling
on something you anticipate may be coming down the pike. As we know in this
modern day and age, where public officials are accused of being in conflict of
interest, the public judge us to be guilty until proven innocent. Often it is
just the passage of time by which it becomes clear later on that a member was
not in a conflict of interest, but the accusation itself was enough to kill
their political reputation. We should be seeing the conflict-of-interest
commissioner as somebody we can go to in advance to provide ourselves with
I will just give one very quick
example in my own constituency. I was involved in supporting the development of
a local project that ended up having some provincial government investment that
was part of making it fly. When they got to selling shares in it, they came
around and asked whether I’d like to buy shares. I would have liked to but I was
cautious about conflict of interest, so I went to the conflict-of-interest
commissioner and said, “Can I?” He said, “Of course you can, but if you do, if
you act on behalf of that interest with the provincial government, you are now
in conflict of interest because you are acting in your own interest.” I went
back to the board of directors and said: “I can buy shares, but if I do, I
cannot lobby on your behalf to the provincial government any more. Do you want
me to buy shares?” They said, “For heaven’s sake, no.” So it left me in a very
comfortable political position in my own constituency. Without the advice of
the conflict-of-interest commissioner, I really would have been a loser one way