“Guilty” of a Conflict of Interest

When discussing a conflict of interest situation or controversy, it may be misleading to use the language of criminal law. Doing so implies that a person with a conflict of interest has necessarily acted improperly. Sometimes, individuals entangled in a conflict of interest or other ethics matter, after an investigation has taken place, may express relief at being “exonerated”, or found “not guilty”. Or, individuals may express frustration at being “accused” of being conflicted. It is true that a found conflict could involve elements of wrongdoing, but it is not unusual for a person to be conflicted without having acted improperly.

In a complex society, conflicts of interests are inevitable. Conflicts result from people having multiple interests, one of which could influence the motivation for their actions relating to another. But being in a conflict situation is often not the result of “bad” behaviour. People can be in a conflict, for a variety of reasons, without having done anything wrong.

As a society, we benefit when people bring the expertise gained in one context to another. Cross-pollination of ideas encourages environmental experts to work on infrastructure projects, business leaders to become municipal councillors and scientists or doctors to serve on advisory committees. In the public sector, when we seek out, and encourage, people who can use their experience to benefit the public interest, it should not be surprising that along with such experience, they sometimes bring potential conflicts. Conflicts could even occur because of who one’s family members are, where they live or what jobs they have had in the past.

What is important is what we do when we have, or suspect that we have, a conflict of interest. The way we address a conflict, or neglect to do so, can result in its being mitigated or exacerbated. In the latter case, a conflict could develop into fraud, breach of trust or corruption requiring the intervention of the police and courts. Considerable time and expense, and enormous reputational risk, could be avoided if people take the necessary steps to mitigate suspected or potential conflicts.

In the public sector, the first step to mitigating a conflict is disclosure. While disclosure is important, transparency on its own is not always enough. Sometimes people have to recuse themselves from participating in matters where they are in a conflict. Depending on the nature of the conflict, sometimes a partial recusal, that is, participating in information gathering and discussions but not in decision-making, may be sufficient. Other strategies, such as the use of ethical walls, may also be used to mitigate conflicts.

It is also important that elected officials and public servants make themselves aware of conflict-of-interest and other ethics rules and genuinely embrace them. It is not satisfactory to fail to disclose a conflict because of ignorance of the rules, wilful or otherwise, or convenient or self-serving interpretation of them. This can very quickly turn a suspected, or potential, conflict into an actual conflict, which could become very serious, possibly even criminal, and the stuff of scandal.

In reality, it is not always easy to identify one’s own conflicts and sometimes we have to rely on others to help us. In Ontario, every public servant has a duty to notify his or her ethics executive of a potential conflict. However, being told that you may be “guilty” of a conflict, or concern that you may be subject to a disproportionate sanction, could deter you from doing the right thing by disclosing and mitigating a conflict. Little is achieved by discouraging people from being transparent. In the public sector, if conflicts are not identified and addressed as early as possible, the important principles of impartiality, equitable treatment and public trust will be lost.

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