It is not uncommon for agencies like ours, that make decisions in specific cases, to prepare and publish summaries of those decisions that are novel or interesting or that illustrate particularly well the statutory rules that the agencies apply.
Every year, in our annual report, our office publishes a number of decision summaries. They are not considered binding precedent, but are intended to assist public servants and ethics executives in consistently interpreting and applying the conflict of interest and political activity rules. And these are also made available on our internet site so they can be easily accessed. Needless to say, decision summaries are completely anonymized.
Over the years, our office has received a lot of positive feedback from members of the ethics community, including OPS ethics executives, legal counsel and staff, on the usefulness of these summaries.
However, other ethics executives, including agency chairs and deputy ministers, have the same statutory authority as I do to receive inquiries from employees of their respective organizations about application of the conflict-of-interest or political activity rules, and to make determinations on such inquiries. Our office is not an appeal or review body for such decisions.
And so it has always made sense to me to invite other ethics executives to provide our office with summaries of decisions made by them, and then to make them available on our internet site, together with our own. With the support and assistance of the Chief Administrative Officers’ Forum, we have now made this happen. We have collected 27 decision summaries from various ministry ethics executives. The particular value of these summaries is that they address ethics issues arising in the ministry context and may therefore be more useful and relatable for deputy ministers and their staffs.
These summaries can be found on our Decision Summaries internet page, under Other Ethics Executives. We hope to grow the number of summaries every year. Note that at present, the summaries are listed using the “nick names” we have given them. We are working with our technology cluster to develop a more useful search tool for decision summaries that will allow users to find relevant summaries quickly and easily.
We also hope to expand our collection to include decision summaries provided by agencies, which would provide yet another useful perspective for the benefit of this large and important sector.
We wish to thank the Chief Administrative Officers’ Forum for its support and assistance in this initiative, and especially Lydia Proctor, head of the Forum secretariat, and all the deputy ministers and their staffs who provided summaries this time round.
An ethics executive was asked to respond to an inquiry from an MPP regarding the use of ministry letterhead by ministry staff when seeking charitable donations under the auspices of a government-wide charitable campaign.
The ethics executive confirmed that ministry letterhead should not be used when seeking charitable donations, notwithstanding the fact that requesting donations did not constitute a contract, commitment or obligation in any way. The ethics executive also indicated that the ministry would review its processes for running future charitable campaigns to ensure ministry letterhead would not be used.
A public servant was elected mayor of a small town (fewer than 1,000) after serving as councillor. One year after their election, the public servant declared a potential conflict of interest to their ethics executive.
The public servant’s mayoral duties were performed outside of normal business hours. The public servant worked in a technical position unrelated to their mayoral duties, so there did not appear to be any overlap between the public servant’s duties and their municipal responsibilities. Nor was there any obvious conflict between the public servant’s responsibilities and the interests of the Crown.
The ethics executive advised the public servant that they should have notified the ethics executive when first elected mayor, rather than one year later. However, the ethics executive also advised the public servant that provided their elected position was not so demanding of their time as to interfere with their duties as a public servant, serving as mayor did not raise a conflict that warranted termination. The public servant was also advised to recuse themselves in any situation where they might have to take a position contrary to the interests of the Crown or which might put them in conflict with the Crown.
(PSOA, s. 79 & 80, O. Reg. 281/07, s. 8)
A ministry employee was a candidate in a municipal election. Advice was sought as to whether the employee could stand for election, and whether if successful they would have to take a leave of absence from the public service for the duration of the term of office, and if not, whether the employee’s work as a municipal councillor would present a conflict of interest with their public service duties.
Since the employee was not a specially restricted public servant they were permitted to be a candidate in a municipal election. However, section 79of the Public Service of Ontario Act says that public servants shall not engage in political activity if doing so could conflict with the interests of the Crown or interfere with the public servant’s performance of their duties, unless a public servant has been granted an unpaid leave of absence under section 80. The employee’s ministry had only limited interaction with the municipality in question and the employee’s duties did not include any decision-making regarding the ministry’s relationship with the municipality. Being a municipal councillor would only involve about ten hours of work weekly, outside of the employee’s regular hours. Therefore, it was determined that serving as councillor did not conflict with the interests of the Crown or interfere the public servant’s duties and that a leave of absence was not required.
(PSOA s. 79 & 80)
A senior employee of a ministry sought advice as to whether they could serve as a member of an advisory council to a university-based centre with a mandate affecting the same stakeholder group as the employee’s ministry. The public servant was involved in defining the government’s policy and program priorities affecting the stakeholder group and in making funding decisions concerning its communities, programs and organizations.
The ethics executive concluded that some advisory council responsibilities could raise concerns under conflict of interest rules that prohibit preferential treatment or the deriving of advantage from one’s position as a public servant.
The ethics executive advised the public servant not to participate in discussions concerning sources of centre funding or efforts to solicit provincial funding or to lobby the government in connection with the centre; not to use government premises, equipment or supplies for activities related to the centre; to communicate clearly that they did not participate in the advisory council on behalf of the crown and that any views expressed were personal and did not necessarily reflect those of the Crown; and to recuse themselves from involvement in any discussions or activities that could be construed to be in conflict with the employee’s role as a public servant, and to notify the council of any such conflict.
(O. Reg. 381/07, s. 6 & 8)
A part-time employee of a public body, a customer-service representative, sought a determination as to whether they could accept an offer of employment outside of their employment with the public body. The public servant was a model and had been approached by a third party to audition for a part in a commercial being developed by the third party for the same public body. If selected, the individual would be financially compensated for being in the commercial.
In assessing whether the proposed arrangement could conflict with the public servant’s duties to the public body, the ethics executive considered the nature of the functions regularly performed by the public servant on behalf of the public body as a part-time customer-service representative, together with the short term nature of the proposed arrangement with the third party, and the fact that the individual had no involvement in the procurement process undertaken to select the third party service provider developing the commercial for the public body.
The ethics executive determined that this situation would not constitute a conflict of interest. The ethics executive granted permission to the individual to audition for and accept a role in the commercial provided that any auditions or modeling work on the project would be done on the public servant’s own time and not interfere with their work schedule.
(O. Reg. 381/07, s. 8)
A specially-restricted appointee to a public body sought a determination as to whether they could attend a breakfast meeting sponsored by the local chamber of commerce and featuring the MPP. The breakfast, to be held at a local restaurant, was open to any member of the public who made a reservation. The cost was $20 per ticket. Promotional material for the event described to the breakfast as a fact-sharing meeting and time for feedback and made no reference to any portion of the cost being directed to a political party.
The ethics executive considered the definition of political activity in section 72 of the Public Service of Ontario Act, 2006 (PSOA), and concluded that attending the event described by the public servant was not political activity, as defined, and determined, therefore, that the public servant was not prohibited from attending. The ethics executive’s decision was supported by his view that it is not the intent of the PSOA to deny public servants opportunities that will enable them to make informed decisions concerning major issues and to benefit from meaningful representation in the legislature.
(PSOA, s. 79(1); O. Reg. 381/07 s. 8(4))
The ethics executive of a public body sought the commissioner’s advice as to whether an employee of that public body should be allowed to publish an op-ed article that was critical of a policy of a political party. Since section 72(a) of the Act defines political activity as including anything done in support of or in opposition to a political party, the commissioner concluded that the writing of such an article would constitute political activity.
Section 70(1)(c) of the Act prohibits a public servant from engaging in certain kinds of political activity without first seeking a leave of absence without pay. Such prohibited political activity includes making public comments outside of a public servant’s duties on a matter directly related to those duties, if the matter is addressed in the policy of a political party. The ethics executive was advised to consider whether the article met this test, in particular whether the content of the article overlapped with the area of work in which the public servant was engaged. If the test was met, the employee must then request an unpaid leave of absence in order to publish the article and deal with any associated matters.
The commissioner also reminded the ethics executive that section 79(d) of the Act prohibits a public servant from engaging in any political activity if doing so could interfere with the performance of his or her public duties, and that section 79(e) prohibited public servants from engaging in any political activity if doing so could conflict with the interests of the public body.
(PSOA, s. 72 and 79)
A part-time member of an adjudicative tribunal sought advice from his ethics executive, the chair of the tribunal, whether he was able to continue to engage in political activity. The tribunal member had regularly been involved in partisan political activity prior to his appointment to the tribunal. The ethics executive sought the commissioner’s guidance.
The commissioner advised the ethics executive that appointees to adjudicative tribunals were considered specially-restricted public servants, and therefore were subject to more stringent political activity restrictions than appointees to other public bodies.
The Act provides steps an ethics executive must take to deal with the contravention of political activity rules, including giving direction to an appointee.
The commissioner also advised the chair that the Act permits an ethics executive of a specially-restricted public servant to allow the public servant to be a candidate in a municipal election or to campaign on behalf of a municipal candidate. Furthermore, a part-time member of an adjudicative tribunal could seek authorization from the Conflict of Interest Commissioner to engage in most other kinds of political activity if, in the commissioner’s opinion, such activity did not interfere with the appointee’s public-service duties or conflict with the interest of the tribunal.
(PSOA, s.64, 72 and 89. O. Reg. 381/07, s.6)