Post Service Conflict-of-Interest Rules

Individuals at all levels who leave the public service continue to be subject to certain post-service conflict-of-interest rules. Some rules, such as restrictions on lobbying and employment, apply only to public servants who occupied designated senior positions. Others, such as the obligation to maintain confidentiality, not seek preferential treatment or switch sides on a matter before the Crown, apply to all former public servants.

It is important that individuals leaving the public service be made aware of the rules that will continue to apply to them. These are set out in the post-service conflict of interest tab.

We also have an information sheet, linked below, that we encourage ethics executives to provide to departing public servants at all levels.

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Information to aid Ethics Executive in Making COI Determinations or Giving Advice

The following lists set out information that may be relevant to an ethics executive when determining whether a conflict of interest exists.

The lists are not intended to be exhaustive and each fact situation is different. Additional information may be needed in a particular case.

  1. Benefiting Self, Spouse or Children
  2. Prospect of Future Employment
  3. Accepting Gifts
  4. Disclosure of Confidential Information
  5. Use of Confidential Information Outside of Work
  6. Giving Preferential Treatment
  7. Hiring Family Members
  8. Outside Activities
  9. Participating in Decision-Making

1. Benefiting Self or Others from Employment (O. Reg. 381/07, s. 3(1))

  • Employee’s name, position title, contact information, including the Branch in which the employee works
  • Description of employee’s responsibilities/duties and hours of work
  • How might employee’s employment with Crown directly or indirectly benefit employee, or employee’s spouse or children or an entity in which employee or employee’s spouse or children have a substantial interest?
  • Who stands to derive benefit and what is benefit to be gained?
  • Is the employee involved in procurement activities on behalf of the Crown?
  • Is the employee privy to confidential information that could benefit a family member?
  • Does the employee have a family member who works for an organization that could utilize confidential government information to which the employee has access?
  • Does the employee have a family member who works for an organization that receives grants from the government?

2. Prospect of Future Employment (O. Reg. 381/07, s. 3(2))

  • Employee’s name, position title, contact information, including Branch at which employee works
  • Description of employee’s responsibilities/duties and hours of work
  • Description of future employment including nature of employment and name and address of the prospective employer (person or entity)
  • How might prospect of future employment detrimentally affect, or be perceived to detrimentally affect, the performance of employee’s duties?

3. Accepting Gifts (O. Reg. 381/07, s. 4)

  • Employee’s name, position title, contact information, including Branch at which employee works
  • Description of employee’s responsibilities/duties and hours of work
  • Description of gift or other benefit offered to or received by employee
  • Approximate value of gift or benefit
  • What is the context in which the gift will be given or has been received?
  • Person, group or entity providing gift
  • Does the person, group or entity have dealings with the Crown? Regulated by the Crown?  Receive services from the Crown? Receive funding from the Crown?  Lobby the Crown?
  • What is the employee’s relationship to the donor? Does employee provide service to the person, group or entity in course of employee’s duties? Does the employee inspect or regulate the business of the person, group or entity?  Does the employee review grant applications from the donor?
  • Does the person, group of entity seek to do business with Crown?
  • Is gift of nominal value given as expression of courtesy or hospitality?
  • How would the gift be perceived by others (i.e. might it be perceived to influence the employee in performing his/her duties to the Crown)?

4. Disclosure of Confidential Information (O. Reg. 381/07, s. 5(1))

  • Employee’s name, position title, contact information, including Branch at which employee works
  • Description of employee’s responsibilities/duties and hours of work
  • Information that employee disclosed or may be perceived by others to have been disclosed
  • How information was disclosed
  • Identity of the third party to whom information disclosed
  • Is the information available to the public?
  • What is the nature of the information?
  • Could disclosure of information result in harm to Crown?
  • Could disclosure of information give advantage to person to whom disclosed?

5. Use of Confidential Information Outside of Work (O. Reg. 381/07, s. 5(2))

  • Employee’s name, position title, contact information, including Branch at which employee works
  • Description of employee’s responsibilities/duties and hours of work
  • Information that employee used, or may be perceived by others to have used
  • Whether information available to the public
  • What is the nature of this information?
  • Could disclosure of information result in harm to Crown?
  • Could disclosure of information give advantage to person to whom disclosed?
  • How employee may have used, or may be perceived by others to have used, information in a business or undertaking outside employment with Crown

6. Giving Preferential Treatment (O. Reg. 381/07, s. 6)

  • Employee’s name, position title, contact information, including Branch at which employee works
  • Description of employee’s responsibilities/duties and hours of work
  • Has employee in course of employee’s duties given preferential treatment to person or entity?
  • Has employee in course of employee’s duties created appearance of giving preferential treatment to the person or entity that could benefit from it?
  • Identity of person or entity to whom employee may have given or be seen to have given preferential treatment
  • Does employee or member of his or her family or friend have interest in person or entity?
  • What was the nature of the interaction between the employee and person or entity?

7. Hiring Family Members (O. Reg. 381/07, s. 7)

  • Employee’s name, position title, contact information, including Branch in which the employee works
  • Description of employee’s responsibilities/duties and hours of work
  • Has employee hired is or her spouse, child, parent or sibling?
  • Has employee entered into a contract on behalf of Crown with his or her spouse, child, parent or sibling or with an entity in which any of them has a substantial interest?
  • Is employee reporting to or supervising his or her spouse, child, parent or sibling?
  • What are the circumstances under which employee is reporting to or supervising spouse, child, parent or sibling?
  • What is the name of the spouse, child, parent or sibling who is reporting to or supervising the employee?
  • Is the employee in a role with respect to the family member that could, or could be perceived as, treating the family member with favouritism?
  • Is the employee in a position to influence the family member’s supervisor so as to create the perception of favouritism?

8. Engaging in Business (O. Reg. 381/07, s. 8)

  • Employee’s name, position title, contact information, including the Branch in which the employee is employed
  • Description of employee’s responsibilities/duties and hours of work, including whether the employee is employed in a professional capacity
  • Detailed description of proposed outside activity including: name and address of company/organization/volunteer board, etc.
  • Hours during which employee will be involved in the activity and number of hours per week or per month (will employment be full-time or part-time)
  • Anticipated start date and end date, if any
  • Compensation to be received
  • How the outside activity was secured
  • Could outside activity in any way interfere with, or be perceived to interfere with, employee’s ability to perform his or her duties to the Crown?
  • Could the outside activity in any way conflict with, or be perceived to conflict with, the employee’s duties to the Crown?
  • If the outside employment is in the employee’s professional capacity, whether it is likely to influence or detrimentally affect the employee’s ability to perform his/her duties to the Crown
  • Does/would this activity require employee to contact, or be in contact with, any of the same people employee deals with or has dealt with in his or her work for the Crown?
  • Does/would employee’s name (or organization’s name) appear on any published or distributed materials?
  • What, if any, advertising or promotion will be undertaken to promote the activity?
  • Does/would this activity involve the use of government premises, equipment or supplies?
  • What relationship, if any, exists between the employee’s employment by the Crown and outside employment?
  • To what confidential information is the employee privy in his/her employment by the Crown that is possibly relevant to the outside activity?
  • Does the outside employer provide goods or services to the Crown or may the outside employer potentially provide goods or services?

9. Participating in Decision-Making (O. Reg. 381/07, s. 9)

  • Employee’s name, position title, contact information
  • Description of employee’s responsibilities/duties and hours of work
  • How might employee’s involvement in decision-making on behalf of the Crown benefit the employee?
  • What is the employee’s role in the decision-making?
  • To what degree is the employee able to influence the decision being made on behalf of the Crown?
  • Who stands to derive benefit from the decision-making and what is benefit to be gained?
  • Did the employee obtain prior approval of the Ethics Executive to participate in the decision?
  • If the employee is a member of a body or group in the course of the employee’s employment and the employee is participating in decision-making by the body or group with respect to:
    • a decision the employee could benefit from, what is the potential benefit? What is the employee’s role on the body/group? To what extent can the employee influence the decision-making?
    • a decision that could conflict, or potentially conflict, with the interests of the Crown, what is the conflict or potential conflict? What is the employee’s role in the decision-making?  To what extent can the employee influence the decision-making?
  • Did the employee inform the body/group that there could be a benefit to the employee or conflict between the interests of the Crown and those of the body/group?

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Ethics Executive Roles and Responsibilities

Ethics Executives

Ethics executives are individuals designated to be responsible for promoting ethical conduct within their organizations. Ethics executives are the first point of contact for employees and appointees requiring advice or decisions on such matters.

Ethics executives are responsible for:

  • Ensuring that public servants are familiar with the conflict of interest/ political activity rules
  • Providing advice to public servants on the application of the conflict of interest / political activity rules
  • Conducting inquiries where public servants may have contravened a rule
  • Making determinations on conflict of interest and political activity issues and providing directions where an actual or potential conflict of interest is found
  • Authorizing requests to engage in certain political activities
  • Making a determination on the need to terminate employment or appointment if a public servant is elected to municipal office

Conflict of Interest Commissioner

The commissioner is the ethics executive for specified current and former public servants, including chairs of public bodies and the Secretary of Cabinet. In this capacity, the commissioner is responsible for providing these individuals with advice or direction on conflict of interest and political activity matters that may have an impact on fulfilling their duties as public servants.

The commissioner also provides advice and guidance to ethics executives and other officials of Ontario government offices. In assisting ethics executives, the commissioner seeks to support senior officials in carrying out their oversight responsibilities as ethics executives.

Ethics executives may refer a matter to the commissioner for a determination. If the commissioner accepts the referral, the commissioner assumes the decision-making function. When the commissioner provides advice, the ethics executive retains the decision-making function.

Integrity Commissioner

The Office of the Integrity Commissioner was established in 1988 as an independent ethics leader responsible for cabinet ministers and their staff and for members of the legislative assembly. For more information on the role of the Office and the Commissioner, please click here.

Political Activity Restrictions – A Real-Time Case

Political activity rules governing public servants, in Ontario and elsewhere, seek to balance the need for a professional, non-partisan public service with the need to respect public servants’ political and constitutional rights.

While specific rules vary across jurisdictions, determining what is or is not a political activity, and when engaging in political activity might affect the ability of a particular public servant to carry out his or her duties to the Crown, is one of the more challenging aspects of public sector ethics oversight.

Below are some links to an interesting real-time case that demonstrate the challenge of finding the right balance.

Federal lawyer defies PSC over political bid

Lawyer’s union to fight for prosecutor turned political hopeful

The Hill: Decision against federal lawyer’s election run sparks outrage in Ottawa

 

 

 

Decision Summaries

The summaries below are anonymized decisions of the commissioner which were previously published in annual reports of the office. The purpose of these summaries is to promote consistency in the interpretation and application of the conflict of interest and political activity rules.

The commissioner also encourages other ethics executives to share decision summaries for publication on the office’s website. The summaries below reflect decisions of ethics executives other than the commissioner. Note: the commissioner is not an appeal or review body for such decisions.

 

 

 

Vote for us… (13/14)

J was an appointee to a public body. She wanted to serve in a time-limited, high-profile position with a provincial political party. The chair of the public body asked the Commissioner for advice about whether J could take the job.

J was not a specially restricted public servant. As such she could engage in any political activity that is not specifically prohibited or restricted. In assessing whether this activity was restricted, the Commissioner considered that J’s role would be highly visible, involved participation in fundraising discussions and potentially soliciting funds for the campaign. The Commissioner recommended that J take an unpaid leave of absence until her job with the political party ended. While she was on unpaid leave of absence, J would still be a public servant and would have to abide by the political activity restrictions in the PSOA. The Commissioner directed J to maintain a distinction between her political role and her public servant role. She would not be allowed to do any of the following:

  1. Use her position as a public servant for personal benefit;
  2. Use or disclose any confidential information she obtained through her public servant role; and
  3. Offer assistance in dealing with the provincial government to any persons or entities connected to the political party.

(PSOA s. 64, 77 and 79)

Public Sector and MPP Accountability and Transparency Act

The MPP and Public Sector Accountability and Transparency Act, also known as Bill 8, has been in the news a lot. While the bill does not affect the Conflict of Interest Commissioner, it introduces several changes to the accountability framework for the Government of Ontario. The Act received Royal Assent on December 11. Different parts of the Act will be brought into force over time by proclamation.

Among other things, the new Act gives the government the authority to establish compensation frameworks for agency executives, requires certain agencies to publish business plans and other documents, requires Cabinet ministers, parliamentary assistants, opposition leaders and their staff to publish expenses, establishes a patient ombudsman, prohibits the willful concealment, alteration or destruction of public records, expands the investigatory power of the Integrity Commissioner, and extends the jurisdiction of the provincial Ombudsman into the broader public sector.

Click here for the government’s official media release.

Click here to view the bill and its commentary.

Municipal Integrity Commissioners

Inquiries or concerns regarding the ethical conduct of municipal officials and employees or the rules and processes applicable to them should be directed to the municipality. A number of municipalities have integrity commissioners in place who may be able to assist.

The Association of Municipal Clerks and Treasurers of Ontario (AMCTO) maintains a list of municipal integrity commissioners. The list is was completed as of September, 2014, might not be 100% accurate and is of course subject to change.

The AMCTO list can be viewed here.

 

Sidney B.Linden

Sidney B. Linden was appointed Ontario’s first full-time Conflict of Interest Commissioner in July, 2007. In February, 2015, he was appointed to the Order of Ontario, which is the province’s highest official honour, and in July, 2016, he was appointed a Member of the Order of Canada.

He was Chief Justice of the Ontario Court of Justice from 1990 to 1999. During that time, he was Co-Chair of the Ontario Judicial Council and a member of the Board of Directors of the National Judicial Institute and of the Canadian Council of Chief Judges. In 1997, Commissioner Linden was awarded the Justice Medal by the Canadian Institute for the Administration of Justice.

Commissioner Linden has also served as the Chair of the Board of Legal Aid Ontario (1999-2004) and Commissioner of the Ipperwash Public Inquiry (2004-2007).

In 1987, Commissioner Linden was appointed Ontario’s first Information and Privacy Commissioner. He was responsible for establishing the agency and served as Commissioner until April 1990.

Between 1985 and 1987, Commissioner Linden was Executive Director of the Canadian Auto Workers (CAW – now Unifor) Prepaid Legal Services Plan. This plan was funded by the major automobile companies and was the first privately funded national prepaid legal service plan in Canada.

Between 1980 and 1985, he was the first Police Complaints Commissioner for Metropolitan Toronto and Chairman of the Police Complaints Board.

Commissioner Linden graduated from the University of Toronto Law School and was called to the Bar of Ontario in 1966. He was in private practice until 1980.