Post-Service Rules

We often hear about conflict-of-interest rules that public servants are expected to follow. As we know, these rules help to ensure that our public service is professional, ethical and competent.

It is also important to know that certain rules continue to apply after an individual leaves public service. These are called “post-service” rules, and they are applicable to former public servants. They are equally important. Just as public servants must not allow their personal interests to conflict with their public service duties, so also must former public servants not derive undue advantage, or disadvantage the Crown, by virtue of their former public duties. Having both sets of rules ensures a balanced and equitable ethics regime.

The post-service rules are relatively few and easy to remember. There are only five in total. Three apply to all former public servants, and have no time limit:

  • Don’t seek preferential treatment. For example, one might be tempted to call a former colleague for help with a matter involving a non-profit organization one has become involved with. Don’t. Use the same channels available to all other citizens. You would also be putting your former colleague in a difficult position, because it is equally against the rules for a public servant to give preferential treatment.
  • Don’t disclose confidential information. This is information that is not available to the public at large, and which, if disclosed, could disadvantage the Crown or unfairly advantage someone else. The second part of this test may be difficult to assess. The best course: don’t risk it. If the information has not been made public, don’t discuss it after you leave public service.
  • Don’t switch sides. The Crown is entitled to benefit from your advice. If you worked on a matter while a public servant, you must not advise anyone on that matter as a former public servant, until the Crown is no longer involved. You may continue to advise the Crown if asked to do so.

The next two rules apply only to former public servants who worked in a “designated senior position” basically at the director level or higher or the equivalent in a public body. They are somewhat more complicated, and only apply for twelve months after leaving public service:

  • Don’t accept employment with any organization that you were substantially involved with in the twelve months prior to leaving the public service, if you had access to confidential information. An example might be accepting a job with a company that you worked closely with as a director in a public body on a major procurement initiative. Substantial involvement needs to be more than simply being briefed on a matter periodically.
  • Don’t lobby a public servant, or any minister or minister’s staff, in any ministry where you worked for the 12 months prior to leaving public service. So, if you were a director in the Ministry of Education, you can’t join an education advocacy group and immediately start lobbying the minister.

Former public servants have ethics executives just like current public servants. These are the individuals former public servants should consult if they have questions about the application of conflict-of-interest rules, and who can make determinations about specific cases and situations. The ethics executive for former ministry employees is the Public Service Commission. The ethics executive for almost everyone else – former deputy ministers, secretaries of cabinet, and agency appointees and employees – is the Conflict of Interest Commissioner.

Individuals leaving public service – at whatever level – should be made aware of their post-service ethical obligations. Our website contains a page on post-service rules. A more comprehensive information sheet, linked below, is also available, and it is good practice to provide this resource to every public servant, whether in a ministry or public body, and regardless of level of seniority, who is about to end his or her employment with the Crown.

Post-Service Information Sheet

Public Service and Political Activity

The next federal election will take place on October 19th, the first instance of a fixed election date in Canadian federal politics.

It used to be the case that public servants, at both the provincial and federal levels, were subject to broad political activity prohibitions. This was seen as necessary to uphold the neutrality and professionalism of the public service in a democratic system.

The Charter of Rights and Freedoms changed things. Evolving attitudes probably also played a role. Today we have a more nuanced and workable system that balances the rights of citizens to participate in the democratic process with the need for a neutral and professional public service.

According to the Supreme Court, political expression is fundamental to the guarantee of freedom of expression, and is therefore entitled to a high degree of protection. Any limit on political expression is only justifiable if it furthers an important objective and is proportionate to this objective, i.e., the limitation is related to the objective, is as minimal as possible, and produces more good than harm.

The old rule for the federal public service, prohibiting Crown employees from engaging in any political activity, was considered not minimal but overkill, encompassing everyone from deputy minister to cafeteria worker, not taking into account either the nature of the public servant’s work or the type of political activity involved.

However, the court also accepted that restricting political activity is related to an important objective, namely maintaining the neutrality, professionalism, and loyalty of the public service, which is also a legitimate public expectation. The court has therefore allowed political activity restrictions that are justifiable. Restrictions can be based on:

  • the extent of the public servant’s policy advice,
  • the scope of discretion exercised by the public servant,
  • the visibility of the public servant’s position, and
  • the nature of the prohibited political activity.

In Ontario, these constraints developed by the Supreme Court were given expression in the Public Service of Ontario Act, 2006, and in its predecessor statute. In fact, Ontario is unusual in placing its political activity rules directly into legislation, as opposed to corporate policy. Political activity rules form Part V of the Act

Ontario created two categories of public servant. A “specially restricted” class of public servants in senior positions, such as directors, ADMs, and deputy ministers, and some tribunal members, is subject to more stringent rules. Members of this class can only engage in certain permitted political activities, such as voting and contributing money to a political party. Some members of this class may also seek authorization from the Conflict of Interest Commissioner to engage in other activities.

The “non-specially-restricted class” – basically everybody else, can engage in any type of political activity except that which is specifically restricted, like running for office, which can only be done while on a leave of absence.

And of course there are certain prohibitions that apply to both groups – and they are just common sense. For example, no one is allowed to engage in political activity while at work or in uniform or use government resources for political purposes.

The political activity rules in Ontario are carefully crafted and designed to meet the Supreme Court’s test for reasonable restrictions on political expression. Most importantly in my view, they are consistent with maintaining a public service which is neutral, professional and loyal on the one hand, but also part of a politically engaged citizenry on the other.

Since the establishment of our office, I have dealt with a number of political activity matters, including requests for both advice and determinations, which usually arise only during a municipal, provincial or federal election campaign. All of these matters have been dealt with based on the facts at hand and the rules outlined above.

Many public servants in Ontario may not wish to engage in political activity, but for those who do – and it is their right within limits, Ontario has a fair, transparent and balanced framework in place.

Do the Right Thing

In previous blogs I explained that conflicts of interest may sometimes occur as a fact of life in a complicated society and that people should develop their own ethical compass and know when to seek advice.  I discussed how leaders are responsible for their own and their organization’s ethical integrity and they should foster an ethical culture.

In this blog I am writing about something that supports most of what I havepreviously written, namely, that after decades of public service in a variety of roles, I am convinced that most people in government want to do the right thing simply because it is right.

I believe there is a heightened awareness of the importance of ethical conduct among public office holders and public servants, and an increasing sensitivity to, and declining tolerance for, ethical misdeeds.

In performance measurement we talk about sustained changes in awareness and behavior leading to more durable, long-term changes in conditions and attitudes. This is a good analogy. There has been an increased emphasis on ethical awareness and behavior over time.  This has become internalized as part of our culture, and has actually changed societal conditions and attitudes.

Even in private enterprise, where profit rules, companies are increasingly under pressure to become more transparent in their practices, to demonstrate the positive societal impact of their activities, to establish rigorous corporate ethics and to embrace community involvement. Many companies see this as contributing to their success.

From my perspective, this is all very good because society is and has been moving in the right direction.  Although there have been several recent high profile public sector ethical incidents, at all levels of government , one should pause to reflect that not so long  ago , such things might have gone unnoticed.

The greater frequency and public exposure of these incidents could well mean that we have become a more conscientious society as a whole.

The role of our office is to reinforce this natural impulse to do the right thing. There will always be those who do not wish to do the right thing, and they may never come to our office for advice or a determination.

But I am impressed with how often senior public servants have approached our office with questions or concerns simply because they wanted to ensure that they were moving in the right direction. In today’s society, that is what good public service is all about. We encourage and commend such behavior and, in return, we will always try to provide reasonable, consistent and constructive advice.

Recently, Toronto Star columnist Rosie DiManno wrote something that resonated with me: “Ethics is doing the right thing when people are watching; integrity is doing the right thing when nobody’s looking.”

I interpret this to mean that regardless of codes of conduct and oversight bodies, those of us in the public service should always rely on our own personal integrity and instinctive sense of doing the right thing simply because it is right.

Dealing with Conflict

Ontario’s system for dealing with conflicts of interest is inclusive and, at the same time, decentralized. In my view, this is one of the strengths of our system. Public sector leaders are expected to manage ethical issues and build an ethical culture within their own organizations. Ethics oversight is not an ‘overlay’ on existing organizations but part of their inherent functioning. Every public servant has an ethics executive, who is usually the deputy minister in a ministry or the chair or CEO of a public body. Our office is a resource for ethics executives generally, and provides ethics training to public body chairs and CEOs.

Public servants in Ontario are governed by the Public Service of Ontario Act, 2006 (PSOA), which places an obligation on each and every public servant to seek the advice of their ethics executive if they believe they may have a real or perceived conflict. A supervisor may also refer a potential conflict relating to a subordinate to the subordinate’s ethics executive. The ethics executive is then responsible for investigating and making a finding or determination on ethics matters within his or her own ministry or public body.

If there is a finding of a real or potential conflict, the ethics executive will provide directions to address or mitigate the conflict or the potential conflict and the public servant is obliged to comply with the directions of their ethics executive. If a sanction or penalty is called for, the ethics executive imposes it according to the realm of progressive discipline which can range from an oral or written warning to outright dismissal. This approach ensures that accountability and enforcement of ethics rules stay with the local administrative authority. However, in more serious cases, such as corruption, bribery or other criminal wrong-doing, the ethics executive would refer the matter to the appropriate law enforcement agency for investigation and possible criminal proceedings.

As Commissioner, I am frequently consulted by ethics executives for my advice and assistance. An ethics executive may also refer a matter to be dealt with by me when it has broad precedential implications or if the ethics executive, him or herself, may be conflicted.

Based on our experience advising public servants, we have found that most public servants who find themselves in a real or potential conflict of interest situation want to do the right thing and the issue is generally not about penalty but about developing an appropriate strategy to mitigate or eliminate the potential or real conflict.

For the system to work properly two ingredients are essential:

  1. Public servants must have the guidance, direction, and tools to become ethically aware and make the right decisions.
  2. Ethics executives must have the expertise and flexibility to give directions to achieve compliance or to apply sanctions along the conflict of interest continuum.

In conclusion, the conflict of interest process in Ontario is part of the larger public service management system. Since the system began in 2007, many matters from all parts of the province have been routinely dealt with within the system, without the need to involve outside counsel or the courts.

“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.

Ethical Leadership

As Conflict of Interest Commissioner for the Province of Ontario, my concern is the ethical conduct of public servants. I have a specific role with respect to the chairs of designated agencies and some designated agency senior managers, for whom I am the ethics executive. I am also the ethics executive for many former public servants and for the Secretary of Cabinet. The ethics executive is responsible for ensuring compliance with rules for ethical conduct.

In Ontario, however, the system of public service ethics oversight is a shared responsibility. Agency chairs and senior managers are themselves ethics executives for their own organizations. Deputy ministers are ethics executives for their ministries. The Secretary of Cabinet is the ethics executive for deputy ministers. Our office provides advice to these other ethics executives when they need help dealing with ethics matters or have questions about the application of our rules. Sometimes I am asked to accept a referral of an ethics matter, but unless the matter has broad implications or the ethics executive is himself or herself conflicted, I prefer to support ethics executives in their critical role of ensuring ethical conduct in their own organizations. This approach is consistent with good governance and with executive accountability.

Generally speaking, our system seems to work, and the expectation that heads of organizations should deal with ethical issues and foster an ethical environment in their organizations is one of its strengths. Our statute, the Public Service of Ontario Act, 2006, gives ethics executives the responsibility for promoting ethical conduct by public servants who work in their organizations. This is a clear mandate for deputies, agency chairs, the Cabinet Secretary, and other ethics executives to pay attention to ethical issues and take them seriously.

Several recent expense scandals have involved elected officials, but they illustrate the importance of sound ethical leadership in any organization. Preston Manning recently wrote an excellent article regarding the situation in Alberta. He noted that casual ethics on the part of a premier can foster an ethically permissive culture in the entire government. Other news accounts revealed that attempts by conscientious public servants, and even the deputy premier, to warn the premier against improprieties were ignored or rebuffed. Those who expressed concern could find themselves unheeded, demoted or “canned”. This can sap public service morale, compromise the integrity and professionalism of public servants, and generally erode the ethics of organizational culture.

All of which speaks to the importance of leadership in fostering and maintaining a culture of ethics in organizations. Leaders, both in politics and in the public service, must have a good ethical compass. In politics, as Manning suggests, we should be concerned with the personal ethics and personal integrity of the leaders we choose. We seem to focus more on ideology, experience and “political correctness”. While these characteristics are obviously important, when we choose our leaders, elected or not, we should also pay attention to their ethical integrity.

Nothing can replace a good ethical compass in a political or public service leader. Often this just means using common sense, having sound ethical intuition or instinct, knowing when one’s comfort zone has been breached, and having a desire to “do the right thing” and to “lead by example”. Rules codify what have long been considered good ethical practices, but they do not replace sound ethical awareness and leadership at the top. Having a good ethical compass also means being open to advice about the ethical implications of one’s own actions or intentions, realizing that it is more difficult to judge oneself and to accept criticism and constraints than it is to judge others.

An Ethical Compass

Welcome to my first blog. This forum is new for me. Not long ago, if a person wanted to add their voice to a matter of public discourse the only way to do so was to write (and publish) a letter to the editor of a  newspaper. I’ve done that from time-to-time over the years. However, today I am looking forward to engaging with you through this periodic blog. I intend to share my thoughts on ethical issues that are, or should be, of interest and concern to all of us as public servants and encourage you to submit your comments and feedback as well. Also, please feel free to share these posts with others in your organization or network who you think might be interested.

The subject of ethics, and conflicts of interest more specifically, are certainly in the public consciousness these days. Hardly a day goes by without a news item (or several) about questionable conduct by an employee or senior official of a public or private organization. As a result, enquiries have been made about the systems that are in place to deal with these matters and whether or not they are adequate.

I’ve come to realize two truths about conflict of interest. The first is that it is often easier to recognize conflict of interest in others than in ourselves. Second, conflicts of interest cover a wide range of conduct – from conduct that is quite minimal to that which is very serious, possibly even criminal.

The reality is that conflict of interest is a fact of life in a complicated society. An active individual, who wishes to contribute to society through public service beyond the professional realm, may be involved with multiple bodies and organizations in his or her community.  This kind of involvement produces better citizens and better public servants but, conflicts may arise quite casually and innocently.  There may not be any so-called ‘wrongdoing’ involved and certainly not any criminal conduct.

What is important is for each of us to find and nurture our own personal ethical compass. It may be easier to see conflicts in others than in ourselves, but public servants who become aware of potential conflict situations should immediately disclose them to their ethics executive so that proper action can be taken to manage and avoid a real or more serious conflict.  The fact is, public servants will be reluctant to consult their ethics executive, and certainly our office, if they fear that raising even the most trivial of conflicts will become exaggerated and possibly even magnified by the process.  That’s why we believe it is important for our office to establish relationships and build trust and confidence among public servants.

Our office may be seen as an ally for public servants that provides an organizational ethical compass. We act as a resource by providing guidance and direction to resolve questionable situations. This approach minimizes reputational and integrity risks and enables public servants to do their jobs ethically and conscientiously. Obviously, serious ethical misconduct, or conduct that approaches criminality, needs to be dealt with firmly, and in such cases, we ensure that the proper authorities are involved so that appropriate action can be taken.

Sidney B. Linden is a former Chief Justice of the Ontario Court of Justice and Ontario’s first full-time Conflict of Interest Commissioner.