Helping with a Major Sporting Event (C01-16/17)

The public servant is president and CEO of a public body, and as such, maintains a very senior and visible position.  In his spare time, he is involved in certain athletic activities, including volunteering with a local organizing committee for a major sporting event that is planned to be held in Ontario  As part of these volunteer activities, he anticipated being asked to draw on his government relations experience and to assist with provincial grant applications.

A perceived or actual conflict could arise in the event that the public servant participated in any vendor selection processes on behalf of the organizing committee where the vendors could also provide goods or services to the public body.  In addition, given the very senior level held by the public servant at the public body, confusion could be created as to whether there is some sort of relationship between the organizing committee and the public body if he were to become a spokesperson for or be seen to be a public representative of the organizing committee.  This could inadvertently be seen to be an endorsement of the sporting event, and result in a benefit to the organizing committee.  Finally, using his existing government contacts and relationships to push forward applications for provincial grants could result in an advantage being conferred to the organizing committee.

The public servant was advised to refrain from participating in any vendor selections where the same vendors may have, or may make bids for, contracts with the public body.  The public servant was also advised to avoid becoming the “face” of the organizing committee by limiting speaking on its behalf or taking on major promotional actions in support of it.  Finally, the public servant was advised to avoid taking any personal action to persuade or otherwise connect with provincial-level decision-makers on behalf of the organizing committee.

O. Reg. 381/07, s. 6 & 8.

 

Maintaining Research Activities (C02-16/17)

The president and CEO of a public body continued to maintain certain research activities which predated his appointment to the public body.  The research activities were housed at an institution that received funding from the public body.  In addition, part of the research activities had the potential to be commercialized and to have an impact on the field in which the public body operates.

As president and CEO, the public servant could potentially be involved at the public body in discussions and decision-making relating to funding for programs that could be impacted by the new technology.  In addition, on a broader level, there might be a perception that he could influence decisions at the public body relating to funding for the institution that housed the research activities, which could ultimately benefit his own research.

The president and CEO agreed to continue to declare his interest in the new technology in the course of any conversations at the public body on the subject, and to withdraw from any decision-making that could impact either the commercialization or use of the new technology.  In addition, the president and CEO agreed to continue declaring his relationship with the external institution, to withdraw from any decision-making that could impact the external institution, and to delegate any decision-making and signing authority for any funding or other agreements with the external institution.

O. Reg. 381/07, s. 3, 6, 8 & 9.

 

Involved in a Steering Committee (P01-17/18)

The public servant is a board member of a public agency.  In this capacity, she is involved in shaping the broader strategy for the public agency.  She has been invited to take part in a steering committee whose mandate is in the same general field as that of the public agency, though the two are not directly related.  As a member of the steering committee, she may be asked to comment on governance structures, funding models, and system planning, among other things.

As a board member for the public agency, the public servant is privy to confidential information touching on governance issues, funding models, and system planning.  Though there is no intersection between the public agency and the steering committee at the present time, there is a potential for the two to overlap in the future, as they operate in the same general field.  In such event, the public servant could potentially be involved in discussions or decision-making at one that could impact the other.

The public servant was reminded of her confidentiality obligations owed to the public agency, and advised to be careful not to reveal any such confidential information to the steering committee, particularly on the topic of the agency’s strategy and planning.  Additionally, she was advised to withdraw from any discussions and decision-making taking place at either the public agency or the steering committee that could impact the other.  The public servant agreed to keep the ethics executive apprised of her work with the steering committee as it progressed, to ensure that any new conflicts could be addressed in a timely manner.

O. Reg. 381/07, s. 5, 8 & 9.

 

Commentaries (C01-15/16)

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 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 79 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 & 79.

Specially Restricted (C02-15/16)

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.72, 85, 89 & 92.

Post-Service (C03-15/16)

A public servant formerly in a senior-designated position retired and was re-hired briefly, on contract, by a public body. Upon terminating this employment contract, the former public servant wanted advice about several post-service opportunities.

The intervening employment opportunity impacted the nature of the post-service obligations the public servant was subject to because technically the position that the public servant held immediately before ceasing to be a public servant was not a senior designated position and as such he was not subject to the more stringent lobbying and employment restrictions. The commissioner was concerned that this arrangement might appear to have been made to intentionally circumvent the more stringent restrictions. In order to avoid this perception, the commissioner recommended that the public servant be treated as though the lobbying and employment restrictions applied to him for one year following the original retirement.

O. Reg. 381/07, s. 19.

Benefiting Self, Part 1 (C04-15/16)

A public body wanted to appoint a chair who was also a recipient of one of the public body’s programs and had a business partner already on the board.

The public body thought it was acceptable for some board members to be program recipients, as such members provided the board with expertise. The public body was aware of the potential for conflict and had developed systems to minimize the impact of such conflict, including limiting the involvement of the board in operational matters related to programs, and requiring members to declare any potential conflicts for the record of every board meeting and recuse themselves from certain discussions and decisions.

The commissioner concluded that these measures could be applied to the new chair and additionally suggested that any potential conflict of interest or political activity matter relating to the chair’s business partner be referred to the commissioner under section 65(6) of the PSOA.

O. Reg. 381/07, s. 3, 6, and 9.

Benefiting Self, Part 2 (C05-15/16)

After serving as a member of the board of a public body for twelve years, an individual, with the assistance of two lawyers, had published a citizen’s guide to appearing before the public body. Recently, he was appointed chair of the same public body and was approached by the publisher to prepare a third edition of the guide.

Since the book was initially published long before the individual became chair, and during a period when he was not a public servant, it was the commissioner’s view that s.3 of the Regulation (benefiting self, spouse or children) would not be contravened. The individual was not currently seeking to publish a guide for the first time while chair. For similar reasons, the commissioner believed the publication of the new edition was not a contravention of s. 8(5) of the Regulation. While the chair’s association with the third edition as chair could hypothetically promote sales, the guide was initially published long before, and it was not the case that the individual was being sought out to promote sales of a new book.

The two lawyers who were assisting with research for the new edition sometimes practiced before the public body. To avoid the appearance of preferential treatment, the commissioner directed the individual to recuse himself from any hearing in which either of them appeared as parties.

O. Reg. 381/07, s. 3, 6 & 8.

Outside Activity (C06-15/16)

A senior public servant in a public body sought to become a member of a quasi-judicial committee of a municipality. The public servant intended to attend approximately one hearing per month from 10:00 am to 2:00 pm.

The commissioner had concerns about the activity because the committee could be dealing with matters relating to individuals associated with the public body. In order to minimize the potential interaction between the two roles, the Commissioner required the public servant to advise his ethics executive immediately if an individual who appeared before the committee became involved in a matter with the public body and prohibited the public servant from dealing with committee matters involving potential stakeholders of the public body. The Commissioner also directed the public servant to take a full vacation day when performing committee work that was scheduled to occur during the public servant’s normal office hours, to ensure transparency.

O. Reg. 381/07, s. 8.

Hanging my shingle, Part 1 (C01-14/15)

A designated senior public servant in a public body was on a paid leave of absence.  Following the expiration of the paid leave of absence, the public servant was due to retire.  The public servant wished to work as an independent consultant while on the paid leave, building on her career as a public servant, and had been approached with specific opportunities.

The Commissioner determined that while on the paid leave of absence, the public servant could provide independent consulting services, in specific scenarios, but that the in-service conflict of interest rules continued to apply.  The public servant’s work as a consultant must not conflict with her duties to the Crown, and no person could derive an advantage, in connection with her consulting work, as a result of her employment with the public body. In addition, the public servant must not appear to give clients of the public body any preferential treatment.  Specifically, the public servant should not participate in discussions or decisions with other entities with respect to clients of the public body.

The Commissioner reminded the public servant that on retirement, the post-service conflict of interest rules would apply, including the one-year restriction on lobbying and employment.

O. Reg. 381/07, s. 6, 8, 9.