An employee of a public body, with a public-facing role, wished to run for municipal office. The employee’s ethics executive proposed to move the employee to a non-public-facing role so that the employee would not be required to take a leave of absence.
The Commissioner supported moving the employee and suggested that the decision, including factors considered, be documented. The Commissioner also advised the ethics executive to monitor the situation in case the business of the public body became a municipal issue, or the employee’s political activity began to interfere with the employee’s duties or conflicted with the interests of the public body.
PSOA s. 72 and 79.
A specially-restricted part-time appointee to a public body sought authorization to engage in political activity that depended on the outcome of a provincial election. The public servant had been asked to join a political party’s transition team if it won the election.
The Commissioner authorized the public servant to engage in this activity because the public servant’s exercise of discretion with the public body could not reasonably be perceived as being affected by political considerations. The Commissioner also reminded the public servant not to engage in any prohibited forms of political activity while working on the transition team.
PSOA s. 92.
A former designated senior public servant wished to provide consulting services. The advertisement for these services indicated that the former public servant had been appointed to a certain public body and was able to assist with matters involving the public body.
The Commissioner determined that the former public servant could advertise this previous experience as it was part of the public servant’s resume. Also, more than one year had passed since the former public servant had ceased to be a public servant, and therefore the one-year restriction on employment no longer applied. The Commissioner reminded the former public servant of the post-service conflict of interest rules that were still applicable. In particular, the former public servant could not assist with any matter in which the former public servant had been involved as a public servant.
O. Reg. 381/07, s. 19 & 20.
The spouse of an ethics executive for a public body was the head of an organization that regularly had dealings with the public body. The ethics executive advised the Commissioner that in order to mitigate the risk of a conflict of interest, steps had been taken to shield the ethics executive from any conversations or emails within the public body regarding the organization, and that the appropriate individuals had been advised of the potential conflict.
The Commissioner confirmed that the ethics executive had acted appropriately and put in place an effective mitigation strategy.
O. Reg. 381/07, s. 3 & 6.
A designated senior public servant in a public body, who would soon be retiring, asked the Commissioner for a waiver of the one year post-employment restriction. The public servant anticipated post-retirement employment opportunities with certain government organizations.
The Commissioner advised the public servant that there was no provision in law for such a waiver and that accordingly one could not be granted.
The Commissioner reminded the public servant that the one-year restriction only applied to those entities with which the public servant had been substantially involved. The public servant was advised to contact the Commissioner once a specific opportunity arose, at which time a determination could be made.
O. Reg. 381/07, s. 19.
L was the chair of a public body and he wanted to stand for election as a municipal councillor. He asked the Commissioner whether he could run for this office.
As L was not a non-specially restricted public servant, he could run in a municipal election and serve as a municipal councillor as long as these activities did not (1) interfere with the performance of the chair’s duties, and (2) conflict with the interests of the public body. The Commissioner considered the following factors:
- Time commitments and the impact on L’s duties;
- Stakeholders the public body and the municipality have in common;
- The likelihood that candidates or councilors could comment on or make decisions related to the public body or the Ontario government;
- Intersection of the public body’s and the municipality’s interests, and the likelihood that L would advise on or be a party to discussions or decisions on issues impacting the municipality or municipalities in general; and
- L’s ability to avoid taking part in discussions and decisions at the municipality or public body while carrying out his duties as chair.
The Commissioner determined that L could stand for election and serve as a municipal councillor provided that L complied with certain restrictions including not commenting publicly on matters that are directly related to his duties as chair and not engaging in political activity while specifically performing his duties as chair.
PSOA s. 72 & 79.
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:
- Use her position as a public servant for personal benefit;
- Use or disclose any confidential information she obtained through her public servant role; and
- Offer assistance in dealing with the provincial government to any persons or entities connected to the political party.
PSOA s. 77 & 79.
R was a former public servant who had worked in a public body, and who had had the responsibility of reviewing funding applications for the public body. The public body subsequently became involved in a hearing with an entity who had previously applied for funding. R was asked by the entity to provide information about her prior review of its application, and she did so. The public body considered this information to be confidential information. The public body, for which R was a former employee, asked the Commissioner to make a determination as to whether R had contravened the conflict of interest rules by providing the entity with this information.
The Commissioner determined that while the information R provided may have been true, R was not permitted to assist the entity by providing this information, some of which was confidential information. R had previously been involved in evaluating the entity’s application for funding from the public body, and providing this information would be in contravention of sections 17 and 20 of the conflict of interest rules in Ontario Regulation 381/07.
The Commissioner concluded that an applicant for funding might have interests that are potentially adverse to the interests of a public body and that by advising the entity, R could undermine the public body’s ability to protect its interests.
The Commissioner directed R to take steps to withdraw the information R had already provided to the entity from the hearing process.
O. Reg. 381/07, s. 17 & 20.
G was a public servant. His cousin was also his ethics executive. The ethics executive referred the matter to the Commissioner for a determination about how to minimize the potential conflicts of interest.
Section 7 of Ontario Regulation 381/07 sets out a list of persons public servants cannot supervise. Although cousins are not on the list of relationships in section 7, the Commissioner determined that there was potential for the ethics executive to give preferential treatment, or appear to give it, to her cousin. The potential for this kind of conflict can arise whenever there is an existing connection between the parties.
The Commissioner considered the potential for interactions between G and his ethics executive in their day to day roles. The Commissioner concluded that G and his ethics executive had a low potential for routine interactions. Although there was some potential that they would be involved in non-routine interactions, G could delegate these responsibilities.
The Commissioner directed G to have no involvement in the operations of the ethics executive’s office. He directed both G and his cousin to make sure that any interactions between them were open and transparent.
O. Reg. 381/07, s. 6 & 7.
D was the chair of a public body. D also benefitted from some of the programs which the public body regulates, funds, and oversees. Due to the unique nature of the public body, it could not function effectively without the experience and expertise of members like D. D asked the Commissioner for a determination about whether she could take part in making decisions about those programs in her capacity as chair.
The Commissioner determined that D risked contravening sections 3, 6 and 9 of the conflict of interest rules in Ontario Regulation 381/07. Although she might be allowed to act as both participant and decision-maker in some situations, each situation would need to be evaluated as it arose. D would need to recuse herself from participating in certain discussions or decisions relating to the programs in which she was also a participant. The Commissioner suggested that D consider two questions before taking part in the decision-making process about such programs:
- How much could she influence decisions about the program if she took part in the decision-making process?
- How likely is it that she would benefit from the decisions or from taking part in the decision-making process?
Decisions made by the board in relation to a single program participant, although infrequent, are influential in that they could set a precedent for agency operations which could benefit other recipients of that program. Therefore, there is a high risk of D contravening the conflict of interest rules should D participate in these types of discussions or decision-making.
The Commissioner cautioned that there was no clear line to show when D should not take part in making decisions about those programs. In each case D would have to consider the relationship between her actions and any potential benefit, and recuse herself accordingly.
O. Reg. 381/07, s. 3 & 9.