Facilitating Courses for Professional Body (M05-16/17)

A public servant is a member of a professional body. The professional body offers courses that are hosted by organizations for their in-house professionals. The public servant wanted to facilitate courses offered by the professional body. The public servant proposed to do so on the public servant’s own time, using only materials prepared by the professional body.

Section 3 of O. Reg. 381/07 prohibits a public servant from using or attempting to use his or her employment by the Crown to benefit themselves. Section 8 prohibits a public servant from engaging in an outside business or undertaking if, in connection with the business or undertaking, any person would derive an advantage from the public servant’s employment as a public servant. Section 9 prohibits a public servant from participating in decision-making by the Crown with respect to a matter that the public servant is able to influence in the course of his or her duties if the public servant could benefit from the decision.

To mitigate any risk that the public servant could be seen to benefit from employment by the Crown, the ethics executive directed the public servant not to take any assignment where the Ontario government is the host organization if the public servant would be paid for the assignment. The ethics executive also directed the public servant not to promote the professional body’s services within government and not to participate in decision-making as to what training courses professionals in the public servant’s ministry should take. This direction is to mitigate both the risk the professional body could derive an advantage from the public servant’s employment and the risk the public servant could be seen to benefit from decision-making by the Crown in which the public servant participates.

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

Operating a Small Business (M06-16/17)

A public servant provides services to an internal client ministry. The public servant also operates a small business outside of employment by the Crown. The public servant uses similar skills in employment by the Crown and in the outside business.

381/07 prohibits a public servant from using or attempting to use their employment by the Crown to benefit themselves (s. 3). Section 6 prohibits a public servant, when performing their duties to the Crown, from giving preferential treatment to any person or entity. A public servant must endeavor to avoid creating the appearance that preferential treatment is being given. A public servant is also prohibited from offering assistance to a person or entity in dealing with the Crown other than assistance given in the ordinary course of the public servant’s employment. Section 8 prohibits a public servant from engaging in an outside business if the undertaking would interfere with the public servant’s ability to perform his or her duties to the Crown or if, in connection with the undertaking, any person would derive an advantage from the public servant’s employment as a public servant.

To ensure that the public servant did not use and would not be seen as using the public servant’s employment with the Crown to benefit self, the ethics executive directed the public servant not to use the public servant’s employment by the Crown to market, promote or solicit clients for the small business. To mitigate any risk that the public servant’s small business would interfere with the public servant’s ability to perform duties to the Crown, the ethics executive further directed the public servant not to carry on the outside activity during any time for which the public servant is being paid to provide services to the Crown and not to accept as clients of the small business any persons or entities who receive funding from the public servant’s client ministry if there could be a nexus to the public servant’s duties to the Crown.

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

Private Interests and Public Duties (M07-16/17)

A new public servant in a position dealing directly with farm and rural stakeholders, including the oversight of some transfer payment agreements with agricultural and food related organizations, declared that they and their family were very active in the agriculture and food sector/community outside of the employee’s public service role. The declaration described the employee’s personal involvement with a family farm business, their voluntary membership in an economic development and local food organization that had potential to seek public project funding, and the active involvement of immediate and extended family members in community and provincial rural organizations that would receive public funding.

In assessing the potential for conflict or the perception of a conflict the ethics executive considered the ability of the public servant to provide preferential treatment, approve public funding, and share confidential information. This assessment was conducted in the context of the employee’s position and outside activities. Specifically considered was the public profile of the employee’s role in dealing with stakeholders, the profile of family members, and the related nature of the public and private business activities.

The directions to the employee focused on separating the public service role from personal activities and avoiding the perception of preferential treatment by ensuring that public processes were utilized for farm business applications to government programs. Personal activities were to be conducted on personal time without the use of government resources. Approved leaves were required if activities were to occur during a normal work day. The duties and responsibilities of government employment were to take precedence.

The employee was also directed to avoid situations where they could be providing advice to family members in the course of their public service role. The employee was directed to advise their manager if this situation occurred and refer the family member as directed by the manager.

While participating with external organizations, the employee was to refrain from acting in such a way as to give the impression of representing the ministry or the Crown. The employee was directed not to participate in the development of applications, be signatory to applications and to recuse themselves from discussions in relation to applications to the Government of Ontario (including agencies) for funding. Further, the employee was directed to advise the chairs of the organizations of their duties and obligations as a public servant as related to conflict of interest and in particular their inability to participate in discussions about public funding for the organization.

The employee was also reminded of the responsibility of all public servants not to use or disclose confidential information in the course of their public or private activities.

O. Reg. 381/07, s. 3, 5, 6, 8 & 9.

Real Estate on the Side (M08-16/17)

A public servant who worked in a ministry division responsible for policy related to the Crown’s realty holdings was undertaking the articling segment of the Ontario Real Estate Association (OREA) Salesperson Education Program and sought a conflict of interest determination. The public servant was a licenced sales person with the Real Estate Council of Ontario and an independent contractor with a real estate broker. The public servant’s position (as Senior Policy Advisor) involved policy and program development, ministry consultation and advice and stakeholder relations and committee work related to the government’s realty portfolio under the administration and control of the minister.

There could be overlap between the public servant’s duties to the Crown and the outside activity, where as part of the outside activity the public servant could be engaged in transactions that involve government realty. This could be in a situation where a client of the real estate broker wants to acquire government property. The applicable rules under O. Reg. 381/07 were those regarding confidential information, preferential treatment and engaging in business.

It was determined that the situation has the potential to create a conflict of interest. The public servant was provided with direction with respect to: not disclosing or using confidential information obtained in the course of employment; conducting the outside activity so it does not interfere with performance as a public servant; not using government premises, equipment or supplies in connection with outside employment; ensuring that no person derives an advantage from the public servant’s employment as a public servant; and in the course of outside activity, not identifying  as an Ontario public servant or acting in such a way as to give the impression that the public servant is representing the Crown. In the event that the public servant becomes aware of a potential or actual conflict, there was direction to abstain from any discussions on the issue or recuse oneself from the situation.

O. Reg. 381/07, s. 5, 6 & 8.

Part-Time Law Practice (M09-16/17)

An employee working as a program advisor in the OPS wanted to open a part-time law practice that would be operated during non-OPS work hours.  The employee initially sought the determination for a general law practice advising on matters that did not relate to the work performed for the Ministry.  The ethics executive determined that this did not create a conflict of interest provided that a number of conditions were adhered to, including that work for the law practice would not be done using government assets or during work hours and that no ministry information would be used in the law practice.  The employee subsequently sought a determination as to whether it would be a conflict of interest for the law practice to provide legal advice and legal services in the same subject area as the employee’s work for the ministry.

  1. 3(1) of O. Reg. 381/07 – providing legal advice and legal services in the same subject area as the employee’s work for the Ministry could allow the employee to use his or her employment with the ministry to directly benefit himself or herself.
  2. 8 para (2) of O. Reg. 381/07 – the operation of the law practice could interfere with the employee’s ability to perform his or her work for the ministry, if ministry assets were used in connection with the law practice or if work for the law practice was performed during OPS work hours.
  3. 8 para (5) of O. Reg. 381/07 – the operation of a law practice in an area directly related to the employee’s work for the ministry could lead to the derivation of an advantage for both the employee and potential clients of the law practice because the employee’s expertise gained from the work for the ministry would be used in the provision of legal advice and legal services.

The ethics executive determined that it would be a conflict of interest to operate a legal practice where legal advice and legal services were provided in the same subject areas as the subject of the work performed for the ministry. The employee was advised that it would not be a conflict of interest to operate a more general part-time legal practice that was not related to the employee’s work for the ministry, provided that the original conditions described above were adhered to.

O. Reg. 281/07, s. 3 & 8.

Part-Time Teaching (1) (M10-16/17)

A public servant requested a determination for a matter related to their part-time teaching activity. The teaching activity request had the potential to overlap with matters related to the public servant’s work for the Crown.

The ethics executive determined that there was potential for a conflict between the public servant’s duties and their part-time teaching activity. The ethics executive determined that the potential conflict could be mitigated provided the public servant refrained from associating their Crown role with their teaching role. The public servant was directed to provide an oral disclaimer at the beginning of the teaching activity to state all comments in the course were their personal opinion and not the Ministry’s. The public servant was also reminded of their duty and obligation not to disclose confidential information and not use government premises, resources or equipment, including phone or e-mail, for their teaching activity. In addition to this, the public servant was reminded that their teaching activity should not interfere with their ability to perform their regular Crown duties. Finally, the public servant was directed to recuse themselves from any funding matters involving the provincial government.

O. Reg. 281/07, s. 8.

 

Part-Time Teaching (2) (M11-16/17)

A ministry employee disclosed their intent to undertake a temporary employment opportunity to teach a course at a college as an undertaking outside of their ministry duties. The topic and subject matter of the course was related to their ministry duties. The employee requested direction as to whether, as part of the course that they intended to teach, and with prior approval, they could gain access to, and use, internal ministry documents and examples from their ministry work experience for teaching purposes.

The ethics executive considered that the specific types of documents that the employee was seeking to use in connection with the course were publicly available on the internet, and as such, were not confidential and therefore not subject to the restrictions under section 5 of the rules. In view of section 8 of the rules, the ethics executive considered that the employee did not have regular and ongoing involvement in their ministry duties with the college, and that their employment with the college was limited to a few hours per week. However, the ethics executive considered that a concern could arise that the college, through the employee’s ongoing employment with the ministry, may gain or appear to gain an advantage over other academic institutions in dealing with the government, including accessing government information, experts, or programs, including matters of employment or funding.

The ethics executive determined that in the external employment, the employee reserved the right to employ the skills and experience that they retained as a professional working in the field, including that which they gained through their ministry employment, to the extent that they complied with the conflict of interest rules and other specific directions. In particular, if the employee wished to use any ministry material that was not available to the public for teaching purposes, they were required to request permission from the ethics executive in order to do so. Where speaking of specific ministry experiences in the external employment, the employee was required to refrain from disclosing any confidential information, or information that is otherwise unavailable to the public.

O. Reg. 381/07, s. 5, 6 & 8.

Involvement with Professional Association (M12-16/17)

An employee’s manager disclosed the employee’s ongoing involvement with a professional association as a function of her ministry duties. In the employee’s involvement with the professional association, she sat as a vice-chair of a committee that dealt with subject matter relating to her ministry duties. Additionally, the committee’s mandate included working with the provincial government, and providing input to policy makers.

The ethics executive determined that the employee’s involvement with the committee was, in fact, a function of the employee’s ministry duties, and therefore not subject to the more restrictive rules under section 8, which applies to external undertakings.

In view of section 5, the ethics executive considered that the professional association, and committee on which the employee sat, was concerned with a subject matter area that was related to her ministry duties, so the rules regarding the confidential information were highly relevant. In view of section 9, the ethics executive considered that given the mandate of the committee on which the employee sat, there was a potential for conflict of interest regarding participating in decision making by a body/group where the interests of the body/group could conflict with the interests of the Crown.

The ethics executive determined that the employee’s involvement with the professional association, as a function of her ministry duties, and her role as vice-chair on a committee, was permissible provided that she complied with the conflict of interest rules and other specific directions. In particular, the employee was required to notify the committee and recuse herself from any decision making by the committee where, as a result a decision, she could benefit or the interests of the committee could conflict with the interests of the Crown.

O. Reg. 381/07, s. 5 & 9.

Adjunct Faculty Positions (M13-16/17)

A number of scientific staff in the ministry disclosed to their ethics executive that they held adjunct faculty status at various academic institutions, as a function of their ministry duties. Some of these employees, in their ministry role, supported a ministry science grant funding program by reviewing applications which researchers from various academic institutions had submitted.

The ethics executive determined that the adjunct faculty appointments were, in fact, a function of the employees’ ministry duties, and therefore not subject to the more restrictive rules under section 8, which applies to external undertakings. In view of section 5, the ethics executive considered that most of the employees’ adjunct faculty roles were in a subject matter area that was related to their ministry duties, so the rules regarding the confidential information were highly relevant. In view of sections 6 and 9, the ethics executive considered that given the ministry role of some of the employees in reviewing grant funding applications from academic institutions as part of a ministry science grant program, there was a potential for conflict of interest regarding the provision of preferential treatment, and participating in decision making by the Crown where an employee could stand to benefit from the decision.

The ethics executive determined that the adjunct faculty appointments, as a function of the employees’ ministry duties, were permissible provided that employees complied with the conflict of interest rules and other specific directions. In particular, the employees were restricted from participating in the review and/or assessment of any submissions to the ministry from the academic institution where they held an adjunct faculty position, in particular those relating to grant funding. The employees were also restricted from participating in the preparation of any submissions to the ministry on behalf of the academic institution where they held an adjunct faculty position, in particular those relating to grant funding.

O. Reg. 381/07, s. 5, 8 & 9.

Employment while on Salary Continuance (1) (M14-16/17)

A ministry employee in a “designated senior position” received an offer of employment from an organization that he dealt with in his ministry role and which received ministry funding. The employee was eligible to retire, had left the workplace, and wished to accept the employment and commence the external employment while on salary continuance (active on payroll).

The ministry obtained legal advice that while on salary continuance, employees remain subject to the in-service conflict-of-interest rules, but are considered on a leave of absence and therefore the restriction on external full-time employment does not apply. However, the deputy minister was concerned about the perception that the employee might use or disclose confidential information while working for the organization (contrary to Sections 5(1) and 5(2) of the regulation) and that the employee might be involved in decision-making on behalf of the organization that could conflict with the interests of the Crown (contrary to section 9(3)) of the regulation.

The deputy minister determined that acceptance of the employment offer while actively employed created a potential conflict of interest, but permitted the activity after reassigning any work involving the external organization to another manager. The deputy provided direction to the employee regarding sharing of confidential information and the need to abstain from any discussions involving ministry funding. As well, the deputy advised the employee to obtain a post-service conflict-of-interest determination from the Public Service Commission before accepting the offer of employment.

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