Elected Mayor (M02-16/17)

A public servant was elected mayor of a small town (fewer than 1,000) after serving as councillor. One year after their election, the public servant declared a potential conflict of interest to their ethics executive.

The public servant’s mayoral duties were performed outside of normal business hours. The public servant worked in a technical position unrelated to their mayoral duties, so there did not appear to be any overlap between the public servant’s duties and their municipal responsibilities. Nor was there any obvious conflict between the public servant’s responsibilities and the interests of the Crown.

The ethics executive advised the public servant that they should have notified the ethics executive when first elected mayor, rather than one year later. However, the ethics executive also advised the public servant that provided their elected position was not so demanding of their time as to interfere with their duties as a public servant, serving as mayor did not raise a conflict that warranted termination. The public servant was also advised to recuse themselves in any situation where they might have to take a position contrary to the interests of the Crown or which might put them in conflict with the Crown.

PSOA, s. 77 & 79; O. Reg. 281/07, s. 8.

Member of an Advisory Board (M04-16/17)

A senior employee of a ministry sought advice as to whether they could serve as a member of an advisory council to a university-based centre with a mandate affecting the same stakeholder group as the employee’s ministry. The public servant was involved in defining the government’s policy and program priorities affecting the stakeholder group and in making funding decisions concerning its communities, programs and organizations.

The ethics executive concluded that some advisory council responsibilities could raise concerns under conflict of interest rules that prohibit preferential treatment or the deriving of advantage from one’s position as a public servant.

The ethics executive advised the public servant not to participate in discussions concerning sources of centre funding or efforts to solicit provincial funding or to lobby the government in connection with the centre; not to use government premises, equipment or supplies for activities related to the centre; to communicate clearly that they did not participate in the advisory council on behalf of the crown and that any views expressed were personal and did not necessarily reflect those of the Crown; and to recuse themselves from involvement in any discussions or activities that could be construed to be in conflict with the employee’s role as a public servant, and to notify the council of any such conflict.

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

A Model of a Public Servant (P01-16/17)

A part-time employee of a public body, a customer-service representative, sought a determination as to whether they could accept an offer of employment outside of their employment with the public body. The public servant was a model and had been approached by a third party to audition for a part in a commercial being developed by the third party for the same public body. If selected, the individual would be financially compensated for being in the commercial.

In assessing whether the proposed arrangement could conflict with the public servant’s duties to the public body, the ethics executive considered the nature of the functions regularly performed by the public servant on behalf of the public body as a part-time customer-service representative, together with the short term nature of the proposed arrangement with the third party, and the fact that the individual had no involvement in the procurement process undertaken to select the third party service provider developing the commercial for the public body.

The ethics executive determined that this situation would not constitute a conflict of interest.  The ethics executive granted permission to the individual to audition for and accept a role in the commercial provided that any auditions or modeling work on the project would be done on the public servant’s own time and not interfere with their work schedule.

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

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.

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.