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.

 

Operating a Small Business (M02-17/18)

A public servant  operates a small business outside of the public servant’s employment with the Crown.  The public servant is self-employed on a part-time basis. There is no nexus between the public servant’s duties to the Crown and the public servant’s small business. There is no connection between the public servant’s clients and the ministry in which the public servant works.

Section 3 prohibits a public servant from using or attempting to use their employment with the Crown to benefit themselves.

Section 5 prohibits a public servant from disclosing confidential information obtained during the course of their employment with the Crown except where the public servant is authorized to do so.  A public servant is prohibited from using confidential information in a business or undertaking outside of their work for the Crown.

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 endeavour 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 their 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 does not use and is not seen as using the public servant’s employment with the Crown to benefit themselves, the ethics executive directed the public servant not to use the public servant’s employment with the Crown to market, promote or solicit clients for the small business. The ethics executive further reminded the public servant of the public servant’s obligation to continue to comply with the conflict of interest rules, including the obligation: not to disclose or use any confidential information derived from the public servant’s employment with the Crown; not to create the appearance that preferential treatment is being given to a person or entity that could benefit from it; not to offer 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; not to allow the small business to interfere with the public servant’s employment with the Crown; not to provide an advantage to any person as a result of the public servant’s employment with the Crown; not to utilize government premises, equipment or supplies for the purposes of the small business.

O. Reg. 381/07, s. 3, 5, 6 & 8.

Selling Things to Other Public Servants (M06-17/18)

A public servant had a part-time side business selling consumer products. All sales took place outside of regular work hours. The public servant’s customers included other public servants. The public servant’s duties to the Crown included, on occasion, an oversight role in respect of other public servants.

Subsection 3(1) of the Conflict of Interest Rules prohibits a public servant from using or attempting to use his or her employment by the Crown to directly or indirectly benefit himself or herself.

Section 6 of O. Reg. 381/07 prohibits a public servant, when performing his or her duties to the Crown, from giving preferential treatment to any person or entity. A public servant must also endeavor to avoid creating the appearance that preferential treatment is being given.

Paragraph 5 of Section 8 of O. Reg. 381/07 prohibits employment in an outside business if any person would derive an advantage from the public servant’s employment as a public servant or if it would interfere with the public servant’s ability to perform their duties.

The ethics executive determined that the public servant’s side business has the potential to create a conflict of interest. To address the potential conflict of interest, the ethics executive directed the public servant not to use the public servant’s employment by the Crown to market or promote the side business or solicit customers, and to recuse him/herself from oversight activity involving a public servant who is a customer of the side business or who, within the prior 12 months, has been a customer of the side business.

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

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.

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.

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.

Spouse is Head of Stakeholder Organization (M17-16/17)

The declarant’s spouse was the incoming head of an organization which was one of the ministry’s main stakeholders. The declarant occupied a management position within the ministry, in a part of the ministry that did not normally interact with the organization, but that was involved in supporting initiatives in which the organization had an interest.

The declarant, as part of their public service role, would be aware of confidential information that would be of interest to the organization of which the declarant’s spouse was to become the head.

The ethics executive determined that there was potential for a conflict between the declarant’s public service duties and their spousal relationship. The declarant was directed to recuse himself/herself from any matters in their public service role in which the organization in question was participating, and was reminded of the obligation not to disclose confidential information, provide preferential treatment or otherwise use employment with the Crown to benefit one’s spouse.

O. Reg. 381/07, s. 3, 5 & 6.