Family matters (C05-14/15)

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.

Participant and Decision-Maker? (C05-13/14)

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:

  1. How much could she influence decisions about the program if she took part in the decision-making process?
  2. 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.

Accepting All Applicants (C06-13/14)

M was an appointee to a public body. He wanted to apply for a job at the same public body. M’s ethics executive asked the Commissioner for advice about what steps the public body could take to minimize the potential for conflicts of interest.

The Commissioner confirmed that the conflict of interest rules do not bar the appointee from applying for jobs within the public body. However, if a public body hires an appointee, concerns may arise about whether the appointee received preferential treatment or used his appointee position to get the job.

In order to minimize the risk of preferential treatment being given, the Commissioner advised the ethics executive to take steps to:

  1. Make sure that the job description does not favour M.
  2. Make sure that the job is open to other applicants.
  3. Do not assign staff who have had significant contact with M to conduct the competition.

The Commissioner also noted the following:

  1. Public bodies should not involve an appointee in discussions about a future opening if they might consider that person for the job.
  2. An appointee who gets a job with a public body should not continue in the position of an appointee in that public body.

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

Purchase Licenses (C13-12/13)

An ethics executive sought advice as to whether a class of public servant should be permitted to purchase licences to engage in activities governed by regulations that the class of public servant is responsible for enforcing.

In order to mitigate the risk that these public servants would be seen to be using their positions to directly benefit themselves, and to minimize the appearance that they were receiving preferential treatment, the Commissioner suggested that the public servants only be permitted to purchase licenses that applied outside the specific geographical areas where they were responsible for enforcing the related regulations.

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

Payments from a Former Employer (C08-11/12)

The chair of an adjudicative public body was entitled to receive certain payments from a former employer for a period of twelve months. The former employer routinely represented clients before the public body. The chair sought a determination as to whether the payment arrangement raised any conflict of interest concerns.

Conflict of interest concerns can arise when the government interacts with a public servant’s former employer or business associate. These concerns are heightened when a public servant has an ongoing financial relationship with the former employer. A member of the public may conclude that the public servant has an interest in preserving the financial interests of the former employer. In this instance, the payments to the chair were not contingent on the chair’s providing any ongoing services to the former employer. However, the payments were dependent on the continued viability of the former employer’s business. In light of this, the Commissioner determined that the ongoing payment arrangement created a potential for conflicts of interest.

The Commissioner suggested that the chair sever the ongoing financial relationship with the former employer to mitigate the potential for conflicts. Ultimately, the chair and former employer chose to restructure the financial arrangement as a one-time payment.

In addition, the chair agreed to recuse him/herself from any matters involving the former employer or its clients during the next 12-month period. Following this period, depending on the circumstances, the chair would be required to recuse him/herself from specific matters involving the former employer or its clients.

The Commissioner also reminded the chair to ensure that persons or entities with whom he/she had interacted in the past neither received, nor appeared to receive, preferential treatment.

O. Reg. 381/07, s. 3, 5, 9.

Spouse’s Professional Interest (C08-09/10)

A public servant was concerned about a potential conflict of interest arising from his/her spouse’s professional interest in a matter being considered by the government of Ontario. The public servant asked the commissioner, as ethics executive, to determine whether sufficient measures were in place to minimize the risk of contravening the conflict of interest rules. The public servant had taken the following steps:

  • Another public servant had been identified who would assume the public servant’s duties when the matter was being discussed or considered and in any unexpected situations
  • The public servant disclosed the spouse’s interest and recused himself/herself from discussions or decisions regarding the matter and from reviewing any documentation related to the matter

The commissioner concluded that these measures would sufficiently isolate the public servant and thus mitigate the risk of a potential conflict of interest.

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

Unable to Dispose of Financial Interests (C09-09/10)

A senior public servant had financial interests related to the sector in which he/she had responsibility. The public servant’s ethics executive referred the matter to the commissioner for a determination.

Owing to certain characteristics of the holdings and the associated limits on transferring investment benefits, the public servant was unable to dispose of the holdings. Accordingly, the commissioner directed the public servant to take the following steps mitigate the risk of conflict of interest:

  • Refrain from accessing information about the specific entities affected by the holdings
  • Ensure that the investment was not extended upon maturity
  • Refrain from acquiring additional interests in the sector

To minimize the appearance that any entity could receive preferential treatment by receiving information before it was generally available, the commissioner further suggested that the public servant’s ministry codify its existing practice of releasing information to all interested entities simultaneously.

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

Payment Received (C14-09/10)

A public servant for whom the commissioner is the ethics executive sought the commissioner’s advice upon receiving a one-time payment of approximately $900 in connection with attendance at an event on behalf of the Ontario government.

The commissioner advised that the rules prohibiting the acceptance of gifts of greater than nominal value did not apply because the sum was not received from a prohibited person, group, or entity. However, the public servant received the payment while on government business, for which he/she was already receiving a salary. Thus, the payment would represent a benefit if the public servant were to keep it, which would likely contravene section 3. Accordingly, the commissioner advised that, unless the payment was used to compensate the public servant for any non-reimbursed, authorized expenses incurred while attending the event, retaining the payment would contravene conflict of interest rules.

O. Reg. 381/07, s. 3 & 4.

Consultant (C18-09/10)

The Public Appointments Secretariat (PAS) sought the commissioner’s advice with respect to a proposed appointment to a public body. The proposed appointee was a consultant with an organization that had regular dealings with the public body. The commissioner was asked to advise whether conflicts of interest could arise from this arrangement.

The commissioner advised that there would be potential for conflict of interest if the individual were appointed. The commissioner was of the view that the individual could potentially stand to benefit financially (through increased consulting work) by participating in decisions of the public body on matters favourable to the organization. As well, the individual’s affiliation with the organization could create the appearance of preferential treatment for the organization.

To mitigate any potential conflicts of interest, the commissioner advised the PAS to require that the individual, if appointed to the public body, no longer provide consulting services to the organization. In addition, to mitigate the continued risk of an appearance of preferential treatment, the commissioner suggested that the PAS and the public body make known the past consulting relationship.

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

Decision Could Generate Income Opportunities (C09-08/09)

The chair of an advisory agency asked the commissioner for advice regarding a concern that an appointee of the agency could benefit from a decision made by the agency in carrying out its mandate. Specifically, the concern was that the decision could generate income opportunities for the appointee.

Section 3(1) of Ontario Regulation 381/07 prohibits public servants from using or attempting to use their employment to directly or indirectly benefit themselves, their spouses, or their children. Section 9(1) states that a public servant shall not participate 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.

The commissioner suggested that the chair consider the likelihood that a benefit would flow to the appointee as a result of the decision. The closer the nexus between the appointee’s interests and the decision made, the greater is the likelihood of a conflict of interest. In circumstances where a public body’s decision could potentially benefit a large proportion of the population, the decision cannot reasonably be seen to be of particular benefit to an appointee.

The commissioner advised that if the chair had any concern that an appointee’s participation in the decision-making process had the potential to contravene the conflict of interest rules, the chair could consider steps to minimize the risk. To assist the chair in deciding on steps to minimize the risk of a conflict of interest, the commissioner drew the chair’s attention to the range of options available to ethics executives in comparable situations:

  • Pursuant to section 9(2) of Ontario Regulation 381/07, the chair may permit an appointee to participate in the decision-making process if, for example, preventing the appointee from participating would severely hamper the organization in carrying out its business.
  • Pursuant to section 9(2) of Ontario Regulation 381/07, the chair may allow an appointee to contribute to the decision-making process at the information gathering stage, but preclude him/her from deliberations and from contributing to a final decision.
  • Pursuant to section 9(1) of Ontario Regulation 383/07, the chair may request that the appointee recuse himself/herself from participating in any discussions, deliberations and decision-making.

The commissioner advised that in determining which option would be most appropriate, the chair would need to balance concerns about an appointee’s potential benefit as a result of a decision with the appointee’s anticipated contribution to the decision-making process.

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