Involved in a Steering Committee (P01-17/18)

The public servant is a board member of a public agency.  In this capacity, she is involved in shaping the broader strategy for the public agency.  She has been invited to take part in a steering committee whose mandate is in the same general field as that of the public agency, though the two are not directly related.  As a member of the steering committee, she may be asked to comment on governance structures, funding models, and system planning, among other things.

As a board member for the public agency, the public servant is privy to confidential information touching on governance issues, funding models, and system planning.  Though there is no intersection between the public agency and the steering committee at the present time, there is a potential for the two to overlap in the future, as they operate in the same general field.  In such event, the public servant could potentially be involved in discussions or decision-making at one that could impact the other.

The public servant was reminded of her confidentiality obligations owed to the public agency, and advised to be careful not to reveal any such confidential information to the steering committee, particularly on the topic of the agency’s strategy and planning.  Additionally, she was advised to withdraw from any discussions and decision-making taking place at either the public agency or the steering committee that could impact the other.  The public servant agreed to keep the ethics executive apprised of her work with the steering committee as it progressed, to ensure that any new conflicts could be addressed in a timely manner.

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

Access to Confidential Information (M05-17/18)

A public servant’s duties to the Crown might potentially give the public servant access to confidential information regarding either (1) the outside entity on which the public servant sits as a member of the Board of Directors or (2) the employer of a family member.

Section 5 of O. Reg. 381/07 prohibits both the disclosure and use of confidential information.

Section 8 of O. Reg. 381/07 prohibits a public servant from engaging in outside activity if, in connection with the employment or activity, any person would derive an advantage from the public servant’s employment.

To mitigate the risk of a potential or perceived conflict under either the rule that prohibits the disclosure or use of confidential information and/or the rule that prohibits a public servant from engaging in an outside activity if any person would derive an advantage from the public servant’s employment, the ethics executive directed the public servant to discuss in advance with the relevant manager any work that may involve either of the two organizations in question so that the manager could either restrict the public servant’s access to confidential information or assign the public servant other work.

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

Employment while on Salary Continuance (2) (M15-16/17)

A public servant was retiring but would remain a public servant for ten months after their last day in the office. Their last position with the Ontario Public Service was as a manager in a branch responsible for providing contract advice and negotiations. This role involved negotiating contracts after the minister had made the decision to approve funding, resolving issues that arose after a contract had been signed, and supporting the design and implementation of business support programs. The public servant indicated interest in pursuing work in the areas of economic development and business support programs, and sought a determination regarding a possible in-service conflict of interest.

The public servant indicated that the work sought might be of a general nature, such as delivering presentations on Ontario’s business support programs and processes, or editing or contributing to the development of business plans for potential applicants to transfer payment programs. It was also indicated that work might be sought from one of the ministry’s financial due diligence providers, or from an economic development organization. While details regarding possible job opportunities were not provided, there could have been potential conflict given the public servant’s role with the ministry.

It was determined that based on the information provided, a potential conflict of interest could arise. The public servant was given the following direction: that confidential information obtained in the course of OPS employment must not be disclosed;  that no person should derive an advantage from the public servant’s employment as a public servant in connection with the outside activity; that in the course of their outside activity, the public servant must not identify him/herself as an Ontario public servant or act in such a way as to give the impression that the public servant was representing the Crown. The public servant was also reminded that the ethics executive for former public servants who worked in a ministry is the Public Service Commission and that in the event that the outside employment opportunities should continue beyond the last day of service, the commission would have to make a determination regarding any post-service conflicts of interest.

O. Reg. 381/07, s. 5 & 8.