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.

 

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.

 

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.

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.

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.

Hanging my shingle, Part 1 (C01-14/15)

A designated senior public servant in a public body was on a paid leave of absence.  Following the expiration of the paid leave of absence, the public servant was due to retire.  The public servant wished to work as an independent consultant while on the paid leave, building on her career as a public servant, and had been approached with specific opportunities.

The Commissioner determined that while on the paid leave of absence, the public servant could provide independent consulting services, in specific scenarios, but that the in-service conflict of interest rules continued to apply.  The public servant’s work as a consultant must not conflict with her duties to the Crown, and no person could derive an advantage, in connection with her consulting work, as a result of her employment with the public body. In addition, the public servant must not appear to give clients of the public body any preferential treatment.  Specifically, the public servant should not participate in discussions or decisions with other entities with respect to clients of the public body.

The Commissioner reminded the public servant that on retirement, the post-service conflict of interest rules would apply, including the one-year restriction on lobbying and employment.

O. Reg. 381/07, s. 6, 8, 9.

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.

Worlds Colliding? (C07-13/14)

B was an appointee to the board of a public body. He was also on the board of another entity. Recently, the public body’s mandate had changed and the two organizations would now have more contact than before. The chair of the public body asked the Commissioner for advice about whether B could be reappointed to the public body when his present term expired.

The Commissioner advised that conflicts of interest could arise for B because of his obligations to the public body and the other organization. The Commissioner suggested some ways to mitigate such conflicts such as having B recuse himself from matters where both organizations had an interest. The Commissioner cautioned that if such matters arose often B might not be able to make a useful contribution to the public body and may have to step down from one of the organizations.

O. Reg. 381/07, s. 8 & 9.