Part-Time Appointment (C09-12/13)

The Commissioner’s advice was sought with respect to the proposed part-time appointment of an individual to a public body. There was concern about the potential for conflict of interest as the potential appointee had, through the course of his/her external employment, worked closely with and had provided services to the public body.

The Commissioner advised that the potential appointee’s external employment could create conflicts of interest, but that these could be mitigated if the individual’s activities were restricted at both the public body and the external employment. The Commissioner suggested that the proposed appointee not have any involvement at the public body in discussions, decision-making or providing input on matters related to his/her employer. Similarly, in the course of his/her employment, the proposed appointee would recuse him/herself from matters related to the public body.

The Commissioner suggested that the mitigation strategy be shared with the board and staff of the public body as well as with the employer and the general public. This would promote compliance and minimize the appearance that the proposed appointee’s employer would receive preferential treatment from the public body.

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

Engaged by a Third Party (C11-12/13)

The chair of a public body sought advice about a board member whose private company had been engaged by a third party to provide consulting services with respect to various matters, some of which directly related to the mandate of the public body. It was expected that the third party would likely respond to an upcoming RFP to be issued by the public body. The board member had proactively ensured that his/her private company excluded him/her from matters related to that third party, including all discussions and decision-making surrounding the specific files relating to the mandate of the public body.

The Commissioner agreed with the steps already taken by the board member. To further mitigate the appearance that the third party might receive preferential treatment as a result of the board member’s position at the public body, the Commissioner suggested that the board member also recuse him/herself from any discussions and decision-making at the public body related to the RFP or the third party. The Commissioner added that, as always in such cases, the recusals should be documented and communicated to all board members.

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

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.

Teach and Develop Curriculum (C11-11/12)

The CEO of a public body sought a determination as to whether he/she could teach and develop the curriculum for a specific program at an Ontario university.

There was some potential for interactions between the university and the public body, and it was possible that the public servant could be called upon to provide assistance to the university with issues related to his/her role as a public servant. It was also possible that he/she could interact with the same stakeholders in both roles. In light of these possible intersections, the Commissioner determined that there was some potential for conflicts between the two roles. The public servant would be required to abide by the following conditions while teaching and developing a curriculum for the university:

i.        The public servant would ensure that he/she did not disclose or use, in the course of the university work, any confidential information obtained while a public servant;

ii.        Individuals and groups associated with the university work would not receive, and were made aware that they could not receive, any assistance or information from the public servant beyond that which he/she would provide in the ordinary course of carrying out his/her responsibilities as a public servant;

iii.        The public servant would recuse him/herself from all discussions and decision-making in matters where there is an intersection between the university and the public body or the Crown, including matters where the university is lobbying or taking a position inconsistent with that of the public body or the Crown;

iv.        The public servant would not participate in fundraising activities directed at the public body or the Crown; and

v.        The public servant would recuse him/herself from any decision-making as a public servant if the decision could result in a benefit to the university.

O. Reg. 381/07, s. 5, 6, 8, 9.

Temporary Assignment (C12-11/12)

The president and CEO of a public body sought a determination as to whether he/she could accept a temporary assignment, in a senior leadership position, with an independent, not-for-profit organization. The public servant wished to return to the public body role following the temporary assignment. The organization’s mandate affected the sector of the public body, and it received funding from the ministry that has oversight responsibility for the public body.

The Commissioner noted that when public servants are on temporary assignment, they continue to be subject to the in-service conflict of interest rules. As the not-for-profit organization had only recently been established, and its relationship with the public body was still being developed, the Commissioner acknowledged that it was not possible to anticipate all of the potential intersections between the public body and the organization. However, since the organization and the public body operated in the same sector, the Commissioner concluded that some activities may be expected to intersect. For example, the possibility existed that the public servant would interact with the same ministry staff in both the temporary and the public body roles. The Commissioner determined that such interactions could create the risk of conflicts of interest.

To minimize the risk, the Commissioner imposed restrictions on the public servant’s activities. The public servant was to refrain from lobbying or soliciting the Crown, including the public body, on behalf of the organization, and recuse him/herself from discussion or decision-making where there was potential for intersection between the two roles. The Commissioner required the public servant to keep the ministry and the Commissioner informed of any duties or responsibilities undertaken during the temporary assignment if those activities could give rise to potential conflicts of interest.

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

Discussion of Matter after Recusal (C13-11/12)

At a board meeting, the chair of a public body declared a conflict of interest regarding an issue under consideration and recused him/herself from the discussion and decision-making process. Subsequently, individuals with an interest in the issue contacted the chair and the chair discussed the issue with them. This raised concerns and the Commissioner was asked to make a determination.

The Commissioner determined that the chair’s conduct in discussing the issue with interested individuals, outside the board meeting, contravened the conflict of interest rules. The chair had not disclosed any confidential information, but the Commissioner was of the view that, once the chair had declared a conflict of interest, participating in such discussions created the appearance that preferential treatment was being given to those individuals.

To minimize the risk of future contraventions of the conflict of interest rules, the Commissioner recommended that, where the chair has declared a conflict of interest in a matter, he/she limit interaction, outside of board meetings, with individuals connected to that matter. The Commissioner suggested that the chair advise such individuals that he/she cannot provide any assistance or engage in discussions with them regarding the matter after declaring a conflict of interest at the board meeting.

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

Spouse’s Affiliation (C14-11/12)

The president and CEO of a public body sought a determination as to whether any conflict of interest concerns arose from his/her spouse’s affiliation with an organization that provided services to that public body.

The public servant was not involved in the decision to select the spouse’s organization as a service provider, and the spouse was not involved in providing services to the public body. However, the Commissioner determined that the public servant’s participation in discussions or decision-making related to the services provided by the organization could engage the conflict of interest rules. For example, the public servant’s participation in decision-making regarding that organization could create the appearance of preferential treatment. To minimize the risks, the Commissioner required the public servant to disclose his/her spouse’s affiliation with the organization prior to any discussion or decision-making by the public body related to the services provided by the organization, and depending on the nature of the matter, recuse him/herself from the discussion and decision-making process.

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

Non-Governmental Organization (NGO) Outside of Canada (C16-11/12)

An ethics executive sought advice as to whether a senior public servant may join the board of a non-governmental organization (NGO) outside of Canada.

The Commissioner assessed the potential for conflicts of interest by considering the interactions between the duties of the public servant and the proposed role in the NGO. The Commissioner determined that although the NGO had no current dealings with Ontario, there was some possibility of a future connection with Canada or Ontario and the public servant’s role as a decision-maker. In addition, the NGO could ask the public servant to comment on related policies or issues before the Ontario government. The Commissioner suggested that, to mitigate the risk of conflicts, the public servant recuse him/herself from discussions and decision-making, in his/her capacity as a senior public servant, where the issue involved the NGO. This measure should apply not only to the NGO itself, but also to issues related to the business of the NGO. The Commissioner also recommended that, should the NGO board discuss matters relating to Ontario, the public servant should recuse him/herself from those discussions and decisions. The Commissioner further suggested that the public servant disclose the mitigation strategy to his/her colleagues to make them aware of what can and cannot be brought to the public servant’s attention.

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

Remuneration for Preparing Reports (C07-10/11)

The chair of an advisory public body sought the commissioner’s advice as to whether appointees would be permitted to accept remuneration for preparing reports (1) if the reports were commissioned by outside organizations and the public body might consider them in making a decision, or (2) if the reports were commissioned by the overseeing ministry subsequent to a decision by the public body.

The commissioner advised that the integrity of the public body’s decision could be challenged if an appointee both prepared a report and participated in the decision-making process. In order to enable appointees to provide their expertise to the public body without compromising the integrity of its decisions, the commissioner recommended that appointees be permitted to contribute at the information-gathering stage of the decision-making process but recuse themselves from voting on the decision.

Similarly, a conflict of interest concern may arise if an appointee participates in decision-making that might result in a later opportunity to prepare a report for the ministry. The commissioner advised that ethics executives should consider the likelihood of any benefits flowing to appointees as a result of the public body’s decisions. Ethics executives should look to (1) the size of the group that would stand to benefit from the decision, and (2) the relationship between an appointee’s interests and the matter before the public body. In some cases, the potential benefit to an appointee may be unlikely or only remotely connected to the public body’s decision. In order to minimize the potential for conflicts, the commissioner recommended that the chair remind appointees of the restrictions on their outside activities as set out in the PSOA.

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

Advisory Role with a Minister (C12-10/11)

A public servant wished to step down as chair of a public body, for a limited time, to assume an advisory role with the minister who has oversight of the public body. The public servant sought the commissioner’s advice as to whether there would be any conflict of interest concerns if he/she continued to serve as a member of the public body during that time.

Given the duration of the advisory role and time commitment involved, the commissioner agreed that it would be appropriate for the public servant to step down as chair of the public body while serving in the advisory role. The commissioner noted that, if the public servant continued to serve as a member of the public body, there would be potential for intersections between that role and the advisory role. For example, since both roles are accountable to the same minister, they could involve interaction with the same ministry officials and/or experts. Moreover, given the broad language of the public body’s enabling legislation, the public body and the advisory role could be involved in policy development on similar issues. The potential for such intersections could create a risk of conflict of interest.

To minimize the risk, the commissioner imposed restrictions on the public servant’s activities in the advisory role, such as recusing him/herself from discussions or decision-making where there was the potential for intersections between the two roles.

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