A public servant was elected mayor of a small town (fewer than 1,000) after serving as councillor. One year after their election, the public servant declared a potential conflict of interest to their ethics executive.
The public servant’s mayoral duties were performed outside of normal business hours. The public servant worked in a technical position unrelated to their mayoral duties, so there did not appear to be any overlap between the public servant’s duties and their municipal responsibilities. Nor was there any obvious conflict between the public servant’s responsibilities and the interests of the Crown.
The ethics executive advised the public servant that they should have notified the ethics executive when first elected mayor, rather than one year later. However, the ethics executive also advised the public servant that provided their elected position was not so demanding of their time as to interfere with their duties as a public servant, serving as mayor did not raise a conflict that warranted termination. The public servant was also advised to recuse themselves in any situation where they might have to take a position contrary to the interests of the Crown or which might put them in conflict with the Crown.
PSOA, s. 77 & 79; O. Reg. 281/07, s. 8.
A ministry employee was a candidate in a municipal election. Advice was sought as to whether the employee could stand for election, and whether if successful they would have to take a leave of absence from the public service for the duration of the term of office, and if not, whether the employee’s work as a municipal councillor would present a conflict of interest with their public service duties.
Since the employee was not a specially restricted public servant they were permitted to be a candidate in a municipal election. However, section 79 of the Public Service of Ontario Act says that public servants shall not engage in political activity if doing so could conflict with the interests of the Crown or interfere with the public servant’s performance of their duties, unless a public servant has been granted an unpaid leave of absence under section 80. The employee’s ministry had only limited interaction with the municipality in question and the employee’s duties did not include any decision-making regarding the ministry’s relationship with the municipality. Being a municipal councillor would only involve about ten hours of work weekly, outside of the employee’s regular hours. Therefore, it was determined that serving as councillor did not conflict with the interests of the Crown or interfere the public servant’s duties and that a leave of absence was not required.
PSOA s. 77 & 79.
The ethics executive of a public body sought the commissioner’s advice as to whether an employee of that public body should be allowed to publish an op-ed article that was critical of a policy of a political party. Since section 72 of the Act defines political activity as including anything done in support of or in opposition to a political party, the commissioner concluded that the writing of such an article would constitute political activity.
Section 79 of the Act prohibits a public servant from engaging in certain kinds of political activity without first seeking a leave of absence without pay. Such prohibited political activity includes making public comments outside of a public servant’s duties on a matter directly related to those duties, if the matter is addressed in the policy of a political party. The ethics executive was advised to consider whether the article met this test, in particular whether the content of the article overlapped with the area of work in which the public servant was engaged. If the test was met, the employee must then request an unpaid leave of absence in order to publish the article and deal with any associated matters.
The commissioner also reminded the ethics executive that section 79(d) of the Act prohibits a public servant from engaging in any political activity if doing so could interfere with the performance of his or her public duties, and that section 79(e) prohibited public servants from engaging in any political activity if doing so could conflict with the interests of the public body.
PSOA, s. 72 & 79.
A public service manager contacted their ethics executive regarding their intention to run for municipal councillor. In connection with the candidacy, the public servant expected to be fundraising “during the campaign period”, as well as distributing flyers, canvassing and participating in media communications. The public servant sought a determination whether the they were required to take an unpaid leave of absence in order to do these things.
While the PSOA permits public servants to undertake political activities, there are a number of restrictions, including the requirement to take a leave of absence before certain activities can be undertaken. It was determined that the applicable restricted activities in these circumstances included 1) raising funds on behalf of a municipal candidate if the public servant’s duties include supervising staff, and 2) engaging in political activity which could interfere with the performance of one’s duties as a public servant.
The request for a leave of absence was approved. The public servant was directed not to undertake any fundraising activities until the leave of absence was commenced, as the public servant was a manager who supervised staff. The public servant was also advised that in accordance with the Public Service of Ontario Act (PSOA), the leave of absence would end on election day. The direction also set out the rule in section 77(d) of the PSOA that public servants are not allowed to associate their public service position with political activity except to the extent necessary to identify their position and work experience. The public servant was also reminded that the PSOA continues to apply during the leave of absence and of the rules regarding confidential information in section 5 of O. Reg. 381/07. The public servant was asked to advise the ethics executive of the outcome of the election so that next steps required under the PSOA could be determined.
PSOA, s. 77, 79; O. Reg. 381/07, s. 5.
An employee of a public body, with a public-facing role, wished to run for municipal office. The employee’s ethics executive proposed to move the employee to a non-public-facing role so that the employee would not be required to take a leave of absence.
The Commissioner supported moving the employee and suggested that the decision, including factors considered, be documented. The Commissioner also advised the ethics executive to monitor the situation in case the business of the public body became a municipal issue, or the employee’s political activity began to interfere with the employee’s duties or conflicted with the interests of the public body.
PSOA s. 72 and 79.
L was the chair of a public body and he wanted to stand for election as a municipal councillor. He asked the Commissioner whether he could run for this office.
As L was not a non-specially restricted public servant, he could run in a municipal election and serve as a municipal councillor as long as these activities did not (1) interfere with the performance of the chair’s duties, and (2) conflict with the interests of the public body. The Commissioner considered the following factors:
- Time commitments and the impact on L’s duties;
- Stakeholders the public body and the municipality have in common;
- The likelihood that candidates or councilors could comment on or make decisions related to the public body or the Ontario government;
- Intersection of the public body’s and the municipality’s interests, and the likelihood that L would advise on or be a party to discussions or decisions on issues impacting the municipality or municipalities in general; and
- L’s ability to avoid taking part in discussions and decisions at the municipality or public body while carrying out his duties as chair.
The Commissioner determined that L could stand for election and serve as a municipal councillor provided that L complied with certain restrictions including not commenting publicly on matters that are directly related to his duties as chair and not engaging in political activity while specifically performing his duties as chair.
PSOA s. 72 & 79.
J was an appointee to a public body. She wanted to serve in a time-limited, high-profile position with a provincial political party. The chair of the public body asked the Commissioner for advice about whether J could take the job.
J was not a specially restricted public servant. As such she could engage in any political activity that is not specifically prohibited or restricted. In assessing whether this activity was restricted, the Commissioner considered that J’s role would be highly visible, involved participation in fundraising discussions and potentially soliciting funds for the campaign. The Commissioner recommended that J take an unpaid leave of absence until her job with the political party ended. While she was on unpaid leave of absence, J would still be a public servant and would have to abide by the political activity restrictions in the PSOA. The Commissioner directed J to maintain a distinction between her political role and her public servant role. She would not be allowed to do any of the following:
- Use her position as a public servant for personal benefit;
- Use or disclose any confidential information she obtained through her public servant role; and
- Offer assistance in dealing with the provincial government to any persons or entities connected to the political party.
PSOA s. 77 & 79.
An ethics executive of a public body sought the Commissioner’s advice while considering hiring a municipal councillor as a public servant in an administrative role.
Although being a municipal councillor is considered political activity, it is possible for a municipal councillor to be hired as a public servant if he/she can avoid engaging in the specific types of political activities that are prohibited by section 77 or restricted by section 79.
If hired as a public servant, the municipal councillor would also have to ensure that any activities he/she engaged in as a municipal councillor were in compliance with the conflict of interest rules.
As the municipality was within the geographical area affected by the actions of the public body, the Commissioner concluded that there was potential for conflicts between the individual’s roles as a municipal councillor and public servant. The Commissioner suggested that, if the individual were to be hired, the ethics executive should implement strategies to mitigate the potential for conflicts. For example, the ethics executive could restrict the individual’s access to matters related to the municipality he/she represents and require the individual to refrain from participating in discussions or decision-making at the municipality on any issues relating to the public body.
PSOA, s. 72, 77 & 79; O. Reg. 381/07, s. 8.
An ethics executive sought advice as to whether a public servant would be permitted to lobby a Member of Provincial Parliament (MPP) to propose a private member’s bill to change legislation and policy administered by the ministry in which the public servant worked.
The Commissioner advised that lobbying the MPP to introduce a private member’s bill constituted restricted political activity under the PSOA and that the public servant could only engage in that type of activity if on an unpaid leave of absence. The Commissioner advised that such an unpaid leave of absence should remain in effect until the later of the following:
- The MPP decides not to pursue a private member’s bill;
- A private member’s bill is introduced but not passed; or
- A private member’s bill is passed and new legislation comes into force and effect.
An ethics executive sought advice about what limitations, if any, should be placed on a public servant who wished to (1) campaign for a candidate, or (2) work in the central campaign office for a political party. These activities were to take place during the public servant’s vacation.
The proposed activities demonstrate support for a candidate or political party and are therefore considered “political activity”. The individual was not a specially restricted public servant. As such, the public servant is permitted to engage in any form of political activity that is not specifically prohibited or restricted. Activities may be restricted on the basis that they could (1) interfere with performance of the public servant’s duties, or (2) conflict with the interests of the Crown. The Commissioner considered the nature of the public servant’s duties and the nature of the contemplated political activity. The public servant had only limited influence over other public servants and was not involved in decision-making. Furthermore, participation in either activity would not prevent the public servant from resuming his/her duties with the Crown. The Commissioner concluded that the public servant would not be prohibited from engaging in either of the activities while on vacation.
The Commissioner reminded the ethics executive that the public servant continued to be subject to both the political activity restrictions and conflict of interest rules set out in the PSOA while on vacation. The Commissioner also cautioned that the public servant should maintain a distinction between his/her role as public servant and his/her work on the campaign. More specifically, the public servant should not engage in the following:
- Soliciting funds, including accepting funds while campaigning door to door;
- Commenting publicly on the position or policy of a party or candidate as directly related to his/her public service duties;
- Using government resources for political activity purposes, including premises, equipment, supplies or documents in his/her possession;
- Associating his/her public service position with the political activity;
- Using his/her employment as a public servant to benefit personally;
- Using or disclosing any confidential information obtained through his/her public servant role; and
- Offering assistance in their dealings with the provincial government to any persons or entities connected to the campaign, or creating the appearance of any form of preferential treatment.
PSOA, s. 77 & 79.