A specially-restricted appointee to a public body sought a determination as to whether they could attend a breakfast meeting sponsored by the local chamber of commerce and featuring their MPP. The breakfast, to be held at a local restaurant, was open to any member of the public who made a reservation. The cost was $20 per ticket. Promotional material for the event described to the breakfast as a fact-sharing meeting and time for feedback and made no reference to any portion of the cost being directed to a political party.
The ethics executive considered the definition of political activity in section 72 of the Public Service of Ontario Act, 2006 (PSOA), and concluded that attending the event described by the public servant was not political activity, as defined, and determined, therefore, that the public servant was not prohibited from attending. The ethics executive’s decision was supported by his view that it is not the intent of the PSOA to deny public servants opportunities that will enable them to make informed decisions concerning major issues and to benefit from meaningful representation in the legislature.
PSOA, s. 72.
A part-time member of an adjudicative tribunal sought advice from his ethics executive, the chair of the tribunal, whether he was able to continue to engage in political activity. The tribunal member had regularly been involved in partisan political activity prior to his appointment to the tribunal. The ethics executive sought the commissioner’s guidance.
The commissioner advised the ethics executive that appointees to adjudicative tribunals were considered specially-restricted public servants, and therefore were subject to more stringent political activity restrictions than appointees to other public bodies.
The Act provides steps an ethics executive must take to deal with the contravention of political activity rules, including giving direction to an appointee.
The commissioner also advised the chair that the Act permits an ethics executive of a specially-restricted public servant to allow the public servant to be a candidate in a municipal election or to campaign on behalf of a municipal candidate. Furthermore, a part-time member of an adjudicative tribunal could seek authorization from the Conflict of Interest Commissioner to engage in most other kinds of political activity if, in the commissioner’s opinion, such activity did not interfere with the appointee’s public-service duties or conflict with the interest of the tribunal.
PSOA, s.72, 85, 89 & 92.
A specially-restricted part-time appointee to a public body sought authorization to engage in political activity that depended on the outcome of a provincial election. The public servant had been asked to join a political party’s transition team if it won the election.
The Commissioner authorized the public servant to engage in this activity because the public servant’s exercise of discretion with the public body could not reasonably be perceived as being affected by political considerations. The Commissioner also reminded the public servant not to engage in any prohibited forms of political activity while working on the transition team.
PSOA s. 92.
A specially restricted public servant appointed to an adjudicative agency sought authorization to perform the following functions, for two candidates, during a federal election period:
- Door-to-door canvassing;
- Speaking to voters on the telephone;
- Fundraising; and
- Working on administrative matters in the campaign office.
These activities fall outside the forms of political activity permissible for specially restricted public servants under sections 89 and 90 of the PSOA. In some situations, the Commissioner may authorize specially restricted public servants to engage in political activity not otherwise permitted. Section 92(5) of the PSOA sets out the criteria for the Commissioner to consider when reviewing requests for such authorization. The political activity rules are intended to balance the neutrality of the public service with a public servant’s ability to engage in political activity.
The Commissioner granted authorization to the public servant to work on administrative matters in a campaign office and to speak to voters on the phone on behalf of the candidates, provided that the public servant did not identify him/herself or engage in the prohibited forms of political activity set out in section 88 of the PSOA. In granting authorization to engage in these political activities, the Commissioner took into account the nature of the activities; the scope of discretion available to members of the adjudicative agency; and the jurisdiction of the agency.
The Commissioner did not authorize the public servant to engage in door-to-door canvassing or fundraising. The in-person interactions might enable members of the public to identify the public servant and conclude that he/she supported a particular party.
PSOA, s. 89 & 92.
The chair of a public body sought advice as to whether a specially restricted public servant was permitted to make certain specific comments to the media during a provincial election. The comments did not explicitly identify a candidate or political party, but expressed disapproval of the language used by politicians of a political party during the provincial election.
In assessing whether this activity constituted “political activity”, the Commissioner considered how a reasonably well-informed member of the public might view the activity. The comments in question could be considered political activity if they indicated support of or opposition to a political party, or if they could be related to the public servant’s duties. The comments criticized the language used by candidates of a political party rather than the position taken by a particular political party, but this distinction might not be apparent to a member of the public. The comments included the opinion that the language used by politicians had an effect on a subject matter dealt with by the public body. In this way, the comments came close to connecting the public servant’s duties with the policies and positions of a political party. However, since the comments did not explicitly identify a candidate or a political party, the Commissioner concluded that it was unlikely that, taken by themselves, the comments would constitute political activity. Nevertheless, the Commissioner recommended that the public servant be cautioned that, given the public body’s unique interaction with members of the public, such comments might cause a member of the public to question the political neutrality of the public servant and/or the public body.
PSOA, s. 77 & 79.
The chair of a public body sought advice from the Commissioner as to whether the comments a specially restricted public servant made to the media via a letter to the editor of a newspaper might be considered a contravention of the political activity rules. The comments related to a federal government policy concerning a specific sector.
In assessing whether this activity constituted “political activity”, the Commissioner considered how a reasonably well-informed member of the public might view the activity. The Commissioner noted that while the comments did not explicitly discuss a substantive position taken by any federal government party, they did concern a sector affected by the mandate of the public body. The comments were also related to the decision-making duties of the public servant. However, the comments did not explicitly reflect the position of a specific political party. The Commissioner concluded that it was unlikely that, taken by themselves, the comments would constitute political activity. Nevertheless, the Commissioner recommended that the public servant be cautioned that, given the decision-making responsibilities of the public body and the public servant, such comments may cause members of the public to question the political neutrality of the public body and/or the public service in general.
PSOA, s. 77 & 79.
The name of a specially restricted public servant working in a public body was included, without the public servant’s consent, on a list of individuals purported to endorse a candidate in a municipal election. That public servant’s personal email account was used to solicit funds for the same candidate. The public servant thereafter took steps to make it clear that he/she was neither endorsing nor soliciting funds for the candidate. As ethics executive, the commissioner was asked to provide a determination as to whether the public servant had contravened the political activity rules.
A specially restricted public servant may only engage in the forms of political activity specifically permitted in sections 89 and 90 of the PSOA. In order to assess whether the incidents described constituted political activity, the commissioner considered whether the public servant had control over the use of his/her name in either of these instances. The commissioner determined that the public servant did not seek to be included on the broadcasted list of supporters and that someone else had used the public servant’s personal email account inadvertently. Accordingly, the commissioner determined that the public servant had not engaged in political activity and had taken steps to disassociate him/herself from the incidents. In making this determination, the commissioner cautioned that, since the actions of others can make it appear that a public servant is engaging in prohibited forms of political activity, public servants should be vigilant about the unintended use of their names in support of any candidate.
PSOA, s. 86 & 89.
A specially restricted chair of a public body wished to comment on and attend events hosted by a municipal election candidate with whom the chair had a past professional affiliation. As ethics executive, the commissioner was asked to provide advice about the application of the political activity rules to this circumstance.
The commissioner was of the view that commenting on a candidate is a form of political activity that is prohibited for specially restricted public servants. The commissioner acknowledged that the chair was permitted to make comments restricted to publicly known facts about past association with the candidate, but he advised the chair not to respond to any questions when doing so might be interpreted as expressing support for or opposition to the candidate.
The commissioner also cautioned that, although specially restricted public servants are permitted to attend municipal all-candidates meetings, speaking at events held in a candidate’s honour might be viewed as an activity in support of a municipal candidate, which is not permitted.
PSOA, s. 86 & 89.
The chair of a public body sought the commissioner’s advice as to whether an appointee, who is specially restricted for the purposes of political activity, may seek to serve as a school board trustee.
The commissioner was of the view that seeking to become a school board trustee is equivalent to seeking to become a candidate in a municipal election. Therefore, it constitutes a form of political activity. Since the term “municipal election” is not defined in the PSOA, the commissioner interpreted the term in a manner that is consistent with the Municipal Elections Act, 1996 and the Education Act, 1990.
A specially restricted public servant is not explicitly permitted to serve as a school board trustee under the PSOA. However, the chair, as the appointee’s ethics executive, could authorize the appointee to be or seek to become a school board trustee if, in accordance with section 90 of the PSOA, these activities would not interfere with performance of the appointee’s duties and would not conflict with the interests of the public body.
PSOA, S. 86, 89 & 90.
An ethics executive sought the commissioner’s advice about the application of the political activity rules to a specially restricted public servant whose spouse may become a candidate in a future federal election.
The commissioner advised that the political activity rules apply to public servants prior to, during, and after an election period. A public servant’s spouse, however, is not subject to those rules.
Nonetheless, the commissioner noted that the actions of a public servant’s spouse as a political candidate could lead to a situation where the public servant would contravene the political activity restrictions. For example, a public servant whose name or photograph appears in campaign materials risks being seen to be supporting a candidate or political party. The risk could be mitigated if the spouse’s campaign materials only referred to the public servant in general terms and not by name or with reference to his/her position in the Ontario government. The commissioner further advised that, although specially restricted public servants are allowed to attend all-candidates meetings, making other appearances with a candidate, including attending an election night event, would put the public servant at risk of being seen to support a candidate or political party, thereby contravening the political activity restrictions.
PSOA, s. 86, 90.