Post-Service (C03-15/16)

A public servant formerly in a senior-designated position retired and was re-hired briefly, on contract, by a public body. Upon terminating this employment contract, the former public servant wanted advice about several post-service opportunities.

The intervening employment opportunity impacted the nature of the post-service obligations the public servant was subject to because technically the position that the public servant held immediately before ceasing to be a public servant was not a senior designated position and as such he was not subject to the more stringent lobbying and employment restrictions. The commissioner was concerned that this arrangement might appear to have been made to intentionally circumvent the more stringent restrictions. In order to avoid this perception, the commissioner recommended that the public servant be treated as though the lobbying and employment restrictions applied to him for one year following the original retirement.

O. Reg. 381/07, s. 19.

Hanging my shingle, Part 2 (C04-14/15)

A former designated senior public servant wished to provide consulting services.  The advertisement for these services indicated that the former public servant had been appointed to a certain public body and was able to assist with matters involving the public body.

The Commissioner determined that the former public servant could advertise this previous experience as it was part of the public servant’s resume.  Also, more than one year had passed since the former public servant had ceased to be a public servant, and therefore the one-year restriction on employment no longer applied.  The Commissioner reminded the former public servant of the post-service conflict of interest rules that were still applicable. In particular, the former public servant could not assist with any matter in which the former public servant had been involved as a public servant.

O. Reg. 381/07, s. 19 & 20.

Can I get a pass? (C06-14/15)

A designated senior public servant in a public body, who would soon be retiring, asked the Commissioner for a waiver of the one year post-employment restriction. The public servant anticipated post-retirement employment opportunities with certain government organizations.

The Commissioner advised the public servant that there was no provision in law for such a waiver and that accordingly one could not be granted.

The Commissioner reminded the public servant that the one-year restriction only applied to those entities with which the public servant had been substantially involved.  The public servant was advised to contact the Commissioner once a specific opportunity arose, at which time a determination could be made.

O. Reg. 381/07, s. 19.

The Return of a Former Public Servant (C08-13/14)

H was a former public servant. The public body where H had worked issued an RFP. H wanted to work on responding to the RFP for his new employer. While still a public servant, H had advised the Crown on a similar project. H’s new employer had been involved in that project. There was no indication that H was seeking preferential treatment or using confidential information improperly. The public body asked the Commissioner to make a determination about whether H could assist his new employer to respond to the RFP.

Under the post-service conflict of interest rules, a former public servant who previously held a “designated senior position” may not take a job with certain employers. However, this only applies if the person had “substantial” involvement with the new employer in his or her last 12 months as a public servant.   In similar cases, the Commissioner indicated that activities like merely sharing information or overseeing staff do not reach the “substantial” involvement level. In this case, H had not had decision-making authority with respect to the RFP and had not managed the public body’s relationship with his future employer. The Commissioner determined that H had not been substantially involved with his new employer while he was still a public servant, and was therefore was able to assist his new employer to respond to the RFP.

 O. Reg. 381/07, s. 19.

Leadership Position with a Not-For-Profit (C14-12/13)

A former designated senior public servant sought a determination as to whether he/she would have a conflict in accepting a leadership position with a not-for-profit entity that regularly interacts with the Crown and may advocate for policy and/or legislative change.

The Commissioner determined that the former public servant would be permitted to accept the position, provided that he/she took certain precautions to ensure compliance with the post-service conflict of interest rules. The Commissioner cautioned the former public servant to be mindful of the restrictions against seeking preferential treatment from or privileged access to current public servants, and recommended that the public servant avoid initiating contact with any public servant, on behalf of the new employer, for a one-year period. The Commissioner reminded the public servant of his/her obligations to refrain from disclosing confidential information, lobbying his/her former ministry, minister, and minister’s office staff for a one-year period, or assisting his/her new employer with matters on which he/she had advised the Crown.

O. Reg. 381/07, s. 16, 17, 18, 19, 20.

Independent Contractor (C15-12/13)

A former designated senior public servant sought a determination on the application of the post-service conflict of interest rules with respect to working for a government entity that is neither a ministry nor a public body. The former public servant was to be an independent contractor, not an employee of the entity.

The post-service restriction on employment for designated senior public servants applies only when there has been substantial involvement with the employer while a public servant. For a number of reasons, the individual had imposed an absolute screening while he/she was a public servant, meaning that he/she had not been informed on any matters involving this government entity. The Commissioner determined that the former public servant had not had substantial involvement with the government entity in his/her capacity as a public servant, and that therefore the restriction did not apply.

O. Reg. 381/07, s. 19.

Post-Service Conflict of Interest Rules (C16-12/13)

A soon-to-be former designated senior public servant of a public body sought a determination on the application of the post-service conflict of interest rules. The public servant had accepted employment with a private entity that intended to submit a proposal in response to an RFP on a matter in which the public servant had been involved.

The Commissioner determined that the conflict of interest rules did not prohibit the public servant from accepting the position, but could restrict his/her ability to engage in some activities in his/her new role. Part of the public servant’s role was to oversee RFPs for the public body to ensure that procurement rules were followed, and he/she had been significantly involved in a specific RFP that would likely be of interest to the new employer. The public servant advised that he/she would recuse him/herself from all related discussions and decisions and would not be involved in the RFP process on behalf of the entity. The Commissioner agreed with this approach and advised that the soon-to-be former public servant could only assist the entity on the matter once the RFP process had closed and an agreement had been signed with the successful proponent.

O. Reg. 381/07, s. 18.

Consulting Contracts (C06-11/12)

A soon-to-be former public servant employed in a public body sought a determination as to whether he/she would be permitted to engage in the following post-service activities:

i.        Pursuing consulting contracts with the Province of Ontario, as either a vendor of record (VOR) or as a bidder in response to competitive procurements; and

ii.        Assisting persons or entities on matters within the mandate of the public body.

A former public servant is subject to the post-service conflict of interest rules set out in Part II of the regulation. As the individual was not in a senior designated position, the conflict of interest rules did not prohibit the specified post-service activities. However, in this case, certain restrictions, usually reserved for public servants in senior designated positions, should apply. The Commissioner advised that the former public servant was prohibited from seeking preferential treatment from or privileged access to current public servants, and from disclosing or using any confidential information obtained in the course of his/her public service duties. To further minimize the risk of using or disclosing confidential information, the Commissioner directed the public servant to refrain from advising or assisting any person or entity, other than public body or the Crown, in connection with any specific government initiative or project with which he/she had been involved as a public servant. This restriction would apply for a period of one year. In addition, he/she was restricted from advising or otherwise assisting any entity in connection with any proceeding, negotiation, or other transaction (such as requests for proposals or requests for services) if he/she had previously advised the public body or the Crown on the same matter.

The same individual returned to seek a determination on whether he/she would be permitted to assist the successful proponent of a request for proposals (RFP) issued by the public body where the individual had been a public servant.

The Commissioner first assessed whether the RFP was for a project with which the individual had assisted the public body while still a public servant, and whether the RFP was still open. The contract stemming from the RFP had yet to be signed, and therefore the RFP was still in process. Given the restrictions previously placed on the former public servant, and the fact that the RFP process was ongoing, the Commissioner was of the view that it would be inappropriate for the former public servant to assist the successful proponent until both of two events occurred:

  1. The contract stemming from the RFP was signed, effectively ending the RFP process; and
  2. The one-year restriction imposed on the former public servant expired.

O. Reg. 381/07, s. 16, 17, 19, 20.

Employment with a Publicly-Funded Entity (C01-08/09)

An ethics executive referred a matter to the commissioner for a determination pursuant to section 65(6) of the PSOA. The issue was whether the conflict of interest rules would restrict a public servant’s ability to accept employment with a publicly funded entity.

Following a review of the public servant’s positions with the government over the preceding 12 months, the commissioner found that the post-service conflict of interest rules set out in Part II of Ontario Regulation 381/07 would not prevent him/her from accepting the position. However, the commissioner also found that restrictions would apply to the public servant in his/her new position, either permanently or with time limits. Section 16 regarding the restrictions on giving preferential treatment and section 17 regarding the restriction on sharing of confidential information would remain in force permanently. The restrictions on lobbying, set out in section 18, would be in force for a period of 12 months from the date the public servant ceased to be a public servant. Section 20, restricting transactions involving the Crown, would remain in effect until the Crown ceased to be involved in any proceeding, negotiation, or other transaction on which the public servant worked while a public servant.

The commissioner also noted that the restrictions on employment set out in section 19 would not apply because, during the preceding 12 months, the public servant had not had substantial involvement with the new publicly funded entity. In addition, the public servant had sufficiently recused himself/herself from any decisions of the Crown related to that entity.

O. Reg. 381/07, s. 16, 17, 18, 19, 20.

Conflict Mitigation in Private Sector Role (C15-08/09)

A former public servant, previously employed in a public body, requested the commissioner’s advice relating to post-service employment with a private sector entity. In particular, the commissioner was asked to advise on any potential conflicts of interest that could arise as a result of the current employer’s potential involvement in a project on which the former public servant had worked during the last several months of his/her employment with the public body.

The former public servant advised that his/her current employer was prepared to put barriers in place to isolate him/her from the project by

  • identifying individuals working on the transaction and ensuring that they were instructed not to discuss the matter with the former public servant; and
  • developing and implementing procedures to ensure that the former public servant did not participate in meetings where the matter was to be discussed.

The commissioner advised that these steps would likely mitigate the risk that a conflict of interest would arise.

O. Reg. 381/07, s. 19.