Annual Report 2005-2006
Province of New Brunswick
The Honourable Patrick A.A. Ryan, Q.C.
PO Box 6000 , Fredericton , NB , E3B 5H1
March 31, 2006
The Honourable Michael J. Malley
Dear Mr. Speaker:
The honour of submitting this, my first report, the sixth Annual Report of the Office of the Conflict of Interest Commissioner comes with an acknowledgement that the previous five reports were submitted by my predecessor in office, the Honourable Stuart G. Stratton, Q.C., a retired Chief Justice of the Province.
Commissioner Stratton's last report covered a period of eleven months. The reason for the reduction in time was due to his pending retirement from office and just before the reins of office were transferred to me on appointment by the Lieutenant-Governor in Council on recommendation of the Legislative Assembly of New Brunswick. I retired as a Justice of the Court of Appeal of New Brunswick April 10 and was sworn in as Commissioner May 5, 2005.
I am respectful of Commissioner Stratton's leadership in developing the parameters of the office, his precedents on issues and his recommendation while in office, particularly to the pragmatic and functional recommendation that Deputy Ministers, executive staff members and heads of Crown corporations be made subject to the provisions of the Members' Conflict of Interest Act. This would mean a change in the thrust of the Act.
This report, uniquely, covers thirteen months and is submitted pursuant to section 31 of the Members' Conflict of Interest Act, R.S.N.B. 1973, c. M-7.01.
This is the sixth Annual Report of the Office of the Conflict of Interest Commissioner. It is also my first Report and, distinctively, spans a period of thirteen months.
The previous Commissioner, The Honourable Stuart G. Stratton, Q.C., provided reports for the first five years under the present legislation. In his fifth and final Annual Report, he expressed his sincere thanks for the cooperation received from all the members of the Legislative Assembly during the period when the process creating the legislation was implemented, including the drafting of documents and various amendments along the way. He also gave thanks to the Legislative staff for their invaluable assistance particularly Loredana Catalli Sonier, Esqe., Clerk of the Legislative Assembly; Gisèle Osborne, Office Manager; Peter Wolters, C.A., Director of Finance and Human Resources; and Shayne Davies, Esq, Clerk Assistant and Committee Clerk.
The previous Commissioner considered it essential, as do the members themselves, that observance of the Act demonstrates accountability and transparency, thus increasing awareness of the need for ethics in decision-making by provincial politicians. I join with him and the members in subscribing to the ethical principle advanced.
In my opinion, the public is entitled to a performance of duties and responsibilities by its elected representatives that reflect a high standard of ethics and integrity. In so doing, elected representatives earn the confidence of the public. A lesser standard diminishes the good work of all members in general.
In the fifth Annual Report the Commissioner made a recommendation that consideration be given to a change in the administration of the two conflict of interest Acts: Members' Conflict of Interest Act and Conflict of Interest Act . The recommendation is that this office administers the legislation that now comes under the jurisdiction of two separate commissioners. If the recommendation is accepted as suggested there would be one Act serving the members of the Legislative Assembly as well as executive staff members, Deputy Ministers, heads of Crown corporations and others. The previous Commissioner recommended as follows:
The recommendation makes eminently good sense for several reasons other than simply the convenience mentioned by the previous Commissioner. For example, (1) there would be consistency in decision making; (2) executive staff members could be accorded the benefit of advice in order to avoid conflicts before the fact rather than obtaining ineffective and obsolete advice after the fact; (3) as it now stands, the secondary legislation for executive staff and others, comes under the aegis of a Justice of the Court of Queen's Bench who must interrupt the Justice's judicial responsibilities or, alternatively, postpone any accommodation of the staff member's conflict of interest problem until a time convenient to the court. David Lloyd George, in a speech at the Paris Peace Conference in 1919, said: The finest eloquence is that which gets things done; the worst is that which delays them.
These few examples flesh out and illustrate the point that this Commissioner and the previous Commissioner make with the recommendation for unifying the legislation and which is again advanced for consideration.
During the period of thirteen months of this report no complaints were filed against any member of the Legislative Assembly of New Brunswick. The Members' Conflict of Interest Act is not only designed to receive and act on complaints from a wide range of claimants but is also designed to discourage frivolous allegations of conflict as well as allegations that lack substance on their face or cannot be substantiated.
Section 36 of the Act details the procedure for an investigation into any alleged breach of the Act by a member. It is important to note that an allegation that a member has breached the Act may be brought before the Commissioner by any person. There is no restriction on who may refer the complaint to the Commissioner. The “restriction”, as such, lies in the procedure. The request by a person for an investigation into an alleged conflict must be in the form of an affidavit and it is mandatory that the contents of the affidavit set out the grounds for the belief that the member is in conflict and shall set out the nature of the alleged breach. By way of exception to this procedure, the Assembly has reserved to itself the right to “request that the Commissioner investigate any matter respecting an alleged breach of the Act by a member”.
Various matters were referred to me by the members themselves for decision. The vast majority of these were intermingled with a request for advice which will be dealt with separately and discreetly in this report.
The matters of general application that came before me during the thirteen months of this report related to affairs that involved all the members. These were dispatched by way of recommendation to all members without indicating any connection to individual members.
The most active service rendered by this office was by way of advice with respect to responsibilities of office as related directly to the provisions of the Members' Conflict of Interest Act. I cannot emphasize too strongly that the Act has two distinct aspects, one of which is the investigation of breaches. Without minimizing the importance of this aspect, it is one that arises after the fact. The Act has an underlying theme devoted to preventing breaches. This aspect is directed at advice , an aspect that is before the fact instead of after the fact of a breach.
Several sections of the Act highlight the offer of advice to all members and to members of the Executive Council. I am pleased to report that a substantial number of members at both levels took advantage of the right to advice and benefited by it.
In addition to the general and specific advice given as requested by members, two new members of the Legislative Assembly were assisted in familiarizing themselves with the conflict of interest legislation.
As a result of a change in portfolios, five new cabinet ministers were interviewed and informed of their additional responsibilities as members of the Executive Council. The new Speaker was also requested to file a current disclosure statement.
Members should keep in mind that advice is available to those leaving office or deciding not to re-offer; it is not just for those holding electoral seats or office. Again, I emphasize that the advice and recommendations of the Commissioner are confidential unless released by or with the consent of the person requesting the advice.
I am also open to giving informal information to persons considering offering for public office. In fact, this was done in this the first year of my term of office.
The area of fees, gifts and personal benefits is always an area of some interest because most tangible expressions of gratitude are of such minor value and, over the period of a year, lapse into a basket of inattentive remiss. As a result, a member may fail to appreciate the necessity of being conscientious in reporting these tributes such as tickets to events or golf passes for example. Section 8 of the Act , however, is unrelenting:
Section 8 is interpreted as including any gift or personal benefit which the member receives but decides to pass on to someone else whether that person is a member of the family, a neighbour, another member or a constituent, in other words, anyone else . If the member gives the gift or benefit away, it is the same as though the member used it personally.
For the first time since the inauguration of the Members' Conflict of Interest Act all members have filed their Private Disclosure forms within the time limits fixed by the Office of the Commissioner under the legislation. For this precedent setting effort, I commend the members.
It may well be that since a number of members exercised the right to seek advice and recommendations from the Office of the Commissioner that this prompted a closer understanding of the members' responsibilities under the Act . In any event, it was a welcome change from previous years.
The public disclosure statements of the members were filed with the Clerk of the Legislative Assembly for the year on November 25, 2005 where they are available for public inspection during normal business hours of the office of the Clerk. Copies are also available to any person who pays the copying fee fixed by the Clerk.
There are two areas of concern that I now address. They relate to the filing of Private Disclosure Statements and are: (1) self-administered registered retirement saving plans and (2) closed mutual funds. These two categories of investments must be disclosed to the Office of the Commissioner. To make certain that each member understands this obligation, it would be a cautionary move for the member to ask the agent where the investments are held whether the member's registered retirement savings plan is self-administered and whether any of the investments contain closed mutual funds . This information should, ideally, be given in writing by the agent to the member. By getting it in writing, the member is protected from any allegation that the member has not complied with the Act upon the filing of the member's Private Disclosure Statement. Registered Retirement Savings Plans that are not self-administered need not be disclosed in a Private Disclosure Statement.
Throughout my thirteen months of this my first report I was guided by a succession of temporary office assistants during the changeover and until permanent staff was engaged to oversee the office. I therefore want to identify the persons who so willingly gave me administrative assistance starting with Michèl Michaud, Nicholas Ouelette and Louise Larlee. Throughout the summer and until the end of 2005, Shayne Davies, Esq. and Gisèle Osborne were called to duty frequently and until the appointment of an Administrative Assistant, Jacqueline Boyer, in December, 2005. I owe a debt of gratitude to all these people who so ably assisted this office in successfully completing the first term. In addition to their regular duties, they bridged the gap while the search was on for permanent staff.
I also want to recognize the able assistance of others at a different level including the Clerk of the Legislative Assembly with whom all Public Disclosure Statements are filed, Loredana Catalli Sonier, Esqe. and Peter Wolters, C.A. , Director of Finance and Human Resources.
During the fiscal period ended March 31, 2006 expenditures of the Commissioner's office for salaries and benefits, office equipment and supplies total $100,005.03. This compares with $113,709.26 in the previous fiscal year. In December of 2005, an Administrative Assistant was engaged on a full time weekly basis for half days. This employment change results in the Office of the Conflict of Interest Commissioner being more accessible to the members and has expedited the delivery of services to the members.
Dated at Fredericton this 31 st day of March, 2006