The text of the "Office of the Conflict of Interest Commissioner, Province of New Brunswick, Report to the Speaker of the Legislative Assembly of New Brunswick of the Investigation by the Hon. Stuart G. Stratton, Q.C., Conflict of Interest Commissioner, into allegations by Mr. Bernard Richard, the MLA for Shediac-Cap-PelÚ and then Leader of the Official Opposition, of a possible violation of the Members' Conflict of Interest Act by Mr. Michael (Tanker) Malley, the MLA for Miramichi-Bay du Vin" has been made available through the Office of the Clerk of the Legislative Assembly. The electronic version is for informational purposes only. The printed version of the report remains the official version.
OFFICE OF THE CONFLICT OF INTEREST COMMISSIONER
PROVINCE OF NEW BRUNSWICK
REPORT TO THE SPEAKER
LEGISLATIVE ASSEMBLY OF NEW BRUNSWICK
BY THE HON. STUART G. STRATTON, Q.C.
CONFLICT OF INTEREST COMMISSIONER
INTO ALLEGATIONS BY MR. BERNARD RICHARD, THE MLA
FOR SHEDIAC-CAP-PELÉ AND THEN LEADER OF THE OFFICIAL OPPOSITION,
OF A POSSIBLE VIOLATION
OF THE MEMBERS' CONFLICT OF INTEREST ACT
BY MR. MICHAEL (TANKER) MALLEY,
THE MLA FOR MIRAMICHI-BAY DU VIN
JUNE 5, 2003
By letter dated August 8, 2001, Mr. Bernard Richard, the MLA for Shediac-Cap-Pelé
and then Leader of the Official Opposition, (Mr. Richard), wrote to me
alleging a possible violation of the Members' Conflict of Interest Act,
(the Act), by the Miramichi-Bay du Vin PC Riding Association, (the Riding
Association), acting as agent for Mr. Michael (Tanker) Malley, (Mr. Malley),
the MLA for Miramichi-Bay du Vin.
More specifically, Mr. Richard
requested me to review the circumstances surrounding a solicitation letter
signed by Mr. Fernand N. Gibbs, Q.C., (Mr. Gibbs), the then Secretary
of the Riding Association, which was sent to a number of companies and
individuals, seeking donations for the Riding Association and support
for their candidate, linking the payment of these donations to opportunities
for future potential government support. A copy of the solicitation letter
in question, dated July 17, 2000, (sic), was attached to Mr. Richard's
affidavit filed with me pursuant to section 36 of the Act.
The letter soliciting funds
for the Riding Association is written on the letterhead of the Progressive
Conservative Party of New Brunswick with a typed-in subheading of "The
Miramichi-Bay du Vin Riding, 70 Princess St., Miramichi, N.B., E1N 2K8,
Tel: (506) 773-9334". The letter begins with the heading "Re:
Contributions to the above mentioned association". The text of the
letter is as follows:
"We wish to inform you that upon reviewing the public accounts list
of the provincial government as of March 30th 2000, we see that you had
done business with our provincial government by way of contract or by
receiving a grant or financial help.
In order for you to continue
receiving further contracts or financial help from the said government,
it is necessary to keep It in power. To achieve that it is also necessary
to support our Progressive Conservative candidate financially and otherwise,
in the next provincial election which is fast coming.
Therefore the Executive Committee
of the said association would greatly appreciate a contribution from you
at this time. . . .
P.S./ A cheque may be mailed
to the above mentioned address."
A copy of the solicitation
letter quoted above is attached to this Report as Schedule "A".
The return address referred to in the letter is the home address of Ms.
Tilley Gordon, the President of the Miramichi-Bay du Vin PC Riding Association,
In his affidavit in support of his request for an investigation, Mr. Richard
includes copies of the transcripts of interviews with Ms. Lisa Keenan,
aired on CBC Radio (Saint John) on July 30, 2001, and CBC Radio (Fredericton)
on August 1, 2001. Ms. Keenan is President of the Progressive Conservative
Party of New Brunswick. Also attached to Mr. Richard's affidavit are newspaper
articles which appeared in the Miramichi Leader on August 2 and 7, 2001,
together with an undated letter signed by Ms. Keenan, the text of which
is as follows:
"It has come to my attention that a letter has been sent to you by
Mr. Fernand Gibbs, Secretary of the riding association of Miramichi Bay
du Vin. That letter was inappropriate and was not approved by the Progressive
Conservative Party of New Brunswick. Please disregard that letter completely.
Any contracts with, or other
benefits from the provincial government are in no way conditional upon
or given as rewards for, political contributions. Any suggestions otherwise,
are untrue, and contrary to the fundraising policies of the Progressive
Conservative Party of New Brunswick. As a party, we abide by the Political
Process Financing Act of New Brunswick.
Any contributions that may
have resulted from this letter will be returned immediately."
A copy of Ms. Keenan's letter quoted above is attached to this report
as Schedule "B".
It is Mr. Richard's contention
in his letter requesting an investigation that the solicitation letter
signed by Mr. Gibbs and quoted above implies that the receipt of donations
will result in influence being used to favorably further such donors'
private interests. In this respect, sections 4 and 6 of the Act may be
in issue. These sections provide:
4 A member shall not make a decision or participate in making a decision
in the execution of his or her office if the member knows or reasonably
should know that in the making of the decision there is the opportunity
to further the member's private interest or to further another person's
6 A member shall not use his
or her office to seek to influence a decision made by another person so
as to further the member's private interest or to further another person's
In addition to his request
for an investigation by this office, Mr. Richard advised me that he had
lodged a complaint with the Supervisor of Political Financing alleging
a breach of the provisions of the Political Process Financing Act. He
further advised me that he had alleged that the solicitation letter constitutes
a breach of the Criminal Code and that he had therefore also referred
the matter to Chief Superintendent Payne of the RCMP for investigation.
Upon receipt of the latter information, I wrote Mr. Richard pointing out
that since the matter referred to the Commission had also been referred
to the RCMP for a criminal investigation, section 39 of the Act would
have application. That section reads as follows:
39 If the Commissioner, when conducting an investigation, discovers that
the subject matter of the investigation is being investigated by police
or that a charge has been laid, the Commissioner shall suspend the investigation
until the police investigation or charge has been finally disposed of,
and shall report the suspension to the Speaker.
Mr. Richard acknowledged and agreed that in the circumstances I was required
to suspend any investigation of the matter by this office until such time
as the police investigation was finally disposed of. As mandated by the
Act, I reported the suspension of our investigation to the Speaker of
the Legislative Assembly.
On March 26, 2003, the media
reported that the RCMP would not be laying any criminal charges in this
matter. By letter dated March 28, 2003, Mr. Richard advised this office
that the investigation by the RCMP had been completed and requested me
to revive his original request for an investigation. I accordingly commenced
a review of the circumstances surrounding the allegations contained in
Upon receipt of Mr. Richard's letter of March 28, 2003, I immediately
wrote Mr. Malley and sent a copy of my letter to Ms. Gordon. With that
letter, dated March 31, 2003, I enclosed a copy of Mr. Richard's letter
to me of March 28 together with a copy of Mr. Richard's affidavit originally
filed with me in August of 2001, as well as a copy of an abstract of a
CBC interview with Mr. Gibbs of March 27, 2003. In that interview Mr.
Gibbs is alleged to have said that he was satisfied from talking to the
secretary in the Member's constituency office that Mr. Malley was aware
that the solicitation letter was written and did not have any objections,
but Mr. Gibbs could not say whether Mr. Malley had read the letter himself.
On April 3, 2003, I wrote Ms. Gordon a separate letter in which I referred
to the copy of my original letter to Mr. Malley requesting her to write
to me her recollection of the events surrounding the Gibbs letter. On
that same day, i.e. April 3, 2003, I also wrote to Mr. Gibbs asking him
to write me his recollection of the events surrounding the solicitation
letter here in question.
I received a response from
Mr. Gibbs on April 15, 2003, requesting a reply from me by fax. In my
fax to Mr. Gibbs I accepted his offer to provide an affidavit setting
out his recollection of the facts surrounding the issue of the solicitation
Further, on April 15, 2003,
not having received any response from Mr. Malley to my letter to him of
March 31, 2003, I wrote him again to request his response to the allegations
made by Mr. Richard. In that letter I also advised Mr. Malley of the substance
of what had been written to me by Mr. Gibbs, namely, that he [Mr. Malley]
had been present at three meeting of the Riding Association "where
the matter of the [solicitation ] letter was discussed"; and that
the solicitation letter "was in [Mr.] Malley's office for some days
when Mr. Malley was in and out of the office and I am satisfied that he
was fully aware of the work being done and that he has (sic) read the
On April 25, 2003, I received
a further letter from Mr. Gibbs enclosing his affidavit sworn April 19,
2003. On that same day I wrote again to Mr. Malley as follows:
"Further to my letters to you of March 31 and April 15, I wish to
inform you that I have now received an affidavit from Mr. Fernand N. Gibbs,
Q.C. in which he swears that you were present at the three meetings that
preceded his contentious letter dated July 17, 2000, (sic), written to
various individuals and businesses in your area.
Mr. Gibbs further swears that
you submitted the list of names of those individuals to whom he was to
write, and that he gave this list to the student secretary in your riding
association office to obtain postal codes and prepare envelopes. Mr. Gibbs
further swears that he specifically suggested to the secretary that she
obtain your permission to do this work, that the letter was in your office
for some days and that "he [was] satisfied that [you were] fully
aware of the work being done and that [you] had read the letter."
I am most anxious to receive
your response to Mr. Gibbs' correspondence and his affidavit. I must also
remind you that under a recent amendment to the Members' Conflict of Interest
Act all MLA's are required to "respond promptly and completely"
to the Commissioner's enquiries. While I can appreciate that you may be
busy with constituency affairs, in view of the time now elapsed since
I first wrote to you, the matter is now urgent. I would accordingly appreciate
your early attention and reply to my enquiries."
On April 29, 2003, not having
received any response from Ms. Gordon, who is alleged to have read and
approved of the solicitation letter before it was mailed, I wrote her
again requesting her co-operation. To this date, I have not heard from
On May 6, 2003, I received
a letter dated April 27, 2003, signed by Mr. Malley finally acknowledging
receipt of my correspondence of March 31, 2003. This letter purports to
seek clarification and is in the following terms:
"I acknowledge receipt of your letter of March 31 regarding the "assertions"
of Mr. Richard. Thank you for offering me with an opportunity to respond.
However, in order to make
a meaningful response I require some clarification. Is Mr. Richard alleging
a violation of the Members' Conflict of Interest Act by me? If so, what
specific section of the Act is he alleging that I violated? If Mr. Richard
is making an allegation against my riding association, or some member
thereof, I fail to understand how the Act would be involved at all.
Can you please obtain clarification
of these matters for me so I can better assist you in your review."
I immediately replied to Mr.
Malley by my letter of May 6, 2003, which I now quote in its entirety:
"This will acknowledge receipt here this afternoon of your letter
dated April 27 with respect to the above noted matter.
In response to the clarification
requested in your letter, it is my understanding that Mr. Richard is alleging
that the solicitation letter dated July 17, 2000 (sic) breached section
6 of the Members' Conflict of Interest Act.
Specifically, as stated in
his affidavit, a copy of which I sent to you with my letter of March 31
last, Mr. Richard in paragraph 14 states the following:
"Fernand N. Gibbs, in
his capacity as Secretary of the Progressive Conservative Riding Association
for Miramichi-Bay du Vin, does create a reasonable perception in the minds
of those who received the letter that he is acting as an agent or representative
for the member in that riding and by the precise language used in the
solicitation letter clearly makes the impression that receipt of donations
will result in influence being used to favorably further such donors'
Rightly or wrongly, I perceive
your letter to me of April 27 to be an attempt to delay your response
to the allegations made by Mr. Richard. If this is correct, you will leave
me no alternative but to turn my private investigation into an inquiry
and use my subpoena powers to compel all who are involved in this matter
to appear for a public hearing."
On May 13, 2003, I received
a further letter from Mr. Malley. The text of which follows:
"Thank you for your letter of May 6th.
Now that I have clarification,
I hope the following comments will adequately respond to any concerns
you may have.
It has been made clear repeatedly,
but I shall reiterate here, the circumstances surrounding Mr. Gibbs' unfortunate
1. I am given to understand
that the text of this letter did not have the approval of the Miramichi-Bay
du Vin PC Riding Association. While I can not speak directly to that matter,
certainly the subsequent actions of the Association tend to support that
understanding, as well as subsequent statements made to me and others
by members of that association.
2. Certainly, to speak to
something of which I do have direct knowledge, Mr. Gibbs' letter was not
reviewed by me nor was it approved by me. Indeed, I see no-one alleging
that it was. They instead make vague allegations as to appearances.
3. To the extent Mr. Gibbs
put himself forward as an agent of the Progressive Conservative Riding
Association of Miramichi-Bay du Vin, it seems clear to me that he exceeded
his reasonable authority to do so.
4. Certainly in no way was
Mr. Gibbs my agent in sending this letter.
Beyond this, I am not certain what more useful information I have for
you. Mr. Richard says that certain "perceptions are created in the
minds of those who received the letter." Your letter asks me to comment
as to what perceptions a letter which I did not draft or approve created
in other people. I cannot really speak to that with any more accuracy
than Mr. Richard can. My understanding is that to the extent an incorrect
perception may have arisen, the Association took clear action to attempt
to rectify that misunderstanding.
Again, however, these are
not matters of which I can speak definitively. What perceptions are must
be a matter for others to judge. I can only deal with the facts as to
my own personal knowledge, as I have done above.
If you feel these statements
require further clarification or [if] you have further questions for me,
I shall be happy to meet with you at a mutually convenient time."
I replied to Mr. Malley's letter
the same day that I received it. The text of that letter is as follows:
"This will acknowledge receipt here this morning of your letter dated
May 9, 2003.
I begin this reply by stating
that I unreservedly deny your assertion that "it has been made clear
repeatedly ... the circumstances surrounding Mr. Gibbs' unfortunate letter".
Indeed, I have had to write you numerous letters to obtain any response
from you. This is clearly contrary to the statutory requirement contained
in the Members' Conflict of Interest Act that Members shall reply "promptly
and completely" to all enquiries by the Commissioner.
I would add further that,
except for Mr. Gibbs, it is my opinion that there has been a conspiracy
of silence surrounding my enquiries to those involved in this matter.
I truly expected better of you Mr. Malley.
In any event, as I previously
reported to you, Mr. Gibbs filed an affidavit with me stating his opinion
in this matter. I enclose a copy for your perusal. In these circumstances,
I would appreciate receiving an affidavit or statutory declaration from
you setting forth your response to Mr. Gibbs' assertions. Specifically,
did you know about, read or approve the contentious solicitation letter
when it was in your office before it was mailed out to the various companies
and individuals named on a list you are alleged to have prepared?
I would appreciate receiving
your immediate response to this request because, as I had not heard from
you, I retained outside counsel to act in respect of an inquiry under
the Inquiries Act, a procedure that may now not be necessary.
You may find it convenient
to deliver the suggested affidavit or statutory declaration to me personally
at which time I will be pleased to discuss the matter with you before
submitting my report to the Speaker."
During the course of my investigation,
I was informed that Ms. Christine O'Reilly was the student secretary employed
in Mr. Malley's office at the time the solicitation letter here in question
was processed. I attempted to telephone Ms. O'Reilly on three occasions.
On the latter two occasions I left detailed messages on her voice mail
and asked for her co-operation by responding to my inquiries. Not having
received any response from her, I wrote her May 8, 2003, as follows:
"As you know, I have telephoned you and left messages on your voice
mail urgently requesting you to respond to my enquiries concerning your
knowledge of the circumstances surrounding the Gibb's solicitation letter
of June 17, . My information is that you were the secretary for
Mr. Malley at the relevant time.
Also, as I tried to explain
in my messages, under the Members' Conflict of Interest Act it is my duty
to investigate any complaints made against a Member, in this case, Mr.
Malley, and then report the results of my investigation to the Speaker
of the Legislative Assembly. As this particular complaint has been outstanding
for so long pending the conclusion of the criminal investigation, I am
most anxious to bring it to a conclusion without further delay.
I must advise you that if
you fail to respond to my enquiries I must inform the Speaker of that
fact and this could result in embarrassment to you. Hence this letter
to again request you to write or phone me to give me your recollection
of the facts surrounding the letter here in question.
May I please hear from you
as soon as possible and thus avoid the consequences of your failure to
On May 26, 2003, I received
a written reply from Ms. O'Reilly in which she alleges that she was not
Mr. Malley's secretary at the relevant time. As she put it, "I was
just a 19 year old, summer student working as a Receptionist there for
my summer employment at the time." She adds that "since I worked
under the Civil Service I solemnly swore that I would not disclose or
make known any matter that comes to my knowledge due to my employment
at Mr. Malley's office." Ms. O'Reilly concluded her letter by stating
"I feel that my previous student summer employment should not be
involved in this conflict, as I was not the secretary and did not type
the letter in question at the relevant time."
I must record that I do not
find Ms. O'Reilly's letter to be particularly helpful in resolving the
issues that have arisen in this complaint. If some other person was the
"student secretary" at the relevant time, she could, for example,
have given me his or her name so that I could obtain a statement from
that person. Moreover, in Mr. Gibbs' sworn affidavit he did not allege
that the student secretary typed the solicitation letter, but only looked
up postal codes and prepared envelopes. This notwithstanding, although
her letter does not materially assist me in my investigation, I express
my appreciation to her for at least responding to my request for information.
In any event, I wrote Ms. O'Reilly again May 27, 2003, requesting her
to advise me whether she had any specific recollection as to whether Mr.
Malley knew about, read or approved of the Gibbs letter seeking financial
contributions. At the date of concluding this Report, I have not received
a reply from Ms. O'Reilly.
On Friday, May 30, 2003, Mr.
Malley came in to my office and personally delivered to me an affidavit
that he had sworn on May 29, 2003. In this affidavit Mr. Malley deposed
that he had indeed been present at the three meetings of the Riding Executive
that preceded the writing of the solicitation letter here in issue. He
further deposed that he was aware "that a letter writing campaign
was being considered by the Executive of the Progressive Conservative
Association with a view of obtaining financial support for the Party."
He agrees that a list of those companies and individuals who were to be
canvassed was prepared from the public accounts. He then swears as follows:
"I have reviewed the Affidavit of Fernand N. Gibbs, Q.C., dated April
19, 2003 and I categorically deny the allegation contained in paragraph
6 of the said Affidavit where he stated "I am satisfied that he was
fully aware of the work being done and that he read the letter."
I at no time prior to reading the letter in the local newspaper, read
the letter as written by Mr. Gibbs.
When a letter writing campaign
for funds was proposed, I did not have any objection and I understood
that Mr. Gibbs, a retired Judge and former Federal P.C. candidate, would
write the letter as the Secretary of the Association. I did not have objection
to Mr. Gibbs writing the letter, as I felt that with his background and
knowledge, he would appropriately word the letter within acceptable limits.
I did not have any prior knowledge
of the wording of Mr. Gibbs' letter and would not have approved of the
wording of the said solicitation letter."
I would first record that although the issue has not been raised before
me, I have given consideration to the question of my jurisdiction to investigate
and report with respect to this particular complaint at this particular
time. The Act does not contain any specific provisions dealing with cases
such as the present one where an election has been called before my investigation
and Report have been concluded. In this respect, it is a well recognized
principle that when the Legislative Assembly is dissolved, the Members
cease to be Members. This notwithstanding I have concluded that I do have
the necessary jurisdiction to conclude my investigation and make my Report
to the Speaker. I have come to this conclusion because the alleged misconduct
in this case occurred while Mr. Malley was a Member and he was also a
Member when I received the two requests to enquire into his alleged misconduct.
In this respect, I refer as well to section 2 of the Act which provides
that a re-elected Member of the Assembly is deemed to have been a Member
for the period between dissolution of the House and re-election. Thus,
if Mr. Malley is re-elected there can be no question as to my jurisdiction.
B. Involvement of Member
As I see it, the first issue to be resolved in this case is whether Mr.
Malley knew about, read or approved of the contentious solicitation letter
when it was in his office before it was mailed out to the various companies
and individuals named on a list he is alleged to have prepared. As to
this, two different versions of the events surrounding the letter have
been given to me. Mr. Gibbs, the author of the letter, swears in his affidavit
"That on the 11th day of February 2001 at the monthly meeting of
the said Association, the local M.L.A. Michael Malley produced a list
of names with respect to the matter referred to in the opening paragraph
of this affidavit. It was then moved seconded and unanimously adopted
that the secretary was mandated to write a letter to all those named on
the list, asking for a contribution to be made to the local Association
in order to build a local fund to support our Candidate in the next election
campaign. . . . .
That at the meeting of the
Association on the 21st of May 2001 the matter of writing the letter was
brought up again. . . . .
That on June 5th, 2001 at the monthly meeting of the association, Mr.
Michael Malley M.L.A. again submitted a list of the same names for the
very purpose of writing the letter to raise funds for the election of
the local Candidate in the next Provincial election. The local M.L.A.
Mr. Malley was present at the three meetings where the matter of the letter
was discussed. . . . .
That I, as secretary of the
Association attended at Mr. Malley's riding office and gave the list of
names to the student secretary in order for her to go to the post office
and obtain the postal code for each name on the list and she was also
asked to prepare the envelopes. Before she did any work, I specifically
suggested to her that she [obtain] Mr. Malley's permission to do the said
work. She said she would talk to Mr. Malley about it and I am satisfied
that she did.
That I then proceeded to prepare
the letter. It was made up of three short paragraphs. I showed it to some
members of the executive and to the President of the Association, they
all approved it. I took it to the said student secretary along with the
necessary postal stamps, to have it properly addressed and mailed out.
The letter was in [Mr.] Malley's office for some days when Mr. Malley
was in and out of the office and I am satisfied that he was fully aware
of the work being done and that he has read the letter."
As noted above, on May 30,
2003, Mr. Malley appeared at my office and personally delivered his affidavit
in response to what had been alleged by Mr. Gibbs. In that affidavit,
Mr. Malley categorically denied Mr. Gibbs' assertion that he had read
the solicitation letter while it was in his office. In fact, he swore
that "at no time prior to reading the letter in the local newspaper,
[had he] read the letter as written by Mr. Gibbs." The other two
persons who may have had helpful evidence to assist in resolving the factual
issues, i.e. Ms. Gordon, the President of the Riding Association, and
Ms. O'Reilly, the student secretary, have either failed to respond to
my correspondence or failed to provide helpful information. This being
so, I do not have evidence supporting the sworn affidavits of Mr. Gibbs
or Mr. Malley.
Upon consideration of the information
made available to me, I accept the sworn testimony of Mr. Gibbs that Mr.
Malley was present at the three meetings of the Miramichi-Bay du Vin PC
Riding Association which preceded the issue of the contentious solicitation
letter and that it was Mr. Malley who supplied the list of names to whom
the letter was to be sent. I further find that Mr. Gibbs' statement that
he was sure that Mr. Malley read the letter while it was in his office
is insufficient direct evidence that he did in fact do so. In the face
of Mr. Malley's affidavit denying any direct involvement with the solicitation
letter, I must conclude that he, as an honourable Member of the Legislative
Assembly, did not know of the contents of the solicitation letter until
it was brought to his attention after the event. Having determined Mr.
Malley's limited involvement with the preparation of the solicitation
letter, I now turn my attention to the specific provisions of the Act
which may be in issue.
C. Section 4
Section 4 of the Act, which is a provision applying to all Members, defines
what constitutes a conflict of interest. For ease of reference, I quote
that section again:
4 A member shall not make a decision or participate in making a decision
in the execution of his or her office if the member knows or reasonably
should know that in the making of the decision there is the opportunity
to further the member's private interest or to further another person's
It will be noted that the section
makes reference to decisions made by a Member "if the Member knows
or reasonably should know" there is an opportunity to further the
Member's private interest. The term "private interest" is defined
in the definition section of the Act as follows:
"private interest" does not include an interest in a matter
(a) that is of general public application,
(b) that affects a person as one of a broad class of persons, or
(c) that concerns the remuneration and benefits of a member or an officer
or employee of the Assembly;
It will be observed that the term "private interest" is defined
in the negative, or, in other words, it defines what are not private interests.
I discussed this term in two previous reports to the Speaker (Weir - Blaney,
2000 and Richard - Volpé, 2001). In any event, a question arises
under this section as to whether Mr. Malley participated in making a decision
in the execution of his office which he knew created an opportunity to
further his or another person's "private interest".
While I believe it to have
been established that Mr. Malley participated in the decision that a solicitation
letter should be prepared and dispatched to businesses and individuals
in his riding, there has been no evidence supporting a conclusion that
the Gibbs letter would further a "private interest" as opposed
to a "political interest". Further clarification of the terms
"private interest" and "political interest" can be
found in the following analysis of section 6.
D. Section 6
The term "private interest" is also included in section 6 of
the Act and is the section relied upon by the complainant in this present
matter. For ease of reference I quote again the provisions of section
6 of the Act:
6 A member shall not use his or her office to seek to influence a decision
made by another person so as to further the member's private interest
or to further another person's private interest.
In the Richard - Volpé
case referred to above, I recorded my opinion that the term "private
interest", as used in the Members' Conflict of Interest Act, did
not include a "political interest", or, more specifically, financial
support for the desire for election or re-election to political office.
I also recorded the opinion that in order to constitute a breach of the
Act under section 6 a "private interest" rather than a "political
interest" must be involved. The raising of election funds in these
cases was, in my view, the furtherance of a "political interest"
rather than a "private interest".
With these decisions as background,
I turn now to a consideration of the principal allegations contained in
Mr. Richard's affidavit which initiated this investigation. These are
"The solicitation letter indicates that in order to continue receiving
further contracts or financial help from the government it is necessary
to keep the government in power and to support the local Progressive Conservative
Fernand N. Gibbs, in his capacity
as Secretary of the Progressive Conservative Riding Association for Miramichi-Bay
du Vin, does create a reasonable perception in the minds of those who
received the letter that he is acting as an agent or representative for
the member in that riding and by the precise language used in the solicitation
letter clearly makes the impression that receipt of donations will result
in influence being used to favourably further such donors' private interest.
At the very least, the solicitation
letter leaves the reasonable perception that a decision not to donate
could affect the potential for further receipt of contracts or financial
help from the government."
As I understand Mr. Richard's affidavit, he is first alleging that in
writing the solicitation letter here in question, Mr. Gibbs created the
perception that he was acting as agent or representative for Mr. Malley.
But on a close reading of the letter, it could be argued that because
the letter does not specifically refer to Mr. Malley, funds were being
sought only for the Riding Association. Moreover, it is to be noted that
the letter makes mention of "our Progressive Conservative candidate"
but there is nothing in the letter that states directly that financial
support is being sought for or on behalf of Mr. Malley, the sitting Member.
Secondly, Mr. Richard alleges,
in support of his contention that the letter breached section 6 of the
Act, that the solicitation letter "makes the impression that receipt
of donations will result in influence being used to favourably further
such donors private interest." The use of the quoted words abstracted
from Mr. Richard's affidavit indicates to me that Mr. Richard is alleging
that the solicitation letter suggests the possible furtherance of the
donor's private interest, rather than the private interest of Mr. Malley.
But the Members' Conflict of Interest Act does not authorize me to consider
"impressions" any more than it does with "apparent conflicts
of interest". As well, Mr. Richard is alleging that donations will
result in influence being used, meaning the use of influence will not
take place until after the donations have been received. However, section
6 requires evidence that a Member sought to influence another person.
To my knowledge, there is no evidence that Mr. Malley used or sought to
use his influence to further the private interests of the donors or anyone
The contents of the solicitation
letter here in issue received wide attention by the media and the public.
Most reactions to it were negative. Indeed, the President of the Progressive
Conservative Party of New Brunswick wrote that the letter was "inappropriate"
and that it was disapproved by her party. Clearly, in my view, the language
used in the solicitation letter was, to say the least, inappropriate.
This notwithstanding, I would repeat what I have written on former occasions
that appropriate fundraising is an important and legitimate part of the
political process and that the raising of funds for political purposes
does not generally constitute a breach of the Act as there is not usually
a furtherance of a private interest. What is involved is a "political
interest". Moreover, in the present case there was no direct evidence
before me that the Member was directly involved with the preparation or
dispatch of the solicitation letter.
In addition, I would also point
out that this case was different from the two decisions previously referred
to. This was not a case involving fundraising by a Cabinet Minister, seeking
donations from those with whom his department did substantial business.
Rather it was an attempt by a Riding Association to raise funds for a
candidate, whose influence would not generally be equal to that of a Member
of the Executive Council. In any event, it has become increasingly clear
that the solicitation of political funding is not an activity regulated
by the Members' Conflict of Interest Act.
I conclude with respect to
sections 4 and 6 of the Act that neither has application in this case.
I find rather that the issue here involved was a "political interest"
rather than a "private interest". What occurred in this case
is an issue to be decided by the electorate, rather than under the Act.
E. Subsection 37(2.1)
The latter findings, unfortunately, do not completely dispose of this
matter because it is my opinion that my decision herein was knowingly
unreasonably delayed by Mr. Malley's failure to comply with his statutory
duty to respond promptly and completely to my enquiries as required by
subsection 37(2.1) of the Act which provides as follows:
When the Commissioner conducts an investigation or an inquiry under this
section, the member who is the subject of the request under section 36
shall respond promptly and completely to all of the Commissioner's questions
and requests for information.
While I acknowledge that when
an election is called, it is obviously a busy time for Members seeking
re-election, but this does not, in my opinion, excuse the Member from
complying with the provisions of the Act. To state the obvious, the Commissioner
does not make the law but merely administers it. Indeed, it was the Members
of the Legislative Assembly who enacted the Members' Conflict of Interest
Act and proclaimed it into effect as of May 1, 2000. Under the Act I have
the duty, responsibility and obligation to adhere to the mandatory provisions
of the Act and to enforce them. This I have done in this case as an independent
officer of the New Brunswick Legislative Assembly.
In reviewing the responses
to my enquiries of him, Mr. Malley appears to be under the impression
that I should have known all about his position in this matter, presumably
from reading newspaper reports and listening to radio broadcasts. But
my duty under the Act is to carry out my own independent investigation
of complaints and to determine the facts from those directly involved,
not from media reports. Moreover, if I were to rely on media reports in
this case, I would be obliged to note that Mr. Malley has reportedly given
several different explanations as to his personal involvement in this
Our file indicates that I first
wrote Mr. Malley March 31, 2003, advising him that Mr. Richard had renewed
his complaint, but it was not until May 30, 2003, almost two months later,
that he delivered his affidavit, which was his first substantial response
to my repeated requests for his co-operation in my investigation of this
matter. The letters from Mr. Malley dated April 27 and May 9, 2003, referred
to herein, although signed by Mr. Malley, were not, in my opinion, authored
by him nor does he appear to have any clear recollection concerning their
content. In addition, both letters, in my opinion, were an attempt to
delay my investigation as they failed to respond completely to my enquiries.
When he spoke with me on May
30, Mr. Malley apologized profusely for his delay in responding promptly
and completely to my correspondence. In response to my request of him
as to the reason for his delay, Mr. Malley blamed his delay on having
been given misguided advice. It is my opinion, however, that "misguided
advice" is not a satisfactory answer for the delay which occurred
in this case.
Prior to the completion of
my Report to the Speaker, it appeared to me that my Report might adversely
affect Mr. Malley. Because of this I wrote Mr. Malley on May 23, 2003,
"Pursuant to subsection 40(2) of the Members' Conflict of Interest
Act, because my report to the Speaker may adversely affect you, I wish
to provide you with the opportunity to make representations to me before
I complete my report.
Currently, as a result of
your delay in responding to my requests for information, I am considering
concluding my report with the recommendation that you be reprimanded for
your inaction in this matter.
I am prepared to hear such
representations from you on or before June 2, 2003. If I do not hear from
you by that date, I will complete my report and file it with the Speaker
as soon as it is translated."
The only representations made
by Mr. Malley to me following my letter to him of May 23, took place at
our meeting of May 30. As noted above, Mr. Malley apologized and blamed
his delayed response on "misguided advice".
I find that Mr. Malley was not directly involved in the preparation of
the solicitation letter. I accept his sworn affidavit that he did not
know of the contents of the solicitation letter until it was brought to
his attention after the event.
I further find that neither
section 4 nor section 6 of the Act has been breached, as the solicitation
of political donation, in this case, involves a "political interest"
rather than a "private interest".
Finally, I find that Mr. Malley's
failure to comply with his statutory duty to respond promptly and completely
to my enquiries supports the inference that he was involved in a conspiracy
of silence that has surrounded my investigation of this complaint. I find
that Mr. Malley's conduct in this regard constitutes a serious breach
of subsection 37(2.1), an important provision of the Members' Conflict
of Interest Act. If the Commissioner is to carry out the duties assigned
to him by the Act, he must have the prompt and complete co-operation of
the Member complained against. For this reason, even though there is no
express provision in the Act which provides for a penalty for breach of
subsection 37(2.1), should Mr. Malley be re-elected, I would recommend
that he be reprimanded.
The Honourable Stuart G. Stratton,
Conflict of Interest Commissioner
June 5, 2003