|New Brunswick Conflict of Interest Commissioner
Annual Report 2002-2003
Province of New Brunswick
May 21, 2003
It is an honour and a pleasure to present this, the Third Annual Report of the Office of the Conflict of Interest Commissioner for the period May 1, 2002 to April 30, 2003.
This report is submitted pursuant to section 31 of the Members’ Conflict of Interest Act, R.S.N.B. 1973, c. M-7.01.
Yours very truly,
The Honourable Stuart G. Stratton Q.C.
The New Brunswick Legislature enacted the Members’ Conflict of Interest Act, (R.S.N.B. 1973, c. M-7.01) on May 1, 2000, to promote public confidence in the honesty and integrity of its Members. The Act is intended to be an ethical code of conduct to guide Members of the Legislature as they conduct public business.
The Act provides for the appointment of a Conflict of Interest Commissioner by the Lieutenant-Governor in Council on the recommendation of the Legislative Assembly to serve for a period of five years. The Commissioner, who is an officer of the Legislative Assembly, reports to the Assembly through the Speaker with respect to annual reports, investigation reports and matters relating to the Commissioner’s jurisdiction or authority under the Act.
The Commissioner is assisted in administrative matters by the Clerk of the Legislative Assembly and by a Committee Clerk - Research Assistant. The Commissioner prepares budgetary estimates through the Office of the Clerk and the Assembly approves the final budget.
The Act makes it clear that it is the responsibility of the Commissioner to respond to Members’ enquiries; to monitor compliance by the Members with the provisions of the Act; to provide advice to the Members; to investigate complaints against any Member; to prepare disclosure documentation; to assess the effectiveness of the provisions of the Act; and to ensure that the members of the Executive Council and the Legislative Assembly adhere to the highest standard of ethics as they go about the peoples’ business. I am pleased to report that in each of these areas, the Office of the Commissioner has progressed in the year just past.
I would accordingly
first remind the Members that in furtherance of its objectives, the Act
sets out acceptable standards of conduct for elected Members of the Legislature
in order to ensure that the private interests of those individuals do not
come into conflict with the performance of their public duties. In this
respect, the Act defines “conflict of interest” in these terms
of the New Brunswick Act is that full disclosure is an accepted and necessary
requirement for service in public office. To this end, all Members are required
to file a Private Disclosure Statement with the Commissioner on an annual
basis. What is required to be disclosed is defined in the Act as follows
In addition, a Member is required to disclose any salary, financial assistance or other benefit received from a registered political party or a registered district association (s. 18(4)(b)). Also, a Member must disclose any fee, gift or personal benefit greater than $250.00 in value that is connected directly or indirectly with the performance of the Member's duties of office (s. 8). The Act further specifies the information to be disclosed in the Public Disclosure Statement filed by the Commissioner with the Clerk of the Legislative Assembly (s. 20(2)), which is then made available to the public.
There are other important provisions of the Act of which a Member must be aware. One such section precludes the use by a Member of insider information (s. 5). Another section precludes the use of a Member’s 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 (s. 6). Both of these sections have been the subject of investigations and reports to the Speaker by the Commissioner.
The Act also specifies the procedure to be followed in dealing with potential conflict of interest situations. Section 13 of the Act provides for both disclosure and withdrawal or recusal from proceedings. This section states that during a proceeding, any Member who has reasonable grounds to believe that he or she has a conflict of interest in a matter that is before the Assembly, or the Executive Council, or a committee of either of them, must disclose the general nature of the conflict of interest and withdraw from the meeting without voting or participating in the consideration of the matter.
Subsection 36(1) of the Act permits “any person” to request the Commissioner to investigate an alleged breach of the Act by a Member. A request for an investigation must be in the form of an affidavit setting out the grounds for the belief and the nature of the alleged breach (s. 36(2)). Upon receipt of a request, the Act authorizes the Commissioner to conduct an investigation with or without conducting an inquiry (s. 37(1)). Once an investigation is completed, the Commissioner is required to report to the Speaker and to the Member who is the subject of the investigation (s. 40(1)).
The Act also provides for penalties. If the Commissioner finds that a breach of the Act has occurred, that any of the Private Disclosure Statements required by the Commissioner have not been filed within the time provided by the Act, or that a Member has failed to disclose relevant information in his or her statements, the Commissioner may recommend to the Legislature, as a penalty, a reprimand, a fine, a suspension or expulsion from the Legislature (s. 41(1)).
It should be noted,
too, that the Act sets stringent requirements for members of the Executive
Council. Subsection 14(1) of the Act provides that Cabinet Ministers shall
Finally, other important sections of the Act prohibit Members from contracting with the Crown (s. 9); or being employed by the Crown (s. 11). Also, former members of the Executive Council must not contract with the Crown or make representations with respect to any such contract for twelve months after he or she has ceased to hold office as a member of the Executive Council (s. 17).
AND ACTIVITIES OF THE OFFICE
There can, I think,
be little doubt that politicians are not always held in high regard by
the public. Indeed, a recent public opinion poll shows a low trust rating
for politicians. But contrary to some citizens who claim that politicians
at all levels of government are not interested in, or have failed to act
in the best interests of the public, I can report that the Members with
whom I have dealt have been hard-working individuals who are dedicated
to assisting their constituents. I agree with Commissioner Osborne of
Ontario who, in his latest annual report, expressed the hope that the
principles underlying the Members’ Conflict of Interest Act and
its specific provisions, which address what Members and Ministers can
and can not do, will continue to deter inappropriate conduct and, correspondingly,
will provide some degree of public confidence in the honesty and integrity
of the Members of the Legislature and the Executive Council.
I would again like to remind Members of the Legislative Assembly of the important advisory role that the Commissioner is called upon to play under the Act. In this respect, section 29 of the Act expressly authorizes the Commissioner to give advice and recommendations of general application to Members or former Members respecting their obligations under the Act. Section 30 of the Act goes even further. That section permits a Member or former Member to seek the written advice and recommendations of the Commissioner on any matter respecting the Members’ obligations under the Act. If a Member provides all material facts to the Commissioner and follows the advice and recommendations of the Commissioner, the Member is protected from any subsequent proceeding or prosecution against him or her under the Act relating to the matter in question.
I would report that
during my term in office, in all of my discussions with the Members, I
have stressed the fact that I am available to assist them in any way I
can to ensure that they avoid any conflicts of interest as they go about
the Province carrying out their duties and responsibilities as Members
of the Legislative Assembly. To this end, I have given oral and written
advice to several Members on a variety of topics.
New Brunswick’s latest Conflict of Interest Bulletin, distributed in June of 2002, the third in the series, deals specifically, inter alia, with exceptions to certain prohibitions under the Act and includes decisions by other jurisdictions on selected inquiries. Copies of this and previous bulletins can be obtained from the Commissioner’s Office and are posted on the Commissioner’s web site.
In the third Conflict of Interest Bulletin, I discussed the often raised question concerning the propriety of Members accepting gifts. As noted earlier, the Act precludes all fees, gifts or personal benefits connected directly or indirectly with a Member’s duties of office save only such gifts or personal benefits that are received “as an incident of the protocol or social obligations that normally accompany the responsibilities of office.” It is the interpretation of this latter exception that is most often brought into question by the Members of the Legislature.
In my research as to the meaning to be given to the prohibition against gifts and the exception to that prohibition as it relates to an incident of “protocol or social obligation”, I have been unable to locate any rulings or decisions by Conflict of Interest Commissioners in other jurisdictions which attempt to define the terms of this exception. Apparently, each time a Member invokes the exception, the issue has been resolved on the basis of what is reasonable and proper on the facts of each particular case. I have, however, located a set of New Brunswick Guidelines entitled “Gifts and Gratuities” contained in a “Minister’s Handbook” dated June of 1994, some years before the present Act was put into place. Under the Conflict of Interest Act in force at that time, it was a conflict of interest for any Cabinet Minister, (or any other person named in the Act), to accept any fees, gifts, gratuities or other benefits which could reasonably be deemed to influence his or her decision as a Cabinet Minister.
The author of these Guidelines points out that the law then in effect did not prohibit the receipt of gifts but placed the test of “reasonableness” on the value of the gift. The author added, however, that “the definition of what is reasonable was not what might be defined as reasonable in a court of law but what would be defined as reasonable in the much stricter court of public opinion.”
The 1994 Guidelines
also contained these statements:
In specific terms, a bottle of scotch may be acceptable, but a case is not. A ticket to a single sporting event may be acceptable, but a season’s pass is not. Clearly, the provision of free transportation and accommodation to a government official by a company doing any business whatsoever with the government is unacceptable.
In rare instances gifts may be offered that exceed the guideline under circumstances that would cause embarrassment to other persons should the gifts be refused. Under such circumstances, the gifts should be accepted and turned over to the Department of Supply and Services as the property of the Government of New Brunswick.”
It would seem, in
the opinion of the author of these Guidelines, the test of what is reasonable
in respect of gifts becomes a matter of the dollar value of the gifts
involved. I personally doubt that the answer to the issue is quite that
simple. This is because other circumstances, such as whether the gift
could influence the decision of a Member of the New Brunswick Legislature,
may also play a role in determining what is reasonable in the circumstances.
In any event, it must be remembered that the present Act precludes all
gifts or benefits connected directly or indirectly with the performance
of the Member’s duties of office, save only such gifts as are received
as an incident of protocol or social obligation that normally accompany
the responsibilities of office.
Another issue that
is of concern to me and to other Canadian Conflict of Interest Commissioners
relates to the writing of letters of reference or support for constituents.
I agree with the recommendation of those Commissioners expressed as follows:
complainant had also made a similar request for an investigation to the
R.C.M.P., the investigation by this Office was initially suspended as a
result of section 39 of the Act. That section states:
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.
As a result, any investigation of the matter by this Office was suspended until such time as the police investigation was finally concluded. I reported as much to the Speaker on August 13, 2001. I am now advised that the police investigation has been concluded. In any event, by letter dated March 28, 2003, the original complainant has requested that the matter be revived. I have accordingly commenced a review of the circumstances surrounding the allegation and the matter is presently under investigation.
In last year’s annual report, I informed the reader that the Legislative Administration Committee, an all-party Standing Committee of the Legislative Assembly, had tabled a report in the House recommending several amendments to the Act. At the time of my report, the Committee’s recommendations were being studied. Since that time, amending legislation was introduced in the Legislature and subsequently enacted. The amending legislation resulted in the following revisions to the Act:
I should report as well that subsequent to an announcement by the Prime Minister of Canada, conflict of interest issues have taken the forefront on the national scene. As a result, guidelines for federal Members have been issued on several matters. These include guidelines for Cabinet Ministers and Secretaries of State, guidelines for the Ministry and Crown Corporations and guidelines for the Ministry and Activities for Personal Political Purposes. In addition, another issue now under study at the federal level is a code of conduct for parliamentarians. The latter has been described as an effort to clean up the image of politics and politicians and to ensure an honest and ethical federal government. In any event, this proposed federal code is, in some ways, similar to a draft Statement on the Role and Responsibilities of an MLA and a Code of Conduct for Members of the New Brunswick Legislature presently before the House.
I wish to reaffirm in this Report that in carrying out my duties as Commissioner, I have attempted to interpret both the words and the spirit of the Act in a reasonable and fair manner. When doing so, I have discussed the disclosure requirements of the Act with the Members and, in some cases, the need for blind trust agreements. In addition, I continue to give advice to Members and wish to express my appreciation to those Members who have discussed problem situations with me before taking any action. I would stress again that the giving of advice is an important function assigned to the Commissioner under the Act. As I have said to each Member, my task is to ensure, with the co-operation of the Member, that conflict problems are avoided before they occur. I would again repeat that I am available to assist Members when they are faced with doubtful situations.
To conclude, during the fiscal period which ended March 31, 2003, expenditures of the Commissioner’s Office for salaries and benefits, office equipment and supplies totalled $87,680.53. This compares to $85,255.68 in the previous year. In closing, I again express my appreciation and gratitude for the support and assistance so pleasantly provided to me by the Clerk of the Legislative Assembly and her staff, in particular Mr. Shayne Davies, and for the co-operation and constructive relationship which exists with all Members of the Legislature.
The Honourable Stuart G. Stratton Q.C.