|New Brunswick Conflict of Interest Commissioner
Annual Report 2003-2004
Province of New Brunswick
June 8, 2004
It is my honour and a pleasure to submit to you this, the Fourth Annual Report of the Office of the Conflict of Interest Commissioner for the period May 1, 2003 to April 30, 2004.
This report is submitted pursuant to section 31 of the Members' Conflict of Interest Act, R.S.N.B. 1973, c. M-7.01.
The Honourable Stuart G. Stratton Q.C.
In later pronouncements by others, it has been pointed out that ethics and integrity are at the core of public confidence in government and the political process. Indeed, it has also been stated that the public demands that all of their institutions of governance set the highest objective standards for the performance of public duty. Those in elected office are expected to meet the high expectations that the public of Canada demands of their political and public servants
This evolving need
to know that their political representatives are acting always and only
in the public interest was recognized by the Members of the New Brunswick
Legislature. As a result, they enacted and proclaimed the Members’
Conflict of Interest Act, (R.S.N.B. 1973, c. M-7.01). This Act is
intended to be an ethical code of conduct to guide Members of the Legislature
as they conduct public business. It is also intended to promote public
confidence in the honesty and integrity of all Members as they carry out
their duties and responsibilities as representatives of the people of
The Commissioner, who is an officer of the Legislative Assembly, reports to the House through the Speaker with respect to annual reports, reports of investigations, and matters relating to the Commissioner’s jurisdiction or authority under the Act.
The Commissioner is assisted in the performance of his duties through the Office of the Clerk of the Legislative Assembly and, more particularly, by a Clerk Assistant - Committee Clerk. The Commissioner prepares budgetary estimates through the Office of the Clerk and the Assembly approves the final budget.
The duties assigned to the Commissioner under the Act include: receiving and reviewing Members’ Private Disclosure Statements; meeting annually with all Members; responding to Members’ enquiries; providing advice to the Members about their duties and responsibilities under the Act; investigating complaints against Members concerning alleged breaches of any of the provisions of the Act; and generally attempting to ensure that all Members of the Legislative Assembly adhere to those principles which have been recognized as essential elements in retaining public trust in the Members as they go about the business of government. Transparency and ethical decision making are the goals of the Act.
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 (s. 4):
The hallmark 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 (s. 18(4)(a)):
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 that is to be disclosed in the Public Disclosure Statement prepared by the Commissioner and filed 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 and the public should 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 present 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)). When the Commissioner conducts an investigation or an inquiry, the Member who is the subject of the investigation must respond promptly and completely to all of the Commissioner’s questions and requests for information (s. 37(2.1)). Once an investigation is completed, the Commissioner is required to report to the Speaker, the Member who is the subject of the investigation, the leader in the Assembly of the registered political party to which the Member belongs, and if the request was made by a Member under subsection 36(1), that Member (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)).
When dealing with the Commissioner’s report the Legislative Assembly may accept or reject the findings of the Commissioner or substitute its own findings and may, if it determines that there has been a breach of the Act, impose the sanction recommended by the Commissioner, vary the sanction, impose any other sanction that it considers appropriate, or impose no sanction.
The decision of the Assembly in these matters is final and conclusive. Thus, in the result, the Commissioner reports and recommends to the Assembly, but the Legislative Assembly has full and final authority with respect to disciplinary matters relating to its Members.
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 not:
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).
Further amendments have also been made to the Act to confirm that the Commissioner is an Officer of the Legislative Assembly, to allow the Premier to request the opinion of the Commissioner on any matter respecting the compliance of a member of the Executive Council with the provisions of the Act, and to provide for the mandatory review of the Act every five years to monitor its effectiveness and to determine whether public attitudes about standards of conduct in public life have changed.
AND ACTIVITIES OF THE OFFICE
In June of 2003 there was a provincial election. To prepare the newly elected Members for their duties and responsibilities, the Clerk of the Legislative Assembly, as the Chief permanent officer of that body, together with her staff, prepared an Orientation Manual for their use. As part of that project, the Clerk requested me to prepare a section of the Manual dealing with the Members’ Conflict of Interest Act and related matters. After referring to the historical background of the Act, this section of the Manual addresses the issue of potential conflicts that could arise between a Member’s private interests and his or her public duties and responsibilities and reviews the important provisions of the Act.
Subsequent to the
election, I was invited to address the Members of the Legislative Assembly
concerning the issue of conflicts of interest. In my remarks, I stressed
that it was important that the Members be pro-active in preventing conflicts
from arising during their term in office and to seek the Commissioner’s
advice before taking any action that might place them in a conflict of
interest situation. I reiterated that the goal of the Members’
Conflict of Interest Act was to establish and maintain acceptable
standards of conduct for elected officials in order to ensure that the
private interests of the Members do not come into conflict with the performance
of their public duties. Following my remarks, I answered questions posed
by the Members.
In addition to the above, Mr. Howard Wilson, the former federal Ethics Councillor, has stated in his second annual report to Parliament that “there is a rising standard of ethical conduct in government.” In his report, Mr. Wilson also refers to a series of improvements on the federal scene “that have reflected a continually rising bar set by Canadians in terms of ethical conduct.” These improvements include the issuing of a series of guidelines for federal politicians; one set of guidelines prescribes the conduct of Ministers and Secretaries of State; another establishes a post-employment code for public office holders; another deals with the relationship between the Ministry and Crown Corporations; and yet another lays down rules concerning activities for personal and political purposes. In addition, the federal government has just recently approved a Code of Conduct for Parliamentarians. These guidelines and the Code of Conduct have been described as an effort to clean up the image of politics and politicians and to ensure an honest and ethical federal government. I would add here that the Code for federal Parliamentarians 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, which was recommended to the Assembly, in a report of the Legislative Administration Committee, and tabled in the Legislature on April 3, 2003. The recommendations contained in the report were not considered by the House prior to its prorogation on May 10, 2003.
The opinions and comments expressed of late in the media leave little doubt that politicians are not held in high regard by the public. Indeed, it can, I think, be said that politicians are viewed by the electorate as lacking integrity, even-handedness and objectivity. But contrary to those 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 of the New Brunswick Legislature with whom I have dealt have been hard-working individuals who are dedicated to assisting their constituents. I would therefore agree with those other Conflict of Interest Commissioners who have expressed the hope that the principles underlying the various conflict of interest Acts and their specific provisions, which address what Members and Ministers can and can not do, will continue to deter inappropriate conduct and provide some degree of public confidence in the honesty and integrity of all elected Members.
I would again this year express my gratitude to all Members of the Legislative Assembly for their continued support of this Office and for their co-operation in the timely filing of their statutorily required financial disclosure statements and their appearance at the required meeting with the Commissioner that follows. I am also pleased to report that, at the time of writing, all Members of the Legislature are in compliance with the Act. In addition, I would record that Public Disclosure Statements prepared by this Office have been filed with the Clerk of the Legislative Assembly. Pursuant to subsection 20(8) of the Act, these Public Disclosure Statements are available for examination by the public and copies can be obtained through the Office of the Clerk.
I also think that it is important that all Members of the Legislative Assembly be aware of the advisory role that the Commissioner is called upon to play under the Act. Indeed, 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, while section 30 of the Act goes even further. The latter 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 and 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 wide variety of topics. It is a pleasure for me to be allowed to offer proactive advice and the Members are to be commended for their initiative.
In last year’s annual report I advised that an investigation was then in progress concerning a letter sent by a Member’s riding association, soliciting funds and support from various individuals and businesses who had received contracts or benefits in previous years from the provincial government. The issue initially arose as a result of a request for an investigation by another Member of the Assembly. The Member, (the complainant), alleged that the letter in question implied that the receipt of donations would result in influence being used to favorably further such donor’s private interest. This allegation brought into question the applicability of sections 4 and 6 of the Act which provide as follows:
The solicitation letter was written on the Riding Association letterhead and was signed by the secretary of the Association. It was headed “Re: Contributions to the above mentioned association”. The text of the letter was as follows:
The solicitation letter was subsequently repudiated by a letter issued by the President of the Progressive Conservative Party of New Brunswick. That letter reads as follows:
In determining whether
the solicitation letter sent out by the Riding Association breached section
4 or 6 of the Members’ Conflict of Interest Act, the first
question to be resolved was whether the Member for the riding 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 was alleged to have prepared.
Upon consideration of the alleged breach of section 4 of the Act, I found that it had been established that the Member participated in the decision that a solicitation letter should be prepared and dispatched to businesses and individuals in his riding, but that there was no evidence supporting a conclusion that the solicitation letter composed and signed by the secretary of the Riding Association would further the Member’s “private interest” as was required to constitute a breach of section 4 of the Act.
As to the alleged breach by the Member of the provisions of section 6 of the Act, I concluded that there was no evidence that the Member used or sought to use his influence to further the “private interests” of the donors or anyone else. Although inappropriate language had been used in the solicitation letter, (a fact admitted by the President of the Progressive Conservative Party of New Brunswick), I held that appropriate fundraising was an important and legitimate part of the political process and did not generally constitute a breach of the Act as there was not usually a furtherance of a “private interest”. What was involved in this case was the furtherance of a “political interest”, an issue to be decided by the electorate, rather than under the Members’ Conflict of interest Act.
But these findings did not, in my opinion, entirely conclude the matter because the Member complained against had knowingly unreasonably delayed a decision in this matter by failing 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:
In the result, because of the Member’s failure to comply promptly and completely to my enquiries concerning the complaint brought against him as required by the Act, I drew the inference “that he was involved in a conspiracy of silence that [had] surrounded my investigation of this complaint.” This I concluded to be in the circumstances, a serious breach of the Act and I therefore recommended that the Member be reprimanded. In media reports subsequent to the filing of my report with the Speaker, the Premier is reported to have said that because the Member had apologized for his delay, the filing of my report with the Legislature was a sufficient reprimand to the Member.
Two issues that may be of interest to the readers of this report arose soon after the June 2003 election. The first involved the question of doing business with the Crown, an activity prohibited under section 9 of the Act. The relevant provisions prohibiting contracts with the Crown provide as follows:
The term “Crown” is defined in the Act as meaning “Her Majesty the Queen in right of New Brunswick and includes Crown Corporations”.
One newly-elected Member of the House is the owner and director of several New Brunswick private corporations, two of which did business with the Crown or its agents or agencies prior to his election. The Member argued that these contracts with the Crown were, for the most part, tendered contracts and that there was no evidence that he or his companies received preferential treatment. He further argued that as a percentage of gross sales, his sales to the government or Crown agencies were “minuscule”. He requested that in the circumstances of his case, I ought to invoke the provisions of subsection 9(4) of the Act which gives the Commissioner a discretion to allow such contracts if the Commissioner is satisfied that the interests or position of the Member does not create a conflict of interest between the Member’s private interests and public duty. The actual provisions of subsection 9(4) of the Act read as follows:
At the Member’s request, I checked the provisions of the other provincial Acts and found that the words used in our subsection 9(2) were substantially the same as those used in the conflict Acts of Ontario, Prince Edward Island, and Nunavut. The conflict Act of Nunavut is of particular importance because it is the newest Act, only recently adopted after careful study, and it tracks the language used in our subsection 9(2). I also confirmed that the conflict Acts in Alberta, Saskatchewan, Newfoundland and Labrador, and the Yukon do not appear to deal with the issue, although they may do so in regulations authorized by their Acts.
In any event, upon a complete examination of the issues raised by the Member, I informed him that I was unable in this case to allow him an exemption under subsection 9(4) of the Act. In the event, the Member has accepted my advice that he may have been in a conflict of interest situation and has ceased doing any business with the government or any of its agencies.
The second of the two interesting issues referred to above is concerned with the restrictions contained in sections 16 and 17 of the Act against certain activities by former members of the Executive Council after they cease to hold office. These are the so-called “cooling-off” provisions which restrict former Cabinet Ministers from receiving contracts or benefits from the government for a period of twelve months after ceasing to hold office. It is to be noted, however, that each of these sections contains exceptions.
The actual provisions of section 16 and 17, with their exceptions, read as follows:
The first enquiry I received involved section 17 of the Act. The issue raised by the enquiry was whether a former Cabinet Minister could seek employment with a Crown corporation within the twelve month period following defeat in a provincial election. As noted above, while section 17 prohibits a former Cabinet Minister from accepting contracts or benefits from the government, there is an exception to this prohibition contained in subsection 17(2) of the Act. This latter subsection provides that the restriction contained in subsection 17(1) does not apply “to contracts or benefits with respect to further duties in the service of the Crown”. In view of this exception, which is discussed in greater detail below, I concluded that a former Member of the Executive Council could be employed by a Crown corporation as the employment was in respect of “further duties in the service of the Crown” and came within the exception.
The next enquiry that crossed my desk was in respect of section 16 of the Act. The question in this case was whether the Executive Council could appoint a former Cabinet Minister to a Crown corporation during the twelve month “cooling-off” period. In this instance, the prohibition contained in section 16(1) is subject to the exception contained in subsection 16(2) of the Act. This exception tracks the language used in subsection 17(2) that the prohibition does not apply “to contracts or benefits with respect to further duties in the service of the Crown”.
The concern here again was the proper interpretation to be given to the quoted words. What was the legislative intent when enacting these exceptions to the sections prohibiting contracts or benefits to former Cabinet Ministers? In an effort to determine this intent, I reviewed background documentation from the file of the Clerk of the Legislative Assembly. That documentation implies that the prohibitions contained in subsection 16(1) and 17(1) of the Act were not intended to restrict the ability of a former Cabinet Minister to be employed in the public sector subject, however, to the specific limitations contained in those subsections.
I also consulted with other jurisdictions in Canada. One such jurisdiction interpreted the phrase in question as permitting the appointment of former Cabinet Ministers to such agencies as an Energy Board, a Liquor Control Board and a Lottery Commission. Another jurisdiction determined that the purpose of the exception clauses permitting the post-employment of former Cabinet Ministers is to avoid depriving the public of the benefit of the continuing service by ex-ministers where the public interest outweighs any personal benefit to the ex-minister.
There can be little doubt that the question of the post-employment by government of former Cabinet Ministers within the twelve month “cooling off” period turns on the meaning to be given to the exception clauses referred to above. Historically, it appears that when the Members’ Conflict of Interest Act was debated and enacted, the intention of the legislators was not to restrict the ability of former Cabinet Ministers to be employed in the public sector. This intention was shared by other jurisdictions who concluded that the public ought not to be deprived of the benefit of continuing service by ex-ministers and they too enacted exception clauses in their conflict Acts.
Based upon the factors referred to above, I have interpreted the exception clauses in the New Brunswick Act, i.e. subsections 16(2) and 17(2), as not restricting the employment by the Executive Council or Crown agencies of former Cabinet Ministers during the twelve months following resignation or defeat at the polls when such services constitute “further duties in the service of the Crown”.
It is perhaps interesting to note that the restrictions against post-employment apply only to former members of the Executive Council. The Act does not contain any similar restrictions preventing the post-employment by government of former private Members.
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, 2004, expenditures of the Commissioner’s Office for salaries and benefits, office equipment and supplies totalled $103,047.39. This compares to $87,680.53 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.
Dated at Fredericton, New Brunswick this 8th day of June, 2004.
The Honourable Stuart G. Stratton Q.C.