CALGARY — What is there not to get about conflict of interest?
After all, it sounds simple enough: the interest, often a personal interest, of a policy or decision-maker comes into conflict with and influences a public duty.
But evidently misunderstandings remain. It is therefore not surprising that there seems to be such a widespread lack of understanding among public officials.
Be that as it may, we need to clarify and expand our understanding of conflict of interest in order ensure that public trust in our political representatives and institutions is not undermined.
There have been numerous examples in which ordinary reasonable citizens aware of the particular circumstances "get" the conflict of interest but the public officials concerned don’t seem to. Several themes emerge:
One is the "it wasn’t me" response. This may be framed as "I didn’t act in that capacity or role." Another is the "I was acting under another public duty" response.
Both of these themes arose in the recent controversy surrounding Finance Minister Jim Flaherty when he was accused of contravening the Federal Conflict of Interest Act by writing to the Canadian Radio-television and Telecommunications Commission in support of a particular broadcast licence applicant based in his constituency.
The minister and a Prime Minister’s Office official both pointed out that this was merely assistance to a constituent, part of the duty of any MP. But why then did the minister sign his letter as The Honourable Jim Flaherty, P.C., M.P. Minister of Finance and Minister Responsible for the Greater Toronto area?
There was no doubt in Federal Ethics Commissioner Mary Dawson’s mind that the minister’s message, written "to an administrative tribunal in relation to its decision making," was improper and that it contravened Sect. 9 of the Federal Conflict of Interest Act, which prohibits public office holders from "improperly further(ing) another person’s private interests."
Her conclusion should not come as a surprise. Merely looking at the minister’s letter from the viewpoint of CRTC members — who are appointed by the cabinet of which the minister is a part — reveals the conflict. Dawson observed that Accountable Government: A Guide for Ministers and Ministers of State, Annex H (2011) prohibits intervention by ministers in quasi-judicial tribunal decisions. She ordered the minister to refrain from writing any similar letters in the future. Flaherty promptly assured the commissioner that it would not happen again.
While the Flaherty case was about furthering "private interest," the test was whether there was a direct personal interest. Or was it? Because Sec. 9 prohibits office holders "seek(ing) to influence a decision so as to further private interests," the ethics commissioner didn’t make a finding of fact about whether the minister actually furthered his constituent’s private interest. Rather, she applied an objective test: would a reasonable person apprised of the facts infer that the minister sought to further a private interest, or would they conclude that he was merely acting appropriately in his role as an MP representing a constituent?
Such an objective test is consistent with an ethical approach to conflict of interest based on respect, honesty, responsibility and fairness; namely, some of the key values that underpin democratic legitimacy.
It comes down to the behaviour that citizens are entitled to expect from their elected officials. These officials need to "get" conflict of interest, broadly construed, and demonstrate to the public that they do, without qualification or excuse. The narrower approach — interpreted merely in terms of the letter of the law rather than a broader perception of conflict of interest — undermines crucial aspects of transparency and accountability and is corrosive to public trust in elected officials.
The legislative assembly of Alberta is currently reviewing its own Conflict of Interest Act.
As MLA Mike Allen, chair of the special select conflicts of interest act review committee, says "The public expect their elected representatives to act ethically and perform their duties with the highest level of integrity. Often it is not an action but rather the public perception of that action that can raise questions about a member’s conduct."
This review committee presents engaged citizens with an important opportunity to share their views about the scope and spirit of provincial conflict of interest legislation, to make sure that elected officials "get" it too
Alastair Lucas, Q.C., is interim president of the Sheldon Chumir Foundation for Ethics in Leadership.