Ethics: Conflict of Interest, Bias and Confidentiality David W. Hooley, Q.C. February 17, 2007.

Ethics: Conflict of Interest, Bias

and Confidentiality

David W. Hooley, Q.C.February 17, 2007

Conflict of Interest

Section 20 of both the Charlottetown Area Municipalities Act and the City of Summerside Act:

“No mayor or councilor shall...derive any profit or financial advantage from his or her position as a member of council and, where a member of council has any pecuniary interest in or is affected by any matter before the council, he or she shall declare the interest therein and abstain from voting and discussion thereon.”

Similar wording is found in section 23 of the Municipalities Act.

Statutes of Other Provinces

Our Provincial conflict rules are trite compared to legislation in other Provinces.

– Nova Scotia / Manitoba: separate and complex statutes.– New Brunswick / Ontario: extensively and detailed provisions in general

Municipal statutes.– Newfoundland example – Etheridge v. Witless Bay (Town)

All these Provinces provide detail in many specific areas of the issue :– Conflicts Commissioner to oversee issue– Registry of Council members interests for public access– Defines class of family members who give rise to a conflict– Acceptable levels of gifting - if any...– Processes for bringing a conflict of interest complaint– Protections against false accusations.

Conflict / Bias

Without detailed conflict legislation, PEI relies on caselaw. The Courts have over the last 100 years defined three (3) classes of disqualification:

– Bias / Conflict of Interest Pecuniary / Familial– Bad Faith Beyond Authority of Office– Bias / Prejudgment Closed Mind – Mind Made Up

These categories may overlap but have separate / distinct legal tests.

Self Interest

Questions to be asked:

“Is the Councillor financially or otherwise too close to the public issue?”“Is the Councillor’s private interest in conflict with their public duty?”

The Supreme Court of Canada 1990 in the case Old St. Boniface Residents Assn. Inc. v. Winnipeg (City) stated the test for determining whether a particular self-interest triggers a conflict and disqualifies a councilor in the following terms:

“Would a reasonably well-informed person consider that the interest might have an influence on the exercise on the official's public duty?”

Supreme Court of Canada, Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), 1990

Self Interest Example: Kizell v. Bristol, 1993, Ontario

Two Councilors, one a full time employee of a retailer and the other operating a flea market, included themselves in a debate on a bylaw granting extended shopping hours during holiday periods.

The bylaw was overturned on a conflict, the Court holding that the factors present are such that it cannot be said that

“they are so remote or insignificant that they cannot reasonably be regarded likely to influence the member.”

The Councilors were held to be in conflict due to the direct interest or “a monetary stake in holiday shopping” despite the obvious fact that the two councilors would not exclusively enjoy that benefit.

Bad Faith

Not about fraud or ill intention. The question to be asked is:

“Has Council relied on extraneous/ irrelevant information?”

When a Council's fails to abide by the rules which have been laid down by the legislature for its operations it can be said to act in bad faith.

Bad Faith Example: Campeau Corp. v. Calgary, 1978, Alberta

Campeau Corporation applied to Court after Calgary City Council refused a particular land development proposal.

Campeau alleged that the Council considered information that was extraneous / irrelevant to the application when they rejected it. The irrelevant information considered was a proposed alternate use of the land as a park. At the hearing, the Court pointed out that there were no actual / approved plans in existence for use of the land as a park by the City.

“..the City has taken no steps to acquire the appellant's land by expropriation or otherwise for park purposes.“

Without a proper basis in law for including consideration of the alternate park use, the decision was taken in “bad faith.”

Prejudgment

Question to be asked:“Has the Councillor reached a final opinion on the matter which could not be dislodged?”

Issue focuses on fixed bias of a Councillor. Some degree of pre-judgment is inherent. A Councillor is a political, legislative and quasi-judicial functionary in different circumstances. The role municipal Councillors disqualifies them from debating, voting on or endeavoring to influence others with matters in respect of which they have an “immovably fixed” opinion.

Prejudgment Example: Treesann Mgmt Inc. v. Richmond Hill, 1996, OntarioCouncil refused to issue an Adult Entertainment License. Councillors had made statements against strip bars in their town which were characterized as suggesting that they held negative views with respect to the applicant. The Court stated:

– Tribunal members have a duty to hold the hearing fairly and to have an open mind basing their decision on the evidence.

– They must be open to persuasion no matter what the history of their knowledge or dealings with the applicant or project.

– It is their duty if they are not willing and able to listen to the evidence objectively, to disqualify themselves now voluntarily and not proceed with the hearing.

Summary on Conflict of Interest

The Potential Sources of Conflict are close to every Councillor:

Pecuniary Interests

Family Members

Strongly Held Views

Test is more onerous if self interested

Avoiding Conflicts•Recognize the Self Interest / Conflict•Duty to Disclose the Conflicting Interest•Duty to Declare •Remove yourself - Debate, Influence, & Voting

Confidentiality

Municipal Councillors, like all government officials, hold in trust information concerning the interests of many citizens.

Each level of government, in response to this shared confidence, requires those holding information to swear or affirm an Oath by which they promise not to breach that confidence. The form of these oaths differ according to the role played by the official.

Municipal OathForm One of the Regulations under the Municipalities Act, R.R.P.E.I. M-13, sets out the “Oath of Office:”

I……….do solemnly swear that I am duly qualified as required by law for the office of Mayor, Chairman or Councillor (as the case may be) of the Town or Community of………to which I have been elected and that I will diligently, faithfully and impartially and to the best of my ability discharge the several duties which appertain to the said office while I hold the same. So help me God.

Charlottetown / Summerside’s Oaths have very similar wording.

Provincial OathsA Member of the Provincial Cabinet swears three separate oaths:Allegiance: I…swear that I will be faithful and bear true allegiance to Her

Majesty Queen Elizabeth the Second, her heirs and successors, according to law

Ministerial office: I further swear that I will serve Her Majesty faithfully and honestly, and to the best of my skill and knowledge and judgment, execute the laws of the Province and responsibilities , powers and trusts granted to me as Minister of…..

Confidentiality: I further swear that I will keep confidential all matters addressed by the Executive Council and that I will not disclose any such matters to any person other than a Member of the Executive Council, except as authorized by law or as required in the lawful discharge of my duties

Provincial Oath

Employees of the Province have to swear another oath covering loyalty and secrecy. The Provincial Civil Service Act, R.S.P.E.I. 1988, Cap. C-8, provides the following “Oath of Office” for civil servants:

I…solemnly and sincerely swear or affirm that I will faithfully and honestly fulfil the duties that devolve upon me by reason of my employment in the civil service and that I will not, without due authority in that behalf, disclose or make known any matter that comes to my knowledge by reason of such employment. So Help Me God.

Federal Oaths

Employees of the Federal Government are required to swear a more specific oath. Schedule III of the Federal Public Service Employment Act, RSC 1985, Chap. P-33 provides the following “Oath or Solemn Affirmation of Office and Secrecy”

I…..solemnly and sincerely swear (or affirm) that I will faithfully and honestly fulfil the duties that devolve on me by reason of my employment in the Public Service and that I will not, without due authority in that behalf, disclose or make known any matter that comes to my knowledge by reason of such employment. So Help Me God.

Federal Oaths

Members of the Federal Cabinet make a separate Oath from their fellow MPs:

I …..do solemnly and sincerely swear that I shall be a true and faithful servant to Her Majesty Queen Elizabeth the Second, as a member of Her Majesty’s Privy Council for Canada. I will in all things be treated debated and resolved in Privy Council, faithfully honestly and truly declare my mind and my opinion. I shall keep secret all matters committed and revealed to me in this capacity, or that shall be secretly treated of in Council. Generally, in all things I shall do as a faithful and true servant ought to do for Her Majesty.

Differences in Oaths?Municipal Council : “Diligently, faithfully and impartially and to the best of my

ability.”

Provincial Cabinet: “Faithfully and honestly, and to the best of my skill and knowledge and judgment.”…”keep confidential”

Federal Cabinet: “Be a true and faithful servant…faithfully, honestly and truly declare my mind and opinion…keep secret”

Federal MP: “Be faithful and bear true allegiance”

Province Civil Servant:“Faithfully and honestly…not disclose”

Federal Civil Servant: “Faithfully and honestly…not disclose”

Councillor’s RoleFundamentally, they are legislators in the true sense as much as members of Parliament or Legislatures. But also a hybrid of other things...

– Not really a civil service employee.– Not a true trustee.– Not merely another citizen

But some aspects of each...

Timing often critical element

Reception of Confidential Information is a key Function of Councillor. It is protected by Councillor as a legislator.

Whistle blowing and Leaks

So…when is it OK to speak out?

Court Ruling on LeaksRecently, the Federal Court upheld the right of two Federal scientists to leak secret information where public health and safety at risk. Applies to:

– public specialists, such as scientists,– with legitimate public health and safety

concern– all other options exhausted.

Case does not support free-for-all whistle blowing!

What can happen?What can happen if a “leak” causes damage?

• Loss of Seat in next election– public loss of confidence

• Loss of Seat through pressure and resignation: section 21(8), Municipalities. Act– loss of confidence on Council

• Personal civil law suit– damages sought from party whose information leaked

or used to benefit of Councillor.

• Criminal Charges for corruption– Section 123 of Code provides for a special crime

which applies to Municipal Councillors

Summary on Confidentiality

• No easy answer! Cuff’s Guide p. 65• Know what information you have received in

confidence• Ensure you know the the scope and expectations of

the confidence• Explore all options other than leaking• Seek professional advice before making a

potentially damaging leak!

THANK YOU!

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