Government Ethics Professionals Also Respond Personally to Conflict Allegations

News from British Columbia provides strong evidence of how difficult it is for anyone to deal with his own conflict situation, even a government ethics professional. No one should think that it is easy for someone to see an appearance of impropriety relating to himself or to respond to a conflict allegation against him in anything but a personal manner. A government ethics program must facilitate the process of dealing responsibly with a conflict situation by allowing, or even requiring, officials to seek neutral, professional advice. And a government ethics professional should do this as a matter of course, even if she has no formal ethics adviser.

According to an article in today's Vancouver Sun, British Columbia's conflict commissioner announced that he will not handle a complaint filed against the province's premier, because the conflict commissioner's son is a close aide of the premier and formerly worked for her (then) husband. The conflict commissioner turned the matter over to the conflict commissioner of another province.

However, according to an earlier article in the Vancouver Sun, this was far from the conflict commissioner's immediate reaction to a call from the complainant to withdraw from the matter. The conflict commissioner is quoted as saying,“I don’t perceive a problem in making a decision in this case that will have nothing to do with my son’s career. If I had any difficulty, or felt that I in any way couldn’t handle this file like I do every file — on the basis that I will go where it takes me, and I will make the decision that needs to be made without, dare I say it, fear or favour — then I should pack it in.”

In other words, he treated the issue purely as a personal matter, involving his impartiality and integrity. The conflict commissioner did not feel that the conflict would affect him, and felt that that was all there was to it.

After more thought and, I presume, consultation with others, the conflict commissioner changed his tune, although not wholly. One reason appears to be that he did handle two earlier complaints against the premier last year.

He wrote, "I have given further and considerable thought to the perception issue. Circumstances in which there is a familial connection to a part of the history in which a conflict appears to be alleged, combined with the acute political controversy that the BC Rail file has occasioned in this province. ... I have concluded that given the very unique circumstances here, it is unfair for me to ask the members of the legislative assembly or the public to bear the uncertain burden of my continued involvement in Mr. van Dongen's request."

I don't think that the importance of the controversy is relevant at all, nor is it relevant whether the familial connection is any way related to the conflict situation on which a complaint is based. If the son worked for an official's business, and the complaint involved a business run by the official's wife, there would still be an appearance of impropriety, which might especially undermine trust in the ethics program if the conflict commissioner was to dismiss the complaint.

It is true that more attention is brought to a matter that involves a major controversy or scandal. But an official, especially a government ethics official, should act as if full attention will be brought to any decision he makes.

It's disappointing that the conflict commissioner defended his prior decision not to withdraw due to his conflict, rather than admitting that he did the wrong thing then, and was doing the right thing now, for the same reason.

It is a good thing that he turned the matter over to another conflict commissioner. But I recommend the following. Conflict commissioners should have a discussion about the considerations for them to withdraw from a matter, and then put their conclusions in writing, for guidance. They should also formalize procedures (1) for seeking ethics advice from each other and (2) for handing matters over when a conflict commissioner chooses to withdraw. They should seriously consider having the advice made available to the public (1) so that it provides ongoing guidance and (2) so that the public knows that conflict commissioners are practicing what they preach.

What occurred should also lead conflict commissioners to question the guidance value of the conflict of interest provision:

A member has an apparent conflict of interest if there is a reasonable perception, which a reasonably well informed person could properly have, that the member's ability to exercise an official power or perform an official duty or function must have been affected by his or her private interest.

This is good guidance for an ethics adviser, but not for an official, who likely believes that his ability to exercise his powers will not be affected by any private interests (not to mention the interests of members of one's family), and can't see beyond his nose to consider the well-informed individual's "reasonable perception." If this is difficult for a conflict commissioner to do, think how hard it is for an ordinary official.

Robert Wechsler
Director of Research-Retired, City Ethics

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