STANDARDS OF ETHICAL CONDUCT FOR CANADIAN MINISTERIAL STAFF

While guidance on the accountability and responsibility of ministerial staff is somewhat limited, there are detailed standards of ethical conduct for ministerial staff with respect to conflict of interest and lobbying.

The adoption of the Federal Accountability Act in December 2006 put standards of ethical conduct for ministerial staff into law. This Act brought into force the Conflict of Interest Act and made significant amendments to the Lobbyists Registration Act, including renaming it the Lobbying Act. Both Acts contain provisions that outline various requirements and prohibitions for ministerial staff. Prior to this, the actions of ministerial staff in these areas were primarily governed by a code of conduct set by the prime minister – the Conflict of Interest and Post-Employment Code for Public Office Holders.

The Conflict of Interest Act has several purposes: to establish clear conflict of interest and post-employment rules, to minimize the possibility of conflicts of interest and to establish the Conflict of Interest and Ethics Commissioner. Many of the Act’s provisions apply to ministerial staff. Under the Act, ministerial staff must:

• arrange their private affairs to prevent them from being in a conflict of interest,
• not be involved in making any decision in which they would be in a conflict of interest,
• not give preferential treatment to any person or organization based on their identity,
• not use insider information to further their private interests,
• not use their position to influence a decision in order to further private interests,
• not be influenced by plans for, or offers of, outside employment,
• not accept gifts that might reasonably be seen to influence them,
• not accept travel unless required in their official capacity,
• not engage in contracts with immediate family members while exercising official duties,
• not engage in the practice of a profession,
• not manage or operate a business or commercial activity,
• not be a director or officer in a corporation or an organization (with some exceptions),
• not hold office in a union or professional association,
• not serve as a paid consultant,
• not be an active partner in a partnership,
• not solicit funds from any person or organization if it would result in a conflict of interest and
• not take any actions with the purpose of circumventing obligations under the Act.

In addition, Ministerial staff must submit a confidential report to the Conflict of Interest and Ethics Commissioner in which they disclose their assets and liabilities and describe certain activities. They also must report gifts exceeding a value of $200 from any one source other than friends or relatives, all firm offers of employment and the acceptance of offers of outside employment.

Ministerial staff are also required to publicly declare if they have recused themselves in order to avoid a conflict of interest. They must publicly declare assets that are neither controlled (whose value could be directly or indirectly affected by government decisions) nor exempt and they must declare certain outside activities, gifts of a value of $200 or more and travel accepted as part of their official duties. They must divest themselves of controlled assets by selling them in an arm’s-length transaction or by placing them in a blind trust.

The Conflict of Interest Act also prohibits certain post-employment activities. Ministerial staff are not permitted to do the following:

• take improper advantage of their previous public office,
• act on behalf of any person or organization in their relations with the Crown with respect to areas in which they had acted for the Crown,
• give advice to clients or employers on the basis of non-publicly available information obtained in their official capacity,
• not enter into contracts or accept employment for a period of one year with an entity that they had significant official dealings with and
• not make representations for a period of one year to any government organization with which they had significant dealings.

For a period of one year, they must also report to the Commissioner any communications or meetings for the purpose of lobbying.

The Conflict of Interest and Ethics Commissioner has numerous responsibilities relating to ministerial staff. The Commissioner reviews the confidential reports provided by ministerial staff, provides confidential advice, maintains a registry of public disclosures, may investigate possible instances of non-compliance with the Act and may order ministerial staff to take any measures necessary to comply with the Act.

Violations of certain sections of the Act relating to confidential reports, public disclosure and divestment of assets can be punishable by a fine of up to $500. However, no penalties are specified for failing to adhere to the many prohibitions or the post-employment provisions in the Act. The Commissioner, though, issues public reports about investigations into possible contraventions of the Act and may order current ministerial staff not to have official dealings with former ministerial staff.

In addition to the numerous provisions outlined in the Conflict of Interest Act, former ministerial staff are prohibited under the Lobbying Act from engaging in lobbying activities, as defined under the Act, for a period of five years after ceasing to be ministerial staff. (The Commissioner of Lobbying is able to grant exemptions to this five-year ban on lobbying.) The Commissioner of Lobbying can investigate possible contraventions of this Act, and the penalty for such contraventions could be a fine of up to $50,000. The Commissioner can also make public any offence committed under the Act and name the offender.

There are also several ethical guidelines for ministerial staff in the Privy Council Office document Accountable Government: A Guide for Ministers and Ministers of State. One example is this: “Public office holders shall act with honesty and uphold the highest ethical standards so that public confidence and trust in the integrity, objectivity and impartiality of the government are conserved and enhanced.” Compliance with these guidelines is considered to be a term and condition of appointment.

Conclusion

Ministerial staff have become a significant part of the Canadian political system and play an important role in assisting ministers in ways that non-partisan public servants cannot. Ministers are provided with detailed guidelines for the employment of ministerial staff and some guidance on their accountability. Additionally, there are extensive legal requirements governing the behaviour of ministerial staff with respect to conflict of interest and lobbying.

However, ministerial staff have been involved in a number of political controversies, which has led to considerable debate over their role and accountability. These debates are similar to those in other countries that employ ministerial staff. In both Australia and the United Kingdom, controversies have arisen over the actions of ministerial staff and proposals for change have been made.

While it may not be possible to avoid political controversy entirely, some areas could be clarified:

• How should ministers be responsible and accountable for their ministerial staff?
• What is the appropriate relationship between ministerial staff and public servants?
• What rules, ethical and otherwise, should govern the behaviour of ministerial staff and how should these rules be enforced?
• What kind of training should ministerial staff receive?
• How many ministerial staff are there, and what is their annual cost?