Ethics, Privacy and Access to Information: PPAL Jan 8, 2013 Ian Greene York University School of Public Policy & Administration

My Background Grew up in Alberta BA: University of Alberta (political science) Graduate work: University of Toronto: law and politics Worked for the Alberta government for four years ( and ) Always had an interest in ethics theory – issues around growing up in a small town Got interested in practical ethics & ethical politics in 1986 at time of Sinclair Stevens inquiry Co-authored Honest Politics in 1997 with another Albertan, David Shugarman Co-authored A Question of Ethics with Maureen Mancuso and others

Purpose of Presentation to provide some observations about the principles behind public sector ethics, the Canadian system of Ethics Commissioners, and links between conflict of interest regimes and lobbyist legislation Ethics is the branch of philosophy that examines theories about right and wrong. Practical ethics is the application of ethical rules (derived in part from the philosophy aspect) to particular practices.

Ethics in Politics in the Anglo-Canadian System Ethics has been an important consideration in any system of government, whether present or absent. Ethics has been a key part of the Anglo-Canadian system of government at least since the Glorious Revolution in 1688 Establishment of a constitutional monarchy, and recognition of principles of the rule of law & social equality. John Locke: government should exercise power not through “extemporary arbitrary decrees, but...by promulgated standing laws, and known authorized judges.... [The Laws are] not to be varied in particular cases, but [there should be] one rule for rich and poor, for the favorite at court, and the countryman at plough.”

Locke’s ethical philosophy Locke was a physician who was learned in philosophy & theology. He believed that every human being is equal in the sight of God, and therefore deserves to be treated with respect by government. People also have a duty to respect each other. Argued for a government based on the rule of law -- representative legislatures should be the only source of law. The rule of law is meaningless unless the law is applied impartially - thus judicial independence.

Impartiality Principle Locke & rule of law theorists since then have emphasized the importance of the impartial application of the law by the executive and public service. Dicey (1885): a biased application of the law is abuse of power. Legislatures are supreme in the creation of law, and should create laws that reflect the “will of the people,” not narrow or special interests.

Shugarman-Greene Position Democracy is government based on the principle of mutual respect, which implies: – Social equality – Deference to the majority – Minority rights – Freedom – Integrity These principles imply ethical duties for public officials: impartiality, fiduciary trust, and accountability & responsibility. The 5 principles and 3 ethical duties are supported by the legal principles of the rule of law, and the doctrine of fairness. Ethics principles in the public sector are derived from mutual respect

Application to Lobbyists Lobbying and lobbyists have always existed; lobbying as a specialization or profession is more recent. In I was assistant to an Alberta cabinet minister. I met either professional lobbyists or people wanting particular changes to government policy at least weekly. They often had good ideas that if implemented advanced the public interest. I did my best to consider their advice impartially before making recommendations to the Minister. I was not infrequently offered a free lunch or dinner or coffee – always considered that wrong and never accepted. I did not want either to appear to be beholden or feel that I owed something in return. (Many found this difficult to understand – “normal business practice.”)

Lobbyist Legislation “Close to iron rule of creation or amendment of lobbyist legislation”: nearly always a reaction to a scandal. There are a few exceptions resulting from extraordinary leadership: eg. Lynn Morrison (Ontario Integrity Commissioner) has had some success in proactive recommendations. First lobbyist legislation in Canada: federal Lobbyist Registration Act in reaction to concern about Frank Moores’ lobbying Air Canada on behalf of Airbus Industries.

Airbus Moores: former Premier of Newfoundland; friend of Brian Mulroney; worked with Carlheinz Schreiber in the early 1980s to lobby Air Canada (then a crown corporation) to purchase a fleet of aircraft from Airbus Industries. Moores was also appointed, for a time (until the conflict of interest became public) to the Board of Air Canada. In reaction, Mulroney created a consultation process re lobbyist regulation; federal Lobbyist Registration enacted in 1988 (effective in 1989) Shenanigans from this period led to the Oliphant commission that reported in 2010.

Ethics, lobbyists & conflicts of interest Because our political system and civil society stress equality, impartiality and mutual respect, we tend to object to “undue influence” – special interests trying to use government for their own benefit rather than the general public interest. If lobbyists behave secretively or unethically, many members of the public sense this is wrong. Similarly, if public officials use public office for their own advancement (conflict of interest), we sense this is wrong. Therefore lobbyist and conflict of interest rules are both and essential part of a government ethics system that promotes the rule of law, impartiality, equality & mutual respect.

Conflict of interest legislation Late 1980s: numerous conflict of interest scandals involving cabinet ministers in Ontario, BC and Ottawa. Sinclair Stevens scandal (1986) & Parker inquiry Ontario: Aird report recommended conflict of interest legislation for cabinet, & and an independent ethics commissioner. Peterson gov’t went further – legislation applied to all MPPs. Political motives for this, but turned out to be a good policy. This became the “Canadian Model”, which is now part of every Canadian province, territory and Parliament, and has spread to some cities and Australian states.

Establishment of Ethics Commissioners in Canada Ontario1988 British Columbia1990 Nova Scotia1991 (designated judge) Alberta1992 Newfd/Lab1993 Saskatchewan1994 NWT1998 PEI1999 New Brunswick2000 Nunavut2000 Manitoba2002 Yukon2002 Quebec2002 (jurisconsult) 2011 Canadian Model House of Commons2004 Senate2005

What do the ethics commissioners do? Educational role – Meet with elected members soon after election and annually to review legislation and personal finances – Disclosure Investigatory role – Investigate complaints by elected members – Sometimes investigate complaints from public

Controversy over whether these regimes work Some academics: no evidence that these regimes do any good. Possibly a waste of money, just window dressing, therefore they increase public cynicism Other academics: education can’t do any harm; quick investigations of complaints useful; there seem to be fewer conflict of interest scandals

Conflict of interest events, pre-and post-commissioner Pre-commissioner from 1986 – Ontario18 – B.C. 7 – N.S.3 – AB2 – Nfld0 – Sask 21 – NWT1 – PEI3 – N.B.2 – Nunavut0 – Manitoba6 – Quebec2 – Canada (H of C) 47 Post-commissioner to 2004* – Ontario27/4 – B.C.10/2 – N.S.8/0 – AB10/2 – Nfld3/0 – Sask 2/0 – NWT2/1 – PEI0 – N.B.1 – Nunavut0 – Manitoba1 – Quebec0 – Canada (H of C) ? *actual and substantiated

Conflict of Interest Events Index Pre- and Post-Commissioner

Conflict of Interest Events Index Pre- and Post-Commissioner Total number of substantiated “events”

What does the evidence show? There has been a dramatic drop in the number of reported conflict of interest media stories since the introduction of ethics commissioners. There has been an even more dramatic drop in the number of substantiated events in most jurisdictions. There is more incentive to make a complaint, because there is a way of having the complaint heard. Party whips should ensure that only bona fide complaints are filed. Unlike in the pre-commissioner days, there is a quick and credible way of resolving conflict of interest allegations. The amount of time taken up by conflict of interest stories on radio/tv, and the number of columns in the print media, has been substantially reduced (except regarding federal politics). Because there was no federal ethics commissioner until 2004, federal “events” remained prominent until then. The Gomery commission kept federal “events” newsworthy up to today. Now that Gomery has reported, and now that the federal ethics regime in place, there is likely to be a substantial nation-wide decrease in the number of conflict of interest media stories – as long as the federal regime remains stable. This will result in greater public trust in the political system. The instability caused by proposed FAA reforms may have the opposite effect.

Reg Bibby The Bibby Report (1995), p. 110 Confidence in Leadership » Police75%70%68% Business *42%38% Courts49%43%35% Fed 30%13%25% Gov’t

Differences between provincial and federal regimes Regimes must cover two houses federally; only one in each province/territory House of Commons has three to four (or more) times the number of members of provincial/territorial legislatures. The educational task becomes daunting Add to this the fact that the federal Ethics Commissioner is also responsible for oversight of order in council appointments, and senior public service appointments. This is an important degree of distinction. Personal relationship between commissioner and elected members extremely important for system to function properly (at least from provincial experience). The commissioner needs to be highly respected, and needs to be able to meet personally with members annually and as needed to advise.

Ethics issues are frequently complex Practical ethics is the application of general principles to specific situations Often the application is unclear, underlining the importance of the educational role of the ethics commissioner Survey conducted by Maureen Mancuso and colleagues in mid-1990s illustrates complexity of some ethics issues

A Question of Ethics: Canadians Speak Out (1998, 2006) Authors: Maureen Mancuso, Michael Atkinson, Andre Blais, Ian Greene, Neil Nevitte Reports on a survey of more 1400 Canadians, selected at random, about their attitudes toward ethics issues in politics Questionnaire carefully designed to test attitudes toward public sector conflicts of interest, gifts & gains, patronage, and lying

Do you agree that MPs should have higher ethical standards than the average person?

1. A cabinet minister helps a builder get an important gov’t contract. In return, minister gets free use of builder’s cottage for a week. On scale from 0 (not acceptable) to 10 (totally acceptable), where do you place this? 2.An MP owns a clothing store and votes for a bill to provide loans to small businesses. 3.Min of Agriculture owns a large farm. 4.Min of Tourism owns a large hotel. 5.A senator with no outside employment agrees to serve as a corporate director for a small fee.

Conflict of interest scenarios 1.An MP helps a restaurant owner get a liquor license. The owner sends the MP a cheque for $5000. What should the MP do? (3 choices) 2.Brother of former Energy Min asks former Min for advice re a tax break for his oil company. What should former Min do? (3 choices) 3.Cab min has a big debt after election. Advisors say sponsor a $500/plate breakfast where attendees can talk to Min about their concerns. What should Min do (3 choices)

Cab Min helps builder get contract, gets free use of builder’s cottage for a week

Senator agrees to serve as a corporate director

Min of Agriculture owns large farm

Fund-raising breakfast, $500/plate

MP helps get liquor license, gets cheque for $5000

Lobbyist legislation Lobbyist legislation was slower to spread Why? My guess – more conflict of interest scandals for governments to react to than scandals involving lobbyists Those intent on taking advantage of others for their own self- interest will choose the easiest route; so sensible COI and lobbyiest legislation are equally important Because of the nature of city government, and the tremendous risk for undue influence, sensible ethics rules are as important municipally as federally & provincially. Thanks to the recommendations of the Bellamy Commission on the computer leasing inquiry in Toronto, Toronto now has an ethics commissioner and a lobbyist commissioner backed up with complementary rules. This model is quickly spreading to other municipalites across Canada, with the usual growing challenges.

Relation between Roles Some jurisdictions: separate conflict of interest, and lobbyist commissioners Other jurisdictions: merger of roles Depends on size of jurisdiction (merger would be unwise for Parliament) and historical development (sometimes lobbyist registrar came prior to COI commissioner) Regardless, parliamentary/legislative officers with ethics roles need to develop a coordinated strategy

Some other jurisdictions US: The concept of impartial regulation of ethics rules is much less frequent than in Canada because of more polarized politics Europe: far behind Canada because other issues have been more pressing for them European Parliament: 1996: lobbyists who registered could lobby within the precincts of the Parliament. 2008: European Commission created a parallel system; 2 systems merged in 2011

European States Some have fairly recent lobbyist registration legislation: Germany, Lithuania, Poland, Hungary, France UK: voluntary registration system through the UK Public Affairs Council, a nonprofit organization for lobbyists Australia: federal lobbyist registration legislation in Similar to Canadian legislation. A long time in gestation. Canada is a world pioneer in government ethics legislation, including lobbyist legislation. This means other jurisdictions can learn from our experiments and mis-steps. A major challenge: what is not prohibited is often considered acceptable by the unscrupulous – unless there is a code of conduct that expands on the basic principles of ethics in democracy.

Whistleblowing legislation Both Ontario and Canada (federal) have whistle- blowing legislation Public servants must go through the regular channels first, and if unsuccessful, can go to the whistleblowing authority Whistleblowing authority may investigate and may prevent firing in the mean time. Mediation is often used. Small amounts of legal fees covered; often whistleblowing authority’s legislation is too late to help

Public servants: Alberta Part 4 of Code: Employees are expected in all regards to conduce their duties with impartiality. Employees are required to disclose to their Deputy Head or designate any situation involving them which is a conflict or an apparent conflict of interest. Employees are in conflict of interest … if they – a) take part in a decision… knowing that the decision might further a private interest of the employee, their spouse or minor child, or – b) use their public role to influence or seek to influence a Government decision which could further a private interest of the employee, their spouse or minor child, or – c) use or communicate information not available to the general public that was gained by the employee in the course of carrying out their duties, to further or seek to further a private interest of the employee, their spouse or minor child.

Enforcement and education Employees are required to notify the manager of their unit of a potential conflict of interest. The Deputy Head is ultimately responsible for enforcing the Code and making rulings about potential conflicts of interest and their resolution. Rulings of the Deputy Head can be appealed to the Ethics Commissioner. Could find nothing on the web page of the Personnel Administration Office about education about the code, or who to go to for clarification other than unit managers. What training do Deputy Heads and managers have about the Code in general and conflicts of interest in particular? In some provinces, there are ethics advisors in every unit, and they have received training regarding public service ethics and the relevant codes in particular.

Some ethical dilemmas When I worked for Alberta Social Services ( ) my wife worked for a CA firm that audited a shelter for battered women, 80% funded by the agency I supervised. Potential conflict of interest here? – Yes – I discussed with my manager and she talked to her manager. Since she was not on that particular audit, and since there was an internal “firewall” in the accounting firm, both managers decided that there were enough safeguards to prevent this potential conflict from becoming a “real” conflict.

Confidentiality Canadian Press, March 8, 2011: Veterans Affairs bureaucrats who rifled through the personal files of a department critic were handed written reprimands and three-day suspensions…. An internal investigation found 54 veterans bureaucrats improperly snooped through Sean Bruyea's personal files, including medical and psychiatric reports. Some of them used the information to smear the outspoken critic. The two-month internal investigation determined that 614 employees handled his file over a number of years, but many had no need to do so.

Confidentiality – Alberta Code Part 4 of Alberta Code: The responsibility for maintaining the confidentiality of information or documents includes the responsibility of re- ensuring that such information or documents are not directly or indirectly made available to unauthorized persons. Federal code contains similar provisions. Why did not one of 614 employees raise objections to misuse of confidential information?

Speaking publicly Part 4: Employees who speak or write publicly shall ensure that they do not release information in contravention of the oath of office set out in s 20 of the Public Service Act. S. 20: I,_____, do swear that I will execute according to law and to the best of my ability the duties required of me as an employee in the public service of Alberta and that I will not, without due authorization, disclose or make known any matter or thing which comes to my knowledge by reason of my employment in the public service.

Dirty Hands Dirty hands is the term for lying, and justifying it in the public interest. Problem: “in the public interest” is sometimes interpreted by elected politicians to be something that is in their party’s interest. Robocalls? In peace time, is it ever justifiable to lye, and then justify it in the public interest?

Conclusion Democracy cannot thrive without being ethical Democracy is an attempt to put ethical principles -- including mutual respect, the rule of law, social equality and impartiality – into effect. Undue influence is contrary to these principles, and has been at least since 1688 There are new challenges to ethical politics that arise every day. EG the fact that media lobbyists are unregulated and have not code of conduct – and the media have a huge impact on public policy. The Canadian system of lobbyist regulation is currently the most advanced in the world. That puts an onus on all of us to continually evaluate our situation and lobby for improvements so as to present useful examples to others.