Wouldn’t be nice to live in a land free of conflict of interest? People trust each other, including those who govern them.
On the surface, we’re not far from such a perfect situation. Newfoundland has seen no case where the Conflict of Interest Act that applies to the provincial public service was cited by the courts.
Upon closer inspection, however, it appears that a “success story” is merely an optical illusion. Tensions between office-holders’ groups and private interests and the duty to serve the public interest abound, but existing laws do not allow for their proper management.
Conflicts of interest are mentioned in legal cases in Newfoundland more often than in other jurisdictions with the exception of P.E.I. In fact, 2.8 per cent of cases brought before the provincial courts and tribunals mention conflicts of interest (this ratio varies from 3.2 per cent in P.E.I. to 0.8 per cent in Quebec). Yet none of these cases make reference to the Conflict of Interest Act.
Conflicts of interest seem to affect spheres other than the provincial government. Cases mentioning conflicts of interest refer to municipal matters regulated by the Municipalities Act and to the conduct of lawyers. For instance, former Carbonear mayor Frank Butt, who was removed for the alleged failure to declare a conflict of interest when initiating the demolition of a building that benefited his own business, is asking the court to reinstate him.
Conflicts of interest in the provincial government constitute a blind spot in many jurisdictions, but particularly in N.L. One possible explanation is that the Conflict of Interest Act operates on the assumption that public servants will duly disclose their concerns and avoid conflicts. Their failure to do so does not constitute an offense, however. Furthermore, the act cannot be enforced from outside, by the courts or the citizens. The system is based on absolute trust.
Shall such trust be taken for granted? On a normative level, perhaps. But trusting unconditionally appears to be dangerous on a practical level. Here is an example highlighting the drawbacks of placing unconditional trust in public servants in those matters.
A public servant working for a statutory office was assigned to investigate a complaint lodged against an educational body. Fittingly, the complaint itself was related to a conflict of interest situation within the educational body (where mechanisms for managing conflicts of interests are weak to non-existent).
In addition to being a public servant, the investigator was a part-time employee of the educational body. The act leaves little doubt that this double affiliation creates a conflict of interest since the public servant relies on the educational body as a source of income. The investigator has little interest in alienating the employer by discovering any wrongdoings.
Our public servant chose not to recuse themselves from the investigation. The investigator found that the educational body didn’t do anything wrong, in spite of documented evidence to the contrary.
The investigator’s boss alerted the complainant that “any continued efforts (to enforce the Act) may be treated as vexatious.” The complainant nevertheless attempted to do what the public servant must have done beforehand, in other words, to contact the deputy minister responsible for assessing the situation. No response. Then the complainant reached out to the minister responsible for the application of the Act. The Minister’s first reaction was reassuring: “I will follow up and respond.” But time passed and happened.
As a last resort, the citizens’ representative was contacted, to no avail. “We are statute-barred from investigating these allegations” due to the above-mentioned safeguard in the act: the failure to disclose a conflict of interest does not “constitute an offence.”
This tale has a lesson at its end: absolute trust in the public service comes at a price of turning a blind eye to mismanagement of conflicts of interest. What are the possible consequences of this blindness? This province has been perceived as being among the worst managed in Canada and its population has the highest municipal and provincial debt per capita.
We are paying for the absolute discretion given to public servants, and not in a figurative sense.
Anton Oleinik
St. John’s
