Ethics, Privacy and Access to
Information: PPAL 6120 3.0
Jan 8, 2013
Ian Greene
York University
School of Public Policy & Administration
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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
(1972-3 and 1982-5)
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 1972-3 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
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Ontario
British Columbia
Nova Scotia
Alberta
Newfd/Lab
Saskatchewan
NWT
PEI
New Brunswick
Nunavut
Manitoba
Yukon
Quebec
House of Commons
Senate
1988
1990
1991 (designated judge)
1992
1993
1994
1998
1999
2000
2000
2002
2002
2002 (jurisconsult) 2011 Canadian Model
2004
2005
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
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Ontario
18
B.C.
7
N.S.
3
AB
2
Nfld
0
Sask
21
NWT
1
PEI
3
N.B.
2
Nunavut 0
Manitoba 6
Quebec
2
Canada (H of C) 47
• Post-commissioner to 2004*
– Ontario
27/4
– B.C.
10/2
– N.S.
8/0
– AB
10/2
– Nfld
3/0
– Sask
2/0
– NWT
2/1
– PEI
0
– N.B.
1
– Nunavut 0
– Manitoba 1
– Quebec
0
– Canada (H of C) ?
*actual and substantiated
Conflict of Interest Events Index
Pre- and Post-Commissioner
120
100
80
Index X 100 60
Pre-Com
Post-Com
40
20
0
Ont
B.C.
N.S.
AB
Nfld
Sask
NB
Man Canada
Jurisdiction
Conflict of Interest Events Index
Pre- and Post-Commissioner
Total number of substantiated “events”
100
90
80
70
60
Index X 100 50
40
30
20
10
0
Pre-Com
Post-Com
Ont
B.C.
N.S.
AB
Nfld
Sask
NB
Man Canada
Jurisdiction
What does the evidence show?
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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
»1985
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Police 75%
Business *
Courts 49%
Fed
30%
Gov’t
1990
1995
70%
42%
43%
13%
68%
38%
35%
25%
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.
3.
4.
5.
An MP owns a clothing store
and votes for a bill to provide
loans to small businesses.
Min of Agriculture owns a large
farm.
Min of Tourism owns a large
hotel.
A senator with no outside
employment agrees to serve as
a corporate director for a small
fee.
Conflict of interest scenarios
1.
2.
3.
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)
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)
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 selfinterest 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 2008.
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 whistleblowing 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 (19825) 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 reensuring 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.