Thank you for the opportunity to share some thoughts about the Conflict of Interest Act.
As mentioned, I'm a semi-retired lawyer interested in administrative, municipal and ethics law. I've been interested in government ethics law for over 30 years. I've worked in various capacities, including as a general counsel to a provincial ombudsperson and a municipal integrity commissioner for several municipalities. I've also appeared on policy panels for one federal and two municipal commissions of inquiry regarding ethics matters. I've written a certain amount of stuff on this topic.
I've also had, and I mention this tangentially, a very extended period, over the last many years, as a caregiver. There are many elements of care, of course—compassion, love, dedication. One aspect I'd like to mention is respect. Interestingly, the idea of respect permeates much of ethical discussion and practice. Professor Greene indicated in his presentation to this committee that the ethic of mutual respect is foundational to democracy. Through respect, we hear the concerns of others, listen to their arguments, understand their interests and arrive at equitable and fair solutions.
Government ethics have established rules that help and guide us in respecting our polity and need for fair, unbiased and publicly responsible decision-making. The Conflict of Interest Act is one such set of rules. I can't articulate all that this act does, but I would like to mention a few issues, some very broadly, for the rest of my few minutes.
Conceptually, the act changes traditional approaches to conflict of interest in that it treats conflict itself as a problem. The common law view was that conflicts should be disclosed and that the person with a conflict would not participate in decisions respecting matters that could further his or her private interests. Public duty was seen to clash with private interests, but conflict of interest was a precondition, a state of interestedness, that if not disclosed and not subject to withdrawal from participation, could lead to corruption or biased decision-making. Conflict of interest is not corruption, and they should not be seen as the same. One is a possible precondition to the other.
Private interests are important. Traditionally, the common law, and then the first regulation of conflicts, focused on monetary and pecuniary interests. This is not because financial interests, however described, are the most important interests, but because they are the most easily quantifiable in ostensibly objective terms. Emotional or psychological and relational interests, though, are powerful and important and can affect decision-making.
I have several other points, but I'm just going to mention appearances. Appearances can be important too. Apparent conflict of interest is different from reasonable apprehension of bias. I've used, in my little description here, a definition from the B.C. Members' Conflict of Interest Act. It says an apparent conflict occurs “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 the member's private interest.” There has to be an objective interest at stake, not merely a sense that there must be some interest.
There are numerous rules. I know the issue of divestment comes up, so I expect it will, and similarly the conflict screens, so I'll just leave it at that.