II. Conflict and Protection
of the Public Interest
Introduction
The Manitoba Statutes that deal with this topic do not indicate their purpose or the concerns they are intended to address. Even though the intent of the legislation can be inferred from its provisions, I wanted to find some written rationale for this sort of legislation so I could consider the details of the Acts with an overall objective in mind. That objective might have a bearing on how to respond to the questions in the terms of reference.
The best explanation of the need for this sort of legislation that I have found is contained in the Federal Government's Conflict of Interest and Post-Employment Code for Public Office Holders. It describes the object of the Code as follows:
Object
The object of this code is to enhance public confidence in the integrity of public office holders and the decision-making process in government.
- while encouraging experienced and competent persons to seek and accept public office;
- while facilitating interchange between the private and the public sector;
- by establishing clear rules of conduct respecting conflict of interest for, and post-employment practices applicable to, all public office holders; and
- by minimizing the possibility of conflicts arising between the private interests and public duties of public office holders and providing for the resolution of such conflicts in the public interest should they arise.
Principles
Public Scrutiny
Every public office holder shall conform to the following principles.
Public office holders have an obligation to perform their official duties and arrange their private affairs in a manner that will bear the closest public scrutiny, an obligation that is not fully discharged by simply acting within the law.
Public Interest
On appointment to office, and thereafter, public office holders shall arrange their private affairs in a manner that will prevent real, potential or apparent conflicts of interest from arising but if such a conflict does arise between the private interests of a public office holder and the official duties and responsibilities of that public office holder, the conflict shall be resolved in favour of the public interest.
Preferential Treatment
Public office holders shall not step out of their official roles to assist private entities or persons in their dealings with the government where this would result in preferential treatment to any person.
Insider Information
Public office holders shall not knowingly take advantage of, or benefit from, information that is obtained in the course of their official duties and responsibilities and that is not generally available to the public.
The Code is administered by the office of the Ethics Counsellor who takes general direction from the Clerk of the Privy Council. Before or on assuming their official duties and responsibilities, public office holders have to sign a document certifying that, as a condition of their holding office, they will observe the Code. Other conflict of interest provisions appear in the Criminal Code, the Parliament of Canada Act and in the Standing Orders of the House of Commons and the Senate.
Before turning to an examination of the Manitoba Statutes that deal with the issue, I repeat the portion of our Terms of Reference that apply to this issue:
A number of Manitoba statutes contain conflict of interest provisions, including those affecting public officials. Are amendments recommended to these conflict of interest provisions and other provisions to protect the public interest to include persons in common-law relationships, where those persons are currently excluded? If so, what approach is recommended?
One or both persons in a same sex common-law relationship may not be open with family, friends, co-workers and others about their sexual orientation. Some persons in opposite sex common-law relationships may also have concerns about open disclosure. If amendments to conflict of interest provisions are recommended, then how should these changes be reconciled with the privacy rights/interests of both persons in a common-law relationship?
There are two Manitoba Statutes that deal exclusively with this topic. One is The Legislative Assembly and Executive Council Conflict of Interest Act, which applies to all elected members, Ministers of the Crown and senior public servants. The other is The Municipal Council Conflict of Interest Act, which applies to all Mayors, Reeves and elected Councillors, including those of the City of Winnipeg. There is no separate Act dealing with conflict of interest for School Trustees, but The Public Schools Act contains a number of sections that deal with the issue.
The City of Winnipeg Act refers to the overriding authority of the Municipal Council Conflict of Interest Act. Section 18(1) provides that every member of council shall vote on a question unless excused by council or prohibited under the Municipal Council Conflict of Interest Act. Section 92.1(1), when speaking of the forfeiture of a seat on council, also refers to that Act.
Manitoba statutes seek to ensure the same high level of performance by their public officials as those in the federal Code. Each of the statutes I mentioned requires elected persons to file a statement of their assets with the Clerk of the House or the Secretary-Treasurer of the School Board or Municipality shortly after their election. They also require members to declare a possible conflict of interest and refrain from voting on issues that might benefit them or those close to them.
When The Modernization of Benefits and Obligations Act, was being introduced in the House of Commons, the federal releases made it clear that the amendments were "not a one-way street," as the bill would result in new benefits being extended to same-sex couples, but would impose new obligations on them as well. As will be seen, that corresponds with the wishes of the gays and lesbians we consulted.
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| Opinion on Common-Law Relationships of Hon. A.C Hamilton, Q.C. - Final Report Part II) Conflict and Protection of the Public Interest Introduction |
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| Part I) Advice and Recommendations | Part II) Consultations |
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Opinion on Common-Law Relationships of Jennifer A. Cooper, Q.C. Opinion on Common-Law Relationships of Hon. A.C Hamilton, Q.C. |
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