There has been quite a bit of commentary surrounding the federal ethics rules these days. Questions and accusations from the opposition of improprieties coupled with denials, donations, and distraction from the governing party as they point fingers at the commissioner herself and her advice to Ministers.
But the real question, partisan commentary aside, is if the rules are sufficient for governing the behaviour of our elected officials, their staff, and senior members of the civil service. This is the topic that we explored on the weekly Ontario NewsWatch Salon with my fellow panelists. The full interaction can be viewed here, but I thought I would take my text and reproduce it on this site.
To date, the Prime Minister has taken the approach that the Liberals are following the same rules as the Conservatives did when they were in power. And he is right, in some cases. The reality is that the interpretation of the ethics code, and perhaps the penalties under the code, have long been in need of some modernization.
Lets us take the instance of the Minister of Finance. Not from a partisan point of view, but because this is the issue that has brought all of this to the forefront again. The Minister took advantage of what has been called by the Ethics Commissioner herself as a “loophole”. A loophole that she herself argued should be closed in committee hearings under the previous government. This loophole effectively let the Minister set up an Ethics Screen to ensure he did not cross any line while holding millions of dollars in publicly traded stock of his family company.
To me, and voters as a whole, this seem preposterous. How can this screen, which allows his personal Chief of Staff (with the Minister as the employer) have the power to tell her or his boss not to do something. Similarly, another option is the Deputy Minister, which while different, I submit is a similar version of the same issue with the Chief of Staff.
But in this case, the concern with such close advisors acting as a screen is not theoretical. We have tangible evidence that these screens did not work. Minister Morneau sponsored legislation that would make fundamental changes to pensions in Canada which would benefit the very company he owns stock in and was founded by his father. In fact, he knew so well the upside to the company finances of this move that he actively lobbied the government prior to being elected to encourage the same changes to benefit his company.
These acts are now the subject of an investigation by the Ethics Commissioner, but yet it seems that it was within the rules, despite the rule which states a Reporting Public Office Holder cannot hold anything defined as a "controlled asset" in section 20 of the Act. Controlled assets must be sold or placed in a blind trust within 120 days after the individual becomes a Reporting Public Office Holder.
So, for the sake of argument, what will happen if the Commissioner finds that the Minister’s Ethical Screen failed and there was an ethics breach? Well, the answer is not much, aside from sound bites and denials. Morneau, if he had not been called out by the opposition and the press, could have made millions in profits from the increase in the share value since he assumed the role of Minister of Finance, a position which effectively gives him regulatory powers over his family company now as a Minister of the crown. Yet the maximum penalty under the act? $500.00 .
The truth is that the Minister’s ethical screen approach appears to have failed, but the list of not following the rules does not end there.
Ministers are required to disclose all their assets to the Ethics Commissioner. Of course, Minister Morneau “forgot” about that villa in France and the corporation that owns it. We also know that he has many more numbered companies. What they are, what they hold, and why there are so many still remains a mystery. We can only go on faith that they are in compliance despite the other demonstrated lapses on the ones we know of.
I will say that I do not believe that Morneau is motivated by greed, profit, or deception. I have yet to meet many people in public life who are motivated by those things at the senior level, regardless of partisanship. But we do need to ask ourselves if we can continue to rely on proactive disclosure by the members themselves, without proactive investigation, to ensure compliance. With a maximum penalty of $500, the temptation to forget, misrepresent, or have a failed ethical screen is just too great. It is not a significant enough deterrent to stop willfully bad behaviour if it were to arise.
So how do we fix it?
We don’t have to look far for inspiration. The Lobby Commissioner rules, set up by the previous government, are the strongest in Canada, and amongst the strongest in the world. Now, anyone who knows me knows full well my frustration with the administration of the rules there, but the intent is something the government can look at.
For example, the Lobby Commissioner can find a lobbyist in breach of the Code for the “appearance” of a conflict with a member, while ethics rules require an actual conflict to find guilt. Compare the $500 fine for an ethics breach to the lobbyist act penalties of $200,000 and up to two years in prison. Why do we have much more significant penalties, including jail, for lobbyists but not politicians? Surely the politicians can affect more personal gain than a lobbyist. Surely the public expects more from an elected official or Minister of the crown than a lobbyist. Lobbyists have to proactively, publically, disclose all communications monthly in the interest of transparency. Why should the politicians be different? If they refuse to put items into a blind trust, they should be publically disclosed.
Clearly ethics reform is needed. Sadly, it is typically only the opposition, blue, red, or orange, who push for reform. Partisans of all stripes lose the will to change the system once on the benches on the other side of the isle.