Monday, June 14, 2010

OTTAWA - Because of dangerously unethical loopholes in the Conflict of Interest Code for Members of the House of Commons (MPs Code), it is essentially impossible for federal Ethics Commissioner Mary Dawson to find that Conservative MP Helena Guergis violated the MPs Code when she sent a letter to a local government council promoting the business of one of her voters for a possible contract (even if the Commissioner finds that Guergis' husband Rahim Jaffer had an interest in the business).

On June 8th, Commissioner Dawson announced that she will investigate Ms. Guergis for sending the letter in her role as an MP.

Commissioner Dawson should decide the Ms. Guergis sent the letter as a Cabinet minister, and that this is improper, which would make it clear that sending such a letter on behalf of one specific business is a violation of section 9 of the Conflict of Interest Act.  Democracy Watch's position is that Cabinet ministers cannot simply take off their ministerial-hat and pretend they are only serving voters in their riding, especially when doing things such as promoting a specific voter's business or financial interests.

If Ms Guergis was a Senator, under sections 8-16 of the Conflict of Interest Code for Senators, sending a letter that even attempts to promote a private interest or business as Ms. Guergis did is more clearly illegal, especially if her husband had an interest in the business promoted in the letter.

"Dangerously unethical loopholes in MP ethics rules allow them to try to influence government decisions to make money and win jobs for themselves, their family members and friends while in office, and these loopholes must be closed immediately," said Duff Conacher, Coordinator of Democracy Watch.

In Democracy Watch's opinion, if she was doing her job properly Commissioner Dawson would also announce that she will investigate Democracy Watch's May 6th complaint to determine whether various representatives of the Conservative government, including Ms. Guergis, gave preferential treatment to organizations and people represented by Rahim Jaffer in violation of the Conflict of Interest Act.

Also, if she was doing her job properly, Commissioner Dawson would use her clear powers to randomly audit the financial statements that MPs and Cabinet ministers submit to her annually, and also randomly audit their activities as MPs and ministers, to ensure that they are not taking part in debates and decisions in which they have a private interest (for example, only because of media reports, the Ethics Commissioner is reviewing the activities of Liberal MP Derek Lee).

The Ethics Commissioner told the Oliphant Commission that she does not believe she has the power to do such audits (even though she clearly does), so the MPs Code and the Conflict of Interest Act should be changed to require her to conduct random audits.

Dangerously unethical loopholes in the MPs Code
Although there is vagueness in the MPs Code that the Ethics Commissioner has neglected to clarify even though she has been Commissioner for three years, the rules in the MPs Code essentially say that it is legal for MPs to act as lobbyists for their own, their family members' and others' interests (including financial interests), as long as they are not successful (yes, the rules are that contradictory and bizarre). 

MPs only have to declare publicly their conflict of interest when they are helping themselves or another person with a specific financial matter (such as winning a contract), and only in this situation are they prohibited from taking part in debates and votes (not that there ever are debates or votes in the House of Commons about specific contracts).

In addition, it is legal under the MPs Code for MPs to accept the benefits of sponsored travel or volunteer labour from people or organizations for whom they are lobbying (as long as they don't explicitly arrange to lobby in exchange for compensation in addition to these benefits, as that would violate the anti-bribery measures in section 41 of the Parliament of Canada Act and in section 119 to 125 of the Criminal Code of Canada).

To ensure MPs don't use their office to push their own and family and friends' interests, the MPs Code should be changed to prohibit MPs from trying to further anyone's specific private interests, not just financial interests but also other interests.  This rule change would mean, essentially, that MPs would be required to give equal service to all voters, helping them find government departments and agencies to help them, but not advocating for them in any significant way.

Details about the unethical loopholes in the MPs Code
Incredibly, the MPs Code says it is legal for an MP to try to further the private interests (including the private financial interests) of anyone, including themselves and their family members.  It is only becomes illegal if the MP is successful and their actions "result" in furthering their own or another person's private financial interests (subsection 3(2) definition of "Furthering private interest", and sections 8-10 of the MPs Code).

The loophole is even bigger because it is actually legal for an MP to successfully further the private financial interests of another person who is not a member of their family as long as they do not do so "improperly" (we don't know what the word "improperly" means because the Ethics Commissioner has failed to define it -- sections 8-11 of the MPs Code).

Bizarrely, while the MPs Code allows MPs to try to further their own, their family members' and other person's private interests in almost any way, it requires them to make a public declaration and file it with the Commissioner if they are undertaking any official action that might affect their own financial interests (sections 12 and 13.1 of the MPs Code) and they are not allowed to debate or vote (presumably in the House of Commons) on specific matters and decisions that might affect their own financial interests (sections 13 and 13.1 of the MPs Code).

However, the rules also say it is legal for an MP to push for and win changes to general laws, regulations and policies even if those changes will further their own or others' personal financial interests (clauses 3(3)(a) and (b) definition of "private interest", and sections 8-11 and 13.1 of the MPs Code).  When they are pushing for such general changes, MPs are not required to declare publicly that they have a conflict of interest, nor are they prohibited from debating or voting on such general changes.

Another loophole makes it legal for MPs to vote on changes to their own pay and perks (clause 3(3)(c) of the MPs Code).

Two other loopholes explicitly allow MPs to trade accept benefits from their family members or others whose private interests they are pushing.  MPs are allowed to accept the gift of sponsored travel from anyone (section 15 of the rules), and MPs are allowed to accept the benefit of volunteer labour from anyone (clause 3(1)(b) of the MPs Code).