Friday, October 15, 2010

OTTAWA - Today, Democracy Watch criticized the federal Ethics Commissioner for failing to enforce the Conflict of Interest Act and MPs Code effectively.  In Democracy Watch's opinion, MPs have cause to fire the Ethics Commissioner.

Like former federal ethics commissioners Bernard Shapiro and Howard Wilson, Ethics Commissioner Mary Dawson has in many cases refused to investigate clear violations of ethics rules, or let Cabinet ministers and others off the hook when all evidence points to a conclusion that they have violated the rules.

Because of the Ethics Commissioner's rulings and weak enforcement, and loopholes in the Act and Code, federal ethics rules do not apply to 99% of the actions of federal politicians, Cabinet staff, Cabinet appointees (including senior government officials), and there is only a 1% chance of anyone getting caught violating the rules.

In Democracy Watch's opinion, the Ethics Commissioner has actually violated the Act (section 25(1)) by failing to require public disclosure every time a public office holder removes himself/herself from a decision-making process because of a conflict of interest (the Ethics Commissioner has instead created a secret process that is not mentioned in the Act that she calls "conflict of interest screens" through which office holders secretly remove themselves from decision-making processes).

"Because of the Ethics Commissioner's weak rulings and loopholes, federal ethics rules for politicians and Cabinet staff and appointees only apply when they are handing out contracts to themselves, their family members or friends.  Otherwise, they can do whatever they want," said Duff Conacher, Coordinator of Democracy Watch.  "MPs have cause to fire the Ethics Commissioner and until they replace her with someone who will do their job properly, federal ethics rules will not be enforced."

"The Supreme Court of Canada warned in a 1996 ruling that if key ethics and good government rules are not strictly and strongly enforced the government will not function democratically, but unfortunately the federal Ethics Commissioner continues to ignore that warning just like past commissioners did," said Conacher.  "Incredibly, the laws against illegal parking across Canada are more strictly and strongly enforced than key federal government ethics rules."

The Ethics Commissioner has let more than 20 Conservative Cabinet ministers and MPs off the hook for very questionable technical reasons even when they have been involved in highly questionable actions.

"The federal ethics commissioner told the Oliphant Commission in June 2009 that she doesn't do audits to ensure that politicians, political staff, Cabinet appointees and lobbyists are obeying the law, and that's as ineffective as police failing to patrol the streets or Revenue Canada failing to audit tax filings," said Duff Conacher, Coordinator of Democracy Watch.  "In addition, the ethics commissioner has taken too long or refused to rule on complaints, and has let people involved in highly questionable situations off the hook and created loopholes through very questionable enforcement actions."

"The Ethics Commissioner's weak enforcement record must be examined by a Commons committee, and if she cannot justify her record a new commissioner should be appointed and changes finally made to ensure future commissioners are required to enforce government ethics rules effectively," said Conacher.

• Conflict of Interest and Ethics Commissioner Mary Dawson's very weak enforcement record
• Changes needed to ensure ethical federal government decision-making and to ensure the Conflict of Interest and Ethics Commissioner enforces rules effectively
  

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FOR MORE INFORMATION, CONTACT:
Duff Conacher, Coordinator of Democracy Watch
Tel: (613) 241-5179  
dwatch@web.net

Democracy Watch's Government Ethics Campaign

Democracy Watch's Money in Politics Campaign

Conflict of Interest and Ethics Commissioner Mary Dawson's very weak enforcement record
(NOTE: Democracy Watch urged the Oliphant Commission to recommend strengthening the Commissioner's enforcement in its May 2010 report)

Democracy Watch's opinion is that Commissioner Dawson has not been enforcing the Conflict of Interest Act (Act) and the Conflict of Interest Code for Members of the House of Commons (MPs Code) effectively, as follows:

• Commissioner Dawson continues to fail to set out public interpretation bulletins defining key sections of the Conflict of Interest Act and MPs Code, even though provincial ethics commissioners and the Senate Ethics Officer do this regularly (to clarify what lines the sections draw), and even though Justice Oliphant recommended that Commissioner Dawson do this in his June 2010 report -- for example, Commissioner Dawson has failed to define public what exactly is a matter of "general application" or that affects a "broad class of persons" (even though when a public office holder acting under the Act or Code is dealing with such a matter s/he is completely exempt from the Act and the Code and cannot be found in a conflict of interest no matter how blatantly unethical their actions are (as the Nigel Wright case shows).  NOTE: in 2004 the Federal Court ruled (see paras. 41 to 49 of ruling) that former Cabinet minister Sinclair Stevens could not be found guilty of violating ethics rules because the rules had not been fully and clearly defined so he didn't know what specific activities were prohibited;
• Commissioner Dawson does not randomly audit for accuracy any of the financial statements she receives and reviews annually from public office holders that are Cabinet ministers, political staff, Cabinet appointees (and their spouses and dependent children) under sections 22, 25(2)-(4) and 28 of the Act, and from MPs (and their spouses and dependent children) under sections 20-24 of the MPs Code, even though these statements are the key basis for determining whether they are in a conflict of interest (the Judy Sgro case in fall 2010 highlighted how the Commissioner's negligence lets MPs off-the-hook, especially given that the Commissioner has not investigated Sgro re: violating the MPs Code);
  
• Commissioner Dawson does not randomly audit the activities of any public office holder or their families even though she is the sole enforcer of rules that prohibit public office holders from: taking part in decisions in which they are in a conflict of interest (section 6 of the Act); giving preferential treatment (section 7); using insider information or their influence to further their own or their relatives, friends or others interests (section 8 and 9); make decisions when influenced by an offer of outside employment (section 10); accept gifts that could influence them (section 11) including flights on private aircraft (section 12); receive a benefit from a contract with a government institution (section 13); employing their family members or other Cabinet ministers family members (section 14); own or take part in a business or union (section 15); solicit funds if it would cause a conflict of interest (section 16);
  
• Commissioner Dawson does not randomly audit any former public office holder's activities, even though she is the sole enforcer of rules that prohibit them: forever from taking improper advantage of their former position (section 33 of the Act); forever from acting for anyone involved in any transaction they were involved in during their former position (subsection 34(1)); forever from giving advice to anyone using secret information they obtained while in their former position (subsection 34(2)), and; for one to two years, working with, or making representations on behalf of, any organization they had significant dealings with during their last year in office, or contacting former Cabinet minister colleagues (sections 35-38);
• Commissioner Dawson does not randomly audit the activities of any MPs, even though she is the sole enforcer of rules that prohibit MPs from: furthering their own or others' private interests or using their influence or inside information to do so (sections 8 to 10 of MPs Code); taking part in decisions in which s/he has a private interest (section 13); accepting gifts (or their family accepting gifts) that could influence them (section 14 -- including sponsored travel under section 15); receiving a benefit from a government contract (sections 16 and 18); owning significant shares in a public corporation that does business with the federal government (section 17); taking any action to circumvent these and other prohibitions (section 25);
• Commissioner Dawson has ruled (in the Lisa Raitt complaint ruling mentioned below) that "private interest" and "conflict of interest" in the Conflict of Interest Act only cover specific private financial interests, even though the Act does not limit conflicts only to financial matters;
• Commissioner Dawson, in Democracy Watch's opinion, let Conservative Parliamentary Secretary Rick Dykstra off the hook when she ruled on September 7, 2010 that Rogers Inc. did not do a favour that had financial value for Mr. Dykstra and his riding association when it rented the Owner's Box at the Rogers Centre in September 2009 to the association for a fundraising event at a rate that is lower than the rental rate for other boxes at the Centre (even though the Box is only available to people and organizations who have personal contact with a senior executive at Rogers) and when it arranged for a pre-baseball game visit with Blue Jays players on the field for event attendees; the Commissioner's ruling directly contradicts her own 2008 Guideline on Gifts (including Invitations, Fundraisers and Business Lunches) -- (NOTE: despite the Ethics Commissioner's flawed ruling, Democracy Watch expects that the Commissioner of Lobbying will find Rogers Inc. violated Rule 8 of the Lobbyists' Code of Conduct based on the Rule 8 Guideline) -- For details click here and click here;
  
• Commissioner Dawson, in Democracy Watch's opinion, let Conservative Cabinet Minister Lisa Raitt off the hook in an incredible ruling on May 13, 2010 in which the Commissioner stated that she believed Minister Raitt's claim that she did not know that lobbyist Michael McSweeney helped her riding association with a fundraising event in September 2009 (even though Mr. McSweeney was the brother of Colin McSweeney who worked in Minister Raitt's office and even though Michael McSweeney's name, email address and fax number were set out on the invitation to the fundraising event) -- (NOTE: despite the Ethics Commissioner's flawed ruling, the Commissioner of Lobbying ruled in February 2011 that Mr. McSweeney violated Rule 8 of the Lobbyists' Code of Conduct based on the Rule 8 Guideline) -- For details, click here;
• Commissioner Dawson, it was revealed in a media report in July 2010, failed to properly maintain the public disclosure statement of Cabinet minister Vic Toews;
  
• Commissioner Dawson has failed to investigate fully the situation of possible preferential treatment given to former Conservative MP Rahim Jaffer by several Cabinet staff and at least one Cabinet minister, even though she received a complaint from Democracy Watch on May 6, 2010 detailing all the publicly documented instances of possible preferential treatment (she responded to the complaint by sending a letter dated May 13, 2010 to the wrong address for Democracy Watch (so Democracy Watch did not receive it), a letter that stated she was examining the complaint and considering next actions -- she has not provided a further response, even though she testified on October 5, 2010 that she "always" responds to every complaint she receives with a full explanation of what she is or is not doing) -- Commissioner Dawson's failure to investigate everyone involved with Rahim Jaffer contradicts her decision to launch an investigation in July 2010 only of Cabinet minister Christian Paradis' role in the situation (in response to a complaint filed in June 2010 by Liberal MP Marlene Jennings);
• Commissioner Dawson has failed to rule on the June 2010 complaint that Helena Guergis' furthered her husband Rahim Jaffer's private interest by assisting a company to which he had links;
  
• Commissioner Dawson, in Democracy Watch's opinion, improperly refused to investigate a complaint filed by Liberal MP Marlene Jennings in June 2010 against Conservative Cabinet Minister Tony Clement because she had, in secret, approved Minister Clement appearing in a video produced by a former campaign worker for Minister Clement, a video that promoted a private business in Minister Clement's riding -- Commissioner Dawson has refused to make public why she thinks such actions by a Cabinet minister do not constitute improperly furthering the private interests of a friend or person or organization (which is clearly prohibited under the Act);
• Commissioner Dawson did not require Cabinet minister Helena Guergis or Cabinet minister Gail Shea (and likely other ministers, Cabinet staff and senior appointed government officials) to put recusal statements on their public registration even though ministers are required to do so when in a conflict of interest under section 21 and subsection 25(1) of the Act and even though the Commissioner is empowered to order recusals under section 30 of the Act (For some details, listen to CBC Radio's The Current Part 1, April 15, 2010)
  
• Commissioner Dawson has created a secret loophole in the Act's enforcement regime by arranging with Cabinet ministers and other public office holders to recuse themselves from issues about which they have a conflict of interest without them publicly disclosing the recusal in the online public declaration registry (even though such disclosure is clearly required under subsection 25(1) of the Act -- the Ethics Commissioner has instead created a secret process that is not mentioned in the Act (and that, in Democracy Watch's opinion, is illegal) that she calls "conflict of interest screens" through which office holders secretly remove themselves from decision-making processes) -- For some details, listen to CBC Radio's The Current Part 1, April 15, 2010);
• Commissioner Dawson refused on April 12, 2010 (without providing any reasons other than lack of information) to investigate Prime Minister Harper's referral to her of allegations concerning unspecified actions of Cabinet minister Helena Guergis, even though media reports presented evidence that Ms. Guergis was providing preferential treatment to her spouse which, if true, would be a violation of the Act (and even though the Commissioner is empowered to initiate an investigation on her own, even if she has not received a complaint -- For some details, listen to CBC Radio's The Current Part 1, April 15, 2010);
• Commissioner Dawson refused on April 8, 2010 (without providing any reasons) to investigate the complaint about Cabinet minister Helena Guergis receiving an $880,000 mortgage (For some details, listen to CBC Radio's The Current Part 1, April 15, 2010);
  
• Commissioner Dawson created a loophole in the Act when she refused in April 2010 to rule on a complaint about Conservative Cabinet ministers and MPs who handed out government cheques with Conservative Party logos on them -- she made the highly questionable claim ("The Cheques Report") that they did not violate the Act because political parties are not legal "persons" under the Act and therefore ministers cannot improperly further the interests of their party, and she also claimed that handing out government cheques does not amount to furthering your private interest as an MP (even though doing so helps you get re-elected, keep your job, and keep on getting the pay and perks of an MP);
• because she does not conduct any audits, Commissioner Dawson failed to find out that Cabinet Minister Peter MacKay was on the board of two companies (in violation of the Act) until she was alerted by a newspaper article in September 2009;
  
• Commissioner Dawson met off-the-record and behind closed doors several times with a committee of MPs in spring 2009, and then applauded when they weakened the MPs Code -- For details, click here and click here;
  
• Commissioner Dawson's December 2008 ruling let Finance Minister Jim Flaherty off the hook when his staff handed out a sole-source contract to a former political colleague in violation of contracting rules -- she also failed to find his staff guilty of violating the Act even though she is empowered to do under section 45;
  
• Commissioner Dawson ruled in January 2008 that neither Prime Minister Harper nor any minister or government official was in a conflict of interest concerning the Brian Mulroney-Karlheinz Schreiber situation even though some of them were friends of Mr. Mulroney and the Act prohibits making decisions that affect the interests of friends;
• Commissioner Dawson decided in her first months as Commissioner, based on highly technical and questionable reasons that directly contradict the purpose of the Conflict of Interest Act, that dozens of public office holders were not covered by the Act.