30 Years at the Office of the Integrity Commissioner
- Members' Conflict of Interest Act passed
- The Honourable Gregory T. Evans appointed Integrity Commissioner
- Office of the Integrity Commissioner established
- Amendments made to the Members' Conflict of Interest Act with the name changed to Members' Integrity Act
- The Honourable Robert C. Rutherford appointed Integrity Commissioner
- Lobbyists Registration Act passed - Ontario becomes first Canadian jurisdiction to require registration
- Lobbyists registry launched online
- The Honourable Coulter A. Osborne appointed Integrity Commissioner
- Cabinet Ministers' and Opposition Leaders' Expenses Review and Accountability Act passed
- Lynn Morrison appointed Acting Integrity Commissioner
- Public Service of Ontario Act comes into effect - Office obtains Disclosure of Wrongdoing and Ministers' Staff Ethical Conduct mandates
- Public Sector Expenses Review Act passed
- Lynn Morrison appointed Integrity Commissioner
- Amendments to the Members' Integrity Act passed
- Broader Public Sector Accountability Act passed
- Amendments to the Lobbyists Registration Act passed
- Amendments to the Public Sector Expenses Review Act passed - Integrity Commissioner given jurisdiction to review the expenses of any public body
- The Honourable J. David Wake appointed Integrity Commissioner
- Lobbyists Registration Act changes take effect - Integrity Commissioner obtains investigative powers
The Honourable J. David Wake
This is my third annual report as Integrity Commissioner. A detailed examination of each of the Office's six mandates is set out in the sections that follow, however in this introductory message, I wish to highlight some of our actions during the past year and the challenges that face us in the election year ahead. I also want to note that four of the Office's mandates are marking anniversaries in 2018.
Thirty years ago, our foundational mandate — Members' Integrity — was created. Under the Members' Conflict of Interest Act, 1988, Ontario became the first jurisdiction in Canada to establish a regime for dealing with and preventing conflicts of interest on the part of elected public office holders. In the first 15 months, the Commissioner received 63 requests from MPPs for advice. By contrast, during the past two full years since I became Commissioner, I have received 660 requests. Since the Office was created, more than 8,000 confidential opinions have been provided to MPPs from the Commissioner, almost always in writing.
The themes of the Members' Conflict of Interest Act, 1988 were incorporated into the Members' Integrity Act, 1994 (MIA), which requires MPPs to meet with the Commissioner to review MPP private financial disclosure statements. This is done so that the Commissioner will be able to provide a public disclosure statement as required by the MIA. The Commissioner has discretion to omit certain information from the public disclosure statement if the Commissioner believes the information is not relevant to the purpose of the MIA, and departure from the general purpose of public disclosure is justified. In order to inform that opinion, it is important for members to provide a complete disclosure of all assets, liabilities, sources of income and benefits as required by the MIA. In addition to reviewing members' financial disclosures, the members' other obligations under the MIA are discussed on these occasions. During these meetings, I have enjoyed hearing each member's compelling personal story of what led them to this form of public service. There will be 17 more members to interview in the coming year because the number of MPPs will increase from 107 to 124.
It is important for members to provide a complete disclosure of all assets, liabilities, sources of income and benefits as required by the MIA
Under section 30 of the MIA, a member can seek the Commissioner's opinion about the conduct of another member. In my first year I received eight requests under section 30, but in the past year I have received only one, the investigation of which remained outstanding at the end of the period covered by this report.
Over the years, other mandates were added to the responsibilities of this Office, and those mandates were further expanded. They are set out below.
The Lobbyists Registration Act, 1998 (LRA) was enacted 20 years ago. It appointed the Integrity Commissioner as Lobbyists Registrar, with the responsibility to establish and maintain a publicly accessible registry. In the year following its creation, the registry consisted of 684 registrations filed by 361 lobbyists. This year the registry contains 2,120 registrations and 2,629 lobbyists. This reflects the increased activity in this mandate, and an increased level of awareness of the requirements under the LRA among the individuals and organizations who lobby public office holders. In 2016 the Lobbyists Registrar's jurisdiction was expanded to include the power to investigate potential non-compliance with the LRA and to impose administrative penalties including removal from the registry for up to two years. These additional powers are entirely consistent with an effective regulatory regime, but they have significantly increased the Office's workload with respect to this mandate.
In the past year, more than 80 per cent of compliance reviews were dealt with by way of informal resolution
During the past year, my Office has identified 283 registrations that revealed potential non-compliance with the LRA. Rather than committing time and resources to investigate all these cases, my Office has set up a process by which most matters can be handled effectively without a full investigation. This informal approach allows me to accomplish three things:
- issue compliance letters to lobbyists or senior officers of lobbying entities to inform and educate them about the requirements of the LRA;
- require, in certain instances, lobbyists or senior officers to provide reasons why the Commissioner, as Registrar, should not commence an investigation into a matter of non-compliance; and
- advise lobbyists or senior officers of the possibility of the Commissioner investigating future non-compliance should it occur.
Matters handled under the informal resolution process are for relatively minor breaches of the LRA, usually by registrants who do not have a history of non-compliance.
In the past year, more than 80 per cent of compliance reviews were dealt with by way of informal resolution and the remaining matters were referred for investigation assessment.
The focus of the Office is to prevent incidents of non-compliance. To that end, we contact all registrants regularly to remind them of their obligations under the LRA. We also encourage them to seek advisory opinions from me, as Lobbyists Registrar, to ensure that any contemplated action is in compliance with the LRA. During the past year I have provided lobbyists with 83 written advisory opinions in response to their requests for advice. Answering these requests consumes a great deal of time for everyone in the Office who deals with the Lobbyists Registration mandate — particularly for the legal staff. I find, however, that the time spent on advisory opinions is productive since it likely reduces the need for some investigations which would otherwise have been necessary had the opinion not been sought.
The penalty regime is still new and lobbyists are still working to understand their obligations under the LRA
Investigations tend to be time-consuming and resource-intensive. The power to investigate and impose penalties is relatively new, and cases are only now beginning to be concluded. A few of the dispositions rendered in the past year are summarized in the Lobbyists Registration section of this report. Judging by the number of investigations currently underway, the number of summaries next year should increase significantly. In the few dispositions rendered to date, I have been reluctant to impose a penalty after a breach has been found. My reluctance to penalize these breaches is because of the mitigating circumstances of the cases themselves, but also because the penalty regime is still new and lobbyists are still working to understand their obligations under the LRA. As time goes by, I will give less weight to this factor, particularly to repeat offenders, and will expect a higher degree of compliance, failing which penalties will be imposed.
Public Service of Ontario Act, 2006
The Public Service of Ontario Act, 2006 (PSOA) was proclaimed 10 years ago. Two of the Office's mandates were created by this legislation: i) Ethics Executive for Ministers' Staff and ii) Disclosure of Wrongdoing.
Ethics Executive for Ministers' Staff
My Office continues to receive and respond to inquiries from ministers' staff about their obligations under the Conflict of Interest Rules and the restrictions on certain political activity set out in the PSOA. The Conflict of Interest Rules apply to staff both while they are employed in a minister's office and when they decide to leave the public service. The Office continues to provide training for all new ministers' staff, a practice which began in 2015. I reiterate previous recommendations for a strengthening of the ethical framework for all staff who work for MPPs at Queen's Park. In particular, I urge legislators to consider including these employees under the in-service rules.
I reiterate previous recommendations for a strengthening of the ethical framework for all staff who work for MPPs at Queen's Park
The Office knows from past experience that regardless of the outcome of the 2018 election, there will be many new people arriving at Queen's Park — from campaign offices and elsewhere — to work in ministers' offices. They will have to transition to their new role as public servants as set out in the PSOA and the Conflict of Interest Rules. My Office is preparing to provide training sessions to ensure that they are all conversant with their new obligations.
Disclosure of Wrongdoing
The Disclosure of Wrongdoing mandate is sometimes referred to as the whistle-blowing mandate because a public servant can make a disclosure of wrongdoing regarding the actions of another Ontario public servant, including ministers and parliamentary assistants. The number of disclosures in the early years after the Public Service of Ontario Act was proclaimed was relatively low; however, in the last few years, the intake of new cases received by my Office has increased steadily, and last year I described the increase as dramatic. The numbers from last year have held this past year, proving that it was not an anomaly.
Disclosures can be made internally to the discloser's Ethics Executive or to the Integrity Commissioner. I have noted in the past that an increasing number of disclosers prefer to make their disclosure to my Office. This may be done to reduce the risk of reprisal.
The PSOA requires me to refer the disclosure to the person who is in the best position to investigate the allegations. It should be noted that this often leads to my having to send the disclosure to the person who heads the ministry or public entity from which it arose and whom the disclosing public servant may have been seeking to avoid in the first place by electing to make the disclosure to my Office. There is, however, the added scrutiny that my Office gives to the investigation in that it is subject to my supervision, which is not the case if the disclosure is made internally; but I am not sure that this fact is something a discloser considers when deciding where the disclosure should be made.
In some cases I have been dissatisfied with the investigation and, pursuant to the PSOA, I have taken over the investigation myself. In other cases, the person to whom I have referred the disclosure has asked me to do the investigation, particularly where there is a conflict of interest or more than one related investigation in which my Office is already involved. This process of referral and referral back to my Office is cumbersome and time-consuming and leads to delays in addressing the issues raised by the discloser. My Office has suggested in the past that this convoluted process should be reviewed and corrected, possibly by allowing for the Commissioner to have discretion on when a disclosure should be referred to an Ethics Executive. There are times when this referral requirement is appropriate and the best way meaningfully to address the matter; however, there are times when it is not. Now that we have had a decade of experience with the Disclosure of Wrongdoing mandate, I believe it is time for such a review.
The Office exercises two mandates in the review of travel, meal and hospitality expenses under two separate pieces of legislation.
Even though not all employees are subject to review, the same standards should be applied throughout
Under the Public Sector Expenses Review Act, 2009 (PSERA), the Office currently reviews the expenses of 18 public entities out of approximately 180 that are subject to PSERA. During the past year two entities demonstrated sufficient compliance with the Travel, Meal and Hospitality Expenses Directive. I determined that they are no longer required to submit claims for review. I then selected two new agencies from the pool of 180 and their expenses will now be subject to review. It is clear that agencies are striving for a consistent level of compliance. However, I would like to stress that achieving and maintaining compliance within an entire organization at all levels is an ongoing process. Even though not all employees are subject to review, the same standards should be applied throughout.
Under the Cabinet Ministers' and Opposition Leaders' Expenses Review and Accountability Act, 2002, I have noted that there continues to be a high level of compliance with the Allowable Expense Rules set by this Act and reviewed by my Office.
The number of expenses reviewed under both acts was consistent with last year. The past year has been the first full year since the updated Directive and Rules came into effect, streamlining the process by allowing the maximum meal allowance to be claimed without receipts. This has reduced the time required for the review of individual expenses. In the case of public entities, the time has been reduced significantly.
My Office provides advice to MPPs, ministers' staff and lobbyists on the acceptability of certain gifts. MPPs and ministers' staff are generally prohibited from receiving gifts or benefits subject to only specific and limited exemptions. For MPPs, all appropriate gifts over the value of $200 must be reported to the Commissioner within 30 days of receipt and are disclosed with their public disclosure statement. My Office had noted a decline in the number of gift forms being filed and we wanted to know why. We embarked on this project which involved consultations with all MPPs, conducting focus group sessions with both consultant and in-house lobbyists and seeking the input of ministers' staff through an online survey.
Our findings at the end of these consultations were that, for the most part, all three groups wanted to do the right thing, but there were some misperceptions about the gift rules. For instance, a number of members continued to think that any gift under $200 was acceptable. While members are required to report any gift exceeding that threshold, the monetary value of the gift is not the determining factor as to whether a gift is appropriate. Similarly, some members and staff think that they are in the best position to determine whether a gift might influence them. This position ignores the Members' Integrity Act and the Conflict of Interest Rules of the Public Service of Ontario Act, which set out that the test is not a subjective one but rather an objective one — it is the Commissioner's call, not that of the member or staff.
Some lobbyists persist in the belief that buying a meal for an MPP or a public office holder is not a gift but “relationship building.” I have consistently advised that the practice amounts to the giving of a gift and it is only acceptable if it falls within one of the statutory exemptions.
While members are required to report any gift exceeding that threshold, the monetary value of the gift is not the determining factor as to whether a gift is appropriate
The end product of this project was written guidance on the gift rules for each of the three affected groups — MPPs, ministers' staff and lobbyists, all of whom were encouraged to call my Office if they have any doubt on the acceptability of a gift.
In anticipation of the forthcoming provincial election, the Office has made every effort to prepare for all possible outcomes and has analyzed the resulting impact on the workloads of each mandate. Most mandates will be affected and some already have been. For instance, many lobbyists have sought advice on the consequences that political activity during the election campaign will have on their ability to lobby a candidate who succeeds in winning an election. I addressed this issue at a lobbyist education program jointly put on by my Office and the Lobbyist Registrar for the City of Toronto.
As noted above, the need for training sessions for ministers' staff will likely intensify, and given the number of new MPPs and the larger Legislative Assembly, we are sure to see more requests for advice and will receive more private disclosure statements to review. Similarly, the Expenses Review mandate could be affected with any changeover in the offices of ministers and parliamentary assistants. We have been working on this project for many months now, and I am satisfied that we are prepared for any outcome.
I have enjoyed the continuing outreach activities associated with my duties. In the past year, I delivered lectures to university and college classes, and I was pleased to present this year's McCarthy Tétrault LLP Annual Lecture on Legal Ethics and Professionalism at Queen's University Law School.
In May I met with David Blunt, Clerk of Parliaments and Legislative Council, Parliament of New South Wales. Considerable work has been done in New South Wales towards establishing either a Parliamentary Commissioner for Standards or an Ethics Commissioner. Mr. Blunt was greatly interested in the Ontario model of an Integrity Commissioner, and so he specifically requested to meet with me.
The need for this work has never been clearer than it is today
I again met with my counterparts from the other provinces, territories and federal jurisdictions. This included annual meetings of the Canadian Conflict of Interest Network, which met in Charlottetown, Prince Edward Island, the Public Interest Disclosure Conference in St. Andrews, New Brunswick, and the Lobbyist Registrars and Commissioners Network in Regina, Saskatchewan and Ottawa, Ontario. In addition, Toronto hosted the 39th annual conference of the Council on Governmental Ethics Laws, which was attended by participants from across North America and beyond. I am proud that my Office played a major supporting role in this successful event.
On September 24, 2017, I was once again asked to serve as the Temporary Financial Accountability Officer following the resignation of the permanent officer. The added workload has been significant, but the highly qualified team assembled at the Financial Accountability Office has made the task interesting and enjoyable. The work of the Financial Accountability Office is important to all members of the legislature, and it helps inform the debate on financial topics for not only MPPs but also the public. My staff has also helped me carry out these additional duties, ensuring that the substantial work of the Office did not suffer. I am grateful that my staff appreciates the importance of the work they do in all mandates. The need for this work has never been clearer than it is today. Together we look forward to welcoming new MPPs and returning incumbents. There will undoubtedly be challenges in all mandates in the year ahead, but we approach them with confidence.
The Honourable Robert C. Rutherford
I would like to make special mention of the contributions of former Integrity Commissioner, The Honourable Robert C. Rutherford, who passed away on April 3, 2018.
Commissioner Rutherford served the Office from 1997 to 2001. A former justice of the Supreme Court of Ontario, he was also a soldier, Royal Commissioner and volunteer and fundraiser for veterans and their families. A graduate of Osgoode Hall Law School, Commissioner Rutherford was called to the bar in 1950. His dedication to Ontario and the Office is perhaps best reflected in his own words:
“In exchange for their membership in our civil society, Canadians have entrusted key aspects of their lives to others through the justice system and the system of democratic government. They have a right to expect integrity from their elected representatives. Without the abiding trust of citizens in political institutions — institutions that are so central to our way of life — democracy cannot function.”- Commissioner's Message, Annual Report 1997–1998
The Year in Numbers
inquiries from MPPs about ethical rules, with 59 inquiries related to gifts and beneﬁts
expense claims reviewed for cabinet ministers, parliamentary assistants, leaders of the Opposition and their respective staff
investigations commenced under the Lobbyists Registration Act, with four investigations concluded
outreach, training and speaking engagements
inquiries from ministers' staff about ethical conduct and post-employment requirements
expense claims reviewed for senior executives, appointees and the top ﬁve employee expense claimants at 18 public entities
disclosure of wrongdoing inquiries received from public servants
active lobbyist registrations
advisory opinions issued to individual lobbyists