Ethics in local government: Atlantic Canada conflicts of interest enforcement mechanisms - pathways or roadblocks to a culture of ethics: legislative note.

Author:Chiasson, Basile
 
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  1. INTRODUCTION

    Gary Wheeler was an active businessman involved in four private companies. He was also involved in local politics. Between 1974 and 1977, three of these companies entered into contracts with the City of Moncton. Mr. Wheeler was the Mayor for the City of Moncton during that time. Eventually, be was disgraced amd removed flora public office. The circumstances of his downfall led to the current conflict of interest provisions of the Municipalities Act of New Brunswick. (1) However, even strict conflict of interest rules cannot prevent abuses of public office as evidenced by the Toronto scandal that led to the Bellamy Report in 2005. (2)

    The democratic experience is quintessentially human with its many strengths and weaknesses. Conflicts of interest have always had a personal dimension. Ethical lapses are a the perennial bane of democratic governments. Nowhere is that felt more acutely than at the local level given the close proximity between citizens and City Hall.

    The issue is always one of trust: trust in public officials who spend public money. Those in control of public funds have a special duty to the public. They must discharge their duty fairly and objectively and they must be seen to be doing so. But that trust can be and is often broken.

    As shown by the Bellamy Report, cultures of accommodation often prevail over cultures of ethics. Faced with that truth, have the Atlantic provinces responded well to local conflicts of interest? Although all Atlantic provinces have attempted to curtail and prevent municipal conflicts of interest, each has utterly failed to provide a useful and efficient behavioural framework within which municipal officials can thrive ethically.

  2. CANADIAN DEMOCRATIC COMMUNITY IN MOTION: THE ERADICATION OF LOCAL CONFLICTS?

    Unrelenting public pressure for more ethical and municipal governance has been a staple of democratic reform over the past thirty-five years. Conflict of interest rules have been part of this movement. (3)

    The Supreme Court of Canada has provided a helpful but narrow definition of municipal conflicts of interest:

    It is not part of the job description that municipal councillors be personally interested in matters that come before them beyond the interest that they have in common with the other citizens in the municipality. Where such an interest is found, both at common law and by statute, a member of council is disqualified if the interest is so related to the exercise of public duty that a reasonable, well-informed person would conclude that the interest might influence the exercise of that duty. This is commonly referred to as a conflict of interest. (4) This test has usually been applied where there is a pecuniary interest in the matter. Of course, there are other interests. They are not inherently anathema to public life. Man is a gregarious animal who must interact with others to thrive and flourish. Interests are inescapable for they are quintessentially human. (5) What becomes important is not so much their presence as what is done about them. (6)

    In the context of Canadian municipal politics, a conflict of interest is the clash of a private interest with a public duty. (7) The underlying moral concern addressed by conflict of interest legislations has been delineated as follows:

    This enactment, like all conflict of interest rules, is based on the moral principle, long embodied in our jurisprudence, that no man can serve two masters. It recognizes the fact that the judgment of even the most well meaning men and women may be impaired where the personal financial interests are affected. Public office is a trust conferred by public authority for public purpose. And the Act, by its broad proscription, enjoins holders of public offices within its ambit from any participation in matters in which their economic self-interests may be in conflict with their public duty. The public's confidence in its elected representatives demands no less. (8) II. CONFLICTUAL INTERESTS IN LOCAL GOVERNANCE AND THE URBAN PHENOMENON

    Exploding urban growth in Canada is defining and shaping city politics. Already in 1995, a study noted that three-quarters of Canadians lived in urban settings, a trend that continues to this day. This trend has resulted in population overspills in suburban and rural areas. (9) Urbanization of Canada is further magnified by amalgamation initiatives that have led to megacities like Winnipeg Unicity, Toronto Megacity, or Halifax Regional Municipality. City politics matter. (10)

    Nation-wide, municipal government is evolving, growing, and becoming more complex. In recent history, with the transfer of fiscal and infrastructure responsibility to local governments, cities are assuming more and more importance. The budget of the City of Toronto, Canada's largest city, is larger than the budgets of six provinces. Yet, this is the level of government that is closest to the people in that it is the most visible with close interaction between voters and councillors. (11)

    In this socio-demographic landscape, avoidance of conflicts of interest in municipal governments is critical for two reasons. First, decisions made by municipalities should reflect the values of the electorate without being skewed by the private interests of councillors and officials. Second, because these decisions affect the rights and privileges of individual citizens, those affected should have confidence that the process leading to those decisions is fair. (12)

    Local government has been described as the cornerstone and training ground for democracy. (13) Local self-government can be considered a matter of democratic principle. If municipalities are to play an important role in the twenty-first century, they must reassert themselves as municipal governments, centred on elected bodies that make political decisions. The municipal council must be recognized as a political mechanism for expressing and responding to the collective concerns of members of the community. (14) The modern view of the local government is that municipalities are a responsible order of government accountable to the people. (15) Accordingly, political issues must inform the actions of Canadian municipalities if they are to remain significant cultural repositories and centres of our democratic traditions. (16) It follows that if city politics matter, so do generally municipal ethics and more specifically, conflict of interest. (17)

  3. THE ESSENCE OF THE PROBLEM

    Typically, municipal conflict of interest statutes do not declare "conflict of interest" an offense. It is the failure to disclose a conflict of interest which creates the offense. (18) What is so abhorrent in undisclosed conflicts of interest?

    Undisclosed conflicts of interest in public life are toxic to a democratic sociopolitical environment. They violate core values of the democratic process in a way that undermines the fabric of the democratic community. Their fumes are noxious to our political culture. They are a scourge to eradicate by devising value-based mechanisms that achieve balance between competing values of efficiency and process. When that balance is reached, an ethical local authority is an efficient authority by all standards.

    Effective local governance requires a bond of trust between the community and those who serve the community in public life. That trust requires for transparency and openness from municipal councils and local administrations, and clarity about where decisions are taken and who is to be held accountable for them. (19)

    A strong foundation of ethical values affects the architecture of public governance. In Canadian local politics, the public expects its officials to serve the public's interests only. After all, public office is a public trust conferred by public authority for public purpose. (20)

    Often, ethical lapses from public authorities result not so much from malevolent misconduct, but rather from a dark subculture of accommodation in servicing self-interest and efficiency at the cost of integrity. Indeed, it raises an ongoing tension between the ever-increasing emphasis on efficiency and the requirements of due administrative process.

    In local governance, an ethical framework is a set of principles that govern the behaviour of the elected and appointed officials. Values like accountability, integrity, honesty, openness, and observance of the law should determine the way these officials behave in carrying out their duties in the public interests. Building that bond of trust between local governments and their communities requires a deep understanding of the inherent values of ethical behaviour for the democratic process and an unwavering commitment to promoting a positive value-based code of ethics that is process-oriented.

    Accountability implies that high ethical standards are expected from elected and appointed officials in the conduct of local public affairs. Indeed, they must be driven by an ethical obligation to exercise the power entrusted to them with the utmost care and strictly to the benefit of those to whom they are responsible. Their decisions, therefore, must be motivated by considerations of public interest and their actions subjected to public scrutiny at all times. Thus, the purpose of ethics in this context is to promote integrity and inform proper standards of value-based acceptable public behaviour.

    Accountability in local governance should be an opportunity to demonstrate achievements and stewardship. It should be the condition sine qua non for establishing effective relationships, for getting things done, and for taking responsibility. There is a clear link between accountability and public trust.

    As ethical issues in local governance are increasingly brought to the attention of academics and the general public alike, the issue gradually shifts from traditional enforcement mechanisms predicated on prosecution and punishment to mechanisms which promote ethics as principles of good...

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