Canada: There's No Such Thing As A Free Lunch: Conflict Of Interest And Ethics Tips

Recent developments suggest that businesses looking to fill tables to charitable or other functions should take caution when inviting public office holders.

This month, Ontario's Office of the Integrity Commissioner released its 2014–15 annual report, which responds to inquiries regarding the acceptance of gifts by members of provincial parliament (MPPs).

FEDERAL DEVELOPMENTS

On February 26, 2015, federal Conflict of Interest and Ethics Commissioner Mary Dawson released a report discussing her findings about a political aide's conduct, who accepted tickets to gala dinners with lobbyists on three distinct occasions.

Dawson's report found that the staffer had contravened section 11 of the Conflict of Interest Act (Act), which prohibits a public office holder from accepting any gift that might reasonably be seen to have been given to influence the public office holder in the exercise of an official power, duty or function. The staffer, at the time a senior policy adviser to a cabinet minister, accepted C$594 in tickets to three gala dinners with lobbyists, including the National Arts Centre Gala, the Annual Aerospace Reception and Dinner and the Alumni Dinner of the Parliamentary Internship Programme.

The staffer believed that "the events in question were all part of the 'Ottawa Scene' and appeared to him to be the type that he should be attending in terms of the outreach he was supposed to be doing." Dawson found otherwise. She placed emphasis on the fact that all three organizations were department stakeholders and were registered to lobby the department in areas related to the staffer's responsibilities as a senior policy adviser.

The staffer did not contact Dawson's office for advice to ensure his compliance with his obligations under the Act when he received the invitations. Although he repaid the price of the invitations, he only did so after being advised of Dawson's investigation. As such, he was found to have contravened section 11 of the Act with respect to all three invitations.

Dawson has the authority to impose cash fines up to C$500 but did not in this case; the report itself is the extent of her actions.

ACCEPTABLE GIFTS AND EXCEPTIONS

Dawson indicates that the group's motivation of extending the gift or invitation is irrelevant in determining whether it could be seen to influence the public office holder. As such, businesses looking to fill tables to charitable or other functions should take caution when inviting public office holders, particularly if the group extending the invitation is a stakeholder of the public office holder's department and registered to lobby the department.

Section 11 of the Act allows for the acceptance of gifts in certain circumstances, particularly section 11(2)(c), which allows the acceptance of a gift that is "received as a normal expression of courtesy or protocol, or is within the customary standards that normally accompany the public office holder's position." Any gift over C$1,000 in value is unacceptable, even if it would otherwise be permissible under the Act.

In her report, Dawson clarifies that gifts that would normally fall under the "courtesy or protocol" exception would be a token expression of appreciation in the context of some official interaction, such as a "token thank you gift following an appearance speech or presentation." As for a gift that is considered to be within the "customary standards" of a position, Dawson gives the example of a gift "given by an official from a foreign or international organization who is visiting a public office holder." Gala events fall outside this exception.

For further clarity on the issue, Dawson's report refers to her guideline, Gifts (including Invitations, Fundraisers and Business Lunches) (Guide), published in July 2011 on the Office of the Conflict of Interest and Ethics Commissioner's website. The Guide defines gifts broadly, ranging from services and the use of facilities, to meals and invitations to events. There is no exemption for gifts under a certain value; however gifts exceeding a value of C$200 must be disclosed to the Commissioner by the public office holder.

Dawson encourages public office holders to contact her office for confidential advice before accepting gifts or other advantages. Where a public office holder has contacted her office after receiving an unacceptable gift, Dawson states that she has allowed the public office holder to return the gift, or, where returning a gift is impossible, to pay the donor the fair market value of the gift.

RECENT DEVELOPMENTS IN ONTARIO

The issue of extending gifts to public office holders has received further attention in Ontario in light of the Integrity Commissioner's 2014–15 annual report. The following is a summary of certain inquiries: 

  • Inquiry: A government relations firm gives out an annual staff recognition award to constituency offices. Is it appropriate for the firm to invite an MPP to nominate his staff?

    Opinion: No. The Commissioner advised it could be considered an inappropriate gift from a lobbyist. Gifts and benefits can take many forms. Intangible benefits can also have the effect of appearing to influence MPPs and their staffs, especially when they are not part of an MPP's normal responsibilities.
  • Inquiry: A business invites an MPP to speak at a community event as a government representative. Would it be appropriate for the business to extend the MPP two tickets to the event for the day of the speech?

    Opinion: Yes. The Commissioner deemed it an appropriate gift because the MPP was performing an official function at the event. It is customary for anyone, especially dignitaries, to accept tickets to an event at which they are also performing official duties in the normal course of their responsibilities.
  • Inquiry: Staff from a business in an MPP's riding is in Toronto for the day and would like to buy the MPP lunch to discuss a new initiative. Is this appropriate?

    Opinion: No. The Commissioner advised that this was inappropriate, given that the intent was to lobby the MPP. Gifts of meals from lobbyists are not considered to be on account of custom, protocol or social obligation and are thus inappropriate.
  • Inquiry: An MPP hosts an annual community barbecue. Would it be appropriate for a business, such as a local grocery store, to offer to make an "in-kind" donation of food for the event?

    Opinion: No. The Commissioner advised it could be considered a gift or benefit under the Act. The donation was not offered on account of the custom, protocol or social obligations that normally accompany an MPP's responsibilities because the MPP was not required to have a barbecue.

In addition, the Integrity Commissioner's Office has since published a brochure to assist public officials in determining whether a gift can be accepted or not.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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