Ethics in Local Government: Atlantic Canada Conflicts of Interest Enforcement Mechanisms - Pathways or Roadblocks to a Culture of Ethics: Legislative Note
Chiasson, Basile, University of New Brunswick Law Journal
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.
I. 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. …