Public Sector Ethics May 16, 2014

1. Public Sector EthicsMay 16, 2014 Ian Greene

2. Introductions • My background • Your work and background • Principles of public sector ethics develop in every country as the “administrative state” expands. Canada’s experience provides one example. • Those drafting the ethics rules in each state tend to look at experience in other states and adopt “best practices.” Canada and Palestine have something in common because of influence of British and French legal systems in both countries. • The updating ethics rules, education, and enforcement procedures tends to happen after a scandal. Proactive planning is rare, but sometimes happens. • Ethics scandals are the key factors bringing down governments as well as corporations.

3. Mutual Respect • Democracy: equality and respect for all: mutual respect. • Dworkin: “individuals have a right to equal concern and respect in the design and administration of the political institutions that govern them. They possess this right not by virtue of birth or characteristic or merit or excellence but simply as human beings with the capacity to make plans and give justice.” • We owe the same consideration to others, when making decisions that affect them, as we feel we are owed when others make decisions that affect us. • Mutual respect is the basic principle behind democracy

4. Origins of mutual respect • World religions: every human being is of equal worth, equally deserving of respect. (But religions, like politicians, can become “corrupt,” and abandon principle to promote organizational goals.) • Philosophy of liberalism: evolution over 2 centuries. Liberalism, socialism, reform liberalism, neo-conservatism and neo-liberalism; current situation

5. Five principles of democracy • Free and fair elections • Attempt to find consensus • If consensus cannot be reached, deference to the majority • Minority rights • Social equality • Freedom • Freedom to determine one’s life without harming others • Freedom of conscience, religion, expression, association, media • Integrity: honesty and compassion, together with high standards for work, competence, treating others fairly and respectfully, respect for rule of law

6. Principles and Duties in a Democracy Fundamentalprinciple Mutual Respect ↓ General principles Free/Fair Minority Social Freedom & Elections Rights Equality Integrity ↓ Ethical Duties Impartiality Fiduciary Trust Accountability ↓ Legal Principles Rule of Law Natural Justice Fairness ↓ Ethical Supports Codes of Ethics Rules controlling conflicts of Ethics Commissioners interest, lobbyists, party financing, Ethics Audits whistleblowing, expenses, Official Inquiries accountability

7. Ethical Analysis • Two approaches (from philosophy) to ethical analysis: • Consequentialist (similar to teleologists[telos: final cause] or naturalists): judge an action by its likely result. Eg. utilitarianism (greatest good for the greatest number). Sometimes the means justifies the end. • Intentionalist (also called deontological [deon: duty]): fundamental principles must be applied instead of focusing on consequences. Eg., “do to others as you would have them do to you.” Focus on the action, not the result. Is the action morally justified? The end does not justify the means. The rule is universal. • Fortunately, these two approaches often lead to the same conclusion as to the proper action in an ethical dilemma.

8. Importance of Ethical Reasoning • It is important to be able to justify a decision in relation to an ethical dilemma. Public servants may be asked why they chose a particular action. • Public officials could do either an intentionalist analysis, or a consequentialist analysis, or both, and then be prepared to be accountable for the decision. • If possible, it is useful to discuss one’s analysis with another person, without violating privacy. Two heads (or more) are nearly always better than one. • Governments sometimes have trained “ethics counselors” in each workplace with whom public servants can discuss ethical dilemmas with confidentially. (In Ontario, public servants can consult confidentially with the Office of the Conflict of Interest Commissioner.)

9. Watergate heightened ethics awareness in public sector • Recommend All the President’s Men, a Robert Redford film • Amazing how nearly the entire upper level of the Nixon administration became involved in corruption and cover-up • David Frost interviews with Richard Nixon 1977: http://www.dailymotion.com/video/x1t2uf_richard-nixon-interviewed-by-david_news • Charbonneau inquiry in Quebec: bribes from construction industry and mafia to “fix” contracts from municipalities and provincial government and subsequent cover-ups

10. Party Financing • Why is political party financing regulated in Canada? • Disclosure of sources of donations over $100 • Limits to total amounts of individual donations • Canada: $1,200 to candidates and $1,200 to parties annually (also leadership contestants) • Ontario: Used to be a limit of $750. Now $9,300 to a party and $6,200 to riding associations to a maximum of $1,240 per Riding. • Ontario Municipalities: $750 per candidate, maximum $5000 donations in a single municipality

11. Fund-raising by parties • Is it acceptable for the party in power to organize VIP dinners with cabinet ministers for donors who give the maximum, paid for by taxpayers? • My experience as a Minister’s assistant • Payments from political parties: Is it acceptable for parties with excess funds to cover personal expenses of key leaders? Pay a salary supplement? • Salary supplements may be acceptable if • Not tax-subsidized • Recipients pay tax on amounts received • Donors are made aware of how their donations are being used • Limits to donations that go to this purpose • Donations and payments fully and publicly disclosed • Leadership campaigns: what should be done with surpluses?

12. Municipal politics • Influence of development industry a big problem in Canada • 1988 Toronto municipal elections: three-quarters of political contributions from development industry • Toronto’s accountability officers: • Integrity commissioner (conflict of interest commissioner) • Auditor general • Lobbyist registrar • Ombudsman • Now 38 municipal conflict of interest commissioners in Ontario • Early stage of development • Codes of conduct sometimes too weak • Independence of commissioners sometimes not guaranteed

13. Lobbyist Regulation • Began in Canada in late 1980s in response to undue influence by lobbyists bidding on Terminal One at Pearson Airport in Toronto, and decision by Air Canada to buy a fleet of Airbus airliners. Now most provinces and many municipalities require lobbyist registration. • All lobbyists (in house or “hired guns”) must register and disclose whom they are lobbying and the reason they are lobbying. • See web sites revealing federal, provincial, municipal lobbyist registries.

14. A Code of Ethics for Political Parties • Many corporations now have codes of ethics • Objections to organizational codes of ethics • A tool for criticizing the organization • Loopholes • Benefits of articulating a party’s values • Considerations in developing a code: • Extent to which they realistically express values • Extent to which all levels feel bound by code • Ability of organization to enforce code • Should be “bottom up” • Cover issues related to nominations

15. Ethics commissioners • Canadian innovation dating from recommendations of John Black Aird in Ontario in 1987/88 • Major role: educative • Secondary role: investigative • Ideal background: retired judge • Commissioners are invited to explain Canadian system around world

16. Appointment of independent ethics commissioners in Canada • Ontario 1988 • British Columbia 1990 • Nova Scotia 1991 (designated judge) • Alberta 1992 • Newfd/Lab 1993 • Saskatchewan 1994 • NWT 1998 • PEI 1999 • New Brunswick 2000 • Nunavut 2000 • Manitoba 2002 • Yukon 2002 • Quebec 2002 (jurisconsult) & 2012 • House of Commons 2004 • Senate 2005

17. Conflict of Interest Events IndexPre- and Post-CommissionerTotal number of substantiated “events” (2006)

18. Jean Fournier: building blocks for a successful public ethics regime • 1. A code of conduct for parliamentarians; • 2. An independent but accountable parliamentary ethics commissioner; • 3. A legislative ethics committee • 4. A strong emphasis on advice and prevention; • 5. A robust disclosure and registration process; • 6. An investigative function with appropriate powers; • 7. An external review process, and • 8. Regular exchanges of best practices.

19. Anti-Corruption Measures • U.S. legislation prohibiting bribery of foreign officials or companies ~ 15 years ago led to pressure on all other governments to do the same. United Kingdom enacted legisatlion soon afterwards. • Canadian legislation enacted ~ 10 years ago; first convictions of Canadians last year. • Prosecutions: U.S. approach is to have companies do their own investigation in return for lesser penalties on the companies. Officials to be prosecuted as if investigation done by government. Otherwise, companies could be banned from bidding on U.S. government projects.