Parliamentary Reform, Ethical Conduct, Standing Orders and Private Bills — Issue No. 8

SELECT STANDING COMMITTEE ON PARLIAMENTARY REFORM, ETHICAL CONDUCT, STANDING ORDERS AND PRIVATE BILLS

Present: Colin Hansen, MLA (Chair); Donna Barnett, MLA; Jagrup Brar, MLA; Murray Coell, MLA; Mike Farnworth, MLA; Randy Hawes, MLA; Norm Letnick, MLA

Unavoidably Absent: Harry Lali, MLA (Deputy Chair); Bill Bennett, MLA; Jenny Wai Ching Kwan, MLA

2. The following witnesses appeared before the Committee and answered questions relating to the review of the Members' Conflict of Interest Act:

The following electronic version is for informational purposes only.
The printed version remains the official version.

REPORT OF PROCEEDINGS
(Hansard)

SELECT STANDING COMMITTEE ON
PARLIAMENTARY REFORM, ETHICAL CONDUCT, STANDING ORDERS AND PRIVATE BILLS


CONTENTS
Page
Members' Conflict of Interest Act	59
P. Fraser
A. Mochan

C. Hansen (Chair): I'm going to officially call the meeting to order and thank you all for taking the time to participate.

For the benefit of the record, we have in attendance Murray Coell, Donna Barnett, Mike Farnworth and Jagrup Brar. Participating by telephone are Norm Letnick and Randy Hawes.

We have as our special guest today Paul Fraser, who is the Conflict of Interest Commissioner.

C. Hansen (Chair): Okay. Well, we will do our best to articulate. Thank you again.

As I called the meeting to order, I just mentioned who is attending in person and who is attending by phone and that we have as our guest today for the committee Paul Fraser, Conflict of Interest Commissioner, and Alyne Mochan.

C. Hansen (Chair): Commissioner Fraser provided us with a very good report a month ago on some perspectives on the Members' Conflict of Interest Act, looking at how certain issues are being dealt with in other jurisdictions, primarily across Canada and, more recently, has provided us with some very specific recommendations for the committee, with suggested wording for various amendments that are in those.

My suggestion is that we actually look at some of the specific issues around the recommendations that Commissioner Fraser has brought forward, and we can use this opportunity to ask whatever questions there may be.

Commissioner Fraser, I know that since you last appeared before the committee, you have had a change of thinking on a couple of the issues that we were dealing with. Perhaps at the outset it might be worthwhile for you to comment on those areas where you've had some shifting in your thinking in terms of what recommendations you're making to the committee.

P. Fraser: Thank you very much, Mr. Chair. I appreciate the fact that the committee has been generous to me in terms of setting this meeting for today — and to my schedule, which has had some difficulties in the last little while.

For those of you who are on the telephone, if the line becomes interrupted or bad and you're not able to hear, please don't hesitate to interrupt me and let us know.

For the record, can I just say that this submission today builds, as our Chair has said, on two other written submissions that I have filed with you?

One is dated May 2, 2012. It was a discussion of the issues for consideration — issues divided into major and minor issues for convenience. Then on May 31, as the Chair has indicated, we provided you with a paper that basically gives you the comparative existing legislation in Canada and elsewhere with respect to the areas of potential amendment.

Now, finally, in the paper that you will have received very recently, you have the specific recommendations that we make in respect to retention or amendment of various parts of the act. That, as I was saying earlier, amounts to 190 pages of thought and cribbing from a variety of places.

Alyne Mochan is to be congratulated for having retained her sanity through the course of spreadsheets that sometimes were at least three or four feet wide as we tried to figure out who was what and where.

The committee has kindly informed us — and we appreciate it — along the way, as well, that the committee's advertising and seeking the reach of public opinion has been successful. The result of that has been shared with us, as has the testimony that was given by those who were invited and who attended before you on June 20 and 26.

We came to the preparation of our final thinking funded by information that was contained in the material that was sent to us by the committee, and for that, we're grateful. It has clearly, in my view, assisted us in understanding what your concerns are and trying to focus our thinking.

The Chair has indicated that there were a couple of areas in which my thinking has evolved. I think that's the polite way of never admitting that you may have been wrong in the first instance. I suppose chief among those areas is the whole discussion that we've had with respect to the ethics and integrity dimension, if I can put it that way, with respect to the act.

I think we all remember that in looking at the excellent report that was prepared in 1999 by this same committee, there was a careful discussion of recommendations that had been made over years by my two predecessors with respect to adding into the act — in terms, because some would have argued that it was there inferentially — some ethics and integrity provisions.

The committee in 1999 decided — and that report, I know, you have before you and have read — that the idea of minting an integrity preamble or a declaration which
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spoke to the issue of ethics and integrity was an idea which, while it had been embraced by other jurisdictions, didn't find favour in circumstances where legislators in that day — and, I'm sure, some on the committee today — were unhappy about having to proceed legislatively with declarations of high principle and purpose without some kind of provision within the act which would basically allow enforcement with respect to those principles.

When I had the pleasure of meeting you before, some of the members of the committee and I engaged in discussion around that question.

I began my consideration privately about how the act could be changed or should be changed, believing that it would probably, at the end of the day, be very difficult and, to some extent, perhaps impossible to solve that dilemma — the dilemma that Geoff Plant had articulated in the 1999 report or, at least, was repeated in the 1999 report. I'm sure you're familiar with it, so I won't bother reading it out.

I then came across the decision, which I think is probably the most important published decision by any conflict-of-interest commissioner in this country on that very question. It's a decision by Commissioner Gerrand that occurred as a result of events in the Northwest Territories.

Commissioner Gerrand is one of the most senior of the commissioners across the country, who at one time was the Conflict of Interest Commissioner for Saskatchewan and is now the Conflict of Interest Commissioner for the Northwest Territories. For a time, I think, he held both of those portfolios, but now he is the commissioner for the Northwest Territories.

He had to deal with a very difficult situation involving the former Premier of the Northwest Territories in terms of events that had occurred around a personal relationship which had been established by the Premier and the Clerk of Committees in the Northwest Territories.

The issue that was under consideration was not the personal relationship per se but rather whether the Premier had violated a provision, section 75, of their conflict of interest act by failing to advise the Legislative Assembly of the relationship that the two of them had in a timely way, given that both of them were attending meetings that in some cases would have been affected, or could have been affected, in their outcome by their presence and by the fact that they had a relationship.

The provisions that were in the Northwest Territories act are provisions that I am now suggesting should become part of our legislation.

I do that in the context of both Commissioner Hughes and Commissioner Oliver, both of whom are well entitled to my respect, having said now, for 21 years in one case — because I believe that former Commissioner Hughes holds to his view — that in order for the legislation to accomplish its purpose — which is to ensure for the public that honesty, integrity and ethical conduct would guide or lead the efforts of members of the Legislature — it's necessary to actually put words like that, or those words themselves, in the act so as to record that that is not only the level of expectation but, in fact, the whole purpose of the act having been brought into effect.

But the simple exposition of intent and of purpose, of and by itself, becomes very difficult to do anything more than use as a potential tool of interpretation when the act is, potentially, breached.

What occurred in the Northwest Territories occurred in circumstances that are different than what today obtains still in British Columbia, where we have no such declaration of purpose, and more importantly — and this is the point — we have no substantive provision that allows us to effectively enforce the declaration with respect to ethics and integrity.

In the Northwest Territories the section that was then being looked at provided that each member shall perform his or her duties of office with honesty and arrange his or her private affairs in such a way as to maintain and enhance public confidence and trust in the integrity and ethical conduct of the member.

We have no such provision in British Columbia. But there are those who argue that because we have in sections 2, 3, 4 and 5 a variety of imperatives which describe what a conflict of interest is and what you can't and can do insofar as conducting yourselves as members of the Legislature…. It's said by some that the words I've just read that have been enshrined in the Northwest Territories are inferentially present, if not spoken, in the British Columbia act.

The next portion of the provision in the Northwest Territories that Commissioner Gerrand had to deal with was this. Each member shall arrange his or her private affairs and act generally to prevent any conflict of interest from arising and make all reasonable efforts to resolve any conflict of interest that may arise in favour of the public interest.

When the issue came forward of the conduct that had resulted in a failure to advise, by the Premier, the Legislative Assembly of a relationship which effectively was difficult and displayed — ultimately, as it was found — a lack of integrity, the commissioner had to construe what section 75 and the words that I've just read in it meant.

He said this, and this is set out, for the record, at page 3 of the submission which you most recently received: "I have concluded that the mischief which section 75(a) seeks to avoid is not limited to improper financial manipulations." I pause to say that it had been argued in the case that the Northwest Territories act could only be enforced against conduct that had financial implications.

He said that he's concluded that the mischief which section 75(a) seeks to avoid is not limited to improper
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financial manipulations but includes "conduct of an ethical nature if that conduct impairs the public confidence and trust in the integrity, objectivity or impartiality of the member. The act is not intended as a code for moral conduct. In my view, there must be a nexus between the conduct in question and the member's obligations to the Legislative Assembly and its proper functioning."

He makes it clear because, around this table and others, people have had to ask themselves the question: "Well, ethics mean one thing to one person and another to someone else." In that sense, it's difficult of definition. We can't just have it in the air, because what's ethical in terms of conduct committed by one person might to another person be seen as unethical.

Here we have the commissioner saying clearly that the act is not intended as a mode for moral conduct. In other words, stopping there, he would have concluded, presumably, that having an illicit relationship — not to sound melodramatic — was morally unethical and therefore was a breach of the act.

But he goes on to say the words that to me make all the difference — that there must be a nexus between the conduct in question and the member's obligations to the Legislative Assembly and its proper functioning. That's how, at the end of the day, the decision was rendered — a decision which ultimately was reviewed by former Commissioner Hughes and found to be correct in the opinion of Mr. Hughes.

What we're left with here is the opportunity to take conflict-of-interest legislation in British Columbia — which has served us well but which, in my view, can be narrowly interpreted as being simply conflict of interest–related without any kind of consequential ethical or integrity component….

I guess, to some extent, one could easily make the decision to go ahead and change the act, because if we don't, we're on the wrong side of the numbers in terms of what other people have chosen to do systematically, over this last 21 years across the country, as they've come on board. But I've come to the view that it's the right thing to do.

It's the right thing to do not simply to put in neon lights aphorisms that we think the public will agree with and then think better of us. It's the right thing to do because what we're about, in terms of transacting the legislative business in our assembly, it seems to me, has got to be done against a backdrop where people are declaring that they have a responsibility to act honestly and to arrange their private affairs in such a way as to maintain public confidence and trust in their integrity and ethical comment.

I think it important, given that I've now referred to what is really the substantive provision of the act that we're comparing ours to, that we also put into the act, into the piece of legislation, probably fairly soon, what the purpose of the act is. And it's the compendium, the companion of the purpose and the enforcement provision, that allows me to conclude, as a matter of opinion, that doing that will be beneficial to the act, to the regime that we administer and to the benefit of all of us.

Without an enforcement mechanism, any purpose clause by itself would amount, really, to flag-raising.

The purpose that I have suggested — and this was the task that, basically, the committee asked us to perform — was to come up with a form of words that could at least be tested. "I may not know," says the observer, "whether I like something unless I see what it is that you're actually going to say. I may like the idea, but I reserve to myself the right to be able to look at the words and see whether I agree with them."

The purpose, which I would put early on in the act, is suggested to be to (a) maintain and enhance public confidence and trust in the integrity and ethical conduct of the members, and (b) demonstrate that members are held to standards of integrity and ethical conduct that place the public interest ahead of their private interests and provide a transparent system by which the public may judge this to be the case.

Once you've had that as a purpose or a kind of preamble, then you can go on to articulate an enforcement provision. Taken together, it seems to me, you've moved the ball down the field, and you've made progress.

Jurisdictions everywhere, as they've come on board, if I can put it that way, in the conflict-of-interest and ethical enforcement regime, have in each and every case chosen to do something like this — though some of them, it must be said, have been satisfied only with the preamble, and the substantive section doesn't appear. The fact that they've done this shouldn't determine that we must do it, but it's pretty good evidence of the fact that there is a consensus across the legislative community, certainly in this country and elsewhere, that it's the right thing to do.

C. Hansen (Chair): Maybe I will jump in. I think it's safe to assume that even though we've had this latest report for a short period of time — it's 30 pages altogether — if we haven't had a chance to read it, we can, I think, probably pick it up fairly quickly as we go through it. I certainly have had a chance to read all of it and digest it last night. I don't think it's necessary for us to go into all of the detail of your presentation. I think you can sort of take that as read.

But what I do want to do…. I think we can spend some time on this first recommendation in terms of questions the committee has. As we go through the rest, I'm not necessarily going to suggest we stop at every recommendation. I think it's only if there is an issue that committee members want to raise. Otherwise, we're not going to be able to get through all 30 pages in that period of
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time. I know it's customary for the Chair to maybe pose questions after all the other members, but I'm going to jump in on this one first and then take questions from other members.

Not being a lawyer…. I do remember the discussions about 12 years ago around the purpose of purpose clauses. If I recall the discussions at the time, from 12 to 13 years ago, it was really that the purpose clause in legislation was probably going to be phased out by jurisdictions with our parliamentary traditions and that, if I recall right, there were actually examples where the purpose clauses worked in some cases counter to the intent of the legislation rather than to enhance the interpretation of any particular statute.

To the best of my knowledge, I don't think there has been any bill that has come before this Legislature in the last 12 years that's had a purpose clause in it. I may be wrong on that; I could stand corrected. My question to you would be: why is it necessary to both have a clause, which you've titled under here "Obligation of members," which would be in the body of a statute, and also reiterate basically the same intent in a purpose clause? Given that they are slightly different wordings, could they not almost work contrary to each other?

I guess my basic question: is the purpose clause necessary, or is it basically just the clause that would be in the body of the statute?

P. Fraser: I think it's necessary if we're going to indicate — and I'll come to the nub of your question in a moment — that the lens on the act is changed such that ethics and integrity become subjects of equal billing, if you like, in terms of what it is that the act hopes and tries to do.

I know we don't want to deal with cosmetics. But it has seemed to me that if we're going to change the name of the act…. We can, and I believe we should, so that for some of the reasons that have been given by others over the years, people looking at the sign can see that it's ethics and conflict of interest that the act is concerned about and not leave the impression that simply conflict of interest is all that we're dealing with. And it tests about whether activity has crossed that line.

I believe that the intent of the whole regime, after a period of maturity in the early '90s, given the troubled times under which the act then came in…. I believe that the purpose of the act became understood to be that we have a regime that celebrates the fact that honesty and integrity effectively motivate what we're doing when we come to legislate — or should be doing.

Others have observed that if you stopped any elector on the street and asked them whether this language was probably in a piece of legislation that had to do with how people should conduct themselves as members, they would be astonished to find that those words weren't actually in the act.

Well, your question is a more technical one, and I accept that. It's basically the technical point that Geoff Plant made and which the committee 12 years ago embraced. That is, that you have to, as legislators, make every attempt to speak clearly and unambiguously in circumstances where the consequences of the legislative provision can be dreadful to the person involved.

They can mean the destruction of a person's career if suddenly a conflict-of-interest commissioner were to interpret them in a way that, generally speaking, members of the assembly and/or members of the public thought was beside the mark or couldn't be supported by what was actually in the legislation.

That risk has been taken in many, many other jurisdictions. The idea of…. While the words are similar, they are different in the sense that the purpose of the act is at, if you like, one entry to the process. The conduct, whether it accords with the purpose or not, then becomes the issue in terms of whether or not there will be an enforceable series of imperatives or simply a purpose clause in the air.

I have no difficulty with the notion that if all we were talking about was a purpose clause without, to use the word again, the nexus of actual conduct, which is tied to the performance of one's actual duties, I have no doubt that that would not be helpful, and it would leave the door open to an interpretation that might be seen as being far too broad.

When you take the step, which I think is necessary to take, and which in my view, with respect, caters to the opinion expressed by Geoff Plant and accepted by the committee…. His comments are not comments that I disagree with. When you take that next step, and when you make it clear that through the enforcement provision we're suggesting that there's got to be a nexus between the preamble and the enforcement provision, then I think you're there.

C. Hansen (Chair): Anything else in terms of this first section — part 1, scope of the act?

M. Coell: Just to follow on, on Colin's question. If you weren't to have that, is there any other way of accomplishing it?

P. Fraser: I think the only thing that would be at huge risk is to take the chance that left unamended, inferences would be drawn down the road, which the act, as drafted, can't possibly bear, in my view.

If you're going to be wrong in your interpretation or you're going to be criticized for your interpretation — not just mine but anybody looking at the act, any member
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having to live with the act…. If you're going to be wrong, then it seems to me you want to be able to look at an act that has a form of words where you can say, "That isn't what these particular words mean," or that you haven't had to, effectively, in coming to your decision, create words that aren't already there.

That kind of difficulty I think all legislators recognize and accept. I don't know whether that answers your question.

J. Brar: Now, you indicated the difficulty of defining the term "ethics." Ethics is a term which is kind of indefinable. But you are suggesting a particular definition here, and my understanding is that you are fully satisfied that that definition will meet all the standards to enforce, particularly, this aspect of the act.

Just to understand that…. If you go back in the past, can you point to a situation where having this component in the act would have served the people of British Columbia better? Is there any example you can point to, or are we just assuming that having this will be a good thing to do?

P. Fraser: Well, it's perhaps an awkward way to answer the question, but let us assume that there had been an act in place in the late 1980s, and let us assume that this language was in that act. Then, I think, the whole matter of Mr. Vander Zalm would have been much more easily resolved.

One of the difficulties that we have — and I noticed some very important questions by members of the committee to the people that have come forward to give you their views — is: where is the data here? How can we…? I think this is clearly behind your question. I can appreciate that.

The problem in the work that we do is that the circumstances and the incidents that occur are wildly under-reported because there are only a very, very few public decisions that are made and now posted on websites. The vast majority of decisions that we make are made on a confidential basis, and we don't have access to anybody else's work across the country unless and until there's been a formal inquiry and the result of that inquiry has been published for all of us to share.

It doesn't mean that we're living in a world of secrecy, but what it does mean is that we have made a decision — at least in this province, and I think now elsewhere — that prevention is better than punishment and that advice given in circumstances that remain confidential is more likely to be accepted and understood than if we're immediately thrust into a situation where all of the circumstances are made public.

I venture to say that the presence of these words will be of assistance to us, as I believe they have been to our colleagues across the country, in being able to advise members according to language that's already in the act: "This is where problems can arise" or "This is why certain conduct is unacceptable."

That's a difficult notion to defend, except to those of us, frankly, who are involved in this work. And in many cases, of course, it's kind of unfair to answer perfectly legitimate questions on the basis of: "Well, I can't tell you really why, but trust me." This will help us.

C. Hansen (Chair): Okay, seeing nothing further on this particular issue, I'd like to move on.

On page 5 of the report we've got a recommendation with regard to the commissioner's ability to investigate potential contraventions on his or her own initiative and a recommendation coming from the commissioners that we not amend in that regard. The reasons for that, I think, are set out succinctly, but if there are any questions, for the commissioner, now would be the time.

P. Fraser: I'm pleased to say on that one, Mr. Chair, that I didn't change my mind — if you're keeping score anywhere.

C. Hansen (Chair): On the next one, with regard to extending the act beyond members of the Legislature to other unelected public office holders. This is one that I think is a very significant one. The commissioner's recommendation is that the committee consider whether the act should be extended to…. I think the bottom line is that….

Well, let me put it this way. We have, as a committee, reached out to seek advice. I think we had some of that from the head of the Public Service Agency in her submission. Some of the others that I think we thought we might get input from declined to provide that.

This is one area that I think we probably would need a bit more…. We are going to, I think, have to do a bit more work on it as a committee before we are in a position to come to conclusions, but I would certainly invite any comments or questions from the committee.

M. Farnworth: Yeah, I've read the recommendation, and I've read the rationale. I guess some of the key questions that I would have are in terms of how it's implementation…. Would it be similar to what we have? Would it be different, recognizing that they're not elected? I think I'd like to see a bit more on sort of the details of implementation, how something would work, before I can say absolutely yes or absolutely no.

C. Hansen (Chair): I think, Commissioner, there is a suggestion in here that perhaps it could vary, for example,
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around cooling-off periods and things like that, which I think is explicitly discussed in the report. Perhaps if I can just add to Mike's question — and then turn it to you, Commissioner — also about whether you've given any thought to what the cost implications would be for the Office of the Conflict of Interest Commissioner if the scope is broadened as is suggested.

P. Fraser: Yes. The committee should know that the only comprehensive regime involving so-called public office holders in the country is the federal regime. It is very comprehensive, and it is very expensive. It involves thousands of people — everybody from ministers to members of Crown corporation boards. Obviously, there are various requirements of all of those people, but that's the number of people we're talking about. The Conflict of Interest Commissioner's budget in Ottawa is, I would think, 50 times ours here. She has an enormous task.

In that act, in its ultimate form, it was, to some extent, a rather tepid reflection of what the government was starting out to do a few years ago. I mean, I think the cooling-off provisions began in draft at five years and moved down.

But what the committee, I think, needs to know beyond that is that at the provincial level there is almost no activity in this area. I haven't made that as clear as it needs to be in the material that you've just recently seen.

I can say now — and we can provide so as not to take up your time at some later date — that, for example, in respect of deputy ministers…. It would seem to me clearly the question of whether deputy ministers should be swept into the full system that members are obliged to accept is bound to be contentious. I think we all know that.

There are bound to be very differing views because there are very differing views about what the quality of deputy ministers' experience should be — whether they should be new to the government, bringing in fresh ideas, or whether they should be people who have been career public servants and therefore have stature, etc. It's not an easy discussion.

In its simplest terms, there is no jurisdiction in Canada where deputy ministers are put into a position where they have to disclose and can be disciplined as our members can under our act. So you would be setting a footprint.

The only indication that there is across the country, insofar as deputy ministers are concerned and what are called euphemistically senior public officials…. You'll realize that these titles are very difficult, because they mean different things in different provinces, and the definitions change. The only area is in Manitoba, where under their act deputy ministers are obliged to comply with what are effectively our provisions in conflict-of-interest act sections 2, 3, 4 and 5, which are the basic principles about sharing information — all that sort of thing.

Deputy ministers in Manitoba have post-employment restrictions imposed upon them. Manitoba has a very unique conflict-of-interest system, which basically involves the courts. In Manitoba, while there is a commissioner, it's to the courts that people go in order to make their grievances known and have them decided.

In Manitoba that's the only limited experience there is in terms of deputy ministers. Just to be clear, there are no disclosure requirements on deputy ministers, and the rest of the act, apart from post-employment and the compliance with the basic conflict-of-interest provisions, doesn't apply. In Nova Scotia it's pretty much the same.

That is it across the country. If you were to embark upon the, if you like, taking of jurisdiction over deputy ministers and senior public officials, you would be pioneers.

In terms of ministerial staff, also not much across the country. Federally, a very comprehensive regime. In Ontario some ministerial staff are governed not under what they call their integrity act, which is the equivalent of our conflict-of-interest act, but by some regulations that are, in a complicated way, passed. There the commissioner has a limited jurisdiction to give ministerial advice to staff who consult her from time to time, who are public servants.

In Alberta the conflict-of-interest provisions — our sections 2, 3, 4 and 5 — do not bind, as I think I understand it, the ethical conduct. Or do they?

P. Fraser: They're not in the act. Right. In terms of post-employment, though, Alberta is the only province that has post-employment restrictions with respect to former political staff members — not present, but former, of course, because it's post-employment.

The people that they choose there to monitor are the chief and deputy chief of staff of the Office of the Premier, the director of the Office of the Premier and ministerial executive assistants. In Alberta the commissioner has jurisdiction to effectively investigate and monitor whether there's been compliance there. The feds have the complete regime. Alberta has the only other meagre regime, if I can put it that way, in all of the other provinces and territories.

I don't have much of a…. In terms of the cost side of things, it's very difficult to use anybody else's experience, other than the federal experience, as a guide. The federal experience is so large, based on the huge group of people who are within the purview or the jurisdiction, that it's rather difficult to do that work and come up with some numbers. The disclosure process by itself is very, very labour-intensive and very time-consuming, as we know. And we have only 85 of you to process, if I can put it that way, in the course of a year. So there would be a very large component.

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I mean, the principal reason for the suggestions that have been made over the years has largely been that, in the great scheme of things, in terms of on a continuing basis who may have access to more sensitive information in the workings of government and who may have more to be purchased by successive employers are deputy ministers and senior officials, rather than the politicians. That's something that some of your members in questions I notice have themselves basically asserted.

That's troubling, if in fact it's true. I don't have any empirical evidence to prove it, but I don't dispute the notion that deputy ministers are very valuable to the commercial world after they leave office. Why should there not be some form of supervision?

Now, the deputy ministers and everybody else that works in the public service are caught by the "Standards of conduct," as you know, so it's not as if they are in the situation where they are not accountable. But the regime under which they are supervised is a much less strenuous regime than the one that you live under. In fact, our act has been called the toughest in the Commonwealth. The reality is that it's a very comprehensive, very strict act that requires both compliance and cooperation by the members. I'm pleased to say that we get both.

Moving on to the next one, then, around the municipal officials. The commissioner is recommending to us that we specifically not amend the act to extend the jurisdiction to municipal officials. I think this is an issue that came up with some of presenters that we had at earlier meetings of the committee.

If I can just add to the comments that the commissioner has written in this particular section, I think it's important that we look at our role as a committee. I'm not sure that we have enough information that has come before the committee to make a determination as to whether there is or is not a problem. I think we've probably got anecdotal examples. I guess one of the questions is whether or not this would be an issue that would really be outside of the scope of the work of this particular committee.

D. Barnett: There are some local government issues out there that do need some work, but I don't believe it's this committee's job. I think you have to sit down with UBCM and the minister responsible and put some more teeth into the Community Charter. I've done some work with them. I was there for 18 years, and there are some issues.

C. Hansen (Chair): In terms of the report of this committee I think we probably want to be careful, with the wording of the report, not to imply one way or the other as to whether or not there is a problem existing. In fact, it's really a question as to whether or not this committee should be addressing the issue at all or whether it's outside of our scope.

M. Farnworth: I agree with this recommendation. I think we had some good discussion on this during the hearings. In terms of the wording, I think just the sheer size and volume make it pretty clear that that would be a significant change in the function of this office. What we're dealing with is the members' conflict of interest. I don't think that should be a problem — to communicate that.

P. Fraser: Mr. Chair, could I make this comment? I think the work that you've done and the opinions that you have solicited and received around this issue can be a valuable contribution going forward. What we have seen and what Professor Levine has told you, and Professor Smith and others, is that this very difficult area has quite recently been dealt with to some extent in both Ontario and in Quebec in a way that might be instructive for UBCM and other people to look at.

Essentially, I agree, with respect, with what Mike has said. If you were to try to take the municipal issue and deal with it within the context of our conflict-of-interest act and the mechanisms and the practices and procedures that surround it, it really is proving what everybody knows — that one size doesn't fit all, and you're going to be trying to put sort of a square peg into a round hole. It's not a good fit.

As you've been told, in Ontario and in Quebec what they seem to have done, effectively, is to move the system beyond the courts. The real nub of the issue in terms of municipal conflict-of-interest processes is that you wind up in court. That's where you go, and with all of the cost and delay and uncertainty that's involved there.

In Ontario they've set up commissioners. Municipalities have. There's one in Toronto. There are several others. Professor Levine himself, I think, is the integrity commissioner in three or four separate municipalities. In Quebec, apparently what's happened, so far as we can tell, is that effectively the ministry takes the complaints and deals with them, but in either place they do not wind up in court.

To the extent that it's helpful to the committee for me to make a suggestion and try to assist the process, I'd be very happy to be part of any consultation that UBCM or others may wish to have about how our system works — well knowing that how it works is not likely to be easily transferrable in whole, but at least the model may work on either a regional or on an individual municipal basis.

C. Hansen (Chair): Thank you. The rest of the explanation, I think, is quite clear in terms of the commissioner's recommendations.

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Moving on to post-employment matters. I think the commissioner has circulated the rules that are followed in the United Kingdom with regard to former ministers. I think his comments are that it could extend to public office holders.

Just a first question on this area, Commissioner. Would you make a distinction in terms of post-employment whether somebody is moving from a position within the government entity to outside, perhaps in the private corporate world, as opposed to somebody that is moving within the government entity — for example, a deputy minister moving to a Crown corporation in an executive capacity or to a university. Do you see a distinction there, or do you think that there is basically one set of rules that should apply?

P. Fraser: : No, I think there is a distinction, and I don't think that it can be treated monolithically. On the other hand, I don't think that we can resort to saying that every case depends on its own facts and so you have to come and try every case.

I think there's got to be guidance, But I think there is a very real difference between people who are moving from government into the private sector for a whole bunch of reasons that are perhaps dictated by the marketplace and perhaps also dictated by the fact that, as some of my American colleagues have said to me, in the United States, where they have, I can tell you, a plethora of conflict-of-interest commissions — not just commissioners, but commissions — dealing with any number of complaints….

Their biggest concern, they tell me, is the fact that lobbyists and others there are frequently heard to say that they are effectively buying their employee over a period of years before the end actually arrives and the person leaves. So the biggest concern of the commission and the commissioners is to try to make sure that that purchase is stamped as being improper. That is, of course, a very different situation than moving from government into the academy or moving to another area of the government where the person's time and attention and expertise will continue to be shared by the public.

I remember a friend of mine who left a senior cabinet post going to the academy and trying to convince his new academic colleagues that his practical life as a politician had had some benefit and could bring some benefits by transfer into academia. After he'd finished indicating how practical his political career had been and how successful, his first question from the audience was from an academic who said: "Well, all of that may work in fact, but does it work in theory?" He knew then and there that he was in a very different world, if indeed the question was serious.

So yes, I think there's a real difference. If I can, can I make a point that I think is important and which is not in our material but should be? As you see, the recommendation that we've made is basically that section 8 should be completely rewritten and replaced along the lines of the recommendation of what goes on in England.

Whatever happens, in whatever circumstances, if section 8 — heaven forbid — continues to remain with us in its present form or otherwise.... One of the very valuable things that Professor Levine said to you, in my view, is that any post-employment provision in our act should be along the lines of the provision that exists in the federal Conflict of Interest Act, section 33: "No former public office holder shall act in such a manner as to take improper advantage of his or her previous public office." So taking improper advantage of office upon leaving it is something that I think should be enshrined as a kind of a guidepost in the legislation itself.

That very provision, as Professor Levine and I came to find in the inquiry that affected former Prime Minister Mulroney, was the hook. The commissioner was able to find that what had happened — whatever story was to be believed, whoever's story you accepted about the passage of the money in that case — amounted to an improper advantage being taken. That is not in any of the material that we have put before you and referred to, but I see it as a key provision that should be in any change to post-employment matters.

R. Hawes: Could I just ask…? You've also suggested in here that it's applicable to parliamentary secretaries. There can be parliamentary secretaries that are appointed because of their expertise in an area — expertise they gathered prior to becoming an MLA and was actually part of their everyday working life prior to being an MLA. If they were to return to that type of employment but hired by a company that they had dealings with as parliamentary secretary, are you saying that that should somehow be precluded, that the new rules should apply to that?

P. Fraser: First of all, I've been careful to not preclude parliamentary secretaries from the purview of post-employment concerns. I find it's difficult to discuss their situation when the role of parliamentary secretaries has probably changed from the time when the act was first brought into effect. I don't want to, for a moment, diminish what that role today is, but I do say that I think the cooling-off period should be different than it is for ministers.

One of the things, Randy, that so appeals to me about the English system, and you can see that I'm a fan of it, is that…. I think it's really important to be able to say to someone who has come into public life, having made
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sacrifices to do so, remained there, having made sacrifices to do so, but who has learned a great deal along the way and suddenly find themselves hobbled in the way in which your question suggests they could be, even for a briefer period of time than for ministers….

It seems to me to be discordant that we try to attract very good people to public life and then make it very difficult for them to go back to their own life. The English system gives us an opportunity, or would give us an opportunity, to look at the particular situation and decide whether it was — I'm going to use the word — appropriate in all of the circumstances.

That may not be very useful from a precedential point of view, although if the person doesn't accept the advice and goes ahead and takes the job anyway I'm sure that precedent would be well remembered. But at least what it does is treat the person fairly, and it treats the system — the system which is wanting to attract good people into it — better than we do now.

I have difficulty saying that you should elevate the commissioner's role to be that of the committee, because it sounds pretentious, except we live in a very different world than they do in England. I think that the chance of a member to sit down, go through it all and come up with answers that may clearly be needed and for potential employers to be questioned to provide information that may be necessary and, on the basis of all of that, come up with a bit of advice that the intention is either acceptable or not would be a huge advantage over what we've got now.

R. Hawes: Yeah, I suppose so. I don't know whether or not that…. I'd have to think about that for a little while. I can think of a lot of examples where a parliamentary secretary, who actually is not a member of executive council, might, following his departure from the Legislature, become quite attractive to an industry that he was working with — not attractive because of political influence but because he has a knowledge base and may have proven himself to the industry to be a person who is worthy of them hiring. I think it's quite restrictive.

C. Hansen (Chair): I think, certainly, the applicability of conflict rules to parliamentary secretaries is something that we have flagged as an issue for the committee to address. So I think we will definitely be revisiting this.

R. Hawes: Yes, I know that. I just wanted…. Because the commissioner raised it, I'm just trying to determine where his thinking is on it. That's all.

P. Fraser: Very quickly. My view is that a person's knowledge of government, how government works and how the process enriches democracy, is information, experience and learning that they should be able to share, and share quickly and in appropriate circumstance with the outside world.

The difficulty comes when you get out of the general and into the very specific, and you talk about people who have been working in a specific sector wanting to go to work in that sector too quickly. The difficulty also is in trying to come up with timelines that are going to be effectively imposed under any circumstances. The flexibility that the English system contains, from my point of view, is something that helps to overcome those problems.

C. Hansen (Chair): I think one other thing that we should keep in mind is that all of the public office holders that we're talking about take oaths of confidentiality at the time when they start their employment or those public responsibilities. That oath of confidentiality is not there during the time that they are an officeholder; it's actually an oath for life that they are bound by, as well, which I think is also a factor.

M. Farnworth: Just two quick points. Actually, one is a question, and that is: do you see, if we adopt this recommendation, that it would basically be a committee of one, the commissioner — if you adopted the recommendation, the English system — or would you see going to a committee? That's the question.

The second is more of a point, and that is I think there are two things that we can keep in mind on the issue of parliamentary secretaries. First, the role really does vary from parliamentary secretary to parliamentary secretary. In many cases it depends on whether or not they have been given a specific task to do and resources to be able to do that task. If they haven't, then, in essence, there's not a lot there. That varies probably more than any other — certainly from a member of the executive council. I think that's one thing to keep in mind.

Then the other, in terms of the employment period. If you're looking at it to say, "Okay. It's going to be less than an executive council member" — let's say two years — and that it's going to be something less than that, the reality also is that when you leave public office under our current compensation package, if you are either defeated or choose not to run again, your pay as an MLA will continue for another 15 months.

That also, I think, is a bit of a mitigating factor in terms of the need to find employment the next day. I think that can also be taken into account in terms of how we approach that, particularly with the issue of parliamentary secretaries.

But I do like what I've seen so far in terms of the idea of that U.K. system. I think that it certainly has got some merit there.

P. Fraser: My preference would be, in answering your first question, that it not be a committee of one but that
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it be a committee that I would be involved in, either as a chair or simply as a participant. I think you need to pollinate these things and involve other people who have more experience — maybe more contemporary experience — than somebody like I have. So I'm not wedded to the notion of me being the only one.

The English system has gone through a variety of different forms. They started out with the committee members being appointed by the Prime Minister after consultation, I think, with the Leader of the Opposition. All of the people who have been on the committee from time to time are all people who are publicly acknowledged as being leading citizens and so on.

I think that's important. It's very important to the public, who may think that the commissioner, for whatever reasons, isn't somebody they want to send a Christmas card to, but there are other people that they do, and it's reassuring to them. From the members' point of view, I think all the approbation you can get is important to you. That's my response to that question.

C. Hansen (Chair): Okay, thank you. Moving on to the recommendations 6, 7 and 8 under part 2, "General matters." First of all, I think we can probably deal with these all, because they have a bit of a common theme to them.

On a prohibition against a member improperly furthering the private interest of another person or entity, I think the commissioner's explanation is fairly straightforward. There's No. 7, that the act be amended to include a prohibition against a member using or communicating insider information to improperly further the private interest of another person or entity, and that the act be amended to include a prohibition against a member using his or her office to influence or attempt to influence a decision to improperly further the private interest of another person or entity.

I think we can probably look at all of those. I don't know if there's…. I think it is fairly straightforward — the recommendations — unless anyone has any specific questions.

N. Letnick: Colin, just on the last one. How does it work in practice, if I have a constituent that has a business? I'm not in cabinet. Therefore I don't really make the final decisions. Am I not allowed to advocate strongly for my constituent with government, and therefore, am I not putting myself in a conflict-of-interest situation, according to the last clause you just read out?

P. Fraser: The act specifically, Norm, says that it in no way is intended to limit the activities in which a member is normally engaged on behalf of constituents. I guess the only issue beyond that is the extent to which that representation would go. My view of all of that would be a very liberal one — or a generous one, anyway. I don't see it improperly furthering the private interest of someone.

I see all of these recommendations as attempting to control a situation where members might be benefiting other people for the latent or the hidden purpose of ultimately having that person benefit them. So I see these as, really, uncontentious and fairly straightforward.

C. Hansen (Chair): I think with all three of these recommendations, if you removed the word "improperly," it would have a very different connotation.

C. Hansen (Chair): I think that's probably the most important word in each of these three recommendations.

Moving on to No. 9, the recommendation is that the act be amended to include a prohibition against a member attempting to influence a matter that is the subject of a conflict of interest. I just had one point on this one, and that is: when there is a recusal by a member with regard to an interest…. It talks about the disclosure, but it doesn't say disclosure to whom.

I don't know if that's necessary to have in the act per se, but I would suggest, perhaps, that in the case of the Legislative Assembly or a legislative committee the disclosure should be to the Clerk of that particular committee or the Clerk of the House, and that in the case of an executive council function it should be to the recording secretary. But I don't know, Commissioner, whether that's something that should be specific in a recommendation — or is that of a more general nature?

The point where I come from is that sometimes in a meeting…. If someone was to disclose to their colleagues the nature of their conflict, then they could actually be exacerbating the problem in that their colleagues now know that this person has a personal interest in a way that wouldn't necessarily be brought to the attention of everybody if it was a simple disclosure to the Clerk or the recording secretary.

P. Fraser: Yes, you're quite right. That's a difficult and perplexing problem that's compounded by the fact that whenever we come to talk about these sorts of things, there's a requirement that the person generally describe what the conflict is. As you say, the cure can then become worse than the disease. If the person goes on at some length about why they're conflicted, they may well convey a point of view that contaminates the discussion.

In terms of the actual reporting function, I think what you're suggesting is right. It should be to the Clerk of the House in terms of the assembly, and it should be to either the Chair of the meeting or, probably more likely, to one
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of the officials who is serving the committee where the incident arises.

Our best advice, in all of these circumstances, to people is to do everything they can to try to understand what's coming up for discussion before the meeting and then make sure that they (a) don't go to the meeting for that period of time when they know that it's going to be discussed and (b) take all appropriate steps in the meantime to make sure that nothing is circulated to them prior to the meeting that they would have seen. That isn't always possible, but I think people are doing their best.

Moving on to the next one, under recommendation 10: "That the act be amended to include a provision prohibiting members from taking actions that are intended to evade or circumvent their obligations under the act." Again, I think that one is fairly straightforward, unless anyone's got any comments or questions.

Moving on to No. 11, in terms of gifts and benefits. The gifts and benefit provisions of the act be amended by adding a definition for "gift or personal benefit," including family members in the prohibition; allowing 30 days for members to disclose — which is the practice today, but that would in fact entrench this; and that the threshold for disclosing gifts be $250, as it currently stands.

M. Farnworth: Just a quick question. Why doesn't it go up with inflation each year? I notice that we often do that with many things. The fine is this, or….

M. Farnworth: I'm just wondering why it's always a fixed number. You see that in so many other things. It's like a $5,000 fine, or it's $250. That was put in — what? — ten years ago. And $250 then is a lot different than $250 today and will be five years from now. I just wondered. It doesn't go up by the rate of inflation, for example.

P. Fraser: One of the interesting recent developments is that the commissioner for Canada has reduced it to $30 — in Canada. Or she is suggesting…? Okay. She has suggested to her equivalent parliamentary committee, and her reason for doing so was: "Listen, you're missing the point, folks. You're not supposed to be accepting any gifts at all. Really, what we're talking about is what you are going to remember to report to us."

M. Farnworth: So that's where the preamble underneath…. When you speak at a function of something and you're given a perfunctory gift that you often….

P. Fraser: This is just simply an attempt to be practical. Our brochure was our first attempt there, and this tries to take into account the reality and describe what's exempted so that people don't have to bother phoning and wasting their time worrying about whether they can accept things.

I had one issue here. It's sort of under the section where you talk about the definition of "gift or personal benefit." It means "(a) any amount of money if there is no obligation to repay it." My question is whether or not there is a distinction between cash and other things.

For example, it's one thing if somebody picks up the tab for lunch, which is a gift, and obviously if it's over $250, you have to disclose that. If somebody I was meeting with offered any amount of cash, I would kick them out of my office, but the way this suggests is that as long as the cash gift is under $250, it's okay. I guess my question is: is it, in any circumstance, on any amount?

P. Fraser: Point taken. What we were, I think, intending to convey here was…. Anecdotally, we are told from time to time that people have loaned money or have had money loaned to them within families, and they want to avoid, understandably, the embarrassment of having to disclose all of that. But we'll think about that.

A. Mochan: An example that you gave about someone picking up the tab…. I also think that will be covered by hospitality, under (b).

C. Hansen (Chair): The other one, from personal experience, that I found difficult to wrestle with, was the cumulative amount. You know, it almost…. It's one thing when you look at $250 for a gift or a benefit. Maybe it's somebody buying lunch or dinner or something like that. It's another thing when you start to…. How do you actually…? What would be the obligations on a member — let's put it this way — to track that over a period of time? Under the current rules it's a cumulative amount in any one year.

P. Fraser: Yes, but we also remember that you have reporting responsibilities that are periodic in terms of what you need to report and when. Typically, what happens is that the size of the gift would not constitute a material change triggering that obligation, but at the end of the
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year you have to tell us what it is that you've received and at what value, so we assume that you're keeping track of that.

Moving on to recommendation 12 — that the act be amended so that activities required in order for a member of executive council to maintain his or her professional qualifications do not constitute "carrying on business" — I think this is one that we discussed at previous meetings. Any further questions or comments on that particular area? I think it's fairly straightforward.

Moving on to disclosure matters, recommendation No. 13 — that the act be amended to include wording which makes it clear that the commissioner has discretion to exclude certain assets, etc., from the disclosure obligations — again, I think that's fairly straightforward.

P. Fraser: Yeah. That's just housekeeping. We actually took the step of trying to be practical and change the forms, and the legislative counsel, quite properly, said: "Well, we understand why you're doing that as a practical matter, but it would be better if you had the authority under the act to do it."

C. Hansen (Chair): This next one, 14, with regard to mandatory electronic filing — again, I think is something most of us welcomed.

Number 15, end-of-term declaration, is basically an exit declaration at the end of a term for an officeholder. Again, I think that's fairly straightforward, but there may be questions or comments on that.

This next one, on-line access, is that the act be amended to require public disclosure statements to be posted on line. I guess one question I had on this: would you see that as being substantially in the same format as the current disclosure that is filed with the Clerk's office and is available for public inspection currently?

P. Fraser: Yeah. We would simply take the public disclosure form which you've signed off on, and instead of sending it to the Clerk, we would post it on our website, so people from all over the province would have access, not just people who can wander into the Clerk's office. That's the rationale.

C. Hansen (Chair): Now, I note in your report from May 31 on this particular discussion that you point to Ontario and Canada, I think, as examples. I made myself a note yesterday to go on line and look at the Ontario example, which I haven't had a chance to do yet. But in terms of the…. Is Ontario a model for us? Or is that something that we would want to copy from one of those other jurisdictions, in terms of the style and format?

A. Mochan: I think that could be figured out later in terms of how we want to do it. I think probably the simplest thing is just to do as Paul suggested, because we've already got the format that has been in practice for many years, and it would be simple to PDF it and put it up and have some kind of searchable way to look at that.

I just also wanted to add that Quebec also posts their disclosure statements. It's not required in their act, but they do it as well.

C. Hansen (Chair): Moving on, then, to part 5, "Investigation and Inquiry Matters," No. 17 — that the act be amended to include an option for the commissioner to conduct a preliminary review or investigation before proceeding to the inquiry stage. Again, I think there was a fairly substantive discussion on that in some of the other reports that we've had the chance to look at. Any questions or comments on that area?

Next is No. 18 — that the act be amended to include a section stipulating that information brought to the commissioner's office must remain confidential, and clarify the relation between the act and FOIPPA. Again, this is an area, I think, that has been highlighted in the past for us.

P. Fraser: I think Bert Oliver is listening to us, wherever he is. This was his particular hobbyhorse for a long time.

Number 19 is that the act be amended to clarify how and under what conditions opinions provided to members of the public will be released. Again, I think it's fairly clear in the intent of the recommendation.

Number 20 is that the act be amended to require the suspension of an investigation or an inquiry in the event that the same matter is subject to a criminal or other investigation. Again, I think there has been a fair amount of commentary that we've had on that from other reports.

Under penalties — that the act be amended to increase the maximum fine the commissioner can recommend from $5,000 to $20,000. I wrote beside there: "Recommend to whom?"

P. Fraser: To the Legislature. See, the commissioner can't impose any penalty at all. All I can do is recommend to the Legislature what the result should be.
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M. Farnworth: Let's say we adopt this, and you make that recommendation. Can the Legislature say: "No, we don't like that. We want it to be X amount of dollars"?

M. Farnworth: Oh, okay. Let me just carry that one question a bit further. Would that be a simple majority, or would it require two-thirds, or what have you? The reason I ask is that…. I mean, I actually like the idea of your making a recommendation. I expect that in most cases a legislature would adopt the recommendation of the commissioner. But this is B.C., and it wouldn't be the first time that: "You know what? We're going to single that person out and decide we don't like that. We're going to…."

That aspect does concern me. It's not likely to ever happen, but I just wondered about that.

P. Fraser: That's a very, very good point. The act does not say whether it's by a simple majority or prescribed in the…. All it says is that the Legislature can do a variety of things, but it must do them within a certain period of time. And they're not bound by whatever it is that I recommend.

But that's interesting, in terms of housekeeping. I'd be interested in what recommendations you'd have in that respect.

M. Farnworth: Yeah, I was just sitting here. It occurred to me, and I thought: "Hmm, okay." I mean, I agree with the recommendation. I just sort of…. I think there is maybe a little clarification….

C. Hansen (Chair): In terms of other jurisdictions that you're familiar with, is it common that a recommendation would go to the Legislature, and then the Legislature would have to accept or reject the recommendation, as opposed to the commissioner actually having the statutory power to assess a penalty?

A. Mochan: It's very consistent across the country that the commissioner makes recommendations, and it's up to the Legislative Assembly, the Legislature, to either agree or not agree with those. The only difference would be the federal system where the commissioner can impose an administrative penalty for certain transgressions, mainly to do with disclosure and that sort of thing. So she can impose up to $500, but not for a substantive breach of their act.

Next, 22 — that the act be amended to expand the scope of protection to former commissioners, current and former employees and those who provide information to the commissioner. Again, I think that recommendation is fairly straightforward.

Number 23 — that the act be amended to include provisions stipulating that the commissioner is not a compellable witness in civil proceedings. Again, is that common across jurisdictions?

A. Mochan: It's not common, but it's in some other jurisdictions that make sense.

C. Hansen (Chair): Number 24 — that the act be amended to allow the commissioner to recommend that a person who is subject of an investigation or inquiry under the act be reimbursed in an amount approved by the commissioner for his or her legal costs with respect to such investigation or inquiry. Again, in here it talks about where the commissioner considers it appropriate in the circumstances, he or she may recommend that the member be reimbursed. Would that be a recommendation to the Legislature, per se?

D. Barnett: I have some concerns with this. Would there then be a recommendation coming from your office to the Legislature as to a ceiling amount? I would have some concerns that the costs that would be incurred if there were going to be reimbursement for fees could become very high, and we all know how the taxpayer likes that.

P. Fraser: What we tried to do here was to first of all give the commissioner discretion to decide whether it was appropriate at all to award costs and then, secondly, determine what the amount would be so that we didn't wind up into a two-stage process. But the question of who do we make that recommendation to is something that we will consider and get back to you on if we may.

C. Hansen (Chair): I guess the other question would be: if there were costs being covered, out of what vote would it automatically be out of? A Vote 1? It certainly….

C. Hansen (Chair): Again, I think if it's looked at in the context of a relatively straightforward matter, where the costs aren't extraordinary…. But hypothetically there could be a circumstance where if somebody is getting expensive legal advice, it could be a significant amount.

R. Hawes: Colin, can I just ask…? The recommendation says that the commissioner may recommend that a "person…." Or should that say "a member" or "former member"? I'm not quite clear on who you're talking about here.

C. Hansen (Chair): Well, I think in the context of the current wording of the act, because it is the members' act, it would be the member. But if the committee does choose to broaden the scope of the act, then perhaps "person" is a more appropriate term.

P. Fraser: If you make the decision to extend the jurisdiction of the act to cover more than just members.

R. Hawes: So for example, in the Missing Women Inquiry, then, the commissioner could say who would be entitled to reimbursement?

C. Hansen (Chair): No, this would just be matters pursuant to what is currently called the Members' Conflict of Interest Act.

Next, under part 6, "Miscellaneous." Again, stop me on any one of these that anybody has questions or comments on. But again, these are fairly straightforward definitions to be added. What is a "dependent child"? Definitions for "gift" and "personal benefit" and revisions to the definition of "private interest," "private corporation." I assume that's fairly straightforward for everybody.

Number 27, under the terms "appointment and re-appointment of a commissioner." Again, I think what is being suggested is fairly straightforward, but I did want to ask whether or not you had looked specifically at the issue that Peter Meekison raised about the appointment of an acting commissioner — whether or not it would be advisable to clarify the roles under "Appointing an acting commissioner," should that ever be needed.

P. Fraser: Yes, the act seems to be clear in the mechanism that it creates about when you have to have somebody sitting in the chair, and the chair can't be vacant. I noted Mike Farnworth's comments in the course of the discussion, I think, with Peter Meekison during the debate, or at least the discussion you had with him.

The point of that, as I took it, was that even though, in the post-Meekison days…. I think what has happened is that people who have been appointed as acting officers — informally, anyway — have had that prospect discussed between leaders of both parties. Sometimes it falls between the cracks and doesn't get discussed. From the point of view, having been there myself, of the person who is asked to come in and be the acting person…. From a practical point of view, the first thing that person should do is make sure that there is support from both sides of the House to that appointment occurring. Otherwise your term there is likely to be very difficult.

I don't really know and have no expertise in terms of making a suggestion about how we make sure that the acting person is put there by the agreement of the Legislative Assembly — how that could come about. Could it come about as the result of an agreement between House Leaders, or otherwise? There's no doubt there should be an agreement. If one can't be reached, then I suppose you have to deal with that as well. I don't know how far that piece of string extends, but Mike knows.

M. Farnworth: I think if there's a requirement for either approval or a statement of consultation, it makes it pretty clear that government must consult with opposition on that. In many cases that's all that needs to happen. The problem becomes the fact that it didn't take place, and that gets…. You know, I have to go back and talk to my caucus, who gets their back up, whereas had…. The general statement is: "Well, if they'd just asked, we would have said yes."

I think half the time problems arise because of that simple act of, like: "Look, here's what we want to do. What do you think?" That would resolve an awful lot of problems in these kinds of appointments, because everybody knows they're temporary and that we're going to get to hiring the full-time person as soon as possible.

P. Fraser: Obviously, I'd prefer if the knowledgable members of the committee could themselves come up with a formulation as to how that agreement could be reached. I don't want to presume to suggest one, except to say that I completely agree with what Mike has said.

I mean, the whole basis of this legislation, insofar as appointments are concerned and everything else, is that the Legislature is acting as a holistic entity in making its decision. That's why they appoint the committees to appoint commissioners. That's why they call for votes of the Legislature, as opposed to any one group: so it will be consistent with all of that and follow the pattern that Mike has suggested.

C. Hansen (Chair): At the top of page 27, when you talk about the process of a commissioner notifying the
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committee at least six months before the end of the previous term, with regard to whether or not he or she wishes to be considered for reappointment, and the committee unanimously recommends an appointment within 60 days….

One of the challenges with that recommendation, I would suggest, is that committees to appoint officers of the Legislature are always special committees, as opposed to standing committees. It's one of those…. It would be a challenge if the committee at that point didn't exist.

One of the things that I asked the committee to think about is whether or not — this is probably out of the purview of what the commissioner is looking at — the Legislature should consider a standing committee that has the purpose of appointing and reappointing officers of the Legislature, as opposed to always doing it as a special committee.

It's something we can consider at a later date — unless, Commissioner, you had other thoughts on that.

P. Fraser: I think we lifted that recommendation straight out of the Auditor General Act. It's exactly, I think, what the Auditor General Act says. I understand the mechanical, logistical problem that you've just described. But it's a problem that needs to be dealt with, if appointing the special committee and getting it…. If 60 days doesn't work, then, presumably, it should be a longer period of time.

C. Hansen (Chair): Any other questions or comments around appointment and reappointment of commissioners?

Number 28 is the recommendation around removing references to section 25 in the Constitution Act and moving those provisions to the Members' Conflict of Interest Act or what that might be named in the future. Any other comments or questions on that?

One thing that I would like to say is a distinction, which I know is very important, between the Constitution Act and the Members' Conflict of Interest Act. The Constitution Act is very specific in that it applies to the Member of the Legislative Assembly, whereas the Members' Conflict of Interest Act, as it is currently worded, is much broader in terms of applying to dependents and spouses, for example.

That distinction, I don't think, should be lost, if in fact this shift were made. I think it's an important distinction that currently exists and that should be reflected.

C. Hansen (Chair): Number 29. Again, it's with regard to the mandatory review every seven years. I guess one of the questions that comes up under here is whether or not the term of the review should be in sync with the term of the commissioner. It would strike me that…. I know that for the other committee of the House that is looking at the office of the representative and the review of that legislation, the question has come up whether or not it should be deliberately timed in a way not to coincide with the reappointment.

What we're doing this year — in fact, we're reviewing the act at the same time that the commissioner's term is about to expire — is probably stacking those issues on top of each other. Perhaps we should be looking at something that would be definitely counter-cyclical but perhaps in the same cycle. It's something that we should probably consider as a committee.

Finally, with regard to the time frame for retention and destruction of documents, again, I think that to give the office of the commissioner some certainty is the intent of the recommendation going forward.

C. Hansen (Chair): That sort of concludes what we've gone through today. Unless there are any other specific comments or questions, I would entertain a motion that we go in camera briefly.

C. Hansen (Chair): Thank you very much. I think the only last piece of business we need is a motion to adjourn — Donna and Mike.

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Chair:	* Colin Hansen (Vancouver-Quilchena BC Liberal)
Deputy Chair:	Harry Lali (Fraser-Nicola NDP)
Members:	* Donna Barnett (Cariboo-Chilcotin BC Liberal)
	Bill Bennett (Kootenay East BC Liberal)
	* Jagrup Brar (Surrey-Fleetwood NDP)
	* Murray Coell (Saanich North and the Islands BC Liberal)
	* Mike Farnworth (Port Coquitlam NDP)
	* Randy Hawes (Abbotsford-Mission BC Liberal)
	Jenny Wai Ching Kwan (Vancouver–Mount Pleasant NDP)
	* Norm Letnick (Kelowna–Lake Country BC Liberal)
	* denotes member present
Clerk:	Susan Sourial
Committee Staff:	Byron Plant (Committee Research Analyst)

Witnesses:	Paul Fraser (Conflict of Interest Commissioner)
	Alyne Mochan (Office of the Conflict of Interest Commissioner)

REPORT OF PROCEEDINGS (Hansard)

SELECT STANDING COMMITTEE ON PARLIAMENTARY REFORM, ETHICAL CONDUCT, STANDING ORDERS AND PRIVATE BILLS

REPORT OF PROCEEDINGS
(Hansard)

SELECT STANDING COMMITTEE ON
PARLIAMENTARY REFORM, ETHICAL CONDUCT, STANDING ORDERS AND PRIVATE BILLS