May 1, 2007

Potential Perceived Conflict

Say the words "perceived conflict", "apparent conflict" and "conflict" often enough in response to questions about activities of the Premier's Office and you'll soon think that you are stuck in a modernization of Abbott and Costello's gag, "Who's on First". Unfortunately, this is no gag. As is frequently the custom in politics and legalities, subtle distinctions in language are very important.

On October 3, 2006, Ken Dobell wrote a letter to Jessica McDonald, Deputy Minister to the Premier and Cabinet Secretary, and to Judy Rogers, Vancouver City Manager. In it he said: "My work for the Province on softwood lumber, coastal forest issues, and selected Gateway matters is unlikely to involve any City issues. However, there may be a perceived conflict that should be addressed." The letter continued: "I have discussed this question with each of you, and you each have advised me that my roles with both governments are acceptable. In the unlikely event that specific issues arise where these assignments from the two government overlap, the conflict witl be managed by adjusting the work I am undertaking, as required. In general, any question of perceived conflict on the part of third parties will be addressed by noting the separation of the assignments, and your acceptance of these roles."

After days of the government feeling heat in question period, Ken Dobell stated in a news conference that "there is no conflict". That raises the matter of his October 3rd letter in which he acknowledged that third parties might perceive a conflict. Of course, subtly is all important, and conflict may be different than perceived conflict.

No one questions the integrity of Ken Dobell. Does that mean that he can operate in a potential conflict of interest when others couldn't? Many lobbyists would love to have a desk in the Premier's Office while simultaneously being in the pay of both the Province and other clients who seek to influence the Province. To Dobell's credit, he recognized the potential perceived conflict and took the initiative to have both the current Deputy Minister to the Premier and the current City Manager sign off on his activities. The questions are not about Dobell's integrity, they are about the accountability and judgment of Premier Gordon Campbell, and a growing list of ministers who are answering for him in question period.

One way of dealing with a "potential perceived conflict" is to acknowledge it, and argue that since it involves a virtual saint, it is not a problem. An alternative way of dealing with it is to assure that different people occupy different roles so there can be no perception of conflict. Premier Campbell chose the first alternative, and hence chose to live with a potential perceived conflict.

If there were allegations about a conflict of interest, in any form, with respect to a Member of the Legislative Assembly (as sometimes happens with cabinet ministers), the Members' Conflict of Interest Act provides a remedy. The matter is referred to the Commissioner who makes a ruling that is accepted by everyone. The first case to come before the Commissioner, then Ted Hughes, involved Robin Blencoe who, as Minister of Municipal Affairs, was involved in making a decision about a land deal where one of the principals had donated $25 to his constituency association (just $25, not $25,000). Hughes ruled that Blencoe was in an apparent conflict of interest. The most substantive and lengthy case to go before the Commissioner involved allegations about former Premier Glen Clark. Commissioner H.A.D. Oliver ruled: "…that Mr. Clark had acted improperly, so as to exercise an official power when he was in an apparent conflict of interest, contrary to s. 3 of the Act …" For that and a violation of Section 7 of the Act, receiving a benefit, Clark's penalty was restricted to paying his legal costs. H.A.D. ruled that Clark already paid the political price and would face a trial. Those precedents illustrate that, as far as the Member's Conflict of Interest Act is concerned, an apparent conflict is something real.

Premier Campbell asked his current Deputy Minister, Jessica McDonald, to report on allegations raised by the Opposition. McDonald began her April 27th memo to the Premier by reciting her terms of reference:

The NDP is likely to raise further questions about those terms of reference; in particular, the question might be to what extent the contract was not managed properly. The memo attempted to answer that question by saying: "In essence these documents direct Mr. Dobell not to undertake any work that may place him in a conflict of interest and to consult with me, as Deputy Minister to the premier, before accepting work with another entity." The reference to "documents" is to Dobell's contract and subsequent correspondence. That puts in context Dobell's October 3rd letter in which McDonald signed off on a "potential perceived conflict". McDonald wrote about that saying: "Mr. Dobell recognized the potential for a perceived conflict of interest in carrying out his work and fulfilled his obligation to advise me of this. We agreed to a procedure where any real conflict could be avoided while conducting his work." The difference between "perceived conflict", "apparent conflict" and "real conflict" is something the Opposition is likely to explore in the context of past rulings from the Conflict of Interest Commissioner. Unfortunately, there is no such officer that can make a final ruling for anyone but an MLA; however, as the government did with the appointment of KPMG recently, it could ask an independent and respected third party to provide an opinion on this matter; it could even ask H.A.D. Oliver to offer an opinion, as if John Horgan's proposed amendment to the Act had passed.

McDonald's memo went on to talk about the grant to the City of Vancouver by saying: "With respect to the matter of government funding for the project and Mr. Dobell's role in securing that funding, you will recall that the final decision to fund the project was made after Mr. Dobell left government by the then Minister of tourism, approved by Treasury Board, and announced in April 2006." McDonald's inclusion of the word "final" is likely to produce more questions. When did the idea for funding Vancouver's Cultural Precinct beyond the amount provided in the provincial budget first surface in Victoria, what was each stage of the process of routing that idea through to the "final decision" and who were the people involved at each stage? Inclusion of the word "final" in McDonald's memo is problematic and raises more questions than it answers.

None of this has anything to do with Dobell's outstanding reputation, his ability, or his integrity. The issue is about accountability of Premier Campbell and his judgment. It is about his attempts to hide behind Dobell's integrity and chastise the Opposition for doing their job. All of this could be resolved by simply asking H.A.D. Oliver if he would go beyond his duties with respect to the Members' Conflict of Interest Act and offer his respected advice on the matter of potential perceived conflicts involving senior civil servants and political appointments.