Government signals a mixed bag on strengthened conflict of interest laws

New Brunswick's integrity commissioner is repeating his call for a tougher provincial conflict of interest law for MLAs — even though the province's two main political parties rejected the idea less than three months ago.

In his first annual report as commissioner, Alexandre Deschênes says banning apparent or perceived conflicts "should take place" as part of a more precise definition of conflicts of interest.

"It is clear that 'perceived' or 'apparent' conflict of interest situations are not covered by the legislation," Deschênes writes.

A conflict of interest is when an elected official's other interests or connections affect his or her decision-making in office.

Some other jurisdictions also ban perceived conflicts, meaning a link that looks like it might affect decision-making.

In a written statement Monday, spokesperson Tara Chislett said that "government believes that conflicts of interest — perceived or apparent — undermine its ability to govern." She said the province "is open to additional changes" to strengthen the law.

But that contradicts comments Premier Brian Gallant made during a year-end interview with CBC News in December, when he suggested a ban on perceived conflicts may go too far.  

Gallant said at the time such a change would be "a very large extension" of the law because a minister or MLA with a "weak" or slight connection to an issue might end up not being able to do their job.

"All of a sudden, that person would potentially not be able to vote, not be able to debate, not be able to discuss, not be able to introduce legislation, not be able to do their work as a minister," he said.

Warning removed

Gallant's 2014 letter to cabinet ministers said they should not only 'avoid conflicts of interest,' but also avoid the 'perceptions of such.' That warning is not included in letters sent to new or shuffled ministers in 2016 and 2017. (Canadian Press)

In his mandate letters to ministers when they took office in 2014, Gallant warned them that "it is not enough to avoid conflicts of interest; you must also be diligent in avoiding the perceptions of such."

But that warning was removed from a second batch of mandate letters Gallant gave to ministers who joined cabinet or were moved in shuffles in 2016 and 2017.

Last December, PC MLA Bruce Fitch also questioned how such a ban would be applied because the perception of a conflict is subjective.

"You get into the semantics of what exactly does that mean," he said. "Like how would you cover every scenario?"

Boudreau's perceived conflict

Deschênes first raised the issue of perceived conflicts of interests after then-health minister Victor Boudreau was found to have interest in a proposed Parlee Beach campground at the same time public health officials were dealing with fecal contamination at the beach. ((CBC))

Deschênes first raised the idea after looking into then-health minister Victor Boudreau's interest in a proposed Parlee Beach campground at the same time public health officials were dealing with fecal contamination at the beach.

Deschênes said "one could argue" that Boudreau's investment did not technically put him in a conflict of interest and that "seems to permit your participation."

But he said the perception of a conflict was "inevitable."

Boudreau recused himself from handling the contamination issue even though he argued Deschênes had found no conflict.

Deschênes said to avoid such ambiguity in the future, the government should amend the law to ban not only real conflicts of interest, but also "apparent" conflicts.

No ban in December bill

New legislation to close loopholes in existing conflict of interest legislation was introduced after it came to light that former Campbellton-Dalhousie MLA Donald Arseneault took a lobbying job. That legislation didn't ban perceived conflicts of interest. (CBC)

In December, the government introduced legislation to close loopholes that came to light when former cabinet minister Donald Arseneault took a lobbying job with a national union while remaining an MLA.

Arseneault eventually resigned his seat. The legislation banned elected members of the legislature from holding second jobs as lobbyists or as an employee of any organization that lobbies the province. It also banned any lobbying for 12 months after they leave office.

But it did not include any provisions on apparent or perceived conflicts of interest.

Deschênes's comments are contained in his first annual report as integrity commissioner, dated Feb. 28.

Even if the Liberals were now willing to heed his recommendation, it's almost impossible to do so. The legislature resumes sitting Tuesday and will sit until the end of the month at most. It will not sit again before the Sept. 24 provincial election.