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About the
Integrity Commissioner
About the Integrity Act
Integrity Act Info
Introduction of
Bill 7, Integrity Act
Reports and Reviews
Disclosure Forms
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About the Integrity Act
This information was prepared by the Legislative Assembly
and distributed to the public for background information purposes prior to the
introduction of Bill 7, Integrity Act.
Questions and Answers - Nunavut's new Integrity Act
Why did the Legislative Assembly want a separate,
stand-alone piece of legislation, instead of keeping these matters in the
Legislative Assembly and Executive Council Act?
We felt a separate Act would give these issues more focus and stress the
importance that Members place on them. It will make it easier for the public to
find and use the legislation.
Why didn't the Nunavut Assembly just adopt the 38 recommendations in the NWT
Conflict of Interest Panel report or the new legislation adopted by the NWT
Legislative Assembly last summer - wouldn't that have saved a lot of time and
money?
We did review the NWT Panel recommendations as well as their legislative
amendments, and we have adopted some of them. However, we wanted to tailor this
legislation to the needs of Nunavut, as we are in fact a unique jurisdiction.
After careful review, we have made some of the same changes, but also some very
different changes to the legislation.
· The NWT Legislative Assembly decided to appoint a different adjudicator if the
matter is referred to an inquiry, because the NWT Panel felt that there was a
conflict if the same person, i.e. the Conflict of Interest Commissioner, both
investigated and then adjudicated over the inquiry. Why isn't Nunavut doing
this? Aren't you worried about this conflict?
We believe that this should be an internal administrative process, similar to
many other administrative tribunals, where a certain amount of expertise is
required by the decision-maker beyond simply knowledge of the law. The
Legislative Assembly has appointed a Conflict of Interest Commissioner, who will
now be called the Integrity Commissioner, because of his legal knowledge,
experience at the highest levels of government and record of personal judgment
and integrity. He has the skills needed to advise, investigate, and deal with
the more formal Request for Review should it arise. We do not believe that these
matters should be referred to the courts, unless they involve conduct in
violation of the criminal code or other statutes. It is our hope that the
conflict of interest issues defined in this Bill will be able to be resolved
early in the process. If the matter is more complex and the public interest
requires a broad public inquiry, we believe that this decision should be at the
discretion of the Integrity Commissioner. We believe that our process will
result in a more timely and cost effective process, with no duplication of
efforts.
· Why have the definitions of child, family and spouse been broadened?
The purpose of including reference to a Member's child, family and spouse is to
recognize that their private interests are essentially the same as the Members.
It is therefore important that these private interests be disclosed in the
public disclosure forms that are provided to the Assembly by the Member and that
the Member withdraws from any decision that might involve those private
interests. These changes recognize the fact that in Nunavut, other children may
live with a Member and be treated as their own; other family members may live
with and be dependent on a Member or his or her spouse; and Members may be in a
conjugal relationship with someone to whom they are not formally married.
Therefore, the new legislation now includes these people in the formal
definitions.
· Has the definition of conflict of interest changed in the new Bill?
Yes. Conduct considered to be in conflict has been broadened to include any
action where a Member knows or reasonably should know that there is an
opportunity to improperly further anyone's private interest. This will set a
very high standard. We have added the "reasonably should know" language because
we want Members to think carefully about their actions and decisions. It will
not be a good enough answer to say, "I didn't know", if the average person would
say that he or she should have known. As well, it is not only improper benefit
to the Member or his or her family that is considered conflict - we have
extended it to improperly furthering "anyone's private interest". So this is
much, much stronger. The legislation also continues to prohibit the use of
insider information, influence or lobbying by Members, as in the previous Act.
· Why does the new legislation remove the requirement of Members to put values
on their private interests?
The new legislation recognizes that in order to determine whether there is a
conflict of interest, it is really only necessary to know the source and the
nature of the private interest. Whether it is a small or a large interest, there
would still be a conflict - so we don't need to make Members go the extra effort
and expense of calculating the value of their private interests. It can be very
complicated to assess the value of businesses with various assets and
liabilities, new contracts and old receivables, etc. We want to simplify the
paper requirements in Nunavut to what is necessary.
· Why has the grace period for late filing of disclosure statements been
removed?
This was a recommendation of the previous NWT Conflict of Interest Commissioner
who noted that she had to list those Members who requested an extension in her
annual report, but those that filed in the grace period didn't have to be
listed. There is a deadline in the new Act and Members must file within that
timeframe. However, the Integrity Commissioner does have the authority to extend
any deadline in the Act, so Members may request this, so that they won't be in
violation.
· Why have the rules on gifts been changed?
The rule on gifts has been particularly tailored to meet the reality in Nunavut.
The general rule is that Members or their families should not accept gifts or
benefits. Members are paid to perform their public duties and there should be no
expectation on the public that they should provide additional gifts or benefits
to Members. Nor should there ever be a perception that Members are receiving
favours and then acting favourably to those who have given them gifts or
benefits. This is why the rules are there.
However, for the most part in Nunavut, Members receive gifts of hospitality from
their own communities or communities that they visit. These are usually
perishable, such as a gift of char and caribou, or they are very personal, such
as a parka shell or a hunting tool. It would be very rude to require these to be
given back, and it would make little sense to automatically forfeit them to the
government. At a special event, a Member or Minister may receive a gift of a
work of art from a local artist, such as a carving. Under the new legislation, a
Member must advise the Integrity Commissioner of any gift that he or she has
received and the Integrity Commissioner may authorize that the Member may keep
it if there is no likelihood of conflict. Any gift valued over $400 must also be
publicly disclosed. We feel that these new rules reflect the reality in Nunavut
and protect against any conflict of interest. · Why is travel and accommodation exempted from the rule on gifts?
When we consulted with Members, one area of great importance was travel to
funerals in their home or other communities, particularly for those Members who
represent more than one community. If an airline offered a seat or someone
organizing a charter offered a seat to the Member - this is considered a gift
and it is not allowed. Similarly, if a Member were to try to help get a seat for
a person in his or her community to go to a funeral in another community, this
would be interpreted as a gift to the Member and it would also not be allowed.
But it is very important that Members go to funerals and that they help their
constituents in this regard. The same is true of special events in communities
such as graduations, openings, festivals and other gatherings. We do not believe
that there is any potential for conflict of interest in these situations and
therefore, the new legislation exempts travel and accommodation and reasonable
reimbursement for these expenses from the rule against accepting gifts and
benefits. This is very much a Nunavut issue, where air travel is really the only
way we can get to other communities and it is so expensive, especially any
last-minute arrangements.
· Are Members and Ministers allowed to have private businesses that have
contracts with governments?
The general rule is that they can not. Ministers in particular are not permitted
to have businesses or professions unless the Integrity Commissioner has
authorized it or unless they put the interest in a trust that has been
authorized by the Integrity Commissioner. Members are subject to similar
restrictions. The trust managers cannot communicate with the Member or Minister
about the daily affairs of the business, but may consult with the Integrity
Commissioner. The Integrity Commissioner may also review a potential contract
with government and may authorize it if he feels that it will not interfere with
the performance of the Member's duties. Remember that the duties, especially as
they relate to this Act, are laid out in the General Obligations of Members in
this Act and they stress the integrity, objectivity and impartiality of the
Member, so all of this will be considered by the Integrity Commissioner before
he would authorize such a contract.
· There seems to be a lot more permissiveness in the new Bill as it relates to
Members' and Ministers' private interests. Why is this?
The new bill tries to balance two sides of the coin. The first is to ensure that
Members perform their obligations to the highest standards of integrity and that
they always resolve issues in the public interest. The second is to recognize
that Nunavut is very small. We have a small entrepreneurial base and we need to
encourage it to grow and prosper. Many people are related to each other, so to
blanket prohibitions on businesses by Members and their families would be
counterproductive. As a result, we are combining the careful scrutiny of the
Integrity Commissioner to consider whether exceptions can permit Members and
Ministers to continue to have businesses that contract with government. While
there are provisions for setting up trusts for private interests, these can be
expensive and they may not work for certain types of businesses. Not all
communities have people with the legal and other skills to operate trust
arrangements. Therefore, allowing the Integrity Commissioner to look at the
specific needs and authorize a certain activity, if appropriate, will recognize
the realities of small communities in Nunavut. Coupled with the GN's own
commitment to open and transparent contracting and hiring processes, we feel
that this can be done in a manner which is fair and impartial. People in our
communities also see what is going on. We have put a lot of public disclosure in
the Act and we have provided that members of the public may initiate a Request
for Review, so we know that the public will also help make sure that Members do
not step over the line. For these reasons, we feel that this flexibility will
better meet the needs of Nunavut and other protections built into the Act will
ensure that this flexibility isn't abused.
· Why was the time period for prohibiting former Ministers from dealing with
government dropped from one year to six months?
This was in recognition of the reality of Nunavut, where there are very few jobs
in Nunavut that do not have some involvement with government. While it is
important that there is a break in contact for former Ministers, we believe that
six months is adequate. There are still very stringent requirements on former
Ministers to not use insider information or contacts, and any violation is
subject to summary conviction and large fines.
· How does a Member deal with a conflict of interest if it comes up in a
meeting?
If a Member has reasonable grounds to believe that he or she has a conflict of
interest in a matter that is before the Legislative Assembly, Management and
Services Board or the Executive Council or one of their committees, they must
state this and have it recorded in the minutes of the meeting. They must then
withdraw from any further discussion and they must not try to influence how the
matter will be dealt with nor vote on the matter. Except for Cabinet meetings,
the disclosure must be given to the Integrity Commissioner.
· How are Elders going to be involved?
The Bill has already worked to draw on Inuit traditional knowledge in a number
of ways. The Bill recognizes that the wisdom of Elders may be important in a
specific case and it provides that the Integrity Commissioner may consult with
Elders about traditional values and customs of Nunavut and, with the written
permission of the Member, may discuss confidential matters. The process for this
has not been laid out in the legislation. But we know that Judges and Elders in
Nunavut have developed a number of ways of involving and consulting with Elders
during court proceedings, and we are confident that the Integrity Commissioner,
with the advice of the specific Member and others, will develop a process that
respectfully involves Elders in these proceedings.
· How are people who come forward with a complaint going to be protected from
retribution?
There is a new section in the Bill stating that people who, in good faith,
provide information to or testify before the Integrity Commissioner are
protected from loss or damage. This means that they can't be sued later. As
well, there is a section stating that no employer shall take or threaten any
action with respect to their employment, because of their participation with the
Integrity Commissioner. An employer who violates this may be subject to
prosecution and fines.
· What kind of sanctions can a Member expect to face if they violate the Act?
The Bill contains a list of possible sanctions that may be recommended by the
Integrity Commissioner. They include apology, restitution, compensation and any
other which the Integrity Commissioner recommends. If a Member has been in
conflict of interest, they may be required to make amends and, if so, these
penalties may be deducted from their pay. In addition, because of the serious
effect that a Member's actions may have on the dignity of the House, a Member's
right to sit and vote in the Legislative Assembly may be suspended for a
specific period or until a specified condition is fulfilled or the Member's seat
may be declared vacant.
· How is the issue of costs going to be dealt with? Will the costs of the
complainant be covered? The costs of the Member?
There is no automatic provision for paying or not paying for the legal costs of
anyone in these proceedings. The Integrity Commissioner will review the conduct
of all of the participants in a review process and will make a recommendation as
to how the issue of costs will be dealt with. Ultimately, the Legislative
Assembly will have to accept or reject the Integrity Commissioner's
recommendation in this regard. It is our hope that these matters can be resolved
quickly and expeditiously and that there will not have to be a lot of legal
costs for anyone.
· Why is there a section outlining conduct for which there will be no sanction?
Isn't any contravention a problem? Don't you take all contraventions seriously?
There is no question that all contraventions are serious. However, we recognize
that some contraventions are less serious than others and it would be unfair or
unnecessary to impose a sanction. The fact is that having any complaint made
against you as a Member is a serious blow to your reputation and that is a
sanction in itself. It is our hope that, especially for Requests for Reviews in
these types of matters, that Members will participate fully and quickly if they
know in advance that there will be no sanction. Because of this, there is a
section in the new Bill that outlines a number of instances where there may be a
technical finding of a contravention, but there would be a recommendation for no
sanction. These include the following: if the Member took all reasonable
measures to prevent the contravention; the contravention was trivial, committed
through inadvertence or an error of judgment made in good faith; or the Member
was acting in accordance with the Integrity Commissioner's advice, having
disclosed all material facts known to the Member. Our goal is to ensure a quick
resolution to these matters. If a Member has made a small mistake, let's deal
with it so that they know in future not to do it again and then let's move on.
· Why can't the Legislative Assembly alter the recommended sanctions of the
Integrity Commissioner? Doesn't that compromise the ultimate authority of the
elected Members?
The Legislative Assembly may only accept or reject the recommendations of the
Integrity Commissioner, they may not alter them. This is really a protection
against reopening the whole request for review. The Integrity Commissioner will
have gone through a process, heard witnesses and made judgments. The Members
will not have the full benefit of this process, only the Commissioner's report.
If we start trying the change the sanctions, then we will really need to hear
the witnesses again and then what will be the point of having the Integrity
Commissioner? If the Members do not approve of the recommended sanctions, they
may reject them. That is their right and the decision of the Legislative
Assembly is final.
· Is this new process going to cost a bundle or will it save money?
It is our hope that it will save money in the long run, because it has more
emphasis on prevention. The new process does provide for more of an ongoing role
for the Integrity Commissioner. Members must meet with the Integrity
Commissioner annually and they are encouraged to seek advice and written
opinions from the Commissioner. The Integrity Commissioner also has an expanded
role in scrutinizing Member's requests for authorizing certain businesses and
gifts, as well as dealing with trusts. However, it is our hope that this will
result in more certainty that Members will have arranged their personal private
interests so as not to be in conflict with their public duties. As well, if
there is a complaint, the processes outlined in the bill are designed to
expedite the whole process with the full co-operation of the Members involved.
Therefore, we hope that there will be fewer expenses, particularly legal
expenses, associated with full public inquiries, as compared to the past
experience with this legislation in the NWT. |
