I was contemplating writing an update on the article that I co-authored with Etienne Rainville in Policy Options on the Conflict of Interest and Ethics Commissioner’s decision to extend the prohibition in section 35 to prevent reporting public office holders (RPOH) from taking employment in the Public Service. Given that the Boys in Short Pants revisited this in Episode 75 of their podcast I thought that I would expand upon the strict legal reasons why the Commissioner has exceeded his authority.
Mr. Dion, in an interview with the Hill Times (paywall), contends that this expansion is based upon a straightforward reading of the word entity in section 35(1).
35 (1) No former reporting public office holder shall enter into a contract of service with, accept an appointment to a board of directors of, or accept an offer of employment with, an entity with which he or she had direct and significant official dealings during the period of one year immediately before his or her last day in office.
(2) No former reporting public office holder shall make representations whether for remuneration or not, for or on behalf of any other person or entity to any department, organization, board, commission or tribunal with which he or she had direct and significant official dealings during the period of one year immediately before his or her last day in office.
Unhelpfully the statute does not define any of the specific terms. Entity, organization, department and representation are all undefined. The only one of these terms which is defined in the Lobbying Act is the word organization. In that Act the word organization includes:
(a) a business, trade, industry, professional or voluntary organization,
(b) a trade union or labour organization,
(c) a chamber of commerce or board of trade,
(d) a partnership, trust, association, charitable society, coalition or interest group,
(e) a government, other than the Government of Canada, and
(f) a corporation without share capital incorporated to pursue, without financial gain to its members, objects of a national, provincial, patriotic, religious, philanthropic, charitable, scientific, artistic, social, professional or sporting character or other similar objects; (organisation)
With respect to Mr. Dion his interpretation may be based upon the simple logic that the public service is an entity and therefore is included in subsection 35(1) but it is not a straight-forward interpretation of the section. It is simple law that when Parliament uses different words in a statute that it means different things. That is where we must look closely at the entirety of section 35.
Section 35 has two prohibitions: 1) on former RPOHs from entering into contracts, taking appointments or accepting employment with an entity; and, 2) on former RPOHs making representations (paid or unpaid) to any department, organization, board, commission or tribunal. Both prohibitions are engaged if the RPOH has had direct and significant official dealings during the period of one year immediately before his or her last day in office. Notice the two different constructions – the second one includes a reference to a department and the first one does not. Presumably if Parliament had intended to include government departments in the prohibition on employment RPOHs by departments they would have made a similar reference in s. 35(1).
More important though is that s. 35(2) says that an RPOH may not make representations ‘on behalf of any other person or entity’ (emphasis added). It is also presumed that where the legislature uses the same word that it means the same thing. The word ‘entity’ in ss. 35(1) is presumed to mean the same thing as the word ‘entity’ in ss. 35(2).
If the word ‘entity’ includes the public service and its related agencies, then effectively Parliament would be saying in s. 35(2) that RPOHs are prevented from making representation on behalf of the public service and related agencies to the public service and related agencies. I suggest that this does not make sense and that the best approach is to read all of section 35 with the view that different words mean different things.
In our article Etienne raised the issue of cabinet ministers going from cabinet to ambassadorial posts and whether that would be prohibited by the Commissioner’s interpretation. I understand that in follow-up to the Hill Times review the Commissioner’s answer was no because they would be governed by the RPOH rules and therefore could not be a former RPOH at the same time.
That is correct if the transition is instantaneous. In other words, the person moves directly from one position to another. However, once the person becomes a former RPOH section 35(1) is clear that she “…shall not enter into a contract of service…” The former RPOH is not legally permitted to accept a further appointment.
These interpretative questions in s. 35 are even more important when one considers that Parliament has made explicit provision for RPOHs to transfer to the Public Service in the Public Sector Employment Act. S. 35.2 of the PSEA states:
35.2 A person who has been employed for at least three years in the office of a minister or of a person holding the recognized position of Leader of the Opposition in the Senate or Leader of the Opposition in the House of Commons, or in any of those offices successively,
(a) may, during a period of one year after they cease to be so employed, participate in an advertised appointment process for which the organizational criterion established under section 34 entitles all employees to be considered, as long as they meet the other criteria, if any, established under that section; and
(b) has the right to make a complaint under section 77.
This section allows staff in minister’s offices (who are all RPOHs) who have at least three years of employment to participate in advertised employment processes for a period of one year after the end of their employment. This section means that they can participate in employment competitions that are not open to the public as an internal candidate.
It is important to remember that hiring processes for the Public Service are supervised by the Public Service Commission. Appointments are made publicly and there is a process by which they can be contested. As a result, there is little opportunity for the hiring process to be abused.
There is no doubt that s. 35 is one of a few sections in the Conflict of Interest Act where legislative drafting could have been improved. However, ambiguity should not be an invitation to prohibit an action that has been explicitly contemplated by Parliament. I continue to think that the Commissioner’s extension of the word entity in s.35(1) to include the public service is neither justified nor legally supportable.