The period following a general election is a time of change, even if an incumbent government returns to office. One area where there is often significant movement is the staffing of Minister’s Offices and appointments of individuals to public bodies, which include various boards, commissions and agencies across the broader public sector. In either case, there are ethical obligations that must be respected while these positions are held – as well as for a period after. The impact of these rules should be carefully considered before any role is accepted or before your organization hires someone leaving government.
Critically, under thePublic Service of Ontario Act1(“PSOA”) every person appointed by the Lieutenant Governor in Council, the Lieutenant Governor or a Minister to a public body2(“Public Appointee”) is a public servant for the purpose of the PSOA. This means that individuals appointed to the board of a public body, for example, are “public servants” and subject to the PSOA even if they are employed in the private sector.
The Rules When Employed or Holding a Public Appointment
As noted above, public servants, including Public Appointees, are subject to the PSOA and the conflict of interest rules for public servants in Ontario Regulation 381/07.3Similarly, Ministerial staff members are subject to the PSOA and the conflict of interest rules in Ontario Regulation 382/07.4
Public Appointees and Ministerial staff members are subject to a variety of ethical restrictions. In particular, theymust not:
- Use or attempt to use their position to directly or indirectly benefit himself or herself or his or her spouse or children5
- Allow the prospect of future employment by a person or entity to detrimentally affect the performance of his or her duties to the Crown.6
- Allow gifts, or the prospect of future employment, by a person or entity to detrimentally affect the performance of their duties to the Crown7Disclose or use confidential information8
- Participate in decision-making by the Crown with respect to a matter that they are able to influence if they could benefit from the decision9
Additionally, if Public Appointees or Ministerial staff members begin working on “a matter that might involve the private sector”10they are required to submit a declaration outlining any legal or beneficial interest in the following:
- Securities or derivatives of any corporation or government (other than that of the Province of Ontario)
- A business or commercial operation
- Real property (other than his or her principal residence)11
Public Appointees and Ministerial staff members are not required to divest their interests in the above or, in the case of securities, place them in a blind trust.12However, they are prohibited from purchasing, or having someone else purchase on his or her behalf, a legal or beneficial interest in anentity that is carrying on or proposes to carry on activityrelating to “a matter involving the public sector”.13This prohibition ceases six months after the activity is completed or the Crown ceases to work on the matter.14
Cooling Off Periods and Restrictions on Future Employment
It is no surprise that certain designated Ministerial staff members are subject to additional post-employment restrictions after leaving the Premier’s Office or a Minister’s Office, including a 12-month lobbying prohibition.
These designated individuals include:
- Chief of Staff to the Premier
- Principal Secretary to the Premier (and any other position for which the duties routinely involve advising the Premier, a Minister or a public servant)
- Executive Assistant and any Special Assistant to the Premier or a Minister (and any other position for which the duties routinely involve advising the Minister or a public servant, including a legislative assistant, a communications assistant and a policy advisor)15
Upon ceasing to hold any of the above positions, an individual is prohibited from lobbying any Minister for which they worked and any of their staff, as well as any civil servants that they worked with in the ministry for a period of 12 months.16
These designated individuals are also prohibited from accepting employment with or joining the board of directors of any public body or entity with which they had substantial involvement with while serving in a minister’s office, or had access to confidential information that could harm the Crown if disclosed to the public body or entity.17
Considerations for You and Your Organization
The ethical obligations at play are complex.
Before accepting a position in a Minister’s Office, know the rules and consider how they might affect your future employment plans, particularly if you plan to lobby following your political work or are targeting employment with companies that regularly do business with the Ontario government.
Before accepting a public appointment, understand how this may impact your ability to lobby Ontario public office holders at present and in the future. It is an offense under Ontario lobbying law to place a public office holder in a conflict of interest. Accepting a public appointment will limit the public office holders that you are able to lobby.
Before hiring a former Ministerial staff member or current Public Appointee, consider whether any ethical restrictions will prevent them from actually doing the job.
We are here to guide you through these issues and help put the appropriate safe-guards in place.
1. SO 2006, c. 35, Sched. A.
2. Throughout this article, any reference to “public body” means a public body as defined in thePublic Service of Ontario Act.
3. Ontario Regulation 381/07.
4. Ontario Regulation 382/07.
5. Ontario Regulation 381/07, subs. 3 (1); Ontario Regulation 382/07, subs. 3 (1).
6. Ontario Regulation 381/07, subs. 3 (2); Ontario Regulation 382/07, subs. 3 (2).
7. Ontario Regulation 381/07, s. 4; Ontario Regulation 382/07, s. 4.
8. Ontario Regulation 381/07, s. 5; Ontario Regulation 382/07, s. 5.
9. Ontario Regulation 381/07, subs. 9 (1); Ontario Regulation 382/07, subs. 9 (1).
10. Under subs. 10 (2) of Ontario Regulation 381/07 and subs. 10 (2) of Ontario regulation 382/07, “a matter that might involve the private sector” means a matter:
a) that relates to services currently provided under a program of the Crown or by a public body, an agency of the Crown or a corporation controlled by the Crown with respect to which it is possible that a private sector entity will provide all or part of the financing for the services or will provide some or all of the services;and
b) that has been referred to a ministry, a public body or an agency of the Crown by Cabinet or a Cabinet Minister for review or implementation.
11. Ontario Regulation 382/07, subs. 12 (1);
12. We do note that Public Appointees and Ministerial Staff have a duty under section 69 of thePublic Service of Ontario Actto notify the Integrity Commissioner of Ontario of any pecuniary interests that could give rise to potential conflicts of interest. The Commissioner may advise that divestment or the establishment of a blind trust is necessary to prevent conflicts of interest.
13. Ontario Regulation 381/07, subs .12 (1); Ontario Regulation 382/07, subs. 12 (1).
14. Ontario Regulation 381/07, subs .12 (3); Ontario Regulation 382/07, subs. 12 (3).
15. Ontario Regulation 382/07, s. 14.
16. Ontario Regulation 382/07, s. 18.
17. Ontario Regulation 382/07, s. 19.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.