Values and Ethics Code of the Department of Justice

Chapter II: Conflict of Interest and Post-employment

Purpose

This chapter of the Code is consistent with the Policy on People Management and the Directive on Conflict of Interest of the Treasury Board, the objectives of which are to:

• Ensure that, in situations of real, apparent or potential conflict of interest and situations where there is a conflict of duties, decisions are made in a manner which upholds the public interest;
• Facilitate ethical decision-making within organizations and by public servants to resolve conflicts between private and public interests; and
• Establish measures to help public servants prevent, manage and resolve conflict of interest and post-employment situations that could impair either the integrity of the public service or the public's perception of its integrity.

This chapter must be read in tandem with Chapter I of the Code.

Definitions

a person employed in the core public administration and to the organizations that make up the core public administration as defined in section 11 of the Financial Administration Act. This includes indeterminate and term employees, employees on leave without pay, students participating in Student Employment Programs, casual, seasonal and part-time workers.

Although they are not public servants, individuals on incoming Interchange Canada assignments are expected to comply with, and volunteers are expected to respect, the requirements of the Directive on Conflict of Interest. Order-in-Council appointees, such as Deputy Ministers, are subject to the Conflict of Interest Act, and are not subject to the Directive on Conflict of Interest.

Conflict of interest:

A situation, whether real, apparent or potential, in which the person employed has private interests that could influence the performance of their official duties and responsibilities or in which the person employed uses their office for personal gain.

A real conflict of interest exists at the present time, an apparent conflict of interest is a situation that could be perceived as a conflict of interest by a reasonable observer to exist, whether or not it is the case, and a potential conflict of interest could reasonably be foreseen to happen in the future.

Conflict of duties: A conflict, whether real, apparent, or potential, that arises not because of the private interests of a person employed in the core public administration, but as a result of one or more concurrent and competing official responsibilities.

For example, these roles could include his or her primary public service employment and his or her responsibilities in an outside role that forms part of his or her official duties, such as an appointment to a board of directors, or other outside function.

Requirements for Preventing and Dealing with Conflict of Interest and Post-employment Situations

The following are the conflict of interest and post-employment requirements that are a condition of employment for public servants at the Department. These requirements are grounded in and serve to uphold the values contained in the Values and Ethics Code for the Public Sector, and repeated in this Code. By upholding these ethical standards, public servants conserve and enhance public confidence in the honesty, fairness and integrity of the public service. These requirements also form part of Canada's commitments as a signatory to international agreements on values and ethics.

Prevention of Conflict of Interest

A public servant maintains public confidence in the objectivity of the public service by preventing and avoiding situations that could give the appearance of a conflict of interest, result in a potential for a conflict of interest or result in an actual conflict of interest. Conflict of interest does not relate exclusively to matters concerning financial transactions and the transfer of economic benefit. While financial activity is important, conflicts of interest in any area of activity can have a negative impact on the perceived objectivity of the public service. With the permanent and pervasive nature of information technology, public servants should be particularly sensitive to real, apparent or potential conflicts of interest that may arise from messages and information transmitted via the Internet and other media.

It is impossible to foresee every situation that could give rise to a real, apparent or potential conflict of interest. When in doubt, public servants should refer to the requirements found in this Code to guide appropriate action. Public servants can also seek guidance from their manager and, if necessary, from another senior manager in their reporting structure. If after this step there is still doubt as to whether the activity or situation raises a conflict of interest, the public servant must consult the office responsible for values and ethics.

In addition to the requirements outlined in this chapter, public servants are also required to observe any specific conduct requirements contained in the statutes governing the Department and their profession, where applicable.

1. General Responsibilities and Duties of a Public Servant

Public servants have general responsibilities and duties, which include the following:

1. Taking all possible steps to recognize, prevent, report, and resolve any real, apparent or potential conflicts of interest between their official responsibilities and any of their private affairs;
2. Unless otherwise permitted in this chapter, refraining from having private interests, which would be unduly affected by government actions in which they participate, or of which they have knowledge or information;
3. Not knowingly taking advantage of, or benefiting from, information that is obtained in the course of their duties that is not available to the public;
4. Refraining from the direct or indirect use of, or allowing the direct or indirect use of government property of any kind, including property leased to the government, for anything other than officially approved activities;
5. Not assisting private entities or persons in their dealings with the government where this would result in preferential treatment of the entities or persons;
6. Not interfering in the dealings of private entities or persons with the government in order to inappropriately influence the outcome;
7. Maintaining the impartiality of the public service and not engaging in any outside or political activities that impair or could be seen to impair their ability to perform their duties in an objective or impartial manner; and
8. Ensuring that any real, apparent or potential conflict that arises between their private activities and their official responsibilities as a public servant is resolved in the public interest.

2. Requirements for Preventing and Dealing with Situations of Conflict of Interest During Employment

Public servants are required to report in writing to the Deputy Minister, via the office responsible for values and ethics, all outside activities, assets and interests that might give rise to a real, apparent or potential conflict of interest in relation to their official duties. Such a report is to be made within 60 days of their initial appointment or any subsequent appointment, transfer or deployment.

On a regular basis thereafter, and every time a change occurs in their personal affairs or official duties, every public servant is required to review his or her obligations under the Code. If a real, apparent or potential conflict of interest exists, he or she is to file a report in a timely manner.

When negotiating financial arrangements with outside parties, public servants are to comply with the requirements listed in this chapter as well as other related directives or policies issued by the Treasury Board. When in doubt, public servants are to immediately report the situation to their manager in order to seek advice or direction on how to proceed.

The Department encourages employees to participate in outreach activities and personal and professional development promoted by their respective professional associations or relevant to their areas of private interest. No matter what form these outside activities might take, however, the public servant must ensure beforehand that they are not likely to result in a real, apparent or potential conflict of interest.

In general, conflicts of interest may arise in relation to the following:

• owning assets
• receiving gifts, hospitality and other benefits
• participating in outside activities, such as:
  
  • speaking at a conference;
  • offering legal services outside the federal public service;
  • volunteer work;
  • other paid employment;
  • participation on a board;
  • political activities;
  • teaching;
  • publishing documents; and,
  • other educational activities

  The above list is not exhaustive, but these are some of the more common examples of situations that could give rise to a real, apparent or potential conflict of interest. In such situations, if there is any doubt, it is recommended that the public servant discuss the matter with their manager and, if necessary, with another senior manager in their reporting structure. If doubt persists as to whether the activity or situation raises a conflict of interest, the public servant must consult the office responsible for values and ethics to obtain advice or a formal decision.

  Furthermore, if an outside individual or entity with whom the Department has past, present or potential official dealings offers a commission, reward, advantage or benefit of any kind to an employee or the Department, public servants are to consider whether any real, apparent or potential conflict of interest exists, and obtain the consent in writing of the Deputy Minister or his or her delegate prior to accepting any such offers. This provision is designed to ensure that this chapter is consistent with paragraph 121(1) (c) of the Criminal Code.

  2.1 Assets

  Public servants are required to evaluate their assets, taking into consideration the nature of their official duties and the characteristics of their assets. If there is any real, apparent or potential conflict of interest between the carrying out of their official duties and their assets, they are to report this matter to the Deputy Minister, via the office responsible for values and ethics, in a timely manner.

  Where the Deputy Minister or his or her delegate determines that any of these assets result in a real, apparent or potential conflict of interest in relation to their official duties, public servants may be required to divest those assets, or to take other measures to resolve the conflict. Public servants may not sell or transfer assets to family members or anyone else for the purpose of circumventing the compliance requirements.

  The types of assets that should be reported and the procedures for reporting and managing such assets are set out in Annex B, Assets, Liabilities and Trusts and Annex B of the Directive on Conflict of Interest.

  2.2 Outside employment or activities

  Public servants may engage in employment outside the public service and take part in outside activities unless the employment or activities are likely to give rise to a real, apparent or potential conflict of interest or would undermine the impartiality of the public service or the objectivity of the public servant.

  Public servants are required to provide a report to the Deputy Minister, via the office responsible for values and ethics, when their outside employment or activities might subject them to demands incompatible with their official duties, or cast doubt on their ability to perform their duties or responsibilities in a completely objective manner. The Deputy Minister or his or her delegate may require that the outside activities be modified or terminated if it is determined that a real, apparent or potential conflict of interest exists.

  Public servants who receive a benefit or income either directly or indirectly from a contract with the Government of Canada are required to report to the Deputy Minister, via the office responsible for values and ethics, on such contractual or other arrangements. The Deputy Minister or his or her delegate will determine whether the arrangement presents a real, apparent or potential conflict of interest, and may require that the contract be modified or terminated.

  Political Activities

  Prior to participating in non-candidacy political activities, public servants must seek the advice of their manager and the designated political activities representative. If there is any real, apparent or potential conflict of interest situation, or there is any question as to whether the situation might exist, it must be reported to the Deputy Minister, via the office responsible for values and ethics.

  Public servants are required to seek and obtain permission from the PSC to seek nomination for or be a candidate in a federal, provincial, territorial, or municipal election, in accordance with Part 7 of the Public Service Employment Act (PSEA). The public servant must the designated official in the Department, who will seek the input of the Deputy Minister and work closely with the person making the request and the PSC to process the request.

  “Political activities” are defined in Part 7 of the PSEA as “any activity in support of, within or in opposition to a political party; carrying on any activity in support of or in opposition to a candidate before or during an election period; or, seeking nomination as or being a candidate in an election before or during the election period.”

  Any public servant who wishes to engage in a political activity not covered by Part 7 of the PSEA that could constitute a conflict of interest is required to report the proposed activity to the Deputy Minister via the office responsible for values and ethics.

  Similarly, any public servant who is subject to the Treasury Board’s Directive on Conflict of Interest but who is not subject to Part 7 of the PSEA, including casual and part-time workers, who wishes to engage in any political activity that could constitute a conflict of interest, is to report the proposed activity to the Deputy Minister via the office responsible for values and ethics.

  2.3 Gifts, hospitality and other benefits

  Public servants are expected to use their best judgment to avoid situations of real, apparent or potential conflict of interest by considering the following criteria on gifts, hospitality and other benefits and in keeping with the Values and Ethics Code for the Public Sector and the Directive on Conflict of Interest, which are reflected in this Code.

  Public servants are not to accept any gifts, hospitality or other benefits that may have a real, apparent or potential influence on their objectivity in carrying out their official duties and responsibilities or that may place them under obligation to the donor. This includes activities such as free or discounted admission to sporting and cultural events, travel or conferences.

  The acceptance of gifts, hospitality and other benefits is permissible if they are infrequent and of minimal value, within the normal standards of courtesy or protocol, arise out of activities or events related to the official duties of the public servant concerned, and do not compromise or appear to compromise the integrity of the public servant concerned or that of the Department.

  Public servants are to seek written direction from the Deputy Minister, via the office responsible for values and ethics, where it is impossible to decline gifts, hospitality or other benefits that do not meet the principles set out above, or where it is believed that there is sufficient benefit to the Department to warrant acceptance of certain types of hospitality.

  2.4 Solicitation

  With the exception of fundraising for such officially supported activities as the Government of Canada Workplace Charitable Campaign (GCWCC), public servants may not solicit gifts, hospitality, other benefits or transfers of economic value from a person, group or organization in the private sector who has dealings with the government. When fundraising for such official activities, public servants should ensure that they have prior written authorization from the Deputy Minister in order to solicit donations, prizes or contributions in kind from external organizations or individuals.

  The Deputy Minister or his or her delegate may require that the activities be modified or terminated where it is determined that there is a real, potential or apparent conflict of interest or an obligation to the donor.

  2.5 Avoidance of preferential treatment

  Public servants are responsible for demonstrating objectivity and impartiality in the exercise of their duties and in their decision-making, whether related to staffing, financial awards or penalties to external parties, transfer payments, program operations or any other exercise of responsibility.

  This means that they are prohibited from granting preferential treatment or advantages to family, friends or any other person or entity. They are not to offer extraordinary assistance to any entity or person already dealing with the government without the knowledge and support of their supervisor. They also are not to disadvantage any entity or person dealing with the government because of personal antagonism or bias.

  Providing information that is publicly accessible is not considered preferential treatment.

  3. Requirements for Preventing Post-employment Conflict of Interest Situations Before and After Leaving Office

  All public servants have a responsibility to minimize the possibility of a real, apparent or potential conflict of interest between their most recent responsibilities within the federal public service and their subsequent employment outside the public service.

  3.1 Before leaving employment

  Before leaving their employment with the public service, all public servants are to disclose their intentions regarding any future outside employment or activities that may pose a risk of a real, apparent or potential conflict of interest with their current responsibilities and discuss potential conflicts with their manager, or the Deputy Minister or his or her delegate.

  3.2 Post-employment limitation period for public servants in designated positions

  The Deputy Minister is responsible for designating positions of risk for post-employment conflict of interest situations in accordance with the Directive on Conflict of Interest.

  The positions that have been designated as positions of risk in the Department of Justice are: EX, LC, LP-04 and LP-05 positions.

  Public servants in these designated positions are subject to a one-year limitation period after leaving office. Before leaving office and during this one-year limitation period, these public servants are to report to the Deputy Minister in writing, via the office responsible for values and ethics, all firm offers of employment or proposed activity outside the public service that could place them in a real, apparent or potential conflict of interest with their public service employment. They are also to disclose immediately the acceptance of any such offer. In addition, these public servants may not, during this one-year period, without the authorization of the Deputy Minister:

  1. Accept appointment to a board of directors of, or employment with, private entities with which they had significant official dealings during the period of one year immediately prior to the termination of their service. The official dealings in question may either be directly on the part of the public servant or through their subordinates;
  2. Make representations on behalf of entities or individuals outside of the public service to any government organization with which they had significant official dealings, either directly or through their subordinates, in the year immediately prior to the termination of their service Footnote 5 ; or
  3. Give advice to their clients or any new employer using information that is not publicly available concerning the programs or policies of the Department or organizations with which they had a direct and substantial relationship.

  3.3 Waiver or reduction of limitation period

  A public servant or former public servant may apply to the Deputy Minister, via the office responsible for values and ethics, for a written waiver or reduction of the limitation period. The public servant is to provide sufficient information to assist the Deputy Minister or his or her delegate in making a determination as to whether to grant the waiver taking into consideration the following criteria:

  1. the circumstances under which the termination of their service occurred;
  2. the general employment prospects of the public servant or former public servant;
  3. the significance to the government of information possessed by the public servant or former public servant by virtue of that individual's position in the public service;
  4. the desirability of a rapid transfer of the public servant's or former public servant's knowledge and skills from the government to private, other governmental or non-governmental sectors;
  5. the degree to which the new employer might gain unfair commercial or private advantage by hiring the public servant or former public servant;
  6. the authority and influence possessed by that individual while in the public service; and/or
  7. any other consideration at the discretion of the Deputy Minister.

  4. Resolution

  With respect to the arrangements necessary to prevent a real, apparent or potential conflict of interest, or to comply with the requirements set out above, it is expected that situations will be resolved through discussion and agreement between the public servant and the Deputy Minister or his or her delegate. When a public servant and the Deputy Minister or delegate, disagree on the appropriate arrangements to resolve a real, apparent or potential conflict of interest, the disagreement will be resolved through the grievance procedures established by the Department.

  5. Consequences

  The Department fully trusts public servants in the exercise of their professional duties and expects that each public servant will comply with the Code and the related policies and guidelines.

  A public servant who does not comply with the requirements set out in this Code may be subject to disciplinary measures, up to and including termination of employment. Any disciplinary measures will be based on the seriousness of the breach.

  Footnote

  Footnote 5

  Assistant deputy ministers and their equivalents are subject to the Lobbying Act. In the case of any conflict between this Policy and the Act, the Act takes precedence.