Mr. Speaker.
Members’ Conduct Guidelines
The Legislative Assembly established the Members’ Conduct Guidelines during the 12th Assembly. Subsequent Assemblies have each formally adopted them (except the 15th). The Members’ Conduct Guidelines were amended in the first days of the 18th Assembly for greater emphasis on effective representation, to reaffirm Members’ duty to arrange their private matters so as to maintain the trust and confidence of the public, and to include a pledge to abide by the laws of the land.
For the first time, Members of the 18th Assembly formally signed copies of the Members’ Conduct Guidelines before the Clerk. These signed copies are publicly available and posted on the Assembly’s website. (See Appendix A)
Despite the high standards set out for Members’ conduct, most are broadly described and aspirational in nature. Some standards could be improved. For example, few would object to the intent of the requirement that:
"I will not act nor condone others to act in ways which exploit, slander, or discriminate against others. I will not act nor condone others to act in ways which are dishonest or which exploit positions of privilege for personal gain."
However, it is unclear what action this provision requires of a Member with respect to misconduct by others. If this aspect of the provision is to remain, it should provide more specific guidance to Members. The committee sees no inherent conflict in a code of conduct containing both aspirational and prescriptive conduct.
Several people at the committee’s public hearings advised that attendance should be specifically addressed in the Members’ Conduct Guidelines or code of conduct; it was suggested that Members should be accountable for their attendance during their terms. Certainly, chronic absence is undesirable and represents an impediment to fully effective consensus government. The current guidelines state:
"To my constituents, I owe my best efforts at effective representation as well as accountability, honesty, fairness, and courtesy. To the legislature, I owe respect as well as dedication to my role in ensuring the integrity of our government."
This standard leaves attendance to each Member’s judgment with respect to its relationship to his/her “best efforts at effective representation” and “dedication”. If the Members’ Conduct Guidelines are revised, amendment of this section could be considered, but with the understanding that specific rules are set out in legislation. The Legislative Assembly and Executive Council Act regulations require Members’ attendance to be recorded and regularly tabled in the Assembly by the Speaker for the information of constituents and the general public. These records are posted on the Assembly’s website under both Tabled Documents and Members’ Accountability -- Absences. However, there is currently no penalty for absences of any type. The rules respecting Members’ absences are included in the Members’ Handbook, adopted by the Assembly’s Board of Management as its record of official policy. If it is the collective will of Members to change these rules, the matter is best addressed through the Board of Management.
The term Members’ Conduct “Guidelines” implies that the conduct described may be optional. Guidelines also imply a lack of enforceability, which is misleading. The Legislative Assembly has full authority to regulate its internal affairs and discipline Members for misconduct or other inappropriate behaviour. Implementation of Recommendation 3 would also improve the enforceability of the Members’ Conduct Guidelines (or the more appropriately titled Code of Conduct) by adding the duty to follow them to the Legislative Assembly and Executive Council Act.
Recommendation 4
The Standing Committee on Rules and Procedures recommends that the Members’ Conduct Guidelines serve as the basis for a new Members’ Code of Conduct including more specific and enforceable provisions; and that the new code be presented to the Assembly for consideration and adoption.
In the event of breaches of the current guidelines, a wide range of sanctions and penalties are available, right up to imprisonment and loss of seat in the Assembly. However, it is difficult to enforce a code of conduct without an established system to deal with complaints or a designated body to investigate them. The committee outlined several options in its interim report. Three models of enforcement were considered:
● Internal regulation by the Assembly;
● External regulation by a judicial body; and,
● Creation of an independent commissioner who reports to a parliamentary committee.
The committee considered the likely efficiency, expense, and consequences of these methods in service of our small legislature, where complaints, we trust, will be few in number. It is nevertheless essential that any and all complaints be addressed promptly, fairly, and with integrity. The system of handling complaints must not itself be a barrier to making a complaint, for a Member or a member of the public.
Our current accountability system features an independent Conflict of Interest Commissioner who is a statutory officer of the Legislative Assembly. His/her authority, set out in the Legislative Assembly and Executive Council Act, is weighted toward financial matters, contracts, and private interests, though it also covers gifts and favours, nepotism, and outside activities. In addition, the Act establishes an overarching requirement for a Member to “perform his or her duties of office and arrange his or her private affairs in such a manner as to maintain public confidence and trust in the integrity, objectivity and impartiality of the member.” Thus the Conflict of Interest Commissioner already has authority related to some provisions of the current Members’ Conduct Guidelines.
The qualifications and skills required of the Conflict of Interest Commissioner are very much akin to those of an ethics commissioner, who could be tasked with oversight of a Members’ Code of Conduct or even our current Members’ Conduct Guidelines. Notably, investigation of alleged conflict-of-interest by Members is currently triggered by complaints, which may be made by a Member or any other person. The committee notes that other provincial assemblies have statutory officers whose duties include oversight of both conflict-of-interest matters and their code of conduct. Newfoundland and Labrador’s Commissioner of Legislative Standards is one such example.
The committee was urged to recommend broad new powers for a combined Ethics and Conflict of Interest Commissioner, including the ability to conduct “regular, unannounced audits of the activities of the people under his/her jurisdiction. This would include audits of bank accounts including during post-office-holding cooling-off periods, to track suspicious transactions.” This degree of Commissioner-as-police-investigator is not necessary, represents a serious challenge to his/her neutrality, and is not what the committee envisions.
Recommendation 5
The Standing Committee on Rules and Procedures recommends that the Legislative Assembly and Executive Council Act be amended to expand the duties of the Conflict of Interest Commissioner to include oversight of the Members’ Conduct Guidelines or Code of Conduct; that the Commissioner be empowered to receive and investigate complaints from a Member or any other person respecting breaches of prescribed conduct, and to recommend sanctions or penalties, as appropriate, to the Speaker; and, that the newly-constituted commissioner be known as the Ethics Commissioner.
Fostering a Culture of Ethical Conduct
An effective system of regulating Members’ conduct encourages integrity at all levels. If another Member knows of an alleged breach of conduct, he/she has a duty to raise the matter, in an official complaint if necessary. Similarly, members of the public with reason to suspect misconduct have a civic duty to register an official complaint that could trigger investigation.
The committee believes that adoption of its recommendations would represent positive steps toward fostering a culture of ethical conduct. Committee members plan to promote understanding of the contents of this report through conventional and social media, and in the Assembly itself. Discussion of this report is a valuable first step.
These will be recurring opportunities if the committee’s recommendations are adopted, as changes to both the Elections and Plebiscites Act and the Legislative Assembly and Executive Council Act would be necessary. The Assembly’s public review of a proposed new and improved Code of Conduct is also likely to attract wide interest.
If and when the changes outlined in this report are adopted, the committee recommends that the Legislative Assembly promote them in the media and ensure that information is easily located on its website, with useful links under the “Members’ Accountability” section. These should include a link to the description of Conflict of Interest Commissioner’s (or the recommended Ethics Commissioner’s) duties, now under “Statutory Officers.” Clear instructions should be provided on how to register a complaint about a conflict of interest or a breach of the Members’ Code of Conduct, or Conduct Guidelines, as the case may be.
Members now review their circumstances and statutory declarations annually with the Conflict of Interest Commissioner. These meetings also serve as an annual reminder of each Member’s obligations. If the proposed Ethics Commissioner is created, annual meetings will afford an opportunity to reinforce understanding of the Members’ Code of Conduct, and to discuss any questions a Member might have.
It is vital that all Members set high standards for themselves, act in accordance with the high standards we adopt, and act as role models for both our colleagues and successors. A culture is built on strong practice and repetition; we must lead by example. Our words must be consistent with our deeds. As the title of our report states, “you are standing for your people.”
Mr. Speaker, I will now hand this over to the honourable Member for Nahendeh. Thank you.