Friday, March 03, 2006

Harper-Emerson: No Conflict Of Interest

Liberal partisans are gleefully chortling at the prospect of seeing David Emerson's election campaign prediction that he would become Stephen Harper's worst nightmare come true.

Conservative partisans are crying foul over Ethics Commissioner Bernard Shapiro's announced investigation into the Emerson defection, noting that Shapiro's office did not look into Belinda Stronach or Scott Brison's defections for improprieties, and that Shapiro laid almost all the blame on Gurmant Grewal for trying seduce Ujjal Dosanjh into seducing him, all on tape.

And Stephen Harper finds himself in the uncomfortable position of having to blast the current Ethics Commissioner for his own ethical lapses after pledging to strengthen the very office that is going after him and Emerson:

There's a possibility Stephen Harper's first act as prime minister may have breached the parliamentary ethical code for MPs, the federal ethics commissioner indicated Friday.

But Bernard Shapiro's decision to launch a "preliminary inquiry'' into Harper's controversial appointment of former Liberal David Emerson to the Conservative cabinet met with a furious rebuttal from the Prime Minister's Office.

"The prime minister is loath to co-operate with an individual whose decision-making ability has been questioned and who has been found in contempt of the House,'' Harper's communications director, Sandra Buckler, said late Friday.

In a release, the PMO added, "this Liberal appointee's actions have strengthened the prime minister's resolve to create a truly non-partisan ethics commissioner, who is accountable to Parliament.''

A major parliamentary donnybrook appears in the works.

Shapiro, who did not speak to reporters Friday, appears to be basing his investigation on elements of the parliamentary conflict-of-interest code that prohibit inducing an MP to change his or her vote for personal benefit.

"After careful consideration, and pursuant to . . . the members code, I have decided to combine a preliminary inquiry of the prime minister . . . with a preliminary inquiry on my own initiative of Mr. Emerson,'' Shapiro wrote in an open letter to the Speaker of the House of Commons.

This is the section of the CConflict of Interest Code for Members of the House of Commons that Shapiro alleges may have been breached:

8. When performing parliamentary duties and functions, a Member shall not act in any way to further his or her private interests or those of a member of the Member’s family, or to improperly further another person’s private interests.

So what is a private interest?

A Member is considered to further a person’s private interests, including his or her own private interests, when the Member’s actions result, directly or indirectly, in any of the following

(a) an increase in, or the preservation of, the value of the person’s assets;

(b) the extinguishment, or reduction in the amount, of the person’s liabilities;

(c) the acquisition of a financial interest by the person;

(d) an increase in the person’s income from a source referred to in subsection 21

(e) the person becoming a director or officer in a corporation, association or trade union; and

(f) the person becoming a partner in a partnership.

Can an accepting a public office be properly said to be in furtherance of a private interest? At the time that David Emerson accepted the offer to enter Stephen Harper's cabinet, he was potentially facing a serious pay cut of more than $70,000 a year if he stayed with the Liberals as an ordinary opposition MP.

But the Liberal government had not yet left office, nor the new Conservative government been sworn in, when the offer was made an accepted. Emerson's pay did not change, since technically speaking, he never left Cabinet. Total advance of private interests: zero.

And it will hardly do to blame Stephen Harper for bribing Emerson:

14.(1) Neither a Member or any member of a Member’s family shall accept, directly or indirectly, any gift or other benefit, except compensation authorized by law, that is related to the Member’s position.

If Harper had offered to pay Emerson's campaign debts, or buy his wife a fur coat, that would be a gift or benefit. But a ministerial salary is set by law, and anyone appointed to Cabinet is entitled to it, whether or not they were elected under another party's banner, even if they were not elected at all.

Therefore, there was no bribe to keep Emerson in Cabinet.

As a last resort, Shapiro may try to hang a case against Emerson under sections 20(1) and 21((1)(a-b) of the Code of Conduct, which state:

20.(1) A Member shall, within 60 days after the notice of his or her election to the House of Commons is published in the Canada Gazette, and annually on or before a date established by the Ethics Commissioner, file with the Ethics Commissioner a full statement disclosing the Member’s private interests and the private interests of the members of the Member’s family.


21.(1) The statement shall:

(a) identify the assets and liabilities of the Member and the members of the Member’s family and state their value;

(b) state the income that the Member and the members of the Member’s family have received during the preceding 12 months and are entitled to receive during the next 12 months, and indicate the source of that income.

If Emerson hadn't yet filed such a statement after being re-elected when he was re-appointed to Cabinet, he could hardly have entered false or misleading information, or concealed anything.

But even if he had, reporting his Cabinet salary would be covered under a curative provision in 21(3):

The Member shall report in writing any material change to the information required under subsection (1) to the Ethics Commissioner within 30 days after the change.

The underlying theme of the Conflict of Interest Code is that an MP may not use his position to advance his private interests. He can't sit in cabinet as, say, Transport Minister, or even on the House Transport Committee, and on the board of a cargo airline, or take shares in a trucking company in exchange for promoting favourable legislation.

But there is no suggestion, even by Emerson and Harper's harshest critics, that Emerson is an analogous position. They are outraged about a shabby political deal that incidentally protected Emerson from a parliamentary pay cut.

And they should think long and hard about setting a precedent which would declare a public office and its emoluments to be a private interest. The last government got defeated because too many of its members thought it was.

The Harper-Emerson deal, like the Martin-Brison and Stronach deals before them, were dirty political games. But all well within the bounds of the conflict of interest guidelines.

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