The Cat and Mouse Game of Alberta’s Ethics Investigations

Alberta political Insiders could not have been surprised by Ethics Commissioner Trussler’s decision last Friday finding Jason Kenney’s use of the “Premier” prefix for UCP fundraising correspondence not to be a conflict of interest. That’s because Trussler previously determined in similar cases involving previous Premiers that the use of public office for partisan purposes is beyond the scope of her legislated mandate.

Conflict of interest allegations were levelled by opposition parties against Premier Prentice in 2014, for staging political announcements in ridings with upcoming by-elections, and again in 2015 when Premier Notley attended a political fundraising dinner in Toronto. In both these cases and in the Kenney case, Commissioner Trussler, whose term has now run across three governments, drew a sharp line between “private” interests (usually financial) that might harm the public interest, and so-called “political” interests that lay beyond her scrutiny.

There is a pattern here – opposition parties lob allegations of misuse of office for political gain yet, when in power, do nothing to clarify the rules or select a more activist Ethics Commissioner. As political parties switch roles between government and opposition, the cat keeps chasing a mouse they know will get away.

It may be that politicians like it that way. They need to raise money for expensive elections, and want to take credit for their policy accomplishments and funding decisions. In opposition, it is easy to score political points with a whiff of scandal that a request for an ethics investigation may bring, yet not want rigorous rules to apply when the tables are turned and you are in power.

There are of course ways to end this cat and mouse game. The best way would be a multi-partisan effort to draft clearer guidelines on the kinds of political activities that are off-limits. One guiding principle might be to prohibit political activity or conduct that significantly harms either the public interest or lessens public confidence in the Legislative Assembly. It is unlikely that any of three premier cases would reach that threshold though it is not hard to imagine cases that would, for example, “cash for access” (to premiers or cabinet ministers) fundraisers like the kind that bedeviled the federal liberals a couple of years back.

Another way is to reinterpret the existing legislation. In my view, an Ethics Commissioner is permitted to rule on “political” conflicts of interest for at least three reasons. First, the definition of “private interest” in the legislation excludes certain things – but notably not “political” interest. This is curious omission since political interest would be an obvious matter to exclude if that was the intention.

Second, in the Prentice case, Trussler cited a string of ethics cases from across that country that carry the fallacy of a slippery slope argument – if we make “political” interest eligible then all activities for seeking re-election will be scrutinized. This wrongly assumes that legitimate activities, such as campaigning, cannot be distinguished from illegitimate activities, such as “cash for access” or making a quid pro quo deal for political gain.

Third, and as an illustration of the last point, Ethics Commissioners already investigate “political” conflicts of interest allegations. In the Alison Redford re-investigation, the presiding Ethics Commissioner investigated (and ultimately rejected) whether a government contract was awarded to a law firm in exchange for “political capital”. This is clearly a consideration in the realm of a political interest, and not private gain. Or, to cite from a 1993 ethics case from BC, “[c]ampaign contributions and assistance, whether financial or otherwise, can, in my opinion, in some circumstances, be a private interest.” There is precedent, in other words, for conceiving of political interest in “private interest” or unethical terms.

Until such time as the ethics commissioner’s mandate is reinterpreted, or better yet politicians provide clear rules, the use of public office for partisan gain will remain largely unregulated. Politicians should do something about it, or if they don’t, at least stop accusing each other of wrongdoing.