Opinion | The cat-and-mouse game of Alberta's ethics investigations
Pattern of opposition parties lobbing allegations of misuse has been set
Alberta political insiders could not have been surprised last month when Ethics Commissioner Marguerite Trussler refused to decide if Jason Kenney's use of the premier's office to raise funds for the United Conservative Party to be a conflict of interest.
Last month, the NDP complained about a letter sent out by the UCP soliciting contributions to cover $340,000 in outstanding election expenses, but which was signed "Premier Jason Kenney."
The NDP alleged it is improper to use the position of premier to fundraise.
But as in similar cases in the past, Trussler determined the use of public office for partisan purposes is beyond the scope of her legislated mandate.
As political parties switch roles between government and opposition, the cat keeps chasing a mouse it knows will get away.
Conflict-of-interest allegations were levelled by opposition parties against then premier Jim Prentice in 2014, for staging policy and funding announcements in ridings with upcoming by-elections, and again in 2015, when former premier Rachel Notley's attendance at political fundraising events was questioned.
In all three cases, Trussler, whose term has now run across three governments, drew a sharp line between "private" (usually financial) interests that might conflict with 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 it knows will get away.
Whiff of scandal
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.
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 that significantly harms the public interest or lessens public confidence in the legislative assembly.
It is unlikely that any of three cases above would reach that threshold, though it is not hard to imagine cases that would. Take, for example, the "cash for access" fundraisers that bedevilled the federal Liberals a couple of years back.
Another way is to reinterpret the existing legislation.
Slippery slope
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 a 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 the 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.
Existing precedent
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.
There is also a 1993 ethics case from British Columbia that addressed whether a ministerial decision affecting two active campaign supporters was a conflict of interest. In that commissioner's view, "[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.
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