Recognizing Potential Conflicts of Interest: Locally Elected Officials
Conflicts of interest may raise complex issues involving both facts and perception. As locally elected officials recognize and consider their potential conflicts of interest, some additional information on may be useful, including non-pecuniary conflicts, obtaining legal advice, and disclosing gifts and contracts.
As locally elected officials recognize and consider their potential conflicts of interest, some additional information may be useful, including identifying non-pecuniary conflicts of interest, obtaining legal advice, maintaining quorum, gift disclosure policies and disclosing contracts.
Identifying Non-Pecuniary Conflicts of Interest
In broad terms, a locally elected official has a non-pecuniary conflict of interest if the following qualifications are met:
- The locally elected official's interest in the matter is immediate and distinct from the public interest
- It can be reasonably determined that the locally elected official's private interest in the matter will influence their vote on the matter
- The locally elected official, or one of their relations or associates, stands to realize a personal benefit from a favourable decision on the matter
The key consideration is whether a reasonable person would conclude that a private interest or personal benefit could influence or affect the decision making and be in conflict with the locally elected official's public duties. When in doubt, it is advised to err on the side of caution and declare any real or perceived non-pecuniary conflict of interest.
The concepts of pecuniary and non-pecuniary conflicts of interest are constantly evolving in common law. When faced with uncertainty, seek legal advice.
Obtaining Legal Advice
There is no legislated requirement for a locally elected official to obtain legal advice on the question of a conflict of interest prior to making a declaration. However, where the question of conflict is not clear, it may be in the public interest for the local government or organization to establish a policy to encourage and enable locally elected officials to seek legal advice on such matters.
Under section 100 of the Community Charter, a locally elected official is able to withdraw a declaration of conflict of interest if they have obtained legal advice on the question of conflict and have determined that they are entitled to participate in the matter at issue.
Court Order to Achieve Quorum
There may be instances when more than one locally elected official is required to declare a pecuniary or non-pecuniary conflict of interest. The removal of several elected officials may result in a loss of quorum and the inability to make decisions. Quorum is the number of elected officials required to be present in order for a council or board to do business. Legislation specifies that quorum is achieved when there is a majority of council or board members.
In such cases, the local government or Islands Trust may wish to consider applying to the Supreme Court of B.C. for an order. Under section 129 of the Community Charter, the Supreme Court may order that all or specified locally elected officials may discuss and vote on the matter, despite their conflict of interest, and set any conditions it considers appropriate on the participation of the elected officials.
Gift Disclosure Policies
It can sometimes be sensitive and difficult for locally elected officials is to determine which gifts or benefits are strictly prohibited, and which might be received (and disclosed) as part of the protocol of office or a social obligation that normally accompanies the responsibilities of office.
Local governments and the Islands Trust may want to adopt policies regarding receiving gifts and benefits. In particular, policies could set out the criteria for what constitutes, for that community, the type of gift or benefit that would be considered as received as part of a protocol or social obligation that normally accompanies the responsibilities of office.
The Community Charter requirements to disclose a contract between a current or former locally elected official and their local government where there is a direct or indirect pecuniary (financial) interest is intended to deal with situations where there is materiality to a contract. Along with materiality, locally elected officials will need to be aware of public perception about any business relationship between themselves and the organization they represent or represented. Current and former elected officials should apply a practical approach to disclosing contracts. When in doubt, err on the side of disclosure.