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Revised Statutes of Newfoundland 1990


CHAPTER C-30

AN ACT RESPECTING CONFLICT OF INTEREST IN MATTERS OF PUBLIC CONCERN

Analysis

1. Short title

2. Interpretation

3. Disclosure statements

4. Prohibitions

5. Participation by member or employee

6. Participation of ministers

7. Supplying information prohibited

8. Regulations

9. Regulations: conduct of employees

10. Penalties

11. Evidence

12. Effect of Act

13. Application and conflict

14. Application

Schedule A

Schedule B


Short title

1. This Act may be cited as the Conflict of Interest Act.

1987 c11 s1

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Interpretation

2. (1) In this Act

(a) "agency" means a person or body specified in Schedule A and includes

(i) an agent of the Crown, and

(ii) a person or body not otherwise an agent of the Crown but carrying out a function on behalf of, or a function that is usually carried out by, the Crown which is considered to be an agency for the purposes of this Act by order of the Lieutenant-Governor in Council;

(b) "auditor general" means the Auditor General of Newfoundland appointed under the Financial Administration Act and where there is no auditor general in office, means the deputy auditor general appointed under that Act and, where there is no auditor general or deputy auditor general in office, means the officer who may be designated by the Lieutenant-Governor in Council to perform the duties of the auditor general;

(c) "disclosure statement" means a statement referred to in section 3;

(d) "interest" includes

(i) an interest in a partnership, including an interest in a law partnership;

(ii) an employment, other than employment as a member, a minister of the Crown or a public employee for which remuneration is payable; and

(iii) a loan made by a member or public employee to a company, firm or body or other indebtedness no matter how secured of such a company, firm or body to the member or public employee.

(e) "member" means a member of the House of Assembly or of an agency;

(f) "minister" means the Minister of Works, Services and Transportation or another minister of the Crown appointed by the Lieutenant-Governor in Council to administer this Act; and

(g) "public employee" means a person holding a position referred to in Schedule B as an employee of

(i) the province, or

(ii) an agency,

and includes a person holding a position as an employee of

(iii) the province,

(iv) an agency, or

(v) an agent, person or body referred to in subparagraph (a)(i) or (ii) not considered an agency under that paragraph,

considered to be a position for the purposes of this paragraph by order of the Lieutenant-Governor in Council.

(2) An order made under paragraph 1(a) or (g) is subordinate legislation for the purposes of the Statutes and Subordinate Legislation Act.

1987 c11 s1

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Disclosure statements

3. (1) A member and a public employee shall, at each of the times referred to in this section, file a disclosure statement in the form prescribed by the regulations and set out the information to be contained in it in accordance with this section in the manner and to the extent prescribed by the regulations.

(2) Where a member or public employee has nothing to disclose within the meaning of this Act, he or she shall nevertheless file a disclosure statement at each of the applicable times referred to in this section, stating in it that he or she has nothing to disclose within the meaning of this Act.

(3) The times for filing disclosure statements under subsection (1) or (2) are:

(a) for a member,

(i) before assuming his or her seat for the 1st time,

(ii) within 60 days of the acquisition, to his or her knowledge, of an interest not appearing in the last previously filed disclosure statement, and

(iii) on or before January 15 in each calendar year after the date he or she assumed his or her seat for the 1st time or the date his or her initial disclosure statement is required to be filed under subsection (6) and while remaining a member; and

(b) for a public employee,

(i) within 60 days of 1st employment as a public employee,

(ii) within 60 days of the acquisition, to his or her knowledge, of an interest not appearing in the last previously filed disclosure statement, and

(iii) on or before January 15 in each calendar year after the date of the start of his or her first employment as a public employee or the date his or her initial disclosure statement is required to be filed under subsection (6) and while remaining a public employee.

(4) A disclosure statement by a member or public employee shall specify every interest required to be specified by subsection (11) and every other interest which, to his or her knowledge, the member or public employee, his or her spouse or minor children has or will acquire as a result of which there is a possibility of a conflict between that interest and his or her position as a member or public employee, including a financial interest that the member or public employee, his or her spouse or minor children has in a company, firm or body that has done, does or might do business with the government of the province or an agency.

(5) A disclosure statement shall be filed with the auditor general.

(6) Notwithstanding subsection (2), a person who becomes a member or public employee for the purposes of this Act by virtue of an order made under paragraph 2(1)(a) or (g) on the effective date of the order shall file his or her initial disclosure statement within 30 days of that date instead of at the time referred to in subparagraph 3(a)(i) or 3(b)(i).

(7) Unless the auditor general is satisfied that there is a reasonable excuse for late filing, and certifies so in writing, a failure to file a disclosure statement as required by this section makes the member or public employee who so fails ineligible for the remuneration to which he or she would normally be entitled for the period of failure, and he or she shall not be paid the remuneration, and, where he or she is paid an amount which he or she is ineligible to receive, that amount constitutes a debt to the source of payment and may be recovered in a court as a debt due to that source, and where that source is the province it shall be the duty of the Attorney General on behalf of the Crown to recover that amount.

(8) Unless the auditor general is satisfied that there is a reasonable excuse for late filing, and certifies so in writing, where a member who is not a member of the House of Assembly and who does not receive remuneration from an agency, fails to file a disclosure statement as required by this section, the Minister of Finance may suspend the member from the agency until the time that that member files a disclosure statement.

(9) In the event of a dispute as to the amount of the remuneration that shall not be paid a member or public employee under subsection (7), the auditor general shall determine that amount on a proportional time basis as nearly as possible, and his or her determination, which shall be in the form of a written statement directed to the source of payment of the remuneration, shall be final, and section 11 shall, with the necessary changes, apply to the written statement.

(10) The disclosure statements filed with the auditor general

(a) by members who are members of the House of Assembly shall be open to public inspection at the places and times that are prescribed by the regulations; and

(b) by public employees and members who are not members of the House of Assembly shall be open to inspection during government hours by members of the House of Assembly or persons authorized by a minister of the Crown or the auditor general.

(11) Notwithstanding subsection (4), the disclosure statement shall, whether or not a possibility of conflict within the meaning of subsection (4) exists in respect of it, specify

(a) all land in the province owned in whole or in part or directly or indirectly through a person, company, firm or body or otherwise by the member or public employee concerned, his or her spouse or minor children; and

(b) an interest of the member or public employee concerned, his or her spouse or minor children existing, either directly or indirectly through a person, company, firm or body or otherwise, in the common or preferred shares of a corporation,

to the knowledge of the person making the statement.

(12) A statement referred to in subsection (11) need not specify an interest in shares of a corporation, other than a land development corporation, listed on a stock exchange where the value of that interest according to the latest closing price or quotation is less than $5000.

(13) A statement referred to in subsection (11) need not specify a qualifying share held by a solicitor as a result of the incorporation,

(a) by himself or herself as the solicitor or by another member as a solicitor of the law firm of which he or she is a member; and

(b) for a client,

of the company in which the qualifying share is held.

(14) Notwithstanding subsection (4), where an interest, or part of an interest, specified in a disclosure statement made by a person is, to the knowledge of that person, disposed of, the disclosure statement next filed by him or her after he or she has acquired the knowledge shall disclose to whom, where he or she knows to whom, the interest, or part of an interest, has been disposed of.

(15) For the purposes of Schedule B, the auditor general may, by order, list positions in the service of the province or of an agency which, for the purposes of that schedule, are

(a) clerical;

(b) non-discretionary; or

(c) non-decision-making

positions in which the possibility of conflict within the meaning of this Act is, in his or her opinion, unlikely, and amend, add to or delete from the list.

(16) An order made under subsection (15) constitutes subordinate legislation for the purpose of the Statutes and Subordinate Legislation Act.

(17) Where there is a conflict between an order made under subsection (15) and an order referred to in paragraph 2(1)(d), the order made under paragraph 2(1)(d) shall prevail.

1973 No113 s4; 1978 c20 s1

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Prohibitions

4. (1) A member of the House of Assembly, or of an agency consisting of more than 1 member,

(a) shall not speak on a matter where there is a conflicting interest in respect of the member in relation to the matter unless at the beginning of his or her speaking he or she states a conflicting interest within the meaning of this section that, to his or her knowledge, he or she, his or her spouse or minor children has in the matter; and

(b) unless the House of Assembly, or the agency by resolution permits him or her to vote, and he or she may vote, with respect to this resolution, shall not vote on a matter where there is a conflicting interest in respect of the member in relation to the matter.

(2) For the purposes of this section a "conflicting interest" means a interest which, if the member were at the time of speaking or voting filing a disclosure statement, would be required to be specified in it in accordance with section 3, but there shall not be considered to be a conflicting interest for the purposes of this section in relation to

(a) matters concerning remuneration or pension rights in respect of the body of which he or she is the member; or

(b) matters of wide general public application, including matters of general taxation.

(3) Where, because of his or her not being permitted to vote in accordance with paragraph 1(b), the agency of which he or she is a member cannot properly carry out its functions according to the laws appertaining to it other than this Act and, but for the proviso, the agency may act without his or her vote and the action shall be as valid and effectual as if he or she were entitled to vote and had voted and his or her vote were in accordance with the votes of the majority of those who voted.

1973 No113 s6

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Participation by member or employee

5. (1) Unless the Lieutenant-Governor in Council otherwise directs, a public employee or a member who is the sole member of an agency shall not, nor shall he or she be required to, participate in an official action concerning an interest specified in the disclosure statement last filed by him or her and not disposed of, or an interest which, if he or she were at that time filing a disclosure statement, would be required to be specified in it in accordance with section 3 of this Act.

(2) Where, because of the public employee or the member not participating in the official action concerned, the official action cannot be carried out according to the laws appertaining to it other than this Act and, but for this proviso, the Lieutenant-Governor in Council shall immediately designate

(a) another public employee to substitute for and act in the place of the public employee who fails to participate in the official action; or

(b) another person to substitute for the member and act as a special member with respect to the official action required to be participated in,

and the substituted action shall be as valid and effectual as if this Act did not exist and the original public employee or member had acted.

(3) A special member referred to in paragraph (2)(b)

(a) may be paid the remuneration and expenses that the Lieutenant-Governor in Council may prescribe; and

(b) may complete an official action he or she engages in under this section, notwithstanding that the public employee or member for whom he or she substitutes has become able to act.

1973 No113 s7

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Participation of ministers

6. (1) The provisions of section 5 respecting a member shall, with the necessary changes, apply to members who are also ministers of the Crown in respect of their actions as those ministers.

(2) The person designated under paragraph 5(1)(b) shall also be a minister of the Crown, and the minister designated under that paragraph shall for those purposes be known as a special minister with respect to the portfolio in which he or she substitutes.

1973 No113 s8

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Supplying information prohibited

7. A member, a public employee or another employee of the province or of an agency shall not, for his or her own or anyone else's personal gain, use or supply to another person information not available to the public that he or she has acquired as the result of the performance of his or her duties as the member or employee.

1973 No113 s9

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Regulations

8. The Lieutenant-Governor in Council may make regulations

(a) prescribing forms for the purposes of this Act;

(b) prescribing the manner and extent referred to in subsection 3(1);

(c) prescribing the places and times for inspection of disclosure statements under paragraph 3(10)(a);

(d) requiring the information to be contained in a disclosure statement to be verified by affidavit;

(e) providing for the holding of inquiries into the operation of this Act and into a charge or complaint that a person has contravened this Act or the regulations, or has made a false statement in a form or statement required to be completed, made or filed under this Act or the regulations, or into another matter arising in the administration of this Act, and providing that the person holding the inquiry shall have the powers that are or may be conferred upon a commissioner under the Public Inquiries Act including the power to take evidence under oath or affirmation; and

(f) generally, to give effect to the purpose of this Act.

1973 No113 s10

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Regulations: conduct of employees

9. (1) The Lieutenant-Governor in Council may make regulations respecting the standards to be observed by a public employee in the conduct of his or her official functions so far as it relates to his or her private affairs and in the conduct of his or her private affairs so far as it relates to his or her official functions and in particular respecting;

(a) the receipt by a public employee of a benefit from the province, from an agency or from a source outside his or her official entitlements;

(b) the ownership of and trading by a public employee of shares in the business or activity that may be prescribed;

(c) the use by a public employee of information obtained in an official capacity;

(d) the restriction of employment of a public employee outside his or her official capacity;

(e) the avoidance of preferential treatment of a person related to a public employee or an organization in which the public employee has an interest;

(f) the application of regulations made under this section to spouses and minor children of public employees;

(g) the powers of a department head in administering the regulations made under this section;

(h) the agencies and public employees to which this section applies; and

(i) the establishment of an appeal committee or board and the procedure on application for appeals under the regulations made under this section.

(2) The Premier may make guidelines respecting the standards to be observed by a minister of the Crown in the conduct of his or her official functions so far as it relates to his or her private affairs and in the conduct of his or her private affairs so far as it relates to his or her official functions, and in particular may make guidelines respecting the matters set out in paragraphs (1)(a) to (h) as they relate to ministers of the Crown.

(3) The Lieutenant-Governor in Council may by order exempt a class of public employee from the regulations made under subsection (1).

(4) The guidelines made under subsection (2) shall be considered to be subordinate legislation for the purpose of publication in the Gazette.

(5) In this section

(a) "agency" means

(i) an agency, or

(ii) a commission, board, corporation, authority or other body

listed as an agency in the regulations made under this section;

(b) "minister of the Crown" includes the parliamentary assistant to the Premier, the special assistant to the Premier and the parliamentary secretaries to ministers of the Crown; and

(c) "public employee" means an employee, including a contractual employee, of

(i) a department of government,

(ii) an agency, or

(iii) a commission, board, corporation, authority or other body

listed in the regulations made under this section.

1982 c23 s1; 1987 c11 s2

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Penalties

10. A person who contravenes this Act or knowingly makes a false statement in a disclosure statement is guilty of an offence and liable, notwithstanding that he or she may also be subject to subsection 3(7), on summary conviction to a fine of not more than $1,000, and in default of payment of the fine, to imprisonment for a period not exceeding 3 months or to both a fine and imprisonment.

1973 No113 s12

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Evidence

11. A statement as to the filing or non-filing of a disclosure statement or as to another matter concerning the filing or non-filing or to a disclosure statement or anything contained or not contained in it purporting to be certified by the auditor general is, without proof of the office or signature of the auditor general, receivable in evidence as, in the absence of evidence to the contrary, proof of the facts stated in it in an action, proceeding or prosecution.

1973 No113 s13

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Effect of Act

12. This Act applies notwithstanding an agreement or waiver to the contrary.

1973 No113 s14

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Application and conflict

13. This Act does not apply to

(a) provincially paid judges;

(b) the Election Act; or

(c) Part V of the Municipalities Act.

1973 No113 s15; 1979 c33 Sch C

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Application

14. Section 5 does not apply to

(a) the Comptroller General of Finance; or

(b) the auditor general.

1973 No113 s16; 1987 c11 s3

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Schedule A

1. The Newfoundland Public Service Commission referred to in the Public Service Commission Act.

2. The Board of Commissioners of Public Utilities referred to in the Public Utilities Act, both in respect of that Act and the Motor Carrier Act.

3. The Newfoundland Liquor Licensing Board referred to in the Liquor Control Act.

4. The Newfoundland Liquor Corporation referred to in the Liquor Corporation Act.

5. The Workers' Compensation Commission referred to in the Workers' Compensation Act.

6. The Newfoundland and Labrador Housing Corporation referred to in the Housing Corporation Act.

7. The corporation and board referred to in the Industrial Development Corporation Act.

8. The permanent Human Rights Commission referred to in the Human Rights Code.

9. The corporation and board referred to in the Municipal Financial Corporation Act.

10. The Farm Development Loan Board referred to in the Farm Development Loan Board Act.

11. The Fisheries Loan Board of Newfoundland referred to in the Fisheries Loan Act.

12. The St. John's Metropolitan Area Board referred to in the St. John's Metropolitan Area Act.

13. The Provincial Planning Board referred to in the Urban and Rural Planning Act.

14. A board within the meaning of the Residential Tenancies Act.

15. The Newfoundland and Labrador Hydro-Electric Corporation referred to in the Hydro Act.

16. The Newfoundland and Labrador Computer Services Limited.

1987 c11 s5

 

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Schedule B
Public Employees

1. All positions of

(a) deputy ministers, associate deputy ministers and assistant deputy ministers in departments of the government;

(b) members of the staff of the office of the Premier;

(c) members of the staff of the Executive Council;

(d) members of the staff of the Treasury Board;

(e) members of the planning and priorities committee secretariat;

(f) executive assistants to ministers of the Crown;

(g) the highest management official under an agency;

(h) loan and debt managers;

(i) mortgage and industrial loan officers;

(j) inspectors, officers or other persons (not being police officers or fire fighters or persons acting under the Public Inquiries Act) having powers of inspection or investigation under an Act of the province;

(k) solicitors on the staff of the Department of Justice or another department;

(l) registrars (not being court registrars) under an Act of the province and persons having the powers of the registrar under any circumstances;

(m) officers or persons acting in an office or employment connected with the collection, management or auditing of revenue;

(n) persons who have a discretion to issue licences and for this purpose "licence" includes a permit, certificate, approval, registration or similar form of permission required by law;

(o) persons dealing with granting, conveying, leasing or licensing in respect of lands of the Crown, other lands or Crown petroleum (within the meaning of the Petroleum and Natural Gas Act) or any rights in or to those lands or Crown petroleum;

(p) persons who have a statutory power of decision, and for this purpose "statutory power of decision" means a power or right, conferred under a statute, to make a decision deciding or prescribing,

(i) the legal rights, powers, privileges, immunities, duties or liabilities of a person or party, or

(ii) the eligibility of a person or party to receive, or to the continuation of, a benefit or licence, whether he or she is legally entitled or not;

(q) persons dealing with the lending of money or the guaranteeing of loans; and

(r) persons dealing with the appraisal or expropriation of lands,

other than a person who, under subsection 3(15) of this Act acts only in a clerical, non-discretionary or non-decision-making capacity in which the possibility of conflict within the meaning of that Act is, in the opinion of the auditor general, unlikely or who is temporarily employed by the province or an agency and for the purposes of this Schedule a person is temporarily employed where his or her employment is intended to extend to less than 183 days in a calendar year.

(2) The positions of

(a) Clerk of the Executive Council;

(b) Comptroller General of Finance;

(c) Auditor General of Newfoundland;

(d) secretary and deputy secretary of the Treasury Board;

(e) senior legislative counsel and legislative counsel of the Office of the Legislative Counsel;

(f) private secretary to the Lieutenant-Governor of the province;

(g) director of air services;

(h) director of local government administration;

(i) the provincial fire commissioner;

(j) clerk of the Board of Commissioners of Public Utilities referred to in section 6 of the Public Utilities Act;

(k) executive director and the medical director referred to in section 11 of the Medical Care Insurance Act; and

(l) executive director referred to in the Human Rights Code.

1973 No113 Sch B; 1987 c11 s6

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