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SNL1995 CHAPTER C-30.1

CONFLICT OF INTEREST ACT, 1995

Amended:

1997 c13 s10; 1999 c22 s9; 2001 c22 s2; 2001 c42 s9;
2007 cH-10.1 s70; 2009 c30 s5

CHAPTER C-30.1

AN ACT RESPECTING STANDARDS OF CONDUCT FOR NON-ELECTED PUBLIC OFFICE HOLDERS

(Assented to December 21, 1995)

Analysis


       
1.   Short title

       
2.   Interpretation

              PART I
CONDITIONS OF EMPLOYMENT

       
3.   Statutory duty

              PART II
DUTIES AND OBLIGATIONS

       
4.   Influence

       
5.   Insider information

       
6.   Private interest not furthered

       
7.   Accepting extra benefits

       
8.   Government contracts

       
9.   Restrictions

     
10.   Confidential information

              PART III
COMPLIANCE

     
11.  
Sale to evade Act

     
12.   Acting for future gain prohibited

     
13.   Procedure on conflict of interest

     
14.   Conflict of Interest Advisory Committee

     
15.   Disclosure

     
16.   Determination of issue

              PART IV
APPEALS

     
17.   Appeals

     
18.   Disciplinary measures

              PART V
POST-OFFICE EMPLOYMENT

     
19.   Post-office employment

              PART VI
REGULATIONS

     
20.   Regulations

              PART VII
TRANSITIONAL PROVISIONS

     
21.   Disclosure documents

     
22.   RSN1990 cC-30 Rep.

     
23.   Commencement


Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

Short title

        1. This Act may be cited as the Conflict of Interest Act, 1995 .

1995 cC-30.1 s1

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Interpretation

        2. (1) In this Act

             (a)  "cohabiting partner" means a person with whom a public office holder is living in a conjugal relationship outside marriage;

          (a.1)  "commissioner" means the Commissioner for Legislative Standards appointed under the House of Assembly Act ;

             (b)  "committee" means the Conflict of Interest Advisory Committee;

             (c)  "excluded private interest" means

                      (i)  real property that is used primarily for a residence or for recreation,

                     (ii)  personal property used for transportation, household, educational, recreational, social or aesthetic purposes,

                    (iii)  cash on hand or on deposit with a financial institution that is lawfully entitled to accept deposits,

                    (iv)  fixed value securities issued by a government or municipality in Canada or an agency of a government or municipality in Canada ,

                     (v)  a registered retirement savings plan, retirement or pension plan or employee benefit plan, that is not self-administered,

                    (vi)  an investment in an open-ended mutual fund that has broadly based investments not limited to one industry or one sector of the economy,

                   (vii)  a guaranteed investment certificate or similar financial instrument,

                  (viii)  an annuity, life insurance policy or pension right, and

                    (ix)  an asset, liability or financial interest that is held

                            (A)  as executor, administrator or trustee, or

                            (B)  by bequest or inheritance, during the 12 months following the date it devolves;

             (d)  "family" means a person who is

                      (i)  a public office holder’s spouse or cohabiting partner,

                     (ii)  a minor child of the public office holder, or a minor who is dependent primarily on the public office holder or the public office holder’s spouse or cohabiting partner for financial support and toward whom the public office holder has demonstrated a settled intent to treat as a family member, and

                    (iii)  a relative of the public office holder or the public office holder’s spouse or cohabiting partner who lives as part of the public office holder’s household and is primarily dependent on the public office holder or the public office holder’s spouse or cohabiting partner for financial support;

             (e)  "political staff" means a public office holder whose terms and conditions of employment are set through the House of Assembly Management Commission continued under section 18 of the House of Assembly Accountability, Integrity and Administration Act and who has not been employed in the manner provided by law;

              (f)  "private interest" means

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

                     (ii)  an asset, loan, liability or financial interest,

                    (iii)  a source of income, and

                    (iv)  a position of director or officer in a corporation or association;

             (g)  "public office holder" means a person who receives a salary or other remuneration, in whole or in part, from money voted by the legislature and includes a person employed by

                      (i)  an agent of the Crown, designated by statute, or

                     (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 who or which is considered to be an agent for the purpose of this Act by order of the Lieutenant-Governor in Council;

             (h)  "source of income" means

                      (i)  in the case of employment, the employer, and

                     (ii)  in the case of income arising from a business or profession, the business or profession; and

              (i)  "spouse" means a person to whom a public office holder is married, unless they have made a separation agreement or their support obligations and family property have been dealt with by a court order.

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

1995 cC-30.1 s2; 1997 c13 s10 1999 c22 s9; 2001 c22 s2; 2007 cH-10.1 s70; 2009 c30 s5

PART I
CONDITIONS OF EMPLOYMENT

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Statutory duty

        3. A public office holder shall not make or participate in making a decision in his or her capacity as a public office holder where the public office holder knows or ought reasonably to know that in the making of the decision there is the opportunity to benefit himself or herself or a member of his or her family improperly, directly or indirectly.

1995 cC-30.1 s3

PART II
DUTIES AND OBLIGATIONS

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Influence

        4. A public office holder shall not use his or her position to seek to influence a decision made by another person to benefit, directly or indirectly, a private interest of that public office holder or a member of his or her family.

1995 cC-30.1 s4

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Insider information

        5. (1) A public office holder shall not use or share information that is gained in his or her capacity as a public office holder and is not available to the general public to further or seek to further, directly or indirectly, a private interest of the public office holder or his or her family.

             (2)  A public office holder shall not use or share information that is gained in his or her capacity as a public office holder and is not available to the general public to improperly benefit another person.

1995 cC-30.1 s5

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Private interest not furthered

        6. For purpose of this Act, a decision does not further, directly or indirectly, a private interest where the decision

             (a)  is of general public application;

             (b)  affects the public office holder or the public office holder's family as one of a broad class of the public; or

             (c)  concerns the remuneration or benefits of a public office holder provided by or under an Act.

1995 cC-30.1 s6

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Accepting extra benefits

        7. (1) A public office holder shall not, directly or indirectly, accept a fee, gift or personal benefit, except compensation authorized by law, that is connected, directly or indirectly, with the performance of his or her duties.

             (2)  Subsection (1) does not apply to a gift or personal benefit that is received as an incident of the protocol or social obligations that normally accompany the duties or responsibilities of the public office holder.

1995 cC-30.1 s7

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Government contracts

        8. (1) A public office holder shall not knowingly, directly or indirectly, be a party to a contract with the department or agency of the Crown with which he or she is employed under which the public money of the province is paid and under which the public office holder receives a benefit.

             (2)  Subsection (1) does not apply to a public office holder solely on the ground that a party to a contract with the government of the province is a corporation or partnership in which the public office holder or the public office holder's family has a shareholding or interest, if

             (a)  the shareholding or interest is 10% or less;

             (b)  the deputy minister or chief operating officer is of the opinion that

                      (i)  the public office holder was not in a position to influence the awarding of the contract and the performance of it will not interfere with the public office holder's public duties, or

                     (ii)  the shareholding or interest is insufficient to interfere with the public office holder public duties; or

             (c)  the shareholding or interest has been placed in a trust that the deputy minister or chief operating officer is satisfied will prevent the public office holder exercising authority or control over the affairs of the corporation or partnership.

             (3)  Where the public office holder is a deputy minister or chief operating officer the decision required by paragraph (2)(b) or (c) shall be made by the Lieutenant-Governor in Council.

             (4)  This section does not apply to

             (a)  a contract that existed before the public office holder became a public office holder, or an extension of such a contract according to its terms;

             (b)  a contract awarded by public tender;

             (c)  a contract for goods or services made in an emergency;

             (d)  a contract for goods or services provided in a case where no other person is qualified and available to provide the goods or services;

             (e)  the completion of a contract that devolves by descent, limitation or marriage, or as devisee, legatee, executor or administrator, where less than 12 months have elapsed after the devolution;

              (f)  a benefit received or transaction entered into

                      (i)  by a public office holder or the public office holder's family under an Act,

                     (ii)  under which the public office holder or the public office holder's family is entitled, upon fulfilling the conditions specified in or under the Act, to receive the benefit or enter into the transaction on terms in common with the general public or a defined class of the public to which the public office holder belongs, and

                    (iii)  where the benefit or transaction is not subject to the exercise of discretion by a person;

             (g)  a contract under which one of the public office holder's family becomes an employee of or an independent contractor for personal services to the government of the province where the contract is awarded in the manner provided by law; or

             (h)  the reimbursement of expenses incurred by the public office holder or the public office holder's family while on the business of the government of the province.

1995 cC-30.1 s8; 1997 c13 s10

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Restrictions

        9. A public office holder shall not engage in an activity,

             (a)  that interferes with or adversely influences the performance of his or her duties or is likely to do so;

             (b)  that places him or her in a position of conflict of interest, or is likely to do so; and

             (c)  in which he or she may acquire an advantage derived from employment as a public office holder.

1995 cC-30.1 s9

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Confidential information

      10. A public office holder who speaks publicly or writes for publication shall not release directly or indirectly information or documents which are confidential.

1995 cC-30.1 s10

PART III
COMPLIANCE

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Sale to evade Act

      11. A public office holder shall not sell or transfer a private interest on terms or conditions that have as their purpose the evasion of a provision of this Act.

1995 cC-30.1 s11

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Acting for future gain prohibited

      12. A public office holder shall not permit his or her duties as a public office holder to be influenced by plans for or offers of future employment.

1995 cC-30.1 s12

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Procedure on conflict of interest

      13. (1) A public office holder who has reasonable grounds to believe that he or she would be furthering a private interest, other than an excluded private interest, shall disclose in writing the nature of the conflict of interest to his or her deputy minister or the chief operating officer responsible for that public office holder's department or agency and shall remove himself or herself from the position of conflict of interest.

             (2)  Where the public officer holder in subsection (1) is a deputy minister or chief operating officer of an agency he or she shall disclose a conflict of interest to the appropriate minister of the Crown.

1995 cC-30.1 s13

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Conflict of Interest Advisory Committee

      14. (1) The Lieutenant-Governor in Council shall appoint a Conflict of Interest Advisory Committee.

             (2)  The committee shall

             (a)  comprise 5 persons, an official of the Public Service Commission, a senior official of the Department of Justice and 3 other persons representing government departments and agencies of government;

             (b)  monitor the administration and enforcement of this Act to ensure consistency of application to public office holders;

             (c)  advise deputy ministers and chief operating officers on their duties under this Act;

             (d)  advise a head of an agency or deputy minister as to whether a public office holder is in a conflict of interest;

             (e)  have the duty to educate public office holders as to what constitutes a conflict of interest; and

              (f)  certify whether an interest is an excluded private interest.

             (3)  The committee members shall choose a chairperson from amongst themselves.

1995 cC-30.1 s14; 1997 c13 s10; 2001 c42 s9

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Disclosure

      15. (1) A public office holder who proposes to undertake an activity that may contravene this Act, or who becomes aware that an activity that he or she has already undertaken, may contravene this Act shall disclose in writing full particulars of the activity to his or her deputy minister or chief operating officer.

             (2)  The deputy minister or chief operating officer shall decide whether or not an activity proposed to be engaged in or engaged in by a public office holder is prohibited under this Act and that public office holder shall comply with the decision of the deputy minister or chief operating officer.

1995 cC-30.1 s15

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Determination of issue

      16. (1) A question concerning whether a public office holder has failed to fulfil an obligation under this Act shall be determined by his or her minister, deputy minister or chief operating officer, whichever is appropriate.

             (2)  Where the minister, deputy minister or chief operating officer responsible for a department, agency, board or commission determines that a public office holder has failed to fulfil an obligation under this Act the minister, deputy minister or chief operating officer may

             (a)  reprimand the public office holder; or

             (b)  decide that the public office holder

                      (i)  divest himself or herself of the interest,

                     (ii)  place the interest in trust in a manner approved by the minister, deputy minister or chief operating officer,

                    (iii)  quit the employment, office or position outside his or her public office, and

                    (iv)  be transferred to another position,

and the public office holder shall comply with the decision of the minister, deputy minister or chief operating officer.

             (3)  The minister or the deputy minister of the relevant department or the chief operating officer or an agency may consult with the committee to ascertain whether a public office holder is in a conflict of interest situation.

1995 cC-30.1 s16

PART IV
APPEALS

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Appeals

      17. (1) A public office holder may appeal from a decision taken under section 15 or 16 within 30 days of the decision being communicated to the public office holder.

             (2)  An appeal from a determination under section 16(1)

             (a)  by a public office holder other than political staff, chief operating officer or deputy minister is to the commissioner; and

             (b)  by political staff, chief operating officer or deputy minister is to the Trial Division.

1995 cC-30.1 s17

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Disciplinary measures

      18. Where an appeal under section 17 upholds a decision of a minister, deputy minister or chief operating officer under section 16, and the public office holder fails to comply with the decision of the minister, deputy minister or chief operating officer, he or she may

             (a)  reprimand the public office holder;

             (b)  suspend the public office holder;

             (c)  order the public office holder to make restitution or compensation; or

             (d)  recommend to the Lieutenant-Governor in Council the dismissal of the public office holder.

1995 cC-30.1 s18

PART V
POST-OFFICE EMPLOYMENT

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Post-office employment

      19. (1) A person who within the previous year was a public office holder or a corporation or other entity in which the person holds 10% or more of the shares or of which the person is an employee, director or partner shall not enter into a contract with or receive a benefit from a department of government, or an agency of the Crown with which he or she was employed within the previous year.

             (2)  Notwithstanding subsection (1) a deputy minister or chief operating officer of an agency may, after consultation with the committee, grant the public office holder a waiver or variance.

             (3)  Notwithstanding subsections (1) and (2), where the public office holder referred to in subsection (1) is a political staff member, a deputy minister or a chief operating officer of an agency, the Lieutenant-Governor in Council may grant that public office holder a waiver or variance.

             (4)  Subsection (1) does not apply to a contract awarded by public tender or by another method of contracting under which no special preference or treatment was given because the person to whom it was awarded was, within the previous year, a public office holder, or because the corporation or other entity to which it was awarded is one in which the person holds 10% or more of the shares or of which he or she is an employee, director or partner.

             (5)  Except in accordance with a waiver or variance granted by a deputy minister or chief operating officer or the Lieutenant-Governor in Council, a person who was a public office holder shall not, within one year after ceasing to be a public office holder, make representations to or otherwise have dealings with a department or entity for which the former public office holder was responsible during the last year of service in that office.

             (6)  A person who was a public office holder shall not advise or represent a person or entity, in return for a fee or other benefit, concerning a proceeding, transaction, negotiation or case to which the government of the province is a party, and in respect of which the former public office holder acted for or advised the government of the province while in office, where the matter might result in the conferring of a benefit of a commercial or private nature on a person, or a benefit of another nature on a person or class of persons that is other than the general public or a broad class.

1995 cC-30.1 s19; 1997 c13 s10

PART VI
REGULATIONS

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Regulations

      20. The Lieutenant-Governor in Council may make regulations to give effect to the purpose of this Act.

1995 cC-30.1 s20

PART VII
TRANSITIONAL PROVISIONS

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Disclosure documents

      21. Twelve months after the commencement of this Act the auditor general shall destroy all disclosure statements filed under theConflict of Interest Act in his or her possession, unless there is an inquiry pending or a charge has been laid against a public office holder under the Criminal Code to which the disclosure statements may relate.

1995 cC-30.1 s21

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RSN1990 cC-30 Rep.

      22. (1) The Conflict of Interest Act is repealed.

             (2)  The following regulations are repealed:

             (a)  Conflict of Interest Order, 1984 - Newfoundland Regulation 23/84;

             (b)  Conflict of Interest Order re: Agencies of the Crown - Newfoundland Regulation 59/92; and

             (c)  Conflict of Interest (Public Employees) Regulations, 1982 - Newfoundland Regulation 311/82.

1995 cC-30.1 s22

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Commencement

      23. This Act comes into force on a day to be proclaimed by the Lieutenant-Governor in Council.  (In force - Jan. 9/98)

1995 cC-30.1 s23