Over the past two decades, codes of ethical conduct have become virtually mandatory in both public and private sector organizations. Codes of ethics check a number of boxes: they establish the values and principles that define the organization; they draw parameters around what constitutes ethical behaviour; and, they identify the consequences for noncompliance. Codes usually have a mix of aspirational principles (what to do) and hard rules (what not to do).
It is in their capacity as comms products that ethics codes are a must-have. To go without one would send the message that an organization stands for nothing and, perhaps even worse, is tolerant of corrupt and undesirable behaviour. There is little evidence to suggest that ethics codes are effective at achieving their other objectives. It is easy enough to generate a working consensus on what it means to be ethical and then write it all down on paper, but we can never truly eliminate agency, nor would we want to. Individuals in ethical dilemmas make decisions on how to proceed based on benefit-cost calculations, and ethics rules are just one factor that might (though not necessarily) affect that balance.
Whenever a scandal breaks out, people are quick to question whether the rules themselves are at fault. Was there some loophole that the individual took advantage of? Were punishments not heavy enough to deter unethical behaviour? Who is responsible for enforcing these rules?
Finance Minister Bill Morneau is in the middle of a political storm, mostly as a result of his decision not to place his shares in Morneau Sheppell, his family business, in a blind trust once he became a cabinet minister. The opposition is alleging that Morneau was in a conflict of interest when he promoted legislation that could benefit him and his company. When the story broke, Minister Morneau was quick to assure Canadians that he had consulted with the Conflict of Interest and Ethics Commissioner, Mary Dawson, who had confirmed that a blind trust was an option but not a necessity. In other words, he’s covered. However, politics doesn’t work that way. Even if no explicit rule was broken, incidents like this expose any gap that exists between a minister’s understanding of what it means to be ethical and the public’s. The Minister is now trying to close that gap by putting his shares in a blind trust.
Though Minister Morneau’s personal wealth and specific circumstances are not common, there are important lessons here for all public sector officials and politicians about the space between public expectations and ethics rules.
Part of the problem with ethics rules is that there is confusion about the specifics of what they require and how they work, as well as who is responsible for enforcing them. In truth, responsibility for ethics compliance is shared. The primary responsibility for one’s ethical choices lies with the individual, regardless of the rules in place (that’s the benefit-cost calculation). In the political realm, the power and agency of the Conflict of Interest and Ethics Commissioner is often overstated. Her office is not some kind of ethics police that can take a hard line with ministers and their staff to scare them into complying. Instead, the role of the office is largely administrative. Ms. Dawson can dole out punishments for transgressions, but her range of options is confined to shaming and monetary penalties. She is still investigating the conflict of interest allegation, but in the meantime imposed a $200 fine on Minister Morneau, the multi-millionaire, for being late to disclose his ownership of SCI Mas des Morneaus (the optics of this are truly bizarre and not terribly satisfying to anyone).
Ms. Dawson can make suggestions for beefing up the rules or eliminating clutter, as she has done many times in the past, but it is up to the politicians themselves to change the content. Every five years, the Conflict of Interest Act is subject to review by Parliament, but partisan bickering tends to take precedence over thoughtful dialogue about ethical standards in public life.
Speaking of Members of Parliament, the opposition hasn’t missed the opportunity to make political hay out of Minister Morneau’s predicament. Polling data indicates that these efforts are working; Liberal support is dropping and the Conservatives are making gains. This is the opposition’s job – to hold government to account and to shine a light on possible mistakes and inefficiencies – but the House of Commons cannot make him resign and cannot compel his compliance either with ethics rules or non-codified expectations. His decision to use a blind trust going forward is exactly that: his decision. His seat at the cabinet table is safe as long as the Prime Minister will have him, which brings us to where the buck always stops in parliamentary systems.
The Prime Minister sets the tone for what constitutes ethical conduct for ministers. Prime Minister Trudeau has done this several times, through mandate letters to ministers, in the Open and Accountable Government document that was sent to all ministers in the Prime Minister’s name, and in his public statements. We have seen the Prime Minister take question after question from MPs about Minister Morneau’s potential conflict of interest. It is appropriate for him to answer these questions. Minister Morneau’s political survival, in the short term at least, is up to him.
