Only in
BC, You Say? Conflict Commissioner Paul Fraser Conflicted Himself
Fraser's job is to watchdog premier
but his son has key role working for Christy Clark. Independent MLA John van Dongen cries foul, Green Party, Integrity BC agree.
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| Paul Fraser |
UPDATE - BREAKING NEWS
Conflict of Interest Commissioner Paul Fraser has just announced he will recuse himself from investigating MLA John van Dongen's complaint against Premier Christy Clark. Fraser's news release is here.
The short version is this direct quote: "I now recuse myself from any further substantive involvement
in this matter."
Here is my original column
Tuesday
November 13, 2012
By Bill Tieleman
"Careful
supervision of the disclosure process proves the adage that 'sunlight is always
the best disinfectant.'"
Would
you go to a doctor who couldn't diagnose a common cold?
Or
hire a plumber who didn't spot a leaking pipe?
So
why does British Columbia have a conflict of interest commissioner who doesn't
recognize a conflict when he's in one himself?
Only
in B.C. you say? Pity indeed that Paul Fraser sees nothing wrong with
investigating a complaint by independent MLA John van Dongen against Premier
Christy Clark's actions while the commissioner’s son John Paul Fraser:
•
Holds a senior B.C. government political job
doing communications for Clark and her colleagues;
• Worked on
Clark's successful B.C. Liberal party leadership campaign;
• Used to work
for the father of Clark's son, her ex-husband political consultant and former
lobbyist Mark Marissen.
Not
understanding that such a perceived conflict of interest clearly disqualifies
Fraser from ruling on van Dongen's complaint is astonishing!
Fraser
told
the Vancouver Sun's Jonathan Fowlie that he had no trouble dealing with van
Dongen's investigation request.
"I
don't perceive a problem in making a decision in this case that will have
nothing to do with my son's career," Fraser said.
"If
I had any difficulty, or felt that I in any way couldn't handle this file like
I do every file -- on the basis that I will go where it takes me, and I will
make the decision that needs to be made without, dare I say it, fear or favour
-- then I should pack it in," he added.
Ironically,
Paul Fraser's own message in last year's commissioner's report states:
"The
work that this Office does is part of the covenant of integrity that Members of
the Legislature have with the citizens of British Columbia. The work is
important as a democratic safeguard to ensure that private interest is not
allowed to trump public duty."
Hard
to disagree with that concept.
Van
Dongen's complaint
But
it's even harder to see how the commissioner can rule on van Dongen's
complaint, which alleges that Clark participated in some discussions on the $1
billion sale of B.C. Rail in 2003 but excused herself from others because at
that time Marissen was a consultant to CIBC World Markets, the firm supervising
the privatization.
Abbotsford-South
MLA van Dongen is a former B.C. Liberal cabinet minister who quit the party in
part over B.C. Rail issues and the government's payment of $6
million in legal fees incurred by former ministerial aides David
Basi and Bob Virk, despite their making surprise guilty pleas in Oct. 2010.
He
is also an intervener at his own expense at Auditor General John Doyle's court
application to obtain government records about the indemnity granted Basi and
Virk and other officials whose legal fees were charged to taxpayers.
Fraser
is a well respected lawyer and neither his integrity, nor his son's, are being
questioned. But his judgment is dead wrong.
The argument
van Dongen makes is powerful.
"I
believe there is a reasonable apprehension of bias on the part of the
commissioner," he said in a statement Friday.
"I
must stress that at this time I am not making an allegation that the
commissioner is guilty of actual bias. I am simply saying that there is a basis
for a reasonable apprehension of bias on these facts which requires that
someone other than Paul Fraser carry out the duties under the Members' Conflict
of Interest Act."
In a
telephone interview Sunday night van Dongen said he finds it disturbing that
neither Fraser nor Clark understand the principles behind his complaint.
"It's
a real concern that neither Paul Fraser nor Christy Clark acknowledge the real
issue here," van Dongen said. "There's a critical need to maintain
the independence of the conflict commissioner. It should embody the highest
principles of judicial independence."
'Totally
unfair': Clark
On
Friday in Kamloops, Clark claimed that it was "totally unfair" of
opponents to question Fraser's integrity to go after her.
"Paul
Fraser is a highly respected lawyer in British Columbia. He was selected by a
bi-partisan committee in the Legislature and he has never been accused of
bias," she told
the Kamloops Daily News.
"He's
a man of great integrity. His reputation is absolutely spotless. It's totally
unfair to drag his reputation through the mud as a way to launch a political
attack on me," Clark alleged.
But
van Dongen rejects that characterization of his objections to Fraser's role.
"It
isn't just the situation of his son being in a very senior position in
government communications, it's the comments that Paul Fraser doesn't perceive
that as a problem," he said Sunday.
'Fraser
must recuse himself': Green leader Sterk
The
request by van Dongen that Fraser remove himself from the investigation also
has the strong support of Green Party leader Jane Sterk and Integrity B.C., the
watchdog group promoting political ethics and accountability.
In
an email Saturday to 24 hours Sterk states: "Paul Fraser must recuse
himself from investigating John Van Dongen's complaint against Christy
Clark."
"Van
Dongen is making very serious allegations about Clark's potential conflict of
interest on the B.C. Rail sale."
"No
matter what Fraser does, the fact that his son is a friend of Ms. Clark and is
employed in a senior position in the government means there will be a
perception of bias."
"Fraser
should ask a senior member of his office to undertake this investigation,"
Sterk concludes.
And
Integrity B.C. also believes Fraser must remove himself from the investigation.
"The
appearances of Mr. Fraser's conflict in this matter -- which is already so rife
with very real conflicts and additional appearances of conflict -- should make
it readily apparent to him that it is inappropriate for him to conduct this
investigation. The public deserves no less," Integrity B.C. executive director Dermod
Travis told 24 hours and The Tyee by email Sunday.
NDP
expresses trust in Fraser
But
surprisingly, the B.C. New Democrats are supporting Fraser's position.
"We
think Mr. Fraser has a high level of integrity over the past years and we
support his judgement -- we think he will do the right thing," NDP MLA
Shane Simpson told The Tyee Monday.
"This
is an issue about Ms. Clark, not Mr. Fraser," said Simpson, MLA for
Vancouver-Hastings.
Fraser
has already conducted one investigation and rejected any wrongdoing on Clark's
part since his son was appointed assistant deputy minister of Government
Communications and Public Engagement on April 8, 2011.
That
investigation was requested May 5, 2011 by a member of the public to determine
if Clark had, in the words of the Commissioner's 2011 annual report:
"Breached
the Members' Conflict of Interest Act by appearing in and using government
announcements while campaigning in a by-election to win her seat in
Vancouver-Point Grey."
"The
individual believed that government resources might have been used to
'facilitate' the premier's by-election campaign, including her attendance at
public and media events," it stated.
And
Clark certainly found lots of good news announcements to make before the May
11, 2011 vote that she narrowly won
over the NDP's David Eby by less than 600 votes.
For
example, on April 21, Clark celebrated Earth Day with a $4.7 million "green
investment" grant to Simon Fraser University to fund a biomass
energy project, speaking and watching a singing choir of happy kids.
And
Clark announced $13.3 million in funding
for a new home for families visiting their sick kids at Vancouver's B.C.
Children's Hospital on April 28.
Fraser
found no conflict in any of Clark's actions, responding directly to the member
of the public five days after receiving the request to investigate, saying in a
May 10, 2011 letter that:
"I
can find anything in either written or electronic form that would support the
suggestion that government resources were used in whole or in part, to promote
the premier's by-election campaign."
"The
fact that she is, at the same time, seeking election to the Legislative
Assembly does not and should not prohibit her from carrying on her duties as
premier, including making public interest announcements and attending events
recording government policy and actions," he concluded.
Power
of perception
Fraser's
ruling may be completely fair based on the facts he investigated.
But
just as in the van Dongen situation, his letter of response did not disclose
that his son was by that time working as a senior member of Clark's
communications team, hired under an Order In Council
that can be rescinded by the premier at any time.
Perhaps
that isn't important. It might have made absolutely no difference to the member
of the public who requested the investigation or to media who reported it.
But
that's the whole point about "perceived conflict of interest" -- it
isn't that a conflict exists, just that there is a perception of conflict which
creates doubt.
It's
unfortunate for both Fraser and his son that their careers have collided in
this way.
However
it is far more unfortunate that Fraser not only didn't even perceive a problem
but also failed to disclose that potential to van Dongen right from the start
of the MLA's complaint.
Now
the only solution is for Fraser to remove himself from the investigation.
But
will other conflict of interest cases also put Fraser in an equally untenable
position?
And
it's troubling that Clark is already holding out Fraser's report into van
Dongen's complaint as the final word, saying to the Kamloops Daily
News that she’ll be glad when Fraser's B.C. Rail probe is over:
"because this will finally, with this report, stick a fork in it."
Is
that the premier pre-judging Fraser's unfinished report in public? Not
politically wise and definitely not reassuring.
Fraser's
reappointment pending
In
another twist of political fate, Fraser's own reappointment for another term as
commissioner is due to happen shortly.
New
Democrat MLA Leonard Krog declined all comment on Fraser's reappointment or
even the status of it when contacted Saturday.
Krog
sits on the all party special
committee that will soon advise the Legislature on the matter.
It's
time that the public had a little sunlight shone on the Conflict of Interest
Commissioner's status and how he could continue in his job given his current
conflicted state.
But given
Krog's colleague Shane Simpson's comments on Fraser's position, there seems
little doubt that Fraser will be reappointed to another five-year term with NDP
and B.C. Liberal support.
UPDATE - BC Independent MLA Bob Simpson agrees with John van Dongen call for Paul Fraser to recuse himself.
Earlier this morning I spoke with independent MLA Bob Simpson - Cariboo North - who says he agrees with van Dongen, Sterk and Integrity B.C. that the Conflict of Interest Commissioner should recuse himself from dealing with van Dongen's complaint.
"John van Dongen is correct in his contention that given the duration and twists and turns [of the B.C. Rail case] the premier should request a different process," Simpson said. "Perception does count in these cases."
Fraser has since announced he will recuse himself from the investigation.
.