Only in BC, You Say? Conflict Commissioner Conflicted

[Update from the editor: B.C. conflict commissioner Paul Fraser announced this morning that he has removed himself from hearing MLA John van Dongen's complaint against Premier Clark. Read Tyee legislative reporter Andrew MacLeod's report here.]

"Careful supervision of the disclosure process proves the adage that 'sunlight is always the best disinfectant.'" -- B.C. Conflict of Interest Commissioner Paul Fraser

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.