1992 Legislative Session: 1st Session, 35th Parliament
THIRD READING


The following electronic version is for informational purposes only.
The printed version remains the official version.


Certified correct as passed Third Reading on the 23rd day of June, 1992
Ian D. Izard, Law Clerk.


ATTORNEY GENERAL

BILL 64 -- 1992
MEMBERS' CONFLICT OF INTEREST AMENDMENT ACT, 1992

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

1 The definitions of "private interest" and "spouse" in section 1 of the Members' Conflict of Interest Act, S.B.C. 1990, c. 54, are repealed and the following substituted:

"private interest" does not include an interest arising from the exercise of an official power or the performance of an official duty or function that

(a) applies to the general public,

(b) affects a member as one of a broad class of electors, or

(c) concerns the remuneration and benefits of a member or an officer or employee of the Legislative Assembly;

"spouse" means a person who is married to a member or a person who is living with a member as husband and wife but does not include a husband or a wife who is separated and living apart from a member and who

(a) has entered into a written agreement under which they have agreed to live apart, or

(b) is subject to an order of the court recognizing the separation.

2 Section 2 is repealed and the following substituted:

Conflict of interest

2 (1) For the purposes of this Act, a member has a conflict of interest when the member exercises an official power or performs an official duty or function in the execution of his or her office and at the same time knows that in the performance of the duty or function or in the exercise of the power there is the opportunity to further his or her private interest.

(2) For the purposes of this Act, a member has an apparent conflict of interest where there is a reasonable perception, which a reasonably well informed person could properly have, that the member's ability to exercise an official power or perform an official duty or function must have been affected by his or her private interest.

3 The following section is added:

Conflict of interest prohibition

2.1 A member shall not exercise an official power or perform an official duty or function if the member has a conflict of interest or an apparent conflict of interest.

4 Section 7 is amended

(a) by repealing subsection (1) and substituting the following:

(1) The Executive Council, a member of the Executive Council or an employee of a ministry, other than an employee of an agency, board or commission, shall not knowingly

(a) award or approve a contract with, or grant a benefit to, a former member of the Executive Council or former parliamentary secretary, until 24 months have expired after the date when the former member of the Executive Council or former parliamentary secretary ceased to hold office,

(b) award or approve a contract with, or grant a benefit to, a former member of the Executive Council or former parliamentary secretary who has, during the 24 months after the date when the former member of the Executive Council or former parliamentary secretary ceased to hold office, made representations in respect of the contract or benefit, or

(c) award or approve a contract with, or grant a benefit to, a person on whose behalf a former member of the Executive Council or former parliamentary secretary has, during the 24 months after the date when the former member of the Executive Council or former parliamentary secretary ceased to hold office, made representations in respect of the contract or benefit. ,

(b) by repealing subsection (4) and substituting the following:

(4) A former member of the Executive Council or former parliamentary secretary shall not, unless 24 months have expired after the date when he or she ceased to hold office,

(a) accept a contract or benefit that is awarded, approved or granted by the Executive Council, a member of the Executive Council or an employee of a ministry other than an employee of an agency, board or commission,

(b) make representations on his or her own behalf with respect to such a contract or benefit, and

(c) make representations on another person's behalf with respect to such a contract or benefit. ,

(c) by adding the following subsection:

(6.1) A former member of the Executive Council or a former parliamentary secretary shall not make representations to the government in relation to any specific ongoing transaction or negotiation to which the government is a party and in which the former member of the Executive Council or former parliamentary secretary was directly involved if the representation would result in the conferring of a benefit not for general application. , and

(d) by repealing subsection (7) and substituting the following:

(7) A person who contravenes subsection (4) or (6.1) commits an offence and is liable, on conviction, to a fine of not more than $5 000.

5 Section 8 is amended

(a) by repealing subsections (1) and (2) and substituting the following:

(1) A member of the Executive Council or a parliamentary secretary shall not,

(a) engage in employment or in the practice of a profession, or

(b) carry on a business,

if any of these activities is likely to conflict with the member's or parliamentary secretary's public duties.

(1.1) A member of the Executive Council or a parliamentary secretary shall not hold an office or directorship other than in a social club, religious organization, political party or Crown corporation.

(2) A person who becomes a member of the Executive Council or a parliamentary secretary shall comply with subsections (1) and (1.1) within 60 days of being appointed. ,

(b) in subsection (3) by adding "of the Executive Council or the parliamentary secretary" after "the member", and

(c) by repealing subsection (4) and substituting the following:

(4) If a member of the Executive Council or a parliamentary secretary complies with subsection (1) (b) by entrusting his or her business to one or more trustees,

(a) the provisions of the trust must be approved by the commissioner,

(b) the trustees shall be persons who are at arm's length with the member or with the parliamentary secretary and who are approved by the commissioner,

(c) the trustees shall not consult with the member or the parliamentary secretary with respect to managing the trust property, and

(d) the trustees shall report in writing all material changes in assets, liabilities and financial interests contained in the trust to the member or the parliamentary secretary and to the commissioner forthwith after the changes have occurred.

6 Section 9 is amended by renumbering the section as section 9 (1) and by adding the following subsections:

(2) Where a member has complied with subsection (1), the Clerk of the Legislative Assembly or secretary of the meeting shall record

(a) the disclosure,

(b) the general nature of the conflict of interest disclosed, and

(c) the withdrawal of the member from the meeting.

(3) The Clerk of the Legislative Assembly or secretary of the meeting shall file the information recorded under subsection

(2) with the commissioner

(a) in the case of a meeting of the Assembly or a committee of the Assembly, as soon as practicable, and

(b) in the case of a meeting of the Executive Council or a committee of the Executive Council, as soon as practicable after the Executive Council's decision on the matter which has been the subject of the disclosure is made public.

(4) The commissioner shall keep all information filed under subsection (3) in a central record kept for that purpose and shall

(a) make the central record available for inspection by any person without charge during normal business hours, and

(b) on request by any person provide a copy of the record or portion of it on payment of a reasonable copying charge.

7 The following sections are added:

Performance of responsibilities by minister

9.2 (1) Where, during the exercise of any official power or the performance of any official duty or function by a member of the Executive Council, a matter arises with respect to which the member has a conflict of interest or apparent conflict of interest the member shall

(a) refrain at all times from attempting to influence the matter, and

(b) at any subsequent meeting of the Executive Council or a committee of the Executive Council where the matter is considered, disclose the general nature of the private interest and withdraw from the meeting without voting or participating in the discussion.

(2) The Lieutenant Governor in Council may appoint a member of the Executive Council to act in the place of a member referred to in subsection (1) for any matter with respect to which the member referred to in subsection (1) has a conflict of interest or apparent conflict of interest.

Voidability of transaction or procedure

9.2 The failure of any member to comply with section 9 does not of itself invalidate

(a) any contract or other financial transaction, or

(b) any procedure undertaken by the Crown with respect to a contract or other financial transaction

to which the failure to comply with section 9 relates, but the transaction or procedure is voidable at the instance of the Crown before the expiration of 2 years from the date of the decision authorizing the transaction, except as against any person who or organization that acted in good faith and without actual notice of the failure to comply with section 9.

Application for restitution

9.2 Despite anything in this Act, if any person, whether or not the person is or was a member, has realized financial gain in any transaction to which a violation of this Act relates, any other person affected by the financial gain, including the government or a Crown agency, may apply to the Supreme Court for an order of restitution against the person who has realized the financial gain.

8 Section 12 is amended by adding the following subsections:

(6) After filing a disclosure statement, the member shall continue to disclose any material change in the assets, liabilities and financial interests of the member, the member's spouse and minor children and private corporations controlled by any of them by filing a statement of material change with the commissioner within 30 days of the material change.

(7) In subsection (6) "material change" means a material change as defined in the regulations.

9 Section 14 (1) is repealed and the following substituted:

(1) A member may request, by application in writing, that the commissioner give an opinion or recommendation on any matter respecting the obligations of the member under this Act or under section 25 of the Constitution Act.

10 Section 15 is amended

(a) by adding the following subsection:

(1.1) A member of the public who has reasonable and probable grounds to believe that there has been a contravention of this Act or of section 25 of the Constitution Act may, by application in writing setting out the grounds for the belief and the nature of the contravention alleged, request the commissioner to give an opinion respecting the alleged contravention. ,

(b) by repealing subsection (2) and substituting the following:

(2) The Executive Council may request that the commissioner give an opinion on any matter respecting the compliance of a member of the Executive Council or a parliamentary secretary with the provisions of this Act or of section 25 of the Constitution Act.

(2.1) The Legislative Assembly may request that the commissioner give an opinion on any matter respecting the compliance of a member with the provisions of this Act or of section 25 of the Constitution Act. , and

(c) by repealing subsection (3).

11 The following section is added:

Special assignments

15.1 At the request of the Lieutenant Governor in Council or the Legislative Assembly, the commissioner may undertake special assignments that he or she considers appropriate.

12 Section 16 (2) is repealed and the following substituted:

(2) Where the request for an opinion is made under section 15 or the commissioner undertakes a special assignment under section 15.1, the commissioner has the powers of a commissioner under sections 15 and 16 of the Inquiry Act.

13 Section 17 (1) is repealed and the following substituted:

(1) If the commissioner finds

(a) after an inquiry under section 16, that a member has contravened section 2.1, 3, 4, 6, 7, 8 or 9 (1), or

(b) that a member has refused to file a disclosure statement within the time provided by section 12 or that a member has failed to comply with a recommendation of the commissioner under section 12 (3) or 15,

the commissioner may recommend, in a report that is laid before the Legislative Assembly

(c) that the member be reprimanded,

(d) that the member be suspended for a period specified in the report,

(e) that the member be fined an amount not exceeding $5 000, or

(f) that the member's seat be declared vacant until an election is held in the member's electoral district.

Transitional

14 A person who is a member of the Executive Council or a parliamentary secretary on the date that section 5 of this Act comes into force shall comply with section 8 (1) and (1.1) of the Members' Conflict of Interest Act within 60 days of that date.

Commencement

15 This Act comes into force by regulation of the Lieutenant Governor in Council.


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