Case Summaries 2014-2015

Allegation of conflict of interest and gross mismanagement related to procurement and other Conflict of Interest Rules (Integrity Commissioner Investigation)

Introduction

It was alleged that public servants were responsible for gross mismanagement and/or conflicts of interest in relation to hiring and procurement decisions. The Commissioner was satisfied that the internal investigation that had previously been conducted by the organization addressed some of these allegations, but there were several questions that the Commissioner determined could be resolved only through a direct investigation by the Office.

Following the investigation, the Commissioner concluded that there was no gross mismanagement, or any other type of wrongdoing, by any public servant. However, the investigation uncovered broader issues about the procurement practices of the Ontario Public Service, which the Commissioner has recommended the Secretary of the Cabinet address.

The Allegations and Context

The Commissioner’s investigation related to the following two categories of allegations:

• conflict of interest allegations arising from a public servant’s participation in recruitment and procurement processes involving individuals with whom he had a prior relationship; and
• gross mismanagement allegations arising from the involvement of a particular vendor in a multi-stage procurement process.

The allegations in the second category (gross mismanagement) arose in the context of a project that required implementation in multiple phases. The purpose of the first phase, which was completed by a vendor selected through a procurement process, was to obtain recommendations on how to implement the remaining phases of the project. The allegations relate to the appropriateness of then allowing that vendor to bid on the subsequent phases and of awarding it this work. The main concern was that, as a result of its involvement in the first phase, the vendor had an unfair advantage over other bidders because it had access to information that other bidders did not have.

Findings

The Commissioner found that there was no evidence to support the conflict of interest allegations described under the first category.

In regards to the second category, the Commissioner found that although more could have been done to level the playing field for all bidders, the issues with the procurement process did not constitute gross mismanagement in the work of the public service by a public servant. The Commissioner found that any issues with the procurement process arose because of deficiencies with overall procurement practices, rather than because of the actions of a particular public servant. The Commissioner found that some of these issues were subsequently addressed as a result of the internal disclosure of wrongdoing investigation.

In order for the conduct to be “wrongdoing” within the meaning of the Public Service of Ontario Act, 2006, the circumstances must reveal that individual public servant(s) engaged in wrongdoing. The Commissioner found that this was not the case.

Conclusion and Recommendation

Although the Commissioner concluded that there was no wrongdoing, this matter raised some important issues about the procurement practices of the OPS. More specifically, it raised the question of whether, and under what circumstances, it is appropriate for a vendor to be allowed to bid on subsequent phases of a project. In the absence of any finding of wrongdoing, however, these policy questions are more appropriately dealt with by the OPS as a whole. Accordingly, the Commissioner recommended to the Secretary of the Cabinet that these issues be examined to determine whether steps need to be taken to provide better guidance on the issue of what is known as “downstream” conflict of interest.

Allegations relating to the interference of a licensing decision (Referral)

It was alleged that public servants had impermissibly interfered with a licensing decision that resulted in a grave danger to the life, health and safety of persons. Before making the disclosure to this Office, the matter had been investigated internally, but the discloser was not satisfied with the investigation and the finding of no wrongdoing. The discloser alleged that the public servant responsible for that investigation purposefully disregarded evidence.

The Commissioner referred the matter, requesting the investigation report and additional information about the prior investigation, which was then provided to the Office. The Commissioner was satisfied with the internal investigation, and also concluded from the information provided that the allegation that the public servant had disregarded evidence could not be substantiated. The Commissioner closed the file on this matter without making any recommendations.