Clark’s ‘ abundance of caution’ in BC Rail case caused her grief
Report says Clark’s efforts to avoid conflict of interest may have led to complaint
So it turns out Premier Christy Clark never was in a conflict of interest in the BC Rail case — real, apparent or otherwise.
That determination was among the more surprising findings of a report from the office of the provincial conflictof- interest commissioner into a complaint filed by independent MLA John van Dongen.
“It is my opinion, having inquired into this matter, that Ms. Clark was not in a position of conflict of interest or apparent conflict of interest in relation to the BC Rail matter,” wrote Gerald Gerrand, the out- of- province commissioner brought in to vet van Dongen’s complaint.
The bottom- line finding was only one of the more telling aspects of Gerrand’s 40- page report, which provided an unprecedented look into the way Clark conducted herself around matters of potential conflict.
Her conduct was in large measure exemplary, according to Gerrand, who gained access to the full record of Clark’s dealings with the office of the conflict commissioner going back to the days when she first entered the legislature as an opposition member in the late 1990s.
Because her then- husband Mark Marissen was in the communications and political consulting business, she and he established a regular reporting relationship with the then- commissioner, H. A. D. Oliver, as a precaution against conflicts.
That routine assumed a greater importance when she entered into government as a cabinet minister following the Liberals’ 2001 election win, because of the increased potential for her, as a minister, to make a decision that could affect one of her husband’s clients.
Upon reviewing those extensive files — the appendix lists more than 50 separate pieces of correspondence between Clark and the conflict commissioner — Gerrand concluded that the precautionary mechanism had not only headed off any problems, it provided substantial evidence that Clark “was diligent in this regard.” Against that backdrop, he turns his attention to the BC Rail imbroglio. For as the B. C. Liberals made their promise- breaking decision to sell the government- owned railway to CN in 2003, Marissen had taken a contract with CIBC World Markets, the company that was presiding over the bidding process for the sale.
He was not working on the BC Rail file and as Gerrand documents at some length in his report: “There was no way in which Ms. Clark’s private interest, either directly or through her spouse, could have been advanced by reason of her participation in Cabinet in any decision relating to BC Rail.”
Still when the connection was reported to conflict commissioner Oliver back in 2003, he advised her to absent herself from any further discussions on the matter “out of an abundance of caution.”
Why would Oliver give such advice if there were no real or apparent conflict? “The answer,” writes Gerrand, “appears to lie in the commissioner’s consciousness of the unique realities of B. C.’ s political dynamics, and his view that members were sometimes wiser to remove themselves from a matter rather than to prompt unnecessary controversy, innuendo and even the smallest risk of a false perception, even if there was no actual conflict of interest or apparent conflict.” Oliver is now deceased. But based on a reading of his decisions and testimony to various legislature committees, I would say that was precisely his approach. After briefing a member of the legislature on the legal aspects of a potential conflict, he would close by asking them to consider how they would feel if the matter were aired on the front page of their newspaper. Often that would be enough to persuade a member to forgo a particular benefit or recuse him or herself from a particular decision.
Clark took his advice to proceed with an abundance of caution too, recusing herself from the final cabinet decision to sell the railway and again when the legislature voted on the enabling legislation for the sale. But neither time did she disclose the specifics of her reason for the recusal.
Gerrand: “It will be seen as ironic by some that the very caution that led Ms. Clark to recuse herself, together with the practice of not disclosing her reasons for doing so, led to the very accusations that the recusal was meant to avoid. However this is precisely what happened — albeit that the accusations in this case have arisen nine years later.”
Yes. The van Dongen complaint was grounded in the supposition that she was disclosing an actual conflict when she recused herself, therefore she must have had one earlier when she did attend cabinet meetings where the sale was discussed.
Ironic? That was perhaps not the first thing that Clark herself had in mind when she met with reporters Wednesday after the release of Gerrand’s reports.
She was relieved, obviously. Her reputation has taken enough well- earned lumps without being blotted by a complaint that was ( according to Gerrand) “replete with suspicion and innuendo” and grounded in large measure by unproven allegations aired by a political blogger,
Reaching for a teachable moment, she offered her view to the assembled news media representatives that “anybody can say anything” and “just because it’s not true, doesn’t mean it doesn’t get reported.”
Still if van Dongen had set out to generate a report that would dispel the allegations of conflict of interest regarding Clark’s conduct in the BC Rail case, he couldn’t have produced a more persuasive set of findings than these.