Former CGC assistant chief commissioner broke conflict rules

Jim Smolik, a former Canadian Grain Commission (CGC) assistant chief and acting chief commissioner, contravened post-employment obligations under the federal Conflict of Interest Act while working for Cargill Canada.

That’s according to a 24-page report released May 30 by Conflict of Interest and Ethics Commissioner Mario Dion.

Dion ruled Smolik breached Sections 33 and 35(2) of the act after becoming Cargill’s head of corporate affairs Canada Nov. 28, 2016, by engaging with the CGC to get an exemption for Cargill, allowing it to apply mineral oil to feed grains at its Sarnia, Ont. grain terminal to suppress dust.

For more details from the ruling, check out the next issue of the Manitoba Co-operator, available Thursday (June 6).

Cargill was facing “potentially significant fines” under Ontario’s Environmental Protection Act for failing to control dust, the report says.

Section 33 prohibits former public office holders, such as CGC commissioners who are appointed by the Canadian government, from taking “improper advantage” of their previous public office — a rule that applies indefinitely.

“In my view, Mr. Smolik exploited the relationships he had established and the knowledge and expertise he had gained as assistant chief commissioner and acting chief commissioner of the (grain) commission,” Dion wrote in his report.

“In so doing, Mr. Smolik acted in a manner that clearly took improper advantage of his previous positions at the commission. I therefore found that he contravened Section 33 of the act.

“Mr. Smolik exploited the relationships he had previously established with (grain) commission staff and the level of authority he once had while in public office when he:

  • Obtained, following his departure from public office, official commission meeting notes from a former CGC commissioner… concerning the application of mineral oil to grain as a means of dust suppression, and shared these internal commission notes with Cargill;
  • Used, on several occasions, social interactions with commission staff members to facilitate official interactions between himself or Cargill and the commission to resolve Cargill’s Sarnia terminal’s dust issue.”

Section 35(2) of the act prohibits former public office holders, “for remuneration or not,” from making representations for, or on behalf of, any other person or entity to any department, organization, board, commissioner or tribunal with which they had direct and significant official dealings during their last year in public office.

“For Mr. Smolik, this rule applied for a cooling-off period of one year following his last day in office (at the CGC after joining Cargill),” Dion’s report says.

The term “representation” includes communications made to influence official decisions, opinions or actions.

Nevertheless, the report says Smolik “had an active role” in drafting a letter to the CGC asking it to grant Cargill an exemption.

Smolik’s legal counsel argued the letter sought information from the CGC and wasn’t meant to influence the CGC.

“I cannot accept this position as it is plain and obvious that the July 20, 2017 application submitted by Mr. Smolik was a communication made by him to the (grain) commission with a view to influencing a decision… ” Dion says in the report.

“Furthermore, Cargill’s continued efforts to seek the commission’s eventual granting of such an order in November 2017 shows that Cargill’s intention was not simply to document Cargill’s due diligence (as Cargill argued).”

Smolik declined to comment on Dion’s ruling when reached Friday.

‘Personnel matter’

Smolik, who farmed near Dawson Creek, B.C. until being appointed the CGC’s assistant chief commissioner by then-agricuture minister Gerry Ritz in October 2007, is no longer working for Cargill, a company official said in an email Saturday.

“Cargill fully co-operated with the Office of the Conflict of Interest and Ethics Commissioner’s investigation that led to the report released May 30, 2019,” the official wrote.

“As this is a personnel matter, we are unable to comment further.”

Dion’s findings “are final,” his office said in an email.

Smolik’s breaches are not subject to fines.

“While the act does not give me the power to recommend or impose any sanction for contraventions found following an examination, as required by the act I do issue a report that is provided to the prime minister for consideration,” Dion wrote in an email. “The direct result of an examination report is shedding light on the activity examined. It is up to the prime minister to decide on any further potential action.”

The CGC declined to comment on the report.

“The Office of the Conflict of Interest and Ethics Commissioner’s report speaks for itself,” Remi Gosselin, the CGC’s manager of corporate information services said in an interview Friday.

“On all matters such as the application of mineral oil to grain as a means of dust suppression the CGC’s decision-making processes are independent and fact-based.”

The CGC is currently investigating the implications of allowing mineral oil to be applied to food grains to suppress dust at grain terminals, he said.

The investigation into Smolik’s conduct began with information the Office of the Conflict of Interest and Ethics Commissioner received from a member of the public June 21, 2017, the report says.

“According to the information provided, shortly after Mr. Smolik left the commission in November 2016, he allegedly engaged in several official interactions with commission staff on behalf of his new employer, Cargill Limited,” the report says. “The complainant asked the office to examine whether Mr. Smolik contravened any of his post-employment obligations under the Conflict of Interest Act.

Mary Dawson, the conflict of interest and ethics commissioner at the time, determined there was reason to believe Smolik may have contravened the act. She wrote Smolik Sept. 15, 2017 advising him she was launching an investigation.

— Allan Dawson is a reporter for the Manitoba Co-operator at Miami, Man. Follow him at @allanreporter on Twitter.

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