Éthique et gouvernance : les règles qui régissent la prévention et la sanction des conflits d'intérêts chez les élus municipaux

ENGLISH SUMMARY  The objective of this  master’s paper is to review the system of prevention and sanctions  in the area of possible conflicts between, on the one part, the interests of the municipality and on the other, that of the elected officials. The research approach to the subject is both historical and ethical and is based on the existing legal system. The study is divided into three (3) chapters: (1) the concept of conflict of interest (2) the legal basis of the system of sanctions for conflicts of interest (3) the system of prevention of conflicts of interest in the municipal field.   The preliminary chapter sets the research subject within the broader field of legal research on the question and presents a framework of thought on the notion of conflicts of interest. The examination of the concept of conflicts of interests begins by the questioning and making of subjective judgments: what has in the past been considered as a conflict of interest is no longer seen the same way today and this despite the fact that the legal system also evolves with the times.  We cannot therefore identify permanently and with precision that which constitutes a conflict of interest and that which does not.  It depends on the facts and the circumstances in each case.  Chapter 1 is divided into 4 sections. We will review in particular the rules relating to the prohibition against an elected official contracting with the municipality. We will show that the rule takes its origin in the first legislation relating to municipalities dating back to the 19th century and that these rules have not been greatly modified since. The third section deals with misappropriation breach of trust and other misconduct prohibited by la An Act respecting Elections and Referendums in Municipalities (L.R.Q. c. E-2.2). A fourth section dealing with criminal charges for breach of trust and corruption brings the first chapter to an end. In each one of these sections we review the history of the legislation in question and by making certain comparisons with legislation in other provinces.  Chapter 2 dealing with the system of prevention of conflicts of interest is divided into four (4) parts. The first section deals with the elected official’s obligation to make an annual declaration of pecuniary interests. This obligation is not unique to Quebec; it is also found in legislation in other Canadian provinces. The second section covers the obligation of an elected official to declare his or her interest in any question that is under study by council either in full session or in committee.  Here again the origin of this preventative approach is quite ancient and has long been considered as the only means of declaring one’s interest without  having to face the consequences provided at law.  A third section deals with the legal system covering public tenders. This system is not only meant to insure healthy competition but also to eliminate any possible situation of favouritism or patronage that an elected official might be tempted to pass on to a supporter. A fourth section explores the matter of Codes of Ethics and their usefulness as well as recent developments in the area following on the tabling of the report in 2009 of the Groupe de travail sur l’éthique dans le milieu municipal.  The conclusion presents a summary of the study including personal comments on the conclusions of the said study group.

Keyphrases: Pecuniary interestsMunicipal, Éthique, Contrats, Municipal Law, Governance, Municipal council, Mayor, Councillor, Elected officials, Conflict of interests, Ethics, Rules of professional conduct, Code of ethics, Disqualification, Contracts, Breach of trust, Misappropriation, Misconduct