Conflict of Interest

Review from the Office of the Ombudsman | English Services

Summary

Complaint about conflict of interest during federal election campaign July 5, 2011

On April 25, 2011, CBC Television’s The National carried Reality Check, a regular feature assessing the veracity of political claims and feasibility of political policy. Amanda Lang, CBC’s senior business correspondent, reported the feature, one of six she reported on economic issues during the federal election campaign.

The feature examined the challenges of the New Democratic Party in financing its campaign platform. It followed a CBC News report on the NDP campaign that day.

The report included two economists who suggested a rise in corporate tax could shift company behaviour and not necessarily generate the funds necessary to bolster federal programs.

Lang said “the most serious gap in (NDP Leader) Jack Layton’s platform” was how it would raise $3.6 billion through a cap-and-trade system for carbon emissions. She said Layton was already backing off that figure.

The complainant, Charles Pascal, wrote soon after to note that Lang’s brother, Andrew, was a candidate in the Toronto riding against Layton. Pascal said he found the report biased, but suggested he had a larger concern. Given her familial relationship, it was inappropriate “for Ms.

Lang to do political reporting parading as a business analysis. This is clearly a conflict of interest.” Mark Harrison, the executive producer of The National, wrote Pascal on June 6, to disagree with the concern.

Harrison said the feature did not focus on Layton, his riding, or the cap-and-trade plan. Rather, it was a broad feature on how the NDP was going to finance its promises, including those for more doctors and a stronger pension system.

Harrison noted that Lang had provided six such features in the campaign. “While this one focused on the NDP platform, her other reports over the past month have taken a closer and sometimes critical look at the aspects of (the) Conservative platform embodied in the budget, the Liberal platform, the Conservative plan to fast-track an end to the deficit, the party offering the best support for older Canadians, and how parties are addressing unemployment.”

Harrison said Lang brought “exceptional knowledge and experience” to these reports.

Harrison noted that the credibility of CBC News depends on the credibility of its journalists. In addition to reporting fairly and accurately, “our journalists must avoid any associations, situations or activities that might reasonably give rise to perceptions of partiality or bias. That is particularly true for our on-air journalists who we expect to be seen as impartial and independent. And we take steps to ensure that is the case.”

He added: “But while we expect them to be impartial, like everyone else, they have parents and often brothers, sisters, spouses, families and relations. They have no influence over who their parents are, just as it would be unfair to hold them accountable for the activities of their siblings or family members.”

Harrison went on: “We would expect a reporter to recuse himself from reporting on his family, but it would be unfair and unrealistic to expect him to avoid reporting crime stories because his brother was a police officer. It would similarly be unfair and unrealistic (to) expect him to avoid reporting political stories altogether because his sister was a politician (although he would reasonably avoid stories involving her).“

He said the decision to report on the NDP or other parties was not Lang’s. The program’s senior editors plan the content and select and assign the stories. “Our editorial process deliberately includes distance,” he wrote, and added stories are discussed with reporters on how they should be handled and scrutinized in detail before they appear.

Pascal wrote June 6, asked for a review, and said the quality of the feature could be ignored.

Rather, he posed a question: “Should a reporter report on an item that was ‘a reality check’ on a policy proposed by someone running against her brother?”

CBC Journalistic Standards and Practices call for accurate, fair and balanced reporting and for professional integrity.

“The trust of the public is our most valued asset. We avoid putting ourselves in real or potential conflict of interest. This is essential to our credibility.”

Both journalistic policy and CBC’s corporate policy intersect with issues involving conflicts of interest.

There is specific language in the journalism policy to deal with stories involving family members. “Independence is a core value of CBC. If a current affairs or news employee has a close relative, defined as spouse, parent, child or sibling who is a major actor in a story, that employee cannot be involved in the coverage. It is the responsibility of the employee to inform his/her supervisor of the potential conflict so that a protocol can be developed.”

CBC corporate policy includes a code of conduct that notes the need for the highest ethical standard among employees.

“The values of integrity, honesty, fairness and respect are essential to create and maintain a workplace that is characterized by civility, professionalism, tolerance, dignity, and freedom from discrimination or harassment. Compliance with both the letter and the spirit of the law, the exercise of good judgment in avoiding or dealing with conflicts of interest, the protection of privacy, and maintaining confidentiality are further elements that are critical to achieving the Corporation’s goals in this regard.”

The corporate policy has an extensive passage on conflict of interest.

Among other things it says: “Employees must ensure, to the extent possible, that their personal interests do not come into conflict with those of the Corporation. If a conflict does arise, it must be resolved in favour of the best interests of the Corporation.

“This means that: Employees are required to perform their duties and arrange their private affairs in a manner that will prevent actual, apparent or potential conflicts of interest from arising.

Employees are expected to act in a manner that will bear the closest public scrutiny in all dealings related to the Corporation or their responsibilities as employees.” The corporate policy reflects wider Canadian public service guidelines.

Conclusion

To be clear: There was nothing problematic about Amanda Lang’s reporting in the campaign. I reviewed each Reality Check feature she presented and she was equally fair-minded and toughminded on the Liberals, New Democrats and Conservatives. The quality of her journalism was not in question.

But that wasn’t the entire issue.

This review is less about the journalism than about the perception that a conflict was not handled properly. CBC sets high standards of conduct and makes clear that public trust is its most valuable currency. These standards take on an acute sensitivity during election campaigns.

Amanda Lang is CBC’s senior business correspondent and the co-host of a weeknight CBC News Network program, The Lang and O’Leary Exchange. She was assigned additional duties during the election campaign to assess the parties’ economic policies, platforms and claims for The National flagship television newscast.

Her role involved analyzing and essentially providing the final word on campaign claims in the Reality Check segment. This was important for her profile and professional development and for CBC in affirming its business journalism presence.

The challenge to the situation was that Andrew Lang, her brother, was running as a Liberal in the Toronto-Danforth riding against Jack Layton, the most public face of the New Democratic Party as its national leader.

No matter how balanced her reporting, Amanda Lang was vulnerable professionally to perceptions of conflict as her brother sought office. When her journalism dealt with the NDP, it was bound to affect public perceptions of Layton — and by extension, the fortunes of candidate Lang.

When Lang identified the conflict before the campaign, efforts were made to deal with it.

Management resolved she would be steered clear of direct campaign coverage and any Toronto-related coverage that might touch on her brother’s candidacy. It reviewed her scripts.

It felt these measures sufficiently addressed the conflict without any form of public disclosure.

Managers have explained CBC News regularly contends with conflicts because many of its journalists live with, or have family members who are, public figures or who are in policymaking or advocacy roles. It tries to police these conflicts case by case, carefully and discreetly.

In large and small cities alike, and in a world of two-career families, these matters are challenges for any news organization striving for high standards.

CBC’s objective was well intentioned. But avoiding a conflict — particularly a valid public perception of one — could not be achieved with discreet self-policing in this instance. It was not possible to compartmentalize Lang’s reporting on NDP policy from Layton’s qualities as a leader and credentials to be supported as a candidate. Any of her campaign reporting even indirectly intersecting with the Liberals or NDP could have been perceived as conflicted.

In the report that drew the public complaint, Lang was assigned to determine the credibility of what she termed “Jack Layton’s platform.” While her Reality Check segment didn’t directly report on Layton’s candidacy, its effect was to assess his credibility on fundamental economic issues. That stood to affect the credibility of his candidacy, which would affect the candidacy of anyone running against him.

Amplifying this situation was the fact NDP policies were suddenly scrutinized more than in any recent election for their feasibility because of the surge in the party’s popularity during the campaign.

Other factors had to be taken into account.

Human rights case law indirectly relates to this issue, in particular the Cashin case involving CBC in the 1980s that led to a Supreme Court of Canada ruling to define discrimination as it pertained to employment and family members. CBC and others have since taken the position at times to not prohibit employees from reporting on matters related to their personal and professional backgrounds. CBC has navigated the issue through forms of self-policing.

There are also collective agreement issues at CBC that could collide with efforts by management to unduly remove a journalist from particular assignments. That might be construed as an unfair form of professional restraint. Still, corporate policies supersede those issues.

In this instance CBC News had to interpret a statement in its Journalistic Standards and Practices: “If a current affairs or news employee has a close relative, defined as spouse, parent, child or sibling who is a major actor (emphasis added) in a story, that employee cannot be involved in the coverage.”

That wording provides an opportunity for generous interpretation of what constitutes “major” and the crafting of journalistic policy might not have anticipated this situation. I wonder, too, if that vague wording fulfills the objectives of corporate policy.

Was Andrew Lang a “major actor” in the story? Clearly not, but because his political opponent was, any of Amanda Lang’s journalism about that opponent, his policies, or those of his party could have helped or hurt Andrew Lang and fueled the perception of conflict.

In this case CBC had three options: It could have self-policed with no disclosure, reassigned Lang, or found a third option to provide a degree of disclosure and work through the conflict.

In select cases public disclosure lends transparency and lets the public understand that the news organization and its journalists are working through a conflict. With that information, the public can then make up its mind accordingly about the journalism. This isn’t often optimal, but it can be a choice when few other options are available.

The simplest approach to alleviate public concern would have been to reassign Lang while her brother sought office. It would have been a relatively mild inconvenience to a highly regarded journalist at a large news organization that could still find ways to achieve its coverage goals. While that would have redirected a valuable contributor from the most obviously suitable role for several weeks, it would have better reflected the corporate policy calling for “the exercise of good judgment in avoiding or dealing with conflicts of interest” and for employees to “perform their duties and arrange their private affairs in a manner that will prevent actual, apparent or potential conflicts of interest from arising.”

I am not convinced that its balancing act in this instance satisfied those objectives.

Regular disclosures about her conflict might have been inelegant and disruptive of the programming flow. But in the course of this review I learned that Lang wasn’t originally assigned to this particular story. She substituted for another journalist at the last minute. Even a one-time disclosure in this instance — easily the most troublesome of the six she presented — would have gone some distance to working through the conflict more effectively.

In matters of conflicts of interest, perception often has as much weight as reality. Handling conflicts bears on an organization’s perceived independence to perform its work effectively.

A literal interpretation of the conflict-of-interest language in the journalistic policy led me to conclude that CBC News did not violate Journalistic Standards and Practices policy.

But the presence of the conflict and the perception of one in this unique case also led me to conclude CBC News could have taken measures to better fulfill the spirit of the policy. Its approach gave rise to public complaint, perhaps at a cost of some credibility, which it need not have engendered.

The review also led me to conclude further work is necessary to strengthen policy elements by clarifying and publicly communicating conditions and protocols involving conflicts of interest.

Kirk LaPointe
CBC Ombudsman