Conflict of Interest

The complainant, John How, was one of many who complained that Rex Murphy was in a conflict of interest because he has been paid to speak at oil industry gatherings. Mr. Murphy delivered a commentary about Neil Young’s anti-oil sands activity, and Mr. How thought this violated CBC’s policies of balance and fairness. In the wake of the publicity around Mr. Murphy, others expressed concern about other CBC staff taking payment for speaking to advocacy or special interest groups. Mr. Murphy’s commentary was not in violation of policy because he is a commentator. The practice of having CBC staff getting payment for speaking or working with groups that could very likely be in the news is inconsistent with CBC’s Conflict of Interest policies because it creates a perception of conflict.

COMPLAINT

You wrote to question the role of commentator and Cross Country Checkup host Rex Murphy on CBC. You were concerned about a speech that was “drawn to your attention” that Mr. Murphy gave at an “oil industry fete.” The event you refer to was a gala celebration to mark the 20th anniversary of FirstEnergy Capital Corporation, a company which plays a large role in financing endeavours in the Canadian oil and gas sector. You were concerned because the speech was highly supportive of the development of the oil sands. You said when Mr. Murphy delivered a commentary on The National this past January, it echoed the speech he had delivered to the industry gathering. The National commentary was in response to Neil Young’s anti-oil sands remarks while on tour in support of the Athabasca Chipewyan First Nation. The National had recently aired an interview with Mr. Young about his criticism of oil sands development. You were especially concerned because you felt the commentary on The National was a reprise of his September speech at the gala and putting the two together made it appear that Mr. Murphy was speaking for the oil industry:

“In that oil-industry sponsored fete, Rex rehearsed many of the arguments he later used in his recent CBC National ad hominem rant against Neil Young:

Except that in the Calgary venue, any pretense of impartiality or fairness was abandoned, and the authenticity of his statements was as blatant as his sycophancy: [e.g. “I’m not used to being in a room full of achievers”; take that, Mr. Mansbridge].”

You felt that this violated CBC policies that cover “fairness and unbiased comment by public respondents”:

“I do not find Rex’s diatribe [as published or as broadcast] meets CBC’s promulgated standards or generally accepted definitions of ‘news’ or ‘commentary’ due to its contravention of normal Canadian standards of honesty, fairness, and neutrality. As such, it doesn’t belong on the CBC.ca ‘News’ page or on the ‘National’ broadcast. Entertainment, it may be; parody, perhaps. But doesn’t Rick Mercer do that a whole lot better!?”

Yours was one of over 70 letters this office has received in the wake of publicity about Mr. Murphy’s paid presentations to various oil industry events. The Sierra Club encouraged its supporters to contact the CBC to complain about Mr. Murphy’s activities. Some complainants were angered that Mr. Murphy was allowed to express an opinion, others felt that he should be forced to disclose all his paid engagements. Some zeroed in on the fact it was the oil sands development that he favored, and dismissed, as you did, that support of the projects could be “honest and accurate.” For example, one complainant stated that CBC policy says that analysis must be based on facts and there are no facts that lead one to the conclusion that oil sands development is beneficial. The conclusion drawn from that position, and echoed by other complainants, is that Mr. Murphy is a paid spokesperson for the oil industry.

While this is not part of your complaint, this office has also received many queries about the activity of CBC Chief Correspondent and The National host Peter Mansbridge, after a blog posting mentioned he had been paid to speak at a meeting of the Canadian Association of Petroleum Producers. Here too people were concerned that a CBC journalist was paid by a special interest group and expressed concern about potential bias. Others also felt that it was not appropriate for an employee of the public broadcaster to be further compensated through speaking engagements. Since the two issues are so closely related, it is appropriate to address it in the context of this review as well.

MANAGEMENT RESPONSE

Jack Nagler, the Director of Journalistic Accountability and Engagement for CBC News, responded to your concerns. He stated that while “we take this kind of feedback very seriously,” he did not agree with your “strong statements” about Mr. Murphy and CBC News. He explained that Mr. Murphy is not a reporter, and that “the very reason (he) appears on The National is to do analysis and express his point of view.” He pointed out that his appearances are distinguished by the fact that his segment is entitled “Point of View,” to further differentiate it from other content on The National.

“Mr. Murphy’s perspective on the oil sands, whether we agree with it or not, is an analytical argument based on facts, and is perfectly valid commentary. He has been utterly consistent in expressing those views for a long time, and he makes the same broad points whether he is talking on The National, in a newspaper, or in a speech at a public event. We have no reason to question the independence and integrity of his views.”

He added that CBC News’s relationship with Mr. Murphy is a freelance one. Mr. Murphy is not a regular employee of the corporation, and so it is “natural that he does outside work.”

In subsequent responses to complainants, Mr. Nagler replied that while he did not see an issue with conflict of interest, he did acknowledge there were issues about “transparency.” He noted that news management is considering ways to increase openness on an ongoing basis:

“In policy and practice we support the idea of transparency, not just for Rex Murphy but for all of our contributors. But implementing this is not always as simple as it sounds.

There are a set of complicating factors, ranging from how much we can legally demand of our freelancers, to privacy rights of our employees, to what constitutes ‘full disclosure’. Is it only paid speeches we should disclose? Or do we need to be concerned about journalists who attend charity events, or moderate a public forum? Does the content of a speech matter, or does the mere act of getting in front of a lectern make it a question of public concern? And finally, how do we share the disclosure so the audience can properly judge for themselves what’s appropriate?”

He pointed you to a more detailed discussion of the issue in a blog post by CBC News General Manager and Editor in Chief, Jennifer McGuire. In it she addresses the question of any potential conflict of interest. She characterized the questions members of the CBC News audience had raised:

“…how can Rex be an objective journalist when he's going out and speaking to oil executives? And if he's paid for those speeches, does that compromise his ability to be on our airwaves talking about the issue?”

She reiterated that Mr. Murphy is a freelancer who is hired to provide commentary, commentary that is reviewed by CBC editorial staff to ensure that it meets the policy requirement that is opinion based on interpretation of facts, not just rhetoric. She pointed out that Mr. Murphy’s opinions are not the only ones expressed on The National and that the program provides a range of perspectives and views.

She elaborated and explained the important distinction Mr. Murphy’s freelance status confers:

“As much as Rex is identified with the CBC, he is not a full-time employee of the CBC. We have a wonderful freelance relationship that allows him to appear on The National and host CBC Radio One's Cross-Country Checkup. As a freelancer, Rex has the ability to do other work. So yes, he writes opinion pieces for The National Post. And yes, he does speaking engagements.

He is not alone. Other prominent CBC personalities are freelancers, too. When they're not at CBC, people such as David Suzuki and Bob McDonald have more freedom to express their views in ways that full-time journalists at CBC News do not.”

She acknowledged it might be confusing to audience members as he is also the host of Cross Country Checkup but she felt confident that the program’s editorial integrity was intact.

She mentioned in the blog, and repeated to me, that the news management team is committed to transparency and is reviewing its practices and processes around outside activities of freelancers and CBC staff. They are considering ways in which they can be more transparent with members of the public. Given that there have been inquiries about Mr. Mansbridge’s outside activity, these new policies and practices will address those concerns as well.

REVIEW

You and the many others who have written to this office raise some fundamental questions about journalistic independence, conflict of interest, perception of conflict of interest, and transparency. In a time when journalism is practiced by many different people, and in many different ways, along with the intense pressure and scrutiny social media can bring to bear, the answers are critical and are most helpful if they are widely shared and understood.

From the outset, it is important to state that contrary to some of the more nasty correspondence I have received, Mr. Murphy is not a spokesperson for anyone, nor is his personal integrity in any way in question here. Throughout his career, he has been outspoken and frequently iconoclastic in his views on a range of issues. The fact that he is a supporter of resource development is not the issue here. He wrote in his own column and repeated to me that he has spoken to a wide range of groups, many for no fee. And no matter what the organization, the fee is the same.

There are several issues that come into play when CBC employees are paid to speak to any advocacy group. The issues would be the same had Mr. Murphy or Mr. Mansbridge been paid to give a speech to the Sierra Club, for instance, or other environmental groups. CBC has policy that informs this discussion. Policy is based on principle, and does not prescribe, or for that matter proscribe what is appropriate for every situation.

The most relevant policy is the one covering conflict of interest. There is corporate policy which applies to all CBC employees. For obvious reasons, the bar is even higher for employees involved in news and current affairs production, so there are particular policies contained in CBC’s Journalistic Standards and Practices as well. The policy states:

Our credibility is the foundation of our reputation. The credibility of our news, current affairs and public affairs programs rests on the reputation of its journalists who are, and are seen to be, independent and impartial.

The corporate policy provides a number of guidelines. The first is: No conflict should exist or appear to exist between the private interests of CBC/Radio-Canada employees and their official duties.

Whether there is a real or only an apparent conflict of interest, in matters of journalistic integrity it amounts to the same thing. The degree of response this matter has generated is an indication of that. Some correspondents frame their concern within a particular view of the oil industry, but that does not lessen the need to address the issue. No matter what your views, or what the issue, there is a conundrum here.

In the case of Mr. Murphy, his freelance status makes the situation less clear cut. The rules are different. He told me that his longstanding agreement with CBC is that he retains his freelance status so that he can speak his mind in other fora. He is clear that he is speaking on his own behalf, and that his message is the one he chooses to deliver. But audience members might be forgiven for some confusion. Mr. Murphy is both a program host (of the weekly radio national phone-in show Cross Country Checkup), and appears regularly on The National as a commentator. As one correspondent wrote:

“…whether Rex Murphy is a free-lancer or not, he has been a fixture of CBC TV and radio for as long as I can recall. As such, in discussions with friends and colleagues, most did not know that Rex is merely a free lancer, but assumed he was on the full time payroll of the CBC. As did I until recently. The fact is he is paid by CBC and most laypersons would not know he is merely a free lancer – indeed his celebrity status at the CBC and weekly appearance on the National and Cross Country Checkup would belie that. So again, this is a matter of perception of conflict of interest that must to be addressed.” (sic)

It would be helpful if, in the course of its review, CBC News management would address this specific situation. There is a need for clarity about Mr. Murphy’s status and what the terms of engagement are in his case. And in the course of doing its review, I hope they are considering ways to be as open and transparent as possible in letting the public know the relevant activities of their staff, no matter their employment status.

There are other policy considerations that come into play in judging Mr. Murphy’s commentary about Neil Young. CBC journalistic policy calls for balance and fairness, the treatment of an issue from a variety or perspectives, over a reasonable period of time. Mr. Murphy’s commentary followed the broadcast of an interview with Neil Young which had aired some days before.

CBC policy on opinion states: “Our programs and platforms allow for the expression of a particular perspective or point of view. This content adds public understanding and debate on the issues of the day.” As a non-staff commentator, it is perfectly appropriate for Mr. Murphy to express his views, no matter how much many may disagree with them. The policy says:

CBC, in its programming, over time, provides a wide range of comment and opinion on significant issues.

We achieve balance by featuring multiple perspectives and points of view to reflect a diversity of opinion.

It is important to mention any association, affiliation or special interest a guest or commentator may have so that the public can fully understand that person's perspective.

The final guideline raises a question about whether accepting speaking engagements would qualify as an association, affiliation or special interest. I don’t think it is necessary or realistic to mention, each time a regular contributor speaks to an issue of controversy or public policy debate, that there be a requirement to state all associations. In the interests of full disclosure, I was one of the authors of this policy, which is a restating of policy that has existed for over 30 years. This version was approved by the Board of Directors and judged to be as good as or best in class by outside experts. When colleagues used that language, they were not thinking about paid outside work. Perhaps we should have. As part of the review process, management might want to clarify further, or provide some other guidelines dealing with this issue. There will be times when the relationship between a commentator and an organization whose interests are in the news, or are subject to a public policy debate, is relevant information. It would be needed to fulfil the CBC policy that states an interviewee or commentator’s associations should be transparent in order for the public to evaluate the information being given.

Rex Murphy’s commentary on Neil Young did not violate CBC policy. Rather it has raised some important and interesting issues for news management and its commitment to transparency and independence and what constitutes a perception of conflict of interest. This office does not set policy, but I note that the commitment to provide further policy and guidance on CBC journalists and their participation in outside events, paid or not, is a necessary step. When journalists get paid to speak to powerful advocacy groups, it is hard to argue that this does not lead to a perception of conflict of interest. It is just that, a perception – there are enough checks and balances in the system, as Ms. McGuire points out. CBC management must decide and be very clear about how that perception of conflict will be dealt with. CBC policies on conflict of interest indicate that they must, and they have indicated they will. As many of the complainants mentioned, disclosure will go some way to mitigate the concern about this issue.

As the public broadcaster, CBC is held to a higher standard. Many letters questioned the wisdom of CBC reporters and hosts taking money for speaking engagements at all. The argument that it is important and useful for high profile CBC news staff to engage with various groups and members of the public is a reasonable one. The question is what happens to the perception of the relationship when they are paid. CBC policy states that CBC staff cannot use their association with CBC for personal gain. But this is a chicken and egg argument.

Mr. Mansbridge, for instance, only began speaking because CBC management encouraged him to do so. He has explained in his blog, and has told me, that his speeches are about a sense of identity and what it means to be Canadian. The presentations include anecdotes from his first- hand experience covering Canadians all over the world. He understands his role and the limits it places on him in expressing opinions, and in advocating for any cause. Most of the money he receives is turned back into scholarships and other charitable endeavors.

There is no question of his integrity or of Mr. Murphy’s. But since taking money leads to a perception of a conflict of interest, CBC management might want to consider, in the review they are undertaking, whether even with disclosure, it is appropriate for CBC news and current affairs staff to get paid for their speaking engagements. I note that in their articles dealing with this issue, both Mr. Murphy and Mr. Mansbridge mention the range of groups they have spoken to over time . At the least, management should think about the appearance of getting paid by interest groups who are likely to feature prominently in the news, or who are involved in public policy debates.

When this same issue was being debated in the case of some high profile Washington Post reporters, Greta Van Susteren, host of a Fox News Network program, told a writer for a Harper’s article that she does not accept payment for her speaking appearances:

Frankly, the reason I don’t accept fees for speeches is because I fear conflicts (you and I probably think a lot alike about this) and I get paid well at my job anyway. I would like all journalists to list monthly online where they have given speeches and for what amounts of money.

Every ethical code that informs the practice of journalism emphasizes the need to be independent and to be seen to be independent. CBC’s own code includes “to protect our independence” as part of its mission and values:

We are independent of all lobbies and of all political and economic influence. We uphold freedom of expression and freedom of the press, the touchstones of a free and democratic society. Public interest guides all our decisions.

Journalism is going through many changes. Through access to social media and the ability to publish instantly, an individual can as easily be the subject of a journalistic endeavour as the creator of one. The hallmark of a professional journalist is to be able to honestly present areas of legitimate debate, even if his or her analysis leads to a different set of conclusions. Of course, not all journalism is created equal, so there is a growing emphasis on an additional value – and that is to be open and transparent. CBC policy makes that commitment through its accountability. Its decision to open wider and institute greater transparency about the outside activities of its contributors and staff, where appropriate, can only be welcome in reinforcing the independence and the perceptions of that independence.

Given that Journalistic Standards and Practices spells out a commitment to independence, and the Conflict of Interest guidelines encompass perception of conflict as well, it is inconsistent with policy when CBC news and current affairs staff accept payment from groups that are likely to be in the news. To summarize, in the course of reviewing its policy, I hope CBC management will reconsider the practice of paid speaking engagements for its journalists and, at a minimum, consider how any relevant activity and payment can be on the public record.

Esther Enkin
CBC Ombudsman