Conflict of Interest: Consider the perception

The complainant, Rod Murphy, was one of many people who expressed concern about a conflict of interest when senior business correspondent Amanda Lang interviewed the CEO of the Royal Bank of Canada, because of her personal involvement with a board member, and because she had spoken at events partly sponsored by RBC. I found that there was a violation of conflict of interest policy because of the personal connection.

COMPLAINT

You were one of 67 people who wrote to express concern about the involvement of CBC News’s senior business correspondent, Amanda Lang, in the coverage of a story involving the Royal Bank of Canada, its use of foreign workers and outsourcing of work. Your concern was prompted by an article published on Canadaland on January 11, 2015. The article made several assertions about a story CBC News had run in April 2013.

There were allegations that Ms. Lang had attempted to “sabotage” the story and prevent it from going to air. There were accusations of conflict of interest because Ms. Lang had been paid to speak at events which were sponsored by RBC. It was also subsequently revealed that Ms. Lang is in a relationship with a member of the board of RBC. You and many others thought that Ms. Lang was in a conflict of interest when she involved herself with the stories, and was wrong not to reveal her personal relationship with a RBC board member when she interviewed Gordon Nixon, the CEO of Royal Bank, to get his response to the CBC stories about his bank’s practices concerning the use of foreign workers and outsourcing.

The stories in question originated with the CBC News investigative unit based in Vancouver, Go Public and its reporter Kathy Tomlinson. The story first broke online on Saturday April 6, 2013. It was entitled “RBC replaces Canadian staff with foreign workers.” The story caused a great deal of public and political reaction. In essence, the story was about a group of IT workers at the bank who were losing their jobs, and were being replaced by temporary foreign workers. In some cases they had to train their own replacements. The story had quite an impact.

Coverage continued over the weekend, and by the time Ms. Tomlinson prepared a feature for The National for the next night she was able to report that the parliamentary secretary to the Minister for Human Resources and Skills Development Canada, the department responsible for allowing the temporary foreign workers into Canada, said there was a possibility their permits might be revoked. The workers who came to Canada to work at the bank were connected to iGate, a company based in India where the work was going. RBC and iGate had worked together on other projects as well.

As the story developed, more people from other banks came forward to say the same thing had happened to them. Also on the Sunday, the bank responded to the story through the head of its human resources department. Coverage of the story continued for several days after that.

On Monday April 8, Ms. Lang had an exclusive interview with the CEO of RBC. The National ran two stories that same night, one from Ms. Tomlinson documenting the stories of workers who had the same experience at other Canadian banks, and a brief interview with Ms. Lang along with excerpts of her interview with Gordon Nixon. This is what appeared on The National:

PETER MANSBRIDGE:

We're getting a lot of reaction to our story about bank employees losing their jobs only to be replaced with temporary foreign workers, and some of that reaction came directly from the head of RBC today in an exclusive interview with our senior business correspondent Amanda Lang. That’s coming up.

Well, Amanda is here now to tell us what the head of RBC had to say today. So what was Gordon Nixon’s response?

AMANDA LANG:

Well, Peter, first the bank said it has no reason to believe that its contractor iGATE is breaking Canadian law, but it’s undertaking a review. Nixon also noted that there is a difference between outsourcing part of a business, sending it to another country, as is the case here, and importing cheap labour. Both might result in Canadian jobs being lost, to be sure, but they are different. How? Well, outsourcing is fairly standard practise for a global business like a major bank. By contrast, importing cheap labour, which many fear can happen under the temporary foreign labour visa, undercuts the wages of other Canadians. Nixon told me the foreign workers in question here are managing a transition of a business out of this country, but he said he recognises that Canadians would rather not see any jobs go offshore. Have a listen.

GORDON NIXON:

I am prepared to be criticized for outsourcing, although I would put our outsourcing policies up against most people’s. I mean, in terms of outsourcing, you know, we benchmark extremely well, i.e. we outsource very little and we try to maintain, you know, policies to, you know, respect Canada and our role in Canada in terms of employment. And that’s something that we're going to continue to do. In fact, I have asked for all of our contracts with suppliers to be looked at and brought back and looked at particularly from the aspect of Canadian employment.

PETER MANSBRIDGE:

So, a review. Does that mean that they are looking at outsourcing less?

AMANDA LANG:

It certainly seems that one outcome of this story is that RBC is reviewing all of its contracts with an eye to see if more of them should be domestically sourced. And Nixon told me he takes it very seriously because the bank has worked hard to keep as many jobs here as it can, including incidentally its call centres which is one service that is often sent offshore. Basically this is a renewed commitment on his part to try to keep as many jobs as they possibly can in Canada.

Ms. Lang had not been involved in the research or the development of the story, and her involvement began on the Monday. You were concerned that when she took part in an editorial conference call to discuss the story, she attempted to sabotage or kill the story, as was alleged in a published report. That same report also pointed out that none of the editors, producers or journalists on the call were aware of any of Ms. Lang’s connections to the bank, and you were concerned that this violated CBC’s policies regarding conflict of interest.

MANAGEMENT RESPONSE

CBC News management responded to the concerns about Ms. Lang’s work in several ways. About ten days after the issue surfaced, the head of news, Jennifer McGuire, announced that CBC would no longer allow any of its on-air journalists to accept paid public appearances.

Ms. McGuire also launched an investigation into the allegations of conflict of interest and interference in the publication of the stories about RBC’s activities. The review expanded to include other stories pertaining to RBC since 2013 and to “any other journalism linked to the allegations of conflict of interest.” Some of the results of that review were made public in early March and it formed the basis of the response to you and others who complained about this matter.

Ms. McGuire acknowledged that the allegations of conflict of interest in Ms. Lang’s reporting were a serious matter. She told you about the internal review and explained that only part of it was made public. She explained that some sections about conflict of interest were not published:

Let me state out front that only a small portion of that review was made public: analysis of the content that we broadcast and published. Other sections which cover the equally important questions about conflict of interest were not released because of obligations we have to keep them confidential.

She explained they were constrained by their collective agreement from releasing all their findings. Ms. McGuire’s blog that accompanied the release of their findings stated:

As CBC operates under a Collective Bargaining Agreement which safeguards the privacy rights of our employees, those portions of the review that examined the conduct or performance of any individuals will remain confidential. Any discipline carried out in accordance with that collective agreement is also confidential.

She told you that all the stories about banks and the banking sector done by CBC since 2013 were analyzed. The analysis was provided by Cormex, a media research firm. She said that both the internal review and the external review conducted by Cormex Research revealed that the content was not compromised, and that general coverage of RBC and other institutions Ms. Lang was associated with through her speaking engagements showed no “evidence of partiality.”

In other communications Ms. McGuire pointed out that the speaking engagements Ms. Lang had accepted were generally for events sponsored by RBC, and not RBC stand-alone events. The explanation for the work for other banking institutions was that they were “grandfathered,” that they had been contracted before the rule change and so were allowed to go ahead. In a response on her blog to the accusations of conflict of interest on the foreign worker stories, Ms. McGuire stated:

On the subject of paid speaking engagements, it is ludicrous to suggest that our journalism can be bought by an event’s sponsor. Many events have multiple sponsors. Does the fact that RBC was one of many sponsors of the Mohawk College President’s dinner to support student bursaries mean we cannot be involved? Should we now stay clear of the Scotiabank Giller awards too? Will we no longer participate in worthy causes like Canadian Journalists For Free Expression because Scotiabank is a major sponsor of its gala? Sponsorship is one of the factors we consider when we approve speaking engagements. It is not the only one. And we publicly disclose everything we do - paid and unpaid.

Ms. McGuire told you that Ms. Lang “acknowledged that she should have disclosed her relationship with a member of RBC’s Board of Directors at the time of the TFWP [temporary foreign worker program] stories. That would have been best practice in this instance.” She told you that as a result of the investigation, there were changes to the way potential conflict of interest will be handled, that staff have been reminded it is their responsibility to reveal potential conflicts, and together with news management they will be assessing and developing protocols as necessary.

She added: “the review concluded that CBC News standards around disclosing any potential conflict of interest need to be at the most rigorous end of the spectrum. Canadians should have no reason at any time to doubt the integrity of our journalists or our journalism.” She pointed to the thorough review they undertook, the content analysis they commissioned from an independent media analyst, and the change in policy on paid speaking as indications of how seriously they have taken this issue.

REVIEW

This is part of the Journalistic Standards and Practices (JSP) introduction to conflict of interest:

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 integrity of the organization is ultimately shaped by the individual integrity and conduct of everyone, in their work, and in their outside activities….

In particular, if an employee is asked to participate as a speaker, panelist or moderator for an outside group or professional association, approval is needed from editorial management. This includes unpaid as well as paid participation... All people whose work is governed by the Journalistic Standards and Practices must read them and comply with their requirements. There may be other situations that create a potential conflict of interest. It is always wise to consult a supervisor if there is any doubt. The links to all Corporate policies that cover conflict of interest are provided in the section called “Links to Corporate Policies.”

The actual policies outlining expectations of CBC employees are corporate policies; that is, they pertain to all CBC employees. The policy on conflict of interest and ethics lays out some expectations and guidelines. The most relevant state that “no conflict should exist or appear to exist between the private interests of the employee and their official duties, that employees “place and appear to place” the interests of CBC above their own interests. It also states that it is the employee’s responsibility to “disclose and remove” the conflict. Disclosure is important – obviously management can’t act on what it does not know.

Journalists, for obvious reasons, are held to an even more stringent standard. The JSP also has a policy on covering a story involving a family member which states:

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.

The policy is fairly broad and clearly cannot cover every situation, but its impetus is toward disclosure and discussion. I should disclose at this point that I was one of the authors of this version of the JSP.

The RBC story had already been published and had generated quite a strong public reaction when Ms. Lang became aware of it. The story was published on the weekend online and on the Sunday edition of The National. By Monday the programmers were thinking about that day’s coverage. It was at that point Ms. Lang became involved in the story, and she expressed concerns about it.

The assignment producers decided to organize a conference call involving the many people who would be doing that day’s coverage so that they might thrash out the issues and be clear about who was doing what. One of the producers who convened the call said it was at his instigation; it took place fairly late in the day (afternoon) and was not requested by Ms. Lang. She was asked to be on it though. Her program was going to be involved in the coverage although she had expressed concerns about it.

It was one of the assignment producers involved with the coverage plans who had asked Ms. Lang about her take on what had been made public so far. The producer was aware she had been in touch with the CEO of the bank and was aware she was going to interview him. As he put it, it was seen as a reaction, more than an accountability interview. In other words, after two days of coverage, questions about bank practices from government officials and a growing public outcry, it was considered normal practice to get the bank’s reaction on the record.

Published reports are categorical about Ms. Lang’s motives during the phone call, that she was out to quash the story. That is not the impression of most of the people I spoke to. One can impugn motives but it is just that – an assumption – something journalists must guard against. Ms. Lang says she disagreed with the conclusions but knew that it was not her call whether the story went ahead or not. Everyone agrees the exchange between Ms. Lang and Kathy Tomlinson, the lead reporter on the story, was confrontational. It is, however, not unusual in any newsroom for there to be give and take, and even strong disagreement. Ms. Lang did not have all the facts Ms. Tomlinson had. CBC news managers and senior staff were confident of the story and the documentation to prove it. The stories went ahead, with coverage on Ms. Lang’s program, The Exchange, and two pieces on The National.

The other issue at stake is whether Ms. Lang was in a conflict of interest when she interviewed Gordon Nixon, RBC’s CEO. Ms. Lang is clear that she was operating out of what she saw as a need for journalistic rigor and not some plot to protect RBC. One can take her at her word, but the fact that it can be construed in such an opposite way actually underlines the nature of the problem here. It is not for nothing that conflict of interest guidelines talk about a perception, as much as a real conflict of interest.

The facts could be framed in a negative way because the reality is Ms. Lang was in a relationship with a member of the board of directors of the very bank under scrutiny. In her mind this was still a private matter that did not spill over into her working life. I can understand the need for privacy. The demands of open and transparent journalism and the potential for the perception of conflict of interest were real and present. It is unfortunate that a journalist with Ms. Lang’s seniority did not understand that at the time, nor was she as aware as she needed to be about the fact that CBC’s own policy says employees are obliged to bring any potential conflict to management’s attention. It would also seem, based on CBC News management’s own finding, there was widespread inconsistent understanding of the policy, and no clear process oversight to assess a potential conflict or to ensure all who needed to know about it were aware so appropriate steps could be taken in the coverage of a story.

Other aspects of Ms. Lang’s behavior around that time did nothing to lessen that perception of conflict of interest. I have already dealt with the Globe and Mail piece Ms. Lang wrote in the light of the foreign worker story. It reinforces why CBC policy does not allow news and current affairs staff to express opinion. The policy states, in part:

CBC journalists do not express their own personal opinion because it affects the perception of impartiality and could affect an open and honest exploration of an issue.

We maintain the same standards, no matter where we publish – on CBC platforms or in other media outside the CBC.

In this case, the publication of the article reinforces the perception of conflict of interest. It fits the criteria that would cause a reasonable person, no matter whether the journalist was truly influenced or not, to wonder whether there could be influence.

Further, Ms. Lang was also scheduled to speak at the 8th annual Centre for Outsourcing Research and Education (CORE) conference. Two of the sponsors were RBC and iGate, the outsourcing company mentioned in the CBC stories. Ms. Lang cancelled her appearance but again, it leaves that margin for doubt.

I have dealt with the issue of paid speaking engagements in a previous review. I suggested then that all such activity should stop. It now has. Ms. Lang spoke at other events that were partly sponsored by RBC. Except for the CORE conference none of them were related to finance or banking, and RBC was one of many sponsors. Ms. Lang explained that these engagements were made through a third party and she would not be aware of who was the sponsor. It is hard to make a case for a perception of conflict for speaking at events like a Mohawk College dinner and a woman’s health initiative even if RBC was one of the sponsors. But I think it was the right decision for CBC management to end the practice because it is so fraught.

Journalists and hosts of large organizations are well paid professionals. The issue goes beyond Ms. Lang. From the public’s point of view these well paid professionals are part of a world of privilege, getting paid to speak at events attended by and large by other well paid people. It is not surprising then that this whole issue resonates with members of the public.

CBC policy was violated in the case of Ms. Lang’s involvement in the coverage of RBC. Establishing when perception of conflict is a factor is tricky. And like most ethical questions, there are large areas of grey. The Canadian Association of Journalists published a paper about a year ago that should be required reading for staff and management alike. The discussion is around closeness to sources, but it addresses the question of conflict of interest. There are two ways conflict occurs – one is through financial means, and the other is through relationships. The first is easier to deal with. CBC News management has done so by stopping the practice of paid appearances for its on air hosts and journalists.

The second is more difficult. Public figures deserve consideration of their privacy rights. As the CAJ publication puts it “‘How close is too close?’ is a timeless and somewhat insidious question for journalists and the answers are as inevitably murky as are human relationships themselves.” The authors also address why a perception of conflict is as much a factor as actual conflicts. They note what Gene Foreman in his book “The Ethical Journalist: Making responsible decisions in the pursuit of news” had to say on the question of perception: “The public lacks the concrete facts to judge whether a journalist is trustworthy. And so if a journalist appears to have conflict, the skeptical (or cynical) public is going to assume that he or she does have a conflict.”

CBC News staff and management would do well to adapt the series of questions posed to assess the risk of conflict. The most critical perhaps is this: What would the public think? Would a reasonable person wonder about the fairness of the reporting? Being in a relationship with someone would fall into a reasonable question. What is to be done about it, from the remedies available – declare or recuse – is a judgment call. I note that management has put in place a process to make that happen.

Esther Enkin
CBC Ombudsman