Civil servant can keep $5,000

Deceased woman left Veterans Affairs worker money in her will; court says he can keep it

A federal government employee who helped veterans with their pensions and benefits can keep a $5,000 inheritance left to him by the wife of a veteran he helped out, the Federal Court has ruled.

Daniel Assh, a lawyer at Department of Veterans Affairs who worked as a pensions advocate, was left $5,000 in the will of Maria Orn. In his capacity as pensions advocate, Assh helped Orn between 1993 and 1996 with certain claims. Assh had no dealings with Orn or contact with her after 1996.

On July 8, 2001, Orn made a will in which she made a number of specific bequests, including $5,000 for Assh. Assh did not seek such a bequest nor was he told about it until he was contacted by Orn’s solicitor upon her death. She died about three weeks after making the will.

In a letter to Assh, Orn’s lawyer said: “The last will instructions I received from Maria Orn were while she was in the hospital. At that time she advised me that she wished to make a bequest to you because you had been so helpful to her in obtaining the necessary benefits that her late husband was entitled. She expressed to me her deepest appreciation for many people who had helped her and Joe through their lifetime and the $5,000, in my opinion, was a token appreciation for your assistance to her.”

When Assh was informed of the bequest, he promptly told his employer. In an e-mail to his supervisor on Aug. 24, 2001, he said:

“I was advised this morning in a phone call from the office of a lawyer named Odishaw (his secretary called) that a previous client … has remembered me in her will. The amount is $5,000 and I see no conflict of interest as she leaves no dependants that I could possibly help in the future and she obviously is not expecting anything from me as she passed away in July. I wish to advise that I was unaware of this bequest prior to today… I am intending to accept the bequest.”

In reporting the bequest to his supervisor, Assh was complying with a policy directive of the Department of Veteran’s Affairs that states: “Situations where an employee has been named as a beneficiary in a client’s will must be immediately reported to the ‘designated official’ as stipulated in the conflict of interest and post-employment policy.”

Employer concerned about conflict of interest

On April 15, 2002, Assh received a letter from his employer stating he could not accept the bequest. That letter stated, in part: “Accepting a bequest of $5,000 cannot reasonably be considered as a normal expression of courtesy. Acceptance by public servants of gifts or bequests from clients may raise some suspicion and result in the public view that preferential services may be available for a price, thus compromising the integrity of the government. The public must accept that a public servant will provide equal services to all.”

Assh filed a grievance. His position was set out in his letter of June 26, 2002, which read, in part:

“In the present case, it is impossible to imagine that I could be influenced by a bequest that did not exist until five years after I completed my official duties in regard to the former deceased client. I would submit that the purpose and intent of the conflict of interest and post-employment code for the public service is to prevent the purchase of preferential treatment and also the appearance that preferential treatment may have been purchased. In the facts of the present case, both of the above mentioned are impossible.”

The grievance was denied. At the final level of the grievance process, the decision stated, in part:

“It is your contention that since the bequest originates from a deceased client, it would not be possible for such a gift to influence your judgment or performance of your official duties and responsibilities in respect to that client. However, the intent of the various provisions of the code is to prevent and avoid a real or potential conflict of interest in the eyes of the public resulting from your official duties and responsibilities in respect to your present and future clients. The department’s decisions and actions are focused on the employee, not the originator of the bequest.”

Board overturns decision

Assh appealed that decision to the Canada Public Service Staff Relations Board. On Aug. 11, 2004, it ruled he could keep the money. The board said its ruling might have been very different had Assh “engaged in a course of conduct that either suggested or demonstrated he had exerted some undue influence upon (Orn), or otherwise engaged in some inappropriate conduct in the court of his employment or outside his employment.”

The board said the government was “quite right” to be concerned about the bequest. But, when all the facts were considered, it was clear there was nothing wrong, or even suspicious, about Assh’s conduct in relation to Orn. Therefore, he could keep the $5,000, it said.

The government appealed that ruling to the Federal Court. The Federal Court rejected the government’s appeal and ruled he could keep the money.

For more information see:

Assh v. Canada (Attorney General), 2005 CarswellNat 3243 (F.C.)

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