Living with professional conflicts of interest

By TIM WATKIN

Peter Davis was unruffled as the winds of political controversy blew all around him this week, but his furrowed brow and tone of voice betrayed bemusement.

"I'm not quite sure what I did wrong," a mystified Davis told Kim Hill on National Radio.

Politics apart, what Professor Davis did was lose his balance and fall off the tightrope many couples walk between their professional and personal lives.

For now at least, his professional life is public. But he's not alone in his discomfort. Whether it be accepting contracts, working in the same office or, more commonly, working for competing companies, couples in all lines of work know from daily experience what it means to tread their way through potential conflicts of interest, collusion or confidentiality issues.

Couples may be pitching for the same client, developing similar products or services, or, as in the case of TV3 newsreader Carol Hirschfeld and her husband, Listener editor Finlay Macdonald, reporting some of the same stories.

Some journalist couples make a virtue of not bringing their work home but Hirschfeld and Macdonald prefer to rely on each other's discretion.

"Generally we trust ourselves," says Macdonald. "It's in nobody's interest to be indiscreet or to actually do anything about a conflict of interest. We find we can quite easily maintain that separation."

One journalist working in direct competition with her husband admits she rang his office one day, only to be told by a puzzled receptionist that he was out of town, as planned. To protect the exclusivity of his story, he hadn't mentioned the trip.

Hirschfeld, too, has found that knowing what stories are coming up is the greatest point of conflict for journalist couples.

"Both of us have a clear idea where the no-go zones are. I think it's clear when there is a don't-say situation," she says.

Macdonald laughs. "We tend not to talk about actual stories, but just talk about office politics and gossip. But that raises its own issues because I work in an industry that often reports on her industry. So I tend not to bring stuff from home back to work, more than from work back to home.

"We've never had a summit to establish relationship policies. I guess we've just approached it completely ad hoc.

"We've been discreet and professional about it, but I think it's ridiculous to think that married couples won't talk."

The law thinks the same. Although it is illegal to discriminate against an employee's marital status under the Human Rights Act - and that includes who they are married to - employer concerns are well protected.

It may surprise you to learn that employers are allowed to discriminate "on the employment of any person who is married to, or living in a relationship in the nature of marriage with, or who is a relative of, an employee of another employer if there is a risk of collusion between them to the detriment of that person's employer."

"That means you don't have to abuse [your employer's confidence], there just has to be a potential for it," says Michael McFadden, an employment advocate for Dean J Organ & Associates.

It was just such a fear of collusion that got Doris Andersen fired by Hamilton technology firm Power Beat, shortly after it had fired her husband, Per. Mr Andersen had filed a personal grievance case with Power Beat and the firm decided that Mrs Andersen, an administration assistant, must not have access to its files. Led by McFadden, the Andersens took Power Beat to the employment court and won $7500 in compensation.

Despite the employer's right to discriminate, the act is not quite as restrictive as it sounds.

Opinions by the Human Rights Commission's complaints division tribunal suggest an employer must prove "an actual or real risk of collusion ... not just assume that there was a risk simply because of the relationship."

Further, they say "collusion" must involve more than merely letting a secret slip out. It must be "some form of secret arrangement between the parties to act to the employer's detriment."

The tribunal has taken a grown-up view and acknowledged that partners in a relationship "could be expected to uphold the confidences of another."

As Mark Fenwick, spokesman for the Human Rights Commission, says, "Common sense would say that in a small society there are going to be situations where partners do need to erect Chinese walls and that they should mean something."

"Without wanting to sound corny, in a relationship there're all kinds of areas of trust and work's just one of them," says Macdonald. "In a little country like New Zealand and a little industry within it, it's so unlikely that you're not going to end up with these potential conflicts of interest, and you have to find human ways of dealing with it rather than policy ways."

Employers, however, think a few policies aren't such a bad idea. Most simply rely on confidentiality clauses in staff contracts to back up the protection they already have in law.

Employer law specialist Philip Skelton, a partner at Russell McVeagh, doubts whether many companies would have anything in writing, for fear of breaching the Human Rights Act, but that doesn't mean they don't have informal policies about not hiring competitors' spouses or partners.

Many are like Qantas New Zealand, which, says spokesman John Cordery, doesn't have a problem with an employee's partner working for a competitor, "unless there's a commercial risk, in which case we'd want to have a look at it."

He says the company tries to avoid such tensions from the outset.

"When we are recruiting we are looking at whether or not the person's partner's in a similar, competing department and whether they'll be privy to competitive information."

DB Breweries is one employer that goes a step further, including questions in its employee application form: "Do you have a spouse, partner, relative or household member working in the liquor industry?" And "Are you or your partner or spouse involved or intending to become involved in any commercial interest that would directly or indirectly compete with DB?"

Spokeswoman Jo Jalfon says they also have an internal HR policy which seeks to "ensure no conflicts of interest."

The implication from businesses seems clear - having a partner in a competing company may be bad for your career. But if you do, honesty is the best policy. As Ross Inglis, of Clear says, "We're all adults and nobody wants to monster anybody about this stuff. It's better to be disclosed at the outset ... At the end of the day, it really is about individuals."

Hirschfeld takes a similar view, saying the way you handle confidential information is evidence of not only your loyalty to your employer, but your loyalty to your partner.

"I trust Fin completely, but if I have confidential information it's up to me to keep it confidential. It's not his place to bear the brunt of my responsibility, therefore I don't think I should be laying it on him."

The toughest test for them was when Hirschfeld was appointed to anchor the news alongside John Hawkesby on TV3 and Hawkesby walked out. Suddenly Hirschfeld was the news and Macdonald, Listener deputy editor at the time, was going home to one of the people his magazine most wanted to talk to.

"I happened to have far too much information about it from a personal situation. We just didn't do anything with it."

Hirschfeld did talk to the Listener, and only, she says, because it was her husband who asked her to. But other staff wrote and handled the story, and Macdonald kept mum. He says professionals can almost always step aside if there's a potential conflict of interest.

Yet, for all the weight of law and common sense, many couples in competing companies or roles remain edgy and .

10 such couples declined to speak to the Weekend Herald about their experiences. Although in all cases their relationship was known to colleagues and bosses, they were reluctant to draw attention to it. Some were restrained by fretful bosses, while others were nervous what clients might think or were concerned it might influence their chances for promotion or transfer.

What they feared was not that they might be sprung sneaking files out of the building, but others' perceptions. If the public or clients perceive a conflict of interest, however spurious, the damage done can be every bit as harmful as any actual fraud or cronyism.

Perception rules, especially for ministers of the crown. The Cabinet Office manual decrees that "Ministers and Parliamentary Under-Secretaries must ensure that no conflict exists or appears to exist between their public duty and their private interests." Accurately, if perhaps a little sadly, it continues, " ... appearances and propriety can be as important as actual conflict of interest in establishing what is acceptable behaviour."

Helen Clark and Peter Davis have joined the ranks of all the other couples who know how true that is.

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