The Al-Mashat Affair

1. The Al-Mashat Affair • does ministerial responbility work? • if so, should there be changes in the way it operates and what are these changes? • if not, what should replace it? • “...the mutually advantageous concept of plausible deniability that lies at the heart of the minister/deputy-minister bargain.” Norman Spector Globe and Mail 6 February 2006

2. THE NEW PUBLIC MANAGEMENT

4. CONCLUSIONS:The Cycle of Reform • dissatisfaction with traditional public administration drives demands for reform • impartiality/accountability/process • can be misconstrued as red tape and inefficiency • NPM entails a higher level of risk • risk/reward • reward – higher levels of efficiency, effectiveness • risk – greater risk of failure • however – governments are risk averse!! • Why???

5. Some Thoughts on the Context: “In the private sector, it does not matter much if you get it wrong 30 percent of the time so long as you can turn a profit at the end of the year and the bottom line remains healthy. In the public sector it does not matter much if you get it right 95 percent of the time because the focus will be on the 5 percent of the time you get it wrong.” Donald Savoie, Governing from the Centre (1999:54)

6. CONCLUSIONS:The Cycle of Reform • dissatisfaction with traditional public administration drives demands for reform • impartiality/accountability/process • can be misconstrued as red tape and inefficiency • NPM entails higher level risk • risk/reward • reward – higher levels of efficiency, effectiveness • risk – greater risk of failure • the vicious cycle of bureaucratic distrust

7. Some Thoughts on the Context: “There’s a new emphasis in the federal government to encourage risk-taking among its employees. But the reality remains that when mistakes are made the individual is hoisted up the flagpole.” News report of TBS Study

8. CONCLUSIONS:The Cycle of Reform • dissatisfaction with traditional public administration drives demands for reform • impartiality/accountability/process • can be misconstrued as red tape and inefficiency • NPM entails higher level risk • risk/reward • reward – higher levels of efficiency, effectiveness • risk – greater risk of failure • the vicious cycle of bureaucratic distrust • calls for return to traditional public administration practices

9. CONCLUSIONS:The Cycle of Reform • dissatisfaction with traditional public administration drives demands for reform • impartiality/accountability/process • can be misconstrued as red tape and inefficiency • NPM entails higher level risk • risk/reward • reward – higher levels of efficiency, effectiveness • risk – greater risk of failure • the vicious cycle of bureaucratic distrust • calls for return to traditional public administration practices • cycle begins again!

10. External Culture Change?? • valuing the virtues of bureaucracy • impartiality/accountability • can be misconstrued as red tape and inefficiency • need to temper public expectations regarding bureaucratic performance • clarifying the risk/reward of reform • need to temper public expectations about accountability and raise public tolerance of risk • Where to start? • “Big answers to management constraints in government departments will not be possible until Parliament and the control lobby first change their ways.” Donald Savoie, 1999 • What does Gomery say on this????

11. Whistle-Blowing and Disclosure of Wrongdoing November 14th, 2006

12. Whistleblowing • basic description of whisteblowing, related issues, and the whistleblowing regime • the whistleblowing regime and the context of the Sponsorship Scandal • whistleblowing and the Gomery Recommendations

13. Whistleblowing • basic description of whisteblowing, related issues, and the whistleblowing regime • the whistleblowing regime and the context of the Sponsorship Scandal • whistleblowing and the Gomery Recommendations

14. Whistleblowing... • (def): the unauthorized public disclosure of privileged information by an employee to protect the public interest • must be unauthorized • must be public • must be information the employee has access to by virtue of their job position • i.e. not simply personal opinion • vs. internal disclosure of wrongdoing

15. Whistleblowing... • the issue? • appropriate balance between individual rights of the employee, professional responsibilities, and their duty of loyalty to their employer • individual rights • freedom of speech (rights as citizens) • professional responsibilities • duty to protect the public interest (as public servant) • duty of loyalty (as government employee) • “Public servants owe a duty of loyalty to their employer. In serving the public interest, they are entrusted, as a fundamental part of their duties, with access to a wide range of government information and are required to treat this information responsibly and with discretion and integrity.” (TBS, PIDI 2001) • deciding whether whistleblowing is justified in particular cases

16. Broader Issues • How much secrecy is tolerable/necessary in a democracy? • Will protection for whistle-blowers improve the performance of the public service? • Why? • Why not? • Does punishment of whistle-blowers violate their individual rights? • how much protection should be provided to whistle-blowers?

17. Whistleblowing • basic description of whisteblowing, related issues, and the whistleblowing regime • the whistleblowing regime and the context of the Sponsorship Scandal • whistleblowing and the Gomery Recommendations

18. WhistleBlowing and the Sponsorship Scandal • whistleblower protection in place at the time of the Sponsorship Scandal? • NONE!! • broader context of whisteblowing in the Government of Canada • Joanna Gualtieri, Foreign Affairs • Shiv Chopra et al., Health Canada • Brian McAdam (Immigration Canada) and Cpl. Robert Reid (RCMP) • Allan Cutler and the Sponsorship Scandal

20. Whistleblowing • basic description of whisteblowing, related issues, and the whistleblowing regime • the whistelblowing regime and the context of the Sponsorship Scandal • whistleblowing and the Gomery Recommendations

21. Whistleblowing – Post-Sponsorship, Pre-Gomery • Internal Disclosure of Wrongdoing, 2001 • guide for internal disclosure of wrongdoing • internal vs. external disclosure • “However, in certain exceptional circumstances an employee might be justified in making an external disclosure: for example, when there is an immediate risk to the life, health or safety of the public. Employees might be also justified in making an external disclosure where they have exhausted all internal procedures.” (TBS, PIDI 2001) • wrongdoing vs. judgement • “It is recognized that deputy heads are responsible for making decisions which involve weighing the risks and benefits of various courses of action and selecting approaches which they consider to be in the best public interest, including some that carry with them a risk. The judgement call that results from a balanced and informed decision-making process would not be considered a wrongdoing within the scope of this policy.” (TBS, PIDI 2001)

22. Whistleblowing – Post-Sponsorship, Pre-Gomery • Internal Disclosure of Wrongdoing, 2001 • guide for internal disclosure of wrongdoing • policy – not legislation • no legal sanctions against reprisals • Public Service Integrity Office, 2001 • part of TBS • not an indpendent officer of Parliament (e.g. Auditor General, Information Commissioner, Privacy Commissioner)

24. Whistleblowing – Post-Sponsorship, Pre-Gomery • Internal Disclosure of Wrongdoing, 2001 • Values and Ethics Code for the Public Service, 2003 • whistle-blowing protection integrally related to public service charter • e.g. breaching the Code or forcing another public servant to breach the Code covered under disclosure policy

25. Whistleblowing – Post-Sponsorship, Pre-Gomery • Internal Disclosure of Wrongdoing, 2001 • Values and Ethics Code for the Public Service, 2003 • Bill C-11 (November 2005) • precursor – Bill C-25

26. Bill C-25 • commits government to establishing a Charter of Values of Public Service that should guide public servants in their work and professional conduct; • defines wrongdoing as:  the contravention of relevant laws; the misuse of public funds or assets; gross mismanagement in the federal public sector; an act or omission that creates a substantial and specific danger to the life, health or safety of persons or to the environment; a serious breach of the code of conduct; and the taking of a reprisal against a public servant; • requires internal disclosure mechanism, including the appointment of a senior officer to receive and act on wrongdoing disclosures; • requires that public servants report wrong-doing through this mechanism rather than through Commissioner (with some exceptions) • Public Sector Integrity Commission • ensures that there is an additional avenue for disclosures • investigate alleged wrongdoings and to make recommendations to the relevant chief executive on the Commissioner’s findings; • reports annually to Parliament through a Minister; • investigates reprisal complaints from public servants • restrictions on whistleblowing and disclosure of wrong-doing • allows for disciplinary action for public servants who make a wrongdoing disclosure in bad faith; • disclosure to outsiders limited to... • situations where there is not sufficient time to follow rules for internal disclosure AND • public servant believes on reasonable grounds that subject matter relates to... • a serious offence under a federal or provincial Act; or • an imminent and serious danger to the life, health or safety of persons or to the environment

27. Bill C-25 • commits government to establishing a Charter of Values of Public Service that should guide public servants in their work and professional conduct; • defines wrongdoing as:  the contravention of relevant laws; the misuse of public funds or assets; gross mismanagement in the federal public sector; an act or omission that creates a substantial and specific danger to the life, health or safety of persons or to the environment; a serious breach of the code of conduct; and the taking of a reprisal against a public servant; • requires internal disclosure mechanism, including the appointment of a senior officer to receive and act on wrongdoing disclosures; • requires that public servants report wrong-doing through this mechanism rather than through Commissioner (with some exceptions) • Public Sector Integrity Commission • ensures that there is an additional avenue for disclosures • investigate alleged wrongdoings and to make recommendations to the relevant chief executive on the Commissioner’s findings; • reports annually to Parliament through a Minister; • investigates reprisal complaints from public servants • restrictions on whistleblowing and disclosure of wrong-doing • allows for disciplinary action for public servants who make a wrongdoing disclosure in bad faith; • disclosure to outsiders limited to... • situations where there is not sufficient time to follow rules for internal disclosure AND • public servant believes on reasonable grounds that subject matter relates to... • a serious offence under a federal or provincial Act; or • an imminent and serious danger to the life, health or safety of persons or to the environment.

28. Statutes of Canada, C-11 • commits government to establishing a Charter of Values of Public Service that should guide public servants in their work and professional conduct; • defines wrongdoing as:  the contravention of relevant laws; the misuse of public funds or assets; gross mismanagement in the federal public sector; an act or omission that creates a substantial and specific danger to the life, health or safety of persons or to the environment; a serious breach of the code of conduct; and the taking of a reprisal against a public servant; • requires internal disclosure mechanism, including the appointment of a senior officer to receive and act on wrongdoing disclosures; • requires that public servants report wrong-doing through this mechanism rather than through Commissioner (with some exceptions) • Public Sector Integrity Commission • ensures that there is an additional avenue for disclosures • investigate alleged wrongdoings and to make recommendations to the relevant chief executive on the Commissioner’s findings; • reports directly to Parliament • investigates reprisal complaints from public servants • restrictions on whistleblowing and disclosure of wrong-doing • disclosure to outsiders limited to... • situations where there is not sufficient time to follow rules for internal disclosure AND • public servant believes on reasonable grounds that subject matter relates to... • a serious offence under a federal or provincial Act; or • an imminent and serious danger to the life, health or safety of persons or to the environment.

29. Statutes of Canada, C-46 • commits government to establishing a Charter of Values of Public Service that should guide public servants in their work and professional conduct; • defines wrongdoing as:  the contravention of relevant laws; the misuse of public funds or assets; gross mismanagement in the federal public sector; an act or omission that creates a substantial and specific danger to the life, health or safety of persons or to the environment; a serious breach of the code of conduct; and the taking of a reprisal against a public servant; • requires internal disclosure mechanism, including the appointment of a senior officer to receive and act on wrongdoing disclosures; • requires that public servants report wrong-doing through this mechanism rather than through Commissioner (with some exceptions – more clearly stated than Bill C-25) • Public Sector Integrity Commission • ensures that there is an additional avenue for disclosures • investigate alleged wrongdoings and to make recommendations to the relevant chief executive on the Commissioner’s findings; • reports directly to Parliament • investigates reprisal complaints from public servants • restrictions on whistleblowing and disclosure of wrong-doing • disclosure to outsiders limited to... • situations where there is not sufficient time to follow rules for internal disclosure AND • public servant believes on reasonable grounds that subject matter relates to... • a serious offence under a federal or provincial Act; or • an imminent and serious danger to the life, health or safety of persons or to the environment.

30. Gomery Recommendations Re: Whistleblowing • agrees that disclosure to the Public Sector Integrity Commission or to the public only be permitted in “exceptional” circumstances • suggested changes • moderate strengthening of existing provisions • broadened to cover anyone carrying out work on behalf of the Government; • open list of “wrongdoings” and “reprisals” • burden of proof (re: reprisals) should be on the employer

31. The Federal Accountability Act, 2006 • enhance the role of the Public Sector Integrity Commissioner • officer of Parliament; • direct access to PSIC by employees to report wrongdoing in the workplace; • give the Commissioner the authority to deal with complaints, conduct investigations, and attempt to conciliate a settlement between the parties; • give the Commissioner the power to authorize free access to legal advice for both public-sector and non-public-sector employees (very limited) • create an independent Public Servants Disclosure Protection Tribunal • power to decide whether reprisal occurred and to order action to remedy the situation and ensure that those who took reprisal are disciplined; • introduce specific penalties for offences under the Public Servants Disclosure Protection Act, including tougher penalties for those who willfully impede investigations of wrongdoing; • make cash awards of up to $1,000 for public servant who has “shown courage in defending the public interest”; • expand coverage of PSDPA • include Crown Corporations • provide more open access to information about disclosures of wrongdoing • maintains existing restrictions on whistleblowing and disclosure of wrong-doing • disclosure to outsiders limited to... • situations where there is not sufficient time to follow rules for internal disclosure AND • public servant believes on reasonable grounds that subject matter relates to... • a serious offence under a federal or provincial Act; or • an imminent and serious danger to the life, health or safety of persons or to the environment

32. The Federal Accountability Act, 2006 • enhance the role of the Public Sector Integrity Commissioner • officer of Parliament; • direct access to PSIC by employees to report wrongdoing in the workplace; • give the Commissioner the authority to deal with complaints, conduct investigations, and attempt to conciliate a settlement between the parties; • give the Commissioner the power to authorize free access to legal advice for both public-sector and non-public-sector employees (very limited) • create an independent Public Servants Disclosure Protection Tribunal • power to decide whether reprisal occurred and to order action to remedy the situation and ensure that those who took reprisal are disciplined; • introduce specific penalties for offences under the Public Servants Disclosure Protection Act, including tougher penalties for those who willfully impede investigations of wrongdoing; • make cash awards of up to $1,000 for public servant who has “shown courage in defending the public interest”; • expand coverage of PSDPA • include Crown Corporations • provide more open access to information about disclosures of wrongdoing • maintains existing restrictions on whistleblowing and disclosure of wrong-doing • disclosure to outsiders limited to... • situations where there is not sufficient time to follow rules for internal disclosure AND • public servant believes on reasonable grounds that subject matter relates to... • a serious offence under a federal or provincial Act; or • an imminent and serious danger to the life, health or safety of persons or to the environment

33. The Federal Accountability Act, 2006 • enhance the role of the Public Sector Integrity Commissioner • officer of Parliament; • direct access to PSIC by employees to report wrongdoing in the workplace; • give the Commissioner the authority to deal with complaints, conduct investigations, and attempt to conciliate a settlement between the parties; • give the Commissioner the power to authorize free access to legal advice for both public-sector and non-public-sector employees (very limited) • create an independent Public Servants Disclosure Protection Tribunal • power to decide whether reprisal occurred and to order action to remedy the situation and ensure that those who took reprisal are disciplined; • introduce specific penalties for offences under the Public Servants Disclosure Protection Act, including tougher penalties for those who willfully impede investigations of wrongdoing; • make cash awards of up to $1,000 for public servant who has “shown courage in defending the public interest”; • expand coverage of PSDPA • include Crown Corporations • provide more open access to information about disclosures of wrongdoing • maintains existing restrictions on whistleblowing and disclosure of wrong-doing • disclosure to outsiders limited to... • situations where there is not sufficient time to follow rules for internal disclosure AND • public servant believes on reasonable grounds that subject matter relates to... • a serious offence under a federal or provincial Act; or • an imminent and serious danger to the life, health or safety of persons or to the environment

35. Whistleblowing • possible effects of strengthened whistle-blowing protection? • will have little effect • doesn’t go far enough – “whistleblower management” act (Gualtieri) • would prevent wrong-doing in the first place (Gomery) • may create an environment of distrust and avoidance of risk

36. Values of the New Public Management