Transcript Whistleblower Protection

Financial Management Institute of Canada
June 17, 2009
Current Responsibilities
• Members’ Integrity Act, 1994
• Lobbyists Registration Act, 1998
• Cabinet Ministers’ and Opposition Leaders’
Expenses Review and Accountability Act, 2002
• Public Service of Ontario Act, 2006
– Disclosures of Wrongdoing
– Ethics Executive for Ministers’ Staff
Background
• The Office was established in 1988 pursuant to
the Members’ Conflict of Interest Act.
• Ontario was the first province to enact legislation
that included appointment of an ethics official.
• In 1994, the Members’ Integrity Act replaced the
Conflict of Interest Act.
The Integrity Commissioner
• Officer of the Legislative Assembly.
• Appointed on the address of the Legislative
Assembly for five year terms.
• Independent of the government.
• Has been assigned other responsibilities.
MPP Integrity
• Provides greater certainty in the reconciliation of
private interests and public duties of MPPs.
• The Integrity Commissioner scrutinizes, advises,
investigates and reports on matters relating to
integrity and conflicts of interest.
Framework
• Standards of Conduct
• Members’ Financial Interests
• Cabinet Ministers post-employment obligations
• Creating a culture of compliance (s. 28)
• Enforcement (s. 30)
Why does this matter to you?
• Have confidence that elected officials are
subject to strict rules.
• Have confidence that it is the experience
of the OICO that MPPs wish to comply.
• Even those at the top need to be able to
ask the tough questions.
• Asking the question is the important part.
Lobbyists Registration
• The Integrity Commissioner is the Registrar.
• The Registrar is responsible for administering
the lobbyist registration process and ensuring
that paid lobbyists report their lobbying of public
office holders by filing a return.
• The Registrar must ensure public accessibility to
the lobbyist registry.
What is Lobbying?
• Communication between a paid lobbyist
and a public office holder in an attempt to
influence government decisions about:
– Legislative proposals, bills, regulations
– Changes to policies and programs
– Awarding of grants, contributions, other
financial benefits
– Outsourcing and privatization activities
Who is a Lobbyist?
There are three types of lobbyists:
(1) Consultant Lobbyists – person paid to lobby on
behalf of a client
(2) In-House Lobbyists employed by persons and
corporations and partnerships that carry on
commercial activities for financial gain
(3) In-House Lobbyists employed by non-commercial
organizations
Who is a Public Office Holder?
•
•
•
•
Cabinet Ministers, MPPs and their staff
Public servants as defined by the PSOA
Appointees and employees of agencies, boards
and commissions of the Crown
Does not include Legislative Officers, judges
and justices of the peace
Why does this matter to you?
• The Registry increases transparency.
• Your stakeholders who lobby should be
registered, as long as they meet threshold
requirements.
• It is not punitive to be registered by good
practice.
• We require your support to raise more
awareness.
Ethical Conduct for Ministers’ Staff
• The Integrity Commissioner is the Ethics
Executive for Ministers’ Staff under Parts IV and
V of the Public Service of Ontario Act, 2006.
• The Integrity Commissioner handles enquiries
and questions from Ministers’ Staff about
conflicts of interest and political activity.
• The ethics executive for Ministry Staff is your
Deputy Minister.
Post Service Restrictions
•
•
•
•
•
Employment Restrictions
Confidential Information
Preferential Treatment
Lobbying
Switching Sides
Why does this matter to you?
• Public Servants in Ministers’ Offices are
subject to the same ethical conduct rules
as you.
• There are guidelines and resources
available to all public servants to do the
right thing.
Whistleblower Protection
• The Integrity Commissioner is responsible
for receiving and dealing with disclosures
from Ontario Public Servants
• This Office provides a place for Public
Servants to go if they believe it is
inappropriate to disclose internally
Other Canadian Jurisdictions
•
•
•
•
Manitoba
Nova Scotia
New Brunswick
Federal Government
What is it for?
• Ensure that information regarding potential
wrongdoing gets into the hands of those
who can deal with it appropriately while
protecting the discloser from negative
consequences of disclosing.
• Ensuring that there is active scrutiny over
Government response.
What is the alternative?
• Public servants who do not have confidence in
their internal senior leaders may disclose
wrongdoing publicly.
• These public servants will potentially violate their
duty of loyalty to their employer and potentially
face discipline for disclosing.
• Public servants will be forced to resort to the
Courts to justify their actions in hindsight.
What is the framework?
Internal Disclosure Framework
Discloser
Ethics Executive
(EE)**
Refers to:
• another forum (e.g. GSB)
• another EE**
EE assesses
disclosure
Ministry / Public Body
Managers*
Does not
proceed with
disclosure
Discloser not
satisfied***
- discloses to IC
EE investigates
Possible Findings:
a) no wrongdoing
b) wrongdoing, identifies corrective action
c) refers to a more appropriate forum
Report to Discloser
* Recognizes that employees may disclose to a manager
even though directed to go to the EE
** Includes Secretary of the Cabinet; Premier’s designate, if
identified
Discloser not satisfied***
- discloses to IC
***There is nothing barring the discloser from taking the
issue to the IC at any point in the process if he/she
believes that the issue is not being addressed
appropriately
Disclosure to the Integrity Commissioner
Discloser
Integrity
Commissioner (IC)
Disclosure not
accepted
Disclosure accepted
and referred to EE
EE investigates
EE refers back to IC
Submits report to IC
IC is satisfied with report, or
refers the issue to a more
appropriate forum
IC launches own
investigation
IC investigates
Possible Findings:
a) no wrongdoing
b) wrongdoing, makes recommendations to EE
c) refers to a more appropriate forum
IC reports to
discloser
What is a “wrongdoing”?
The Public Service of Ontario Act, 2006 defines a wrongdoing as:
• contravention by a Public Servant, minister or parliamentary assistant of
legislation (federal or provincial);
• an act or omission by a Public Servant, minister or parliamentary
assistant that creates a grave danger to life, health, safety or the
environment;
• gross mismanagement by a Public Servant, a minister or parliamentary
assistant in the work of the public service of Ontario; and
• directing or counselling a person to commit a wrongdoing that falls into
these categories.
What is a reprisal?
• A reprisal is any measure taken against a
Public Servant that adversely affects his or
her employment or appointment which
includes (but not limited to) ending, or
threatening to end employment, discipline,
threat of discipline or penalty, coercion or
intimidation.
Responsibilities of the Integrity
Commissioner under Part VI of the PSOA
• Receive and review disclosures of wrongdoing from
Public Servants
• Carry out duties fairly, informally and expeditiously
• Maintain confidentiality and protect the identity of people
involved in disclosures of wrongdoing
• Assess each disclosure to determine whether it can be
dealt with
• Refer investigations to Ethics Executives
Responsibilities of the Integrity
Commissioner (cont’d)
• Monitor completion of and receive investigation reports
and recommendations
• Advise and notify the discloser of the status of a
disclosure
• Commence an investigation under specific
circumstances
• Report on the outcome of investigations completed and
determine whether it is in the public interest to make the
report public
• Submit an annual report to the Legislature
What can’t the Integrity
Commissioner deal with?
• Section 117 of the PSOA, 2006 states that
the Integrity Commissioner “must” refuse
to deal with an alleged disclosure of
wrongdoing if certain specific
circumstances apply
Examples of Section 117 Circumstances
• The matter is related to the exercise of discretion by a prosecutor
in relation to the prosecution of an offence.
• The matter is being dealt with by another person/body as a law
enforcement matter or in accordance with a procedure under this
or any other legislation.
• It is an employment or labour relations matter that could be dealt
with through a dispute resolution mechanism (e.g., a grievance
procedure).
• It is the subject of a decision or deliberations by a court or
tribunal.
• There has been a substantial delay between the disclosure and
the incidents such that proceeding with the disclosure would
serve no useful purpose.
Investigation Provisions
• Integrity Commissioner has a right to conduct an
investigation in certain circumstances.
• Persons who “may be adversely affected” by a
report issued by the Integrity Commissioner
have a right to answer any allegations.
• Broad powers of investigation.
• Integrity Commissioner has the ongoing ability to
refer the matter to a more appropriate
investigative body
Why does this matter to you?
You are a potential discloser:
• The framework is there for you.
• You can contact us for information about
the framework.
• You have options – internal and external –
and the protections are available under
either avenue.
Why does this matter to you?
You are involved with addressing allegations of
wrongdoing:
• Successful resolution of internal disclosures will
inspire confidence and encourage engagement
among public servants.
• It is important that you take ownership of the
resolution.
Why does this matter to you?
You are involved with addressing allegations of
wrongdoing (continued):
• Success with the internal disclosure framework
will reduce the number of cases before the IC.
• We need your help to ensure that public
servants are aware of the framework and their
rights.
Questions?
Contact Information
Valerie Jepson
Counsel
Telephone:
Fax:
Web:
Email:
(416) 314-1583
(416) 314-1586
www.oico.on.ca
[email protected]