Transcript Document

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
THE NEW PUBLIC
MANAGEMENT
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
– higher levels of efficiency, effectiveness
 risk – greater risk of failure
 reward
–
–
however – governments are risk averse!!
Why???
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)
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
– higher levels of efficiency, effectiveness
 risk – greater risk of failure
 reward
–
the vicious cycle of bureaucratic distrust
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
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
– higher levels of efficiency, effectiveness
 risk – greater risk of failure
 reward
–
the vicious cycle of bureaucratic distrust
 calls
for return to traditional public administration
practices
CONCLUSIONS:
The Cycle of Reform

dissatisfaction with traditional public administration
drives demands for reform
–
impartiality/accountability/process


NPM entails higher level risk
–
risk/reward


–
reward – higher levels of efficiency, effectiveness
risk – greater risk of failure
the vicious cycle of bureaucratic distrust


can be misconstrued as red tape and inefficiency
calls for return to traditional public administration practices
cycle begins again!
External Culture Change??

valuing the virtues of bureaucracy
–
impartiality/accountability

–

need to temper public expectations regarding bureaucratic
performance
clarifying the risk/reward of reform
–

can be misconstrued as red tape and inefficiency
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????
Whistle-Blowing and Disclosure
of Wrongdoing
November 14th, 2006
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
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
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
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
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?
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
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
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
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 decisionmaking process would not be considered a wrongdoing within the scope
of this policy.” (TBS, PIDI 2001)
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)
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
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
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;
–

Public Sector Integrity Commission
–
–
–
–

requires that public servants report wrong-doing through this mechanism rather than through Commissioner
(with some exceptions)
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
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;
–

Public Sector Integrity Commission
–
–
–
–

requires that public servants report wrong-doing through this mechanism rather than through Commissioner
(with some exceptions)
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.
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.
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.
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
The Federal Accountability Act, 2006

enhance the role of the Public Sector Integrity Commissioner
–
–
–
–

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
–


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-publicsector employees (very limited)
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
The Federal Accountability Act, 2006

enhance the role of the Public Sector Integrity Commissioner
–
–
–
–

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
–


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-publicsector employees (very limited)
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
The Federal Accountability Act, 2006

enhance the role of the Public Sector Integrity Commissioner
–
–
–
–

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
–


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-publicsector employees (very limited)
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
Whistleblowing

possible effects of strengthened whistleblowing 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
Values of the
New Public Management
Values
New Public
Management
entrepreneurship,
flexibility, creativity
Risk Tolerance risk taking
Accountability
Structures
accountability by
results
decentralized,
partnerships,
contracts
Traditional Public
Administration
prudence, stability,
probity,
accountability
risk averse
process
accountability
hierarchical,
centralized