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. Norm
  an Spector Globe and Mail 6 February
  2006

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THE NEW PUBLIC MANAGEMENT
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CONCLUSIONSThe 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???

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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 (199954)

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CONCLUSIONSThe 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

• Theres 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

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CONCLUSIONSThe 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

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CONCLUSIONSThe 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????

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Whistle-Blowing and Disclosure of Wrongdoing

• November 14th, 2006

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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

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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

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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

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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?

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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

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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

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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)

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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)

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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

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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

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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 Commissioners 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

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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 Commissioners 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.

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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 Commissioners 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 Commissioners 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.

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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

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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

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Whistleblowing

• possible effects of strengthened whistle-blowing
  protection?
• will have little effect
• doesnt 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

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Values of the New Public Management
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