Do the right thing, how to blow the whistle on wrongdoing in the government: it’s not easy (part 1)

This piece first appeared in the Hill Times on March 20, 2017.

Whistleblowers are not well understood. They are under tremendous pressure and are faced with resolving their own personal belief in doing the right thing with survival. This affects them at work and at home.

The whistleblower may be faced with a number of situations: from blowing the whistle perhaps on the use of chemicals that have polluted the water table of neighbours, to blowing the whistle on financial fraud, to blowing the whistle on major and critical problems, such as in the Phoenix pay system.

The following is written from the perspective of a person who could be facing this type of dilemma and who is trying to decide what to do.

What should I do? I tried to bring up the problem to my manager. He listened, promised that action would take place but nothing happened. I know that he is concerned about taking a stand as that could end his career.

I am alone, isolated with no one to talk to or willing to support me. Since I spoke up, I am watched, my work closely scrutinized. Every word that I say can be used against me. It is only a matter of time before something happens. It is difficult to be careful every minute of every day when you know they are waiting for you to make a mistake.

There is the ethics adviser who is supposed to help me but I heard her say that her job was to protect the department. She reports to the deputy minister and is more concerned about her career than helping people.

Where can I go? I need to talk to someone who understands. Let me think. I heard that we now have an integrity commissioner. Maybe that’s where I should go. This commissioner must have a website to give advice.

Found it. It is the Public Sector Integrity Commissioner’s Office (PSIC). Now I will have someone to talk and who will understand. Let’s click on “Disclosure of Wrongdoing.” There are three headings under this: Five Questions to Ask Yourself Before Disclosing; Protection From Reprisal, and How to Disclose Wrongdoing.

I know there is wrongdoing, but I should check out the five questions. What are they anyway? Oh no, the first question requires the wrongdoing to be illegal under a government act. How can I be certain? I am no lawyer. I will tell PSIC the problem and someone in their personnel will advise me. They are the experts in this, not me. What does this mean? “At times, something may appear to be wrong but may not be considered wrongdoing under the act.” So wrongdoing may not be wrong. What a curious thought for an integrity commissioner to post.

The second question is easier: where can I disclose the wrongdoing? There are three possibilities: to a manager, to a senior officer for internal disclosure, or to PSIC. I have already ruled out the first two. Now I know I am in the right place, disclosing it to the Integrity Commissioner’s Office.

The third question is what the Integrity Office does with a disclosure. No problem with this. They can analyze my information and give me some advice. I am not certain what is meant by “procedural fairness” and “natural justice” when it states, “The right to procedural fairness and natural justice of all persons involved in investigations is respected throughout the process.” Still, it is good to know that I will be respected. I am beginning to feel better about going to an independent body. I will have an ally in addressing the situation.

What is this? Question four states it may take one year to complete a full investigation. What happens to me in the meantime? I can’t survive a year in this job, especially once it is known that I have taken action. They already know I have asked questions. Will I be protected? Am I going to be transferred? Thinking about it, why should I be the one transferred? After all, I am only doing my job the way that I am supposed to. I am going to have to carefully think about reporting through the Integrity Commissioner’s Office when I am exposed.

Question five is of equal concern. All the commissioner does is report whether the wrongdoing is founded. Nothing else happens. That leaves me out on a limb with no protection and a serious situation that has not been corrected.

The next header is “Protection from Reprisal.” I wonder if it answers any of the questions that the first header did not answer. Not much help here. PSIC states that it is obligated and fully committed to protecting my identity, with the caveat, “to the extent possible.” Do they really think I won’t be spotted once I make a disclosure? We are a small group and only a few of us have the information or access to the files. In any event, I am already known as raising concerns. What a meaningless title for the section. There is nothing about protecting me from reprisal, only about confidentiality.

I am discouraged. Why go on? PSIC will not help or protect me from reprisal. I will be left to the mercy of management while an investigation goes on (for up to a year). I have heard others were fired for reporting wrongdoing and PSIC wouldn’t help them. Why would my situation be any different? Maybe I should just not bother reporting wrongdoing. No one will ever know. By the time it surfaces, my management will all have received promotions or transferred. Once gone, they are safe. It is only the few of us left behind who will suffer. Maybe I can find a transfer. I should look for a job in an organization where I can work with pride.

I don’t know if I could live with myself if I don’t at least try to fix someone who understands the dilemma and that person has to be in the Integrity Commissioner’s Office. I am very discouraged but determined to continue. I need to talk to someone about this; someone who can listen; someone who understands; someone who can guide me. If I don’t do something, who will?

My decision is made. I am going to file a complaint of wrongdoing. Time to read, “How to disclose wrongdoing.” What’s this? I have to complete a disclosure form. Why? I just want to talk to someone. Second step is to gather information. For that I need to talk to someone. What type of information is helpful? Documents, copies of emails, memos to and from management? Do I need a written record of all my meetings and discussions on this? PSIC states that I will have an opportunity to discuss the file with an analyst if need be. What file? I haven’t submitted one yet. In any case, I need to discuss the situation even if the analyst doesn’t. Why are the needs of an analyst more important than mine?

Reading on, I now understand that I am not allowed to talk to anyone at PSIC. It is clear. I must submit all the details in person to the PSIC office, by mail or by fax. Who uses a fax anymore? PSIC states that e-mail is not a secure means of transmission. Why? I have a Gmail account, a Hotmail account, and others that are not government linked. I think they are secure. I would never send PSIC information over a government line that could be monitored. It must be that the Integrity Commissioner’s Office does not have security. Finally, I am asked to respect the confidentiality of the process while they determine the next steps. Nothing is there about respecting me and my needs. I am the one who is at risk, not them. Why are they only concerned about themselves?

This is frustrating. I doubt very few people in my situation would even get this far. Why bother when the Integrity Commissioner’s Office is not interested in helping or protecting people. They state that they want people to come forward and then make it almost impossible to proceed. This is like a four-way intersection with no stop signs and the person going through is proceeding at great risk.

I must be stupid, stubborn, or desperate to even continue. I am not certain which but I will persevere. Next step is to fill out the disclosure form.

Footnote: Due to length, this narrative will be continued next week as the employee attempts to report the wrongdoing. It is important to realize that at this point in time, most do not think of themselves as “whistleblowers.” Rather they have personal values and a belief (trust) that doing the right thing will have positive results. Canadians for Accountability (www.canadians4accountability. org) is now the only organization in Canada dedicated to helping whistleblowers. This narrative was written based on discussions with many whistleblowers. Real lives are impacted, usually negatively, when trying to report wrongdoing.

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Trudeau can fix our broken whistleblowing system: here’s why and how

This piece was first published in the Hill Times on March 20, 2017.

The House Government Operations Committee deserves kudos for taking the bull by the horns in its review of Canada’s failed system for protecting government whistleblowers. This week the committee will hear from no less than four experts representing countries that have much better laws: the U.S., U.K., Australia, and Ireland.

The comparisons these experts can offer will be eye-opening, since the Canadian system simply does not protect whistleblowers from reprisals. In more than 10 years not a single truth-teller has been awarded a remedy by the Public Servants Disclosure Protection Tribunal (the only body that can do so), and not a single aggressor has suffered consequences for taking reprisals.

In Canada, it’s more dangerous to kick a dog than to destroy a whistleblower’s life. If you attack a helpless animal, someone might see you. A video of the incident might go viral online, and you might face public outrage and damage to your reputation, even your career. But if you destroy a whistleblower’s life in plain sight—through bullying and harassment, unfair dismissal and blacklisting—it’s unlikely that you will face any consequences.

Even if you are reported to our Public Sector Integrity Commissioner and he decides that reprisals took place (which he rarely does) he has the power (which he almost always uses) to block the tribunal from taking any action against you. It’s too bad about the whistleblower, but you, the aggressor, are fully protected!

Our system is in urgent need of reform.

Trudeau will decide

Once the committee makes its recommendations, Justin Trudeau will make the final decision regarding how much will be done: some superficial bandaids for public consumption, or the rootand- branch reform that is needed. So it’s helpful for politicians such as Trudeau and his cabinet to understand how their self interest aligns with the public interest.

It’s simple: when whistleblowers are protected and listened to, this actually protects those in power, by enabling them to learn about misconduct and to nip it in the bud—before it metastasizes into the type of full-blown scandal that taints and even brings down governments. This also protects the public interest.

In contrast, crushing and silencing whistleblowers is an instinctive but counter-productive strategy. It allows misconduct to flourish, and drives desperate whistleblowers to the media—so that ministers may be the last to know about serious problems that have been brewing within their own departments. They may find out for the first time from scandalous news headlines.

The Phoenix payroll system is a good example. This topic has come up repeatedly at hearings of the committee, and the consensus among knowledgeable witnesses is clear: if public servants (and contractors) had real whistleblower protection, at least some would have come forward and reported to the whistleblower watchdog the serious problems that evidently existed right from the start.

With an independent investigation by this agency under way— and the prospect of a public report to Parliament—there would have been no choice but to stop and fix the problems before any major rollout. Politicians would not now be in the current situation—where thousands of public servants are suffering, the government is deservedly under relentless attack, and no one seems able to stop this all-too-predictable train-wreck.

Furthermore, those responsible would have been identified and held accountable, so that they could not cause further damage. This is vital. Based on my experience in industry (including quality assurance of major, complex software projects) I believe that it is often impossible to properly identify and fix the root technical problems while there are people in the management chain who are motivated to create a smokescreen in order to conceal their own culpability. I suspect that this is why no one seems able to fix Phoenix, or even to predict with confidence how long this might take.

Once politicians (and senior bureaucrats) understand their self-interest in protecting whistleblowers—and how this aligns with the public interest—then the question becomes how best to fix our current broken system.

Strategies for improvement

The committee charged with reviewing the whistleblowing law, the Public Servants Disclosure Protection Act (PSDPA), faces a daunting task. The law is so riddled with problems that it’s easy to get lost in the detail of the countless amendments that are surely required. And there are essential changes required that have less to do the law and more to do with how PSIC is staffed and monitored. We respectfully submit that agreeing on a few broad strategies like the following may simplify the committee’s task

Burst the bubble that surrounds this system

The PSDPA created a completely new quasi-judicial system just for whistleblowers—but one that operates inside a bubble, shrouded with impenetrable secrecy, and sealed off from our proper legal system.

This bubble needs to be burst by allowing much greater visibility of what goes on within PSIC, and by reconnecting the whistleblowing system with the real world. This means for example:

  • Allowing whistleblowers full access to the courts—not just judicial review—to appeal if they are dissatisfied with the handling of their cases by PSIC or the Tribunal.
  • Stripping away much of the extraordinary secrecy that surrounds the operations of PSIC and the tribunal. This secrecy does not protect whistleblowers—rather it protects the alleged wrongdoers, for example, by ensuring that reports of alleged wrongdoing remain hidden forever.
  • Establishing performance standards for PSIC, including detailed reporting, useful performance measurements, and proper oversight, as detailed below—so that poor enforcement of the law is quickly identified and fixed, rather than being ignored for a decade, as has just happened.

Open up the process for drafting and amending the law

The task of rewriting the PSDPA cannot be left again to Treasury Board to conduct behind closed doors, without adequate understanding or respect for best practices. This is like asking the fox to guard the henhouse. Rather there should be an open, transparent process in which civil society groups and international experts have a real say, including the power to report to Parliament any concerns regarding TBS’s proposals.

Dramatically improve reporting, performance measurements and oversight

It is astonishing that, in a modern democracy, an important agency so clearly failing in its mandate should be allowed to continue for a decade with virtually no intervention. This was possible only because of a stunning lack of oversight:

  •  The commissioner’s annual reports contain almost no useful information.
  • There are literally no useful performance measurements in place.
  • Parliamentary oversight has been virtually non-existent.

The committee charged with monitoring PSIC refused to hear any testimony from others even when commissioners presented their annual reports— and so remained unaware of serious problems that were obvious to civil society. Only the auditor general was occasionally able to penetrate this curtain of silence.

The vitally important and legally-required five-year review has been delayed without explanation and is now taking place a decade after the act came into force.

Here’s what’s needed in future:

  • Detailed information from PSIC that enables a proper examination of its internal operations, such as the processing times for all cases.
  • Tried and tested performance measurements that reveal PSIC’s effectiveness in: dealing with whistleblowers respectfully and fairly; winning the trust of public servants at large; and helping reduce the prevalence of wrongdoing in the public service.
  • Performance comparisons with other jurisdictions. These can be obtained through collaboration in international research studies, such as one currently being led by Australia.
  • Parliamentary oversight that respects and indeed requires the testimony of civil society groups that work with whistleblowers.
  • A regular review process—say every three years—that is thorough, independent, transparent, and cannot be arbitrarily blocked by ministerial edict or inaction.

Dramatically improve the process for selecting commissioners

A previous article in this series described how, in all three appointments to date, Privy Council Office (PCO) ignored expert advice and ensured (in our view) that only career bureaucrats were appointed who could be relied upon to protect the bureaucracy and politicians from scandal.

It seems likely that the current commissioner, Joe Friday, may be invited to step down once the committee has properly examined his performance— including his response to a judicial review decision handed down in January 2017 regarding the case of Sylvie Therrien. The judge found that the Commissioner “violated the appellant’s procedural fairness rights,” and made a determination that “was unreasonable” and “incompatible with the intent and purpose of the PSDPA.”

Yet the specific practice that earned such harsh criticism has apparently been standard procedure for the past 10 years under all three commissioners. This type of behaviour— which I see as twisting of the law to justify inaction—cannot be allowed to continue.

In future, integrity commissioners should be selected who have demonstrated past willingness and ability to police the bureaucracy and root out misconduct. This will require major changes to the appointments process, which should include the following elements: a truly independent appointments committee; a public, merit-based search for candidates; and the final selection to be made from a short-list of candidates determined by the committee. (These steps, modelled on Ontario’s appointments system, are described in detail in Democracy Watch’s submission to the committee.)

The way forward

Some developed English-speaking countries have had effective whistleblower protection laws for decades (for example the U.S., UK and Australia) and these countries’ laws put ours to shame—we should learn from them.

Also, with better understanding of best practices, the standard of new legislation is improving. In the last three years both Ireland and Serbia passed laws that are among the best in existence. Both of these regimes have already proven effective, shutting down reprisals against whistleblowers and restoring them to their jobs before serious harm is done. In Canada, under our whistleblowing system, nothing like this has ever happened, not even once.

There is an international trend towards protecting whistleblowers in order to protect society from wrongdoers. With the current review of our law, the opportunity now exists for Canada to become one of the leading countries in this movement and a beacon to others. The knowledge and the expertise required are there for the taking, and the benefits are enormous: greater protection for the integrity of our institutions, the public, and our society.

If countries like Ireland and Serbia can do it, why can’t we? Canadians expect strong leadership from Prime Minister Trudeau on this issue and the integrity of our democracy depends on it.

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Whistleblower protection: who really pulls the strings?

This piece first appeared in the Hill Times on February 27, 2017.

When examining the sorry track record of the Public Sector Integrity Commissioner’s Office, it’s easy to overlook those primarily responsible: it was Privy Council Office (PCO) and the Treasury Board Secretariat (TBS), working mostly behind the scenes, who—intentionally or not—set up PSIC to fail. Here’s how it was done.

The Role of Treasury Board:
Treasury Board drafted faulty legislation

Given the wide range of serious shortcomings in the Public Servants Disclosure Protection Act (PSDPA), it’s difficult to believe that the drafters intended it to work—unless they were completely oblivious of best practices and other jurisdictions’ experience.

The most glaring example of this is the absence of a ‘reverse onus’ provision. The PSDPA puts the onus on whistleblowers to prove that the actions taken against them were reprisals—an almost impossible task. Effective whistleblowing laws shift the burden of proof to the employer to show that adverse actions were not intended as reprisals. This has been well understood for literally decades—since the disastrous experience of the Merit System Protection Board (in the U.S.) in the early 1980s. Without a reverse onus, of the first 2,000 whistleblowers who submitted claims of reprisal, only four prevailed. Is it possible that Treasury Board didn’t know this?

Another of the serious shortcomings of the law is the inadequate definition of wrongdoing. PSIC can only investigate alleged wrongdoing if the actions described fit the PSDPA definition of wrongdoing. However, the definition set out in the act is problematic because of what it omits.

For example, Treasury Board policies (for example, the procurement rules that were at the heart of the Sponsorship Scandal) are not specifically included, although these are among the principal instruments used for management and control in the public service. Instead, the commissioner will have to decide whether a policy violation falls under one of the broader definitions of wrongdoing, such as ‘gross mismanagement’—and this interpretation will be vigorously challenged by government lawyers defending the alleged wrongdoers. These are just two of the numerous shortcomings of the law (about 40 by our count) which create traps and obstacles for whistleblowers.

These make it child’s play for PSIC to find reasons to send whistleblowers away and to take no action—which is what they have done in the overwhelming majority of cases.

Our detailed analysis of the PSDPA can be seen at http://cfe. ryerson.ca/whistleblowing.

Treasury Board allowed departments to draft codes of conduct that criminalized whistleblowing

The PSDPA called for a new overarching code of conduct to be created by TBS, and for departments then to develop their own similar codes of conduct. But this is where things began to go wrong: media reports revealed that whistleblowing was being criminalized by the new codes of conduct. For example, the House of Commons (which is not subject to the PSDPA) tried to impose a lifetime ban on revealing work information, with draconian penalties. Other departments criticized by the press for similar efforts included CIDA, Library and Archives, and the RCMP.

Departmental codes of conduct are subject to Treasury Board approval, so either TBS didn’t do its job, or it considered it acceptable to gag and criminalize whistleblowers—in documents that were direct extensions of the whistleblowing law.

Treasury Board failed to monitor the performance of departmental whistleblowing systems

Treasury Board is responsible for oversight of the implementation of this legislation, but it has, in our view, done an exceedingly poor job.

For example, TBS is required to create a report each year which provides basic statistics on levels of activity within all departments. Even a cursory look at these reports suggested there were serious problems.

Canada Post reported no activity of any kind for three years—not even a single enquiry from a workforce of more than 60,000 employees. My analysis of the TBS numbers in 2011 showed that the six largest departments, employing between them about half of the entire federal workforce, had not yet uncovered a single case of wrongdoing in three years. Why did TBS allow such continued disregard?

In part, due to TBS’s inattention, the departmental whistleblowing systems are generally not trusted and are rarely used. Several witnesses testified before committee last week that these systems are completely ineffective and a massive waste of resources.

Treasury Board blocked legally required five-year review

During the first five years of operation of PSIC, the concerns of civil society whistleblowing advocates kept multiplying. We were puzzled and deeply concerned by the complete absence of results under Christiane Ouimet—until this was explained by the 2010 auditor general’s report.

When Mario Dion took over it soon became clear that little had changed, so we began clamouring for the law to be rewritten, and the legally required five-year review of the law seemed a timely and suitable vehicle to accomplish this. It was not to be.

We campaigned for a thorough and independent review because we feared that Treasury Board might orchestrate a superficial process with pre-determined findings. But Treasury Board went one better: it simply declined to launch the review.

This was blocked for another five years, until a few weeks ago, when TBS President Scott Brison suddenly handed the task to a parliamentary committee—without any explanation of this extraordinary delay or the recent change of heart.

The Role of Privy Council Office

While Treasury Board determines how the law is written, PCO determines who gets to run the show.

PCO is in a position of enormous power because of its control of thousands of appointments: it effectively determines who becomes integrity commissioner— and what sort of position (if any) this individual might receive on completion of his or her term.

The Appointment of Christiane Ouimet

PCO’s management of the appointments process for PSIC seemed problematic right from the start.

Before PSIC came into being, Dr. Edward Keyserlingk, a respected academic, served as the public sector integrity officer—a watchdog similar to PSIC, but with much less authority and independence. Keyserlingk was effectively one of the parents of PSIC, by virtue of his campaign for the creation of a more effective agency.

In passing the baton to PSIC, Keyserlingk believed PCO agreed with him that it was essential for the new integrity commissioner to be a respected, experienced senior person from outside the bureaucracy, so he approached two people who he thought excellent candidates and convinced them to apply. Neither even received an acknowledgment.

When PCO was later grilled regarding its disastrous selection of Ouimet—who resigned in the face of a scathing report on her actions by the auditor general—it emerged that there was no use of a recruitment agency to find suitable applicants, and no formal selection committee. A PCO senior executive, Patricia Hassard, rejected all 12 of the formal applications saying that none met the criteria, then looked around for others. As Hassard testified, they relied upon “…our own sources— in this case, our own database of individuals, our own knowledge of the senior leadership.”

In other words they looked within the bureaucracy for people they knew.

It appears that there was no real consideration of appointing an outsider through this secretive and informal process and the choice of Ouimet proved to be a disaster for whistleblowers.

The appointment of Mario Dion

When Ouimet resigned, Mario Dion, a retired senior bureaucrat, offered himself for the job and was soon appointed interim commissioner, without any consultation with the relevant parliamentary committees.

It may have helped that Dion was friendly with Wayne Wouters, then clerk of the Privy Council. One of Dion’s first acts was to give Wouters a “heads up … to ensure that Wayne is not blindsided” regarding a case that Wouters might be asked about. This was a clear violation of ethics and completely inconsistent with Dion’s new watchdog role.

Initially, Dion was appointed as interim commissioner only, and according to three members of his advisory committee, he stated that for him even to apply for the permanent position would put him in a position of conflict: of trying to please the Prime Minister and Cabinet so they would appoint him as full-time commissioner. But after a year he was appointed commissioner. The selection process was more formal this time—but again applicants from outside the bureaucracy were screened out.

stated that for him even to apply for the permanent position would put him in a position of conflict: of trying to please the prime minister and cabinet so they would appoint him as full-time commissioner. But after a year he was appointed commissioner. The selection process was more formal this time—but again applicants from outside the bureaucracy were screened out.

The appointment of Joe Friday

Joe Friday was Ouimet’s right hand man—testified with her when called to committee—and was promoted by Dion to deputy commissioner. Was there a genuine examination of other possible candidates? Allan Cutler, founder of Canadians for Accountability, who applied for the post, testified that he was told by PCO insiders—before the selection process was carried out—that Friday was the chosen one.

If this appointment was intended to regain the trust of public servants, Friday’s long association with PSIC’s troubles (as exposed by the auditor general) and his mentoring by both Ouimet and Dion would seem to disqualify him. His commitment to protecting senior bureaucrats was on display last week, when in a rare finding of wrongdoing until recently, just one in three years, he told Parliament about the vicious, repeated harassment and bullying of staff carried out by a senior executive, but failed to name the individual in his report. Although Friday says he informed the senior executive’s new department of his findings and it has determined discipline is warranted, failing to name him in the report could expose others to similar abuse and ultimately serves to protect the senior bureaucrat.

Thus over the space of a decade PCO has delivered a succession of hand-picked career bureaucrats, all cut from the same cloth, all apparently hostile to whistleblowers and all indoctrinated and motivated throughout their careers to protect the senior bureaucracy and its political masters.

What were PCO and TBS trying to accomplish? Did Stephen Harper, once he became Prime Minister, really want whistleblowers to be protected, as he promised during his successful election campaign?

If this system was indeed designed as someone said “to protect deputy ministers from whistleblowers” then it has been a resounding success. However, from the perspective of Canadian citizens and honest public servants it has been a disaster.

This government needs to show that it values and respects the integrity of the public service by carrying out root-and-branch changes—to the law and to staffing—that will finally turn this failed agency into a safe haven for honest public servants and a scourge for wrongdoers. After more than a decade of stonewalling and inaction by both parties, surely it’s time for real change. Canadians deserve better.

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