It’s not easy to report wrongdoing in the federal government (part 2)

We pick up the story from where we last left off. In trying to report wrongdoing, the employee has already encountered many obstacles that discourage him/her from proceeding. These include a non-responsive management, an ethics adviser more interested in protecting a department and their own career, and the written information that is on the Public Sector Integrity Commission’s website. In an effort to report the corruption, he or she now is going to fill out the disclosure form that is required by the Integrity Commissioner before any discussion can take place.

Let’s see, I have to provide my name, job title, address, and telephone number. The form restates that the commissioner does not accept disclosures via email due to security and privacy concerns. What do they mean by this? Is an email from me sent to them not secure and private? I really don’t understand this reasoning or why I can’t email them from my own Gmail account.

Wait a minute; it states the majority of communication will be via regular mail or telephone. Now I understand, they can phone me but I can’t phone them. What a curious philosophy when I am the one who wants to help.

The next question asks who I’m represented by. No problem with this as I am representing myself. With what I have read so far, I can understand why someone would want to have a representative to avoid dealing with PSIC directly.

Information about my disclosure: I have to choose one of six potential categories. This is confusing. All I want to do is expose a problem that needs correcting. Of course, it is wrongdoing but why do I have to try and decide what type? The form also states that I can use my own words in describing what is wrong but I have to keep in mind the six definitions. Why is this required? Can’t I just describe the situation? They’re the experts, not me. I am not a lawyer. All I want to do is to talk to someone to explain what is going on and figure out the next steps. Instead, I have to fill out a form and decide what type of wrongdoing. This is worse than the normal bureaucracy.

Under the fourth point, I have to give the contact information for the individuals who I allege committed wrongdoing. Why should I? I really only want the wrongdoing stopped. I am not vindictive. Why do I have to point the finger at anyone? A proper investigation will reveal what happened and who was responsible. This is becoming a witch hunt, not a problem solving exercise.

The fifth point asks about documentation. That is why I want to talk with someone (which PSIC states I am not allowed to do) to know what documentation would be useful. It states in bold, “specifying which portions you deem relevant to the alleged wrongdoing.” That answer is simple—everything or I wouldn’t be reporting it. Is there not someone there who could help me prepare this clearly? Oops, almost forgot, I am not allowed to talk with anyone before submitting the written documents.

Now there is a section called “other proceedings.” The first sentence states, “… there are certain circumstances where the commissioner must refuse to deal with a disclosure or start an investigation.” Why do I have to fi ll out the form regarding disclosures if the commissioner is going to rule that it cannot be dealt with it? I am already under stress and don’t need this. Is there not someone I can talk to before doing useless work? There should be someone who can help me. There are some advocacy experts out there. Maybe they are willing to talk to me and listen to what I have to say?

Oh well, I’ve come this far. Might as well continue. Section six asks if I have raised my concerns through another mechanism. Let’s see, I told my supervisor/ manager. Don’t trust the senior ethics officer for internal disclosure as she is more concerned with her career. Grievance— didn’t think of that, maybe I should contact the union and start one. Not a bad idea. Is this a list to help me or a list to find a reason where the commissioner “must refuse to deal with a disclosure. Why is this information even relevant to solving the problem and correcting a wrongdoing?

In Sec. 7, I am asked who I reported the situation to. Why do I have to name people? I don’t want to get them in trouble. I just want a solution and the wrongdoing corrected. I am asked what action has been taken and the current status. I thought I did that at Sec. 4 when I was requested to discuss the wrongdoing.

At last, the final page, there’s a “declaration.” Now what do I have to sign? First, that the information is true and accurate. Wouldn’t an investigation confirm this? Why do I need to sign a declaration to this effect? Of course, it is true or I wouldn’t be reporting it. The second statement is a major problem. I have to confirm that, “…it is my responsibility to provide the commissioner with all the information required by this form, and to attach to this form any relevant documentation.” Help. How do I know what is relevant when I cannot talk to the experts who can guide me? What happens if I miss something? What exactly is my responsibility?

What is this below the signature line? “Note: By submitting the disclosure form, you are authorizing the Office of the Public Sector Integrity Commissioner to collect your personal information.” This is a showstopper. What does my personal information have to do with what I want to expose? My marital, financial or personnel file is none of his business. This is intrusive. I am not going to give permission for this. Whose side is the Commissioner on anyway?

It is bad enough that I can’t sleep nights, have migraines and my health is suffering. I can’t talk or discuss what is wrong with anyone that can be trusted. I was hoping that the Commissioner could help but, obviously, it just places me in a worse situation.

I give up. It is too difficult to report and too great a risk. There is no way that I am going to mail (or deliver) a copy of information when I cannot talk with someone who can understand my situation and give me guidance. Faxing a copy is not realistic. There are too many pages and no one uses a fax anymore – except for lawyers.

Trying to do the right thing is too difficult. With no one to talk to, there is no point to proceeding. I am just exposing myself more. The commissioner’s staff could show what I write to my department. What am I to do? I can’t afford a lawyer? I don’t want to launch a grievance. I just want to do my job the way that I am supposed to. I just want to be able to go home at nights feeling that I did my job with pride. I am trapped. The walls are closing in and management is getting ready to use me as an object lesson for anyone who tries to speak out. Is there nobody that can help?

Canadians for Accountability (www.canadians4accountability.org) is now the only organization in Canada dedicated to helping whistleblowers. This article was written based on discussions with many whistleblowers. What readers need to realize is that the lack of action by the Public Sector Integrity Commissioner’s Office (PSIC) affects real people. The lives and integrity of public servants are impacted, usually negatively. We have witnessed divorces, suicides, severe and permanent health problems, damaged self-esteem and firings—all which have resulted from reprisals against those who had the desire to do the right thing and do their jobs properly. Of course, unless there is a finding of wrongdoing, there cannot be a finding of reprisal.

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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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