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.

Share

Is the public sector integrity commissioner a friend or foe to whistleblowers?

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

Last week, I wrote about the shortcomings of our government whistleblower protection system by examining the law itself. But that’s only half of the story: the efficacy of the program depends equally on those managing it, especially the Public Sector Integrity Commissioner.

This position, created in 2006, is a powerful one: the commissioner is an agent of Parliament, like the auditor general, with formidable investigative powers. However, unlike the Office of the Auditor General, the Office of the Integrity Commissioner (PSIC) does not have a proud track record—in fact it has been a troubled agency from day one.

These troubles have arisen, not because of the many shortcomings in the law but because of the actions of successive com- missioners, some of whom have consistently been criticized by the auditor general or the courts for neglecting their mandate and abusing their authority.

Over the past decade, all three successive commissioners have used similar methods which, by design or not, result in whistleblowers being discouraged or prevented from going to PSIC—and being denied protection when they do. Let’s look at a few examples.

The first two commissioners—In several cases  Ouimet and Dion—both took steps to water down or re-interpret PSIC’s mandate.

PSIC’s mandate, defined in the act, is simple at heart: to uncover and report government wrongdoing, and to protect the whistleblowers without whom misconduct would remain hidden.

Christiane Ouimet effectively ignored the act and adopted a different approach. She dismissed investigations as a “reactive, complaints-driven” approach that would not work. Rather, she focused on ‘prevention’. which, her annual report explained, meant meetings with senior bureaucrats, conferences, communications and awareness sessions—all in an effort to convince bureaucrats of the importance of integrity. Unsurprisingly, during her three years in office she never found a single case of wrongdoing or reprisal.

Mario Dion took a slightly different approach when he seemed to permanently restrict his official man- date as set out in PSIC’s “desired strategic outcomes”—he simply removed the first and primary goal of “detecting wrongdoing.” From the outset, the PSIC’s “desired strategic outcome” had been defined by the Treasury Board as follows: “Wrongdoing in the federal public sector is detected, resolved, and reported, while public servants are protected from reprisal, resulting in a greater integrity in the workplace.”

However, Dion revised this stated mandate and removed the reference to detection of wrongdoing. With this change finding no wrongdoing at all becomes acceptable, provided that PSIC operated in accordance with the act. This approach typifies ineffective bureaucracy—process without outcomes.

Whistleblowers are frequently treated with disrespect, even contempt

Under all three commissioners, the treatment of whistleblowers has often been shockingly disrespectful, even deceitful. For example:

When meeting with the commissioner, one whistleblower mentioned the name of the alleged wrongdoer, a deputy minister. The commissioner immediately boasted that he knew this DM well, and inquired what he was up to these days. Any remaining trust the whistleblower might have had, any hopes of fair and impartial treatment by PSIC, were instantly dashed.

Whistleblowers are routinely promised that they will be given the chance to see the investigator’s report before it is published, in order to correct any errors. This seems to almost never happen: the whistleblower is often the last to learn the outcome.

Whistleblowers are routinely kept in the dark and denied information about the status of their case, such as whether an investigation is under way and when they might be interviewed. One whistleblower, after months of fruitless requests for information was contemptuously brushed off by the commissioner with the response that this clearly neglected case— now 21 months old—was receiving “all the attention it deserves.”

PSIC’s internal processes are designed to send people away and to avoid taking any action

If the whistleblower makes the mistake of submitting a grievance, PSIC classifies the case as already being “dealt with by another process” and therefore beyond PSIC’s jurisdiction, even if the grievance process is being run by the alleged wrongdoers. Four weeks ago, Public Integrity Commissioner Joe Friday was criticized by a judge of the Federal Court of Appeals for using this tactic, which the judge called unfair, unreasonable, and “incompatible with the intent and purpose of the PSDPA.” Yet this has been PSIC’s practice for the past 10 years—and the commissioner’s testimony to committee last week suggests that this may not change.

PSIC frequently declines to investigate, claiming that the alleged misconduct, even if proven, would not constitute wrongdoing as defined in the act. In doing so, PSIC makes it the whistleblower’s job to prove that the wrongdoing is serious. But whistleblowers are just witnesses who rarely have the full picture of what is going on, and serious wrongdoing is usually hidden behind layers of deception.

In several cases that PSIC has declined to investigate, subsequent events—revelations by the media, decisions by the courts, or findings of another agency— strongly suggest that there were serious problems that should have been investigated. By refusing to do so, PSIC shirked its duty and may have made itself party to an attempted cover-up.

Investigations have not been made a priority or managed properly

Although investigations are at the heart of PSIC’s mandate, they are too often conducted in a sloppy and unprofessional manner. When- ever an independent external body examines PSIC’s investigative processes—through external audits or judicial review—they seem to uncover more horror stories.

For example, in 2014 an audit by the auditor general criticized buck- passing by top managers, the slow handling of cases, the loss—twice—of the same confidential file, poor handling of conflicts of interest, and the inadvertent identification of a whistleblower to the alleged wrongdoer. Both cases dragged on for approximately five years, and were ultimately dropped without any action against the alleged wrongdoers. Unfortunately, the circumstances of the audit did not permit the auditor general to examine PSIC’s handling of hundreds of other files, nor the merits of the two cases in question. Based on my experience, and that of others helping whistleblowers, many more cases like these remain undetected.

In one case, I was able to conduct an in-depth analysis of documents obtained through ATIP, which revealed that PSIC had effectively hobbled its own investigation. A contract investigator found evidence of wrongdoing and developed a list of 29 detailed questions that needed to be answered. But this investigator’s contract was unexpectedly allowed to lapse and the case was reassigned to a PSIC staff member, who wrapped it up in a few days and pronounced that there was no wrongdoing based primarily on the findings of other federal government agencies. This case is perhaps the most troubling I have seen, due to the life-threatening consequences of the alleged wrongdoing (asbestos exposure), the compelling documentary evidence, the obstructive tactics employed by PSIC, and final conclusions that are not supported by the facts.

The whistleblower, Don Garrett, is willing to testify openly in committee, and should be called to do so.

There are still no useful performance measures

Since most of what PSIC does is shrouded in secrecy, meaningful performance indicators are essential to show how well it is doing its job. For many years, PSIC claimed to be working to establish suit- able performance measures, and in March 2012, while serving as a member of the PSIC Advisory Committee, I submitted detailed, practical proposals based on expert input. Unfortunately, such proposals have been ignored. Here are some of the important measurements proposed that are still absent after almost 11 years of operation.

A regular survey of whistleblowing clients, to measure their satisfaction with the fairness of PSIC’s processes. This has been repeatedly promised but never carried out.

Periodic surveys to measure awareness and trust of PSIC among public servants—and hence whether they might consider approaching PSIC should they witness wrongdoing.

The time taken to process cases. Time is of the essence in whistleblower cases because often the truth-teller is suffering vicious reprisals, and every day at work is traumatic. PSIC keeps processing times secret, but some cases are known to have taken five years to complete.

In my view, the conduct of all three commissioners over the past decade has been unconscionable. Their actions have shielded literally hundreds of alleged wrongdoers from any real scrutiny, and abandoned countless truth-tellers to their fate: vicious, life-changing reprisals orchestrated by the wrongdoers.

These commissioners simply haven’t done their job adequately and even with improvements, the law will never work until it is applied by people who are truly com- mitted to protecting whistleblowers—rather than deputy ministers. Canadians—and honest public servants—deserve better than this.

Share

The Operations Committee leaps into action to protect whistleblowers – or does it?

This piece was first published in the Hill Times on February 13, 2017.

Whistleblower protection advocates across Canada were celebrating last week when the news broke that Hon. Scott Brison, President of Treasury Board, had suddenly asked the Government Operations Committee (OGGO) to conduct a review of the federal whistleblower protection law (the PSDPA). This review, which by law should have taken place 5 years ago, has been steadfastly blocked by Treasury Board since 2012. Why the sudden change of heart? No-one knows.

The big question now is whether members of OGGO can find the time, determination and resources to do justice to this very important task, handed to them at very short notice.

Hearings began on Tuesday, and on Thursday morning three civil society witnesses were called – Allan Cutler, David Yazbeck and myself. We presented damning testimony regarding the dysfunctional nature of both the law and the Integrity Commissioner’s office. We pleaded with the committee to call a wide range of follow-up witnesses – outside experts rather than those running the system – in order to obtain a proper understanding of how badly broken the current system is. And we offered detailed suggestions on how to fix it. The Committee showed great interest in our testimony and asked excellent questions.The following is a sample of my remarks.

Why the law is broken

To explain just how broken our current system is, let’s follow the trajectory of a whistleblower seeking help from the Public Sector Integrity Commissioner’s office (PSIC).

When a whistleblower approaches PSIC to report serious wrongdoing, things may begin to go wrong for them almost immediately.

  1. One of the first people to learn about the whistleblower’s allegations will be the head of their department, who will be informed by the Integrity Commissioner. The Act claims that the whistleblower can be protected by keeping their name confidential, but in many situations this claim is bogus. Often the information in question is held by just a few people, and only the whistleblower has been asking questions about the legality of what is going on. And if it’s not obvious, departments will spare no effort in trying to track down the ‘traitor’ who ‘leaked’.
    So in many cases the whistleblower’s cover is blown soon after approaching PSIC, and they become subject to reprisals designed to crush them. Their life in the workplace suddenly becomes a living hell.
  2. If the whistleblower still has any confidence in PSIC, they may go back again, this time to plead for protection from the reprisals. They now discover that their situation is worse than they thought.
    • The law provides no mechanism to stop the reprisals: management can do whatever they like to the whistleblower, who just has to suck it up – until some time in the distant future when they may or may not be awarded a ‘remedy’ by a Tribunal i.e. some kind of compensation from for the harm done to them.
    • But this cannot happen for some time: before the Commissioner refers any case to the Tribunal he must first conduct an investigation. This is often carried out in a leisurely, stop-start fashion, and may take a year or more: we know of one case that took two years.
    • The investigation is likely to be superficial. When investigating disclosures of wrongdoing the Commissioner has all the formidable powers of the Inquiries Act and can compel witnesses and seize documents – but when investigating reprisals he has no such powers. He therefore has to rely upon the voluntary cooperation of the accused aggressors.
  3. Let’s say that after 6 or 12 months the investigation is complete and the Commissioner can now decide whether or not to make a referral to the Tribunal. Unfortunately by this time the whistleblower has typically already been destroyed: they have been emotionally crushed by months of isolation, bullying and harassment at work. They have then been fired on trumped up charges and blacklisted, rendering them unemployable in their chosen profession. They are in deep financial difficulties, in danger of losing their family home, and they are becoming estranged from their loved ones, who simply do not understand what is going on and why the family has to suffer so much. Their lives have been dramatically changed forever.
  4. If the Commissioner decides to make a referral to the Tribunal, this may seem like good news. But the Tribunal process is unlikely to help: in fact the whistleblower now learns that the worst is still to come.
    • They are pitted against a team of lawyers representing the accused aggressors – all generously paid for by the government.
    • The primary strategy of the defence is typically to delay by every means possible, in order to exhaust the whistleblower both financially and emotionally: so the Tribunal process may drag on for weeks or even months, even years, and the cost could run into tens of thousands of dollars.
    • The whistleblower has to pay for their own lawyer, or persuade their union to pay – if they are unionized.
    • Worst of all, the law puts the onus on the whistleblower to prove that the actions taken against them were intended as reprisals for blowing the whistle – rather than deserved punishment for supposed poor performance or insubordination. Since this is almost impossible to prove, the whistleblower’s case is doomed from the start.
  5. Faced with this situation, whistleblowers will settle in desperation, to escape the terrifying prospect of a protracted battle before the Tribunal. It is no accident that in the past ten years, not a single whistleblower has completed the Tribunal process.
  6. There is one more aspect of this process which is especially troubling. In making a referral to the Tribunal, the Commissioner can use either of two sections in the Act, 20.4 (1) (a) or 20.4 (1) (b). By using the first section, the Commissioner can completely block the Tribunal from taking action against the aggressors. Why does this sinister provision even exist? Who can say. But Commissioners have repeatedly used it: six out the seven referrals made to the Tribunal have been made under 20.4 (1) (a), thus protecting the aggressors from any sanctions.
    So whistleblowers whose lives have been devastated by reprisals suffer the further indignity of seeing their oppressors – the very people who have ruined their lives – go scott free, guaranteed, thanks to the Integrity Commissioner. This is the final insult – twisting the knife in the wound.

This trajectory explains why whistleblowers are not flocking to PSIC for help. Anyone who does their homework quickly realizes that approaching PSIC may be worse than fruitless – it may be very damaging to their careers and their lives.

Over to the Committee

Ever since the scandalous public meltdown that took place under the first Integrity Commissioner, Christiane Ouimet, Canada has been viewed internationally as the ‘Enron of whistleblower protection’ – and since not much has changed since then, that reputation is just as well deserved today.

But we look now to the Committee, in the hope that real and positive changes may finally take place. Will the Committee call appropriate witnesses in order to fully grasp the numerous shortcomings of the law? Will it recommend powerful and appropriate fixes? And will the government pay any attention to its recommendations? The saga is only just beginning. Watch this space!

David Hutton
Senior Fellow, Centre For Free Expression, Ryerson University
Former Executive Director of FAIR
Next week: The Integrity Commissioner’s Office: friend or foe to whistleblowers?

Share