Whistle-Blowing and Disclosure of Wrongdoing (Cont’d) November 16th, 2006

Whistleblowing... the issue? the issue? – appropriate balance between individual rights of the employee, professional responsibilities, and their duty of loyalty to their employer individual rights individual rights –freedom of speech (rights as citizens) professional responsibilities professional responsibilities –duty to protect the public interest (as public servant) duty of loyalty (as government employee) 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) – what determines the weight one allocates to each of these considerations???

Broader Issues How much secrecy is tolerable/necessary in a democracy? How much secrecy is tolerable/necessary in a democracy? Will protection for whistle-blowers improve the performance of the public service? Will protection for whistle-blowers improve the performance of the public service? Does punishment of whistle-blowers violate their individual rights? Does punishment of whistle-blowers violate their individual rights? the seque to the tangent... the seque to the tangent...

NPM and Its Implications for Democracy liberal democracy liberal democracy – negative does NPM weaken protection of impartial treatment of individuals does NPM weaken protection of impartial treatment of individuals –redefines citizens as “customers” rights adhere to citizens – not customers!rights adhere to citizens – not customers! – positive dispersion of power dispersion of power –throughout government –between government, private sector, third sector

NPM and Its Implications for Democracy participatory democracy participatory democracy – negative redefines citizens as “customers” redefines citizens as “customers” –undermines citizens rights to participation –focuses on “exit” rather than “voice” – positive may allow for government to be more responsive may allow for government to be more responsive –bottom-up –allows for greater potential for bottom-up participatory mechanisms

NPM and Its Implications for Democracy elite democracy elite democracy – positive efficiency, effectiveness efficiency, effectiveness does it deliver in terms of fostering the general welfare does it deliver in terms of fostering the general welfare – negative breakdown of efficiency, effectiveness breakdown of efficiency, effectiveness

Whistleblowing basic description of whisteblowing, related issues, and the whistleblowing regime basic description of whisteblowing, related issues, and the whistleblowing regime the whistleblowing regime and the context of the Sponsorship Scandal the whistleblowing regime and the context of the Sponsorship Scandal whistleblowing and the Gomery Recommendations whistleblowing and the Gomery Recommendations

WhistleBlowing and the Sponsorship Scandal whistleblower protection in place at the time of the Sponsorship Scandal? whistleblower protection in place at the time of the Sponsorship Scandal? NONE!! NONE!! broader context of whisteblowing in the Government of Canada broader context of whisteblowing in the Government of Canada Joanna Gualtieri, Foreign Affairs Joanna Gualtieri, Foreign Affairs Shiv Chopra et al., Health Canada Shiv Chopra et al., Health Canada Brian McAdam (Immigration Canada) and Cpl. Robert Reid (RCMP) Brian McAdam (Immigration Canada) and Cpl. Robert Reid (RCMP) Allan Cutler and the Sponsorship Scandal Allan Cutler and the Sponsorship Scandal

Whistleblowing basic description of whisteblowing, related issues, and the whistleblowing regime basic description of whisteblowing, related issues, and the whistleblowing regime the whistelblowing regime and the context of the Sponsorship Scandal the whistelblowing regime and the context of the Sponsorship Scandal whistleblowing and the Gomery Recommendations whistleblowing and the Gomery Recommendations

Whistleblowing – Post-Sponsorship, Pre-Gomery Internal Disclosure of Wrongdoing, 2001 Internal Disclosure of Wrongdoing, 2001 – guide for internal disclosure of wrongdoing internal vs. external disclosure 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 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)

Whistleblowing – Post-Sponsorship, Pre-Gomery Internal Disclosure of Wrongdoing, 2001 Internal Disclosure of Wrongdoing, 2001 – guide for internal disclosure of wrongdoing – policy – not legislation no legal sanctions against reprisals no legal sanctions against reprisals – Public Service Integrity Office, 2001 part of TBS part of TBS not an indpendent officer of Parliament (e.g. Auditor General, Information Commissioner, Privacy Commissioner) not an indpendent officer of Parliament (e.g. Auditor General, Information Commissioner, Privacy Commissioner)

Whistleblowing – Post-Sponsorship, Pre-Gomery Internal Disclosure of Wrongdoing, 2001 Internal Disclosure of Wrongdoing, 2001 Values and Ethics Code for the Public Service, 2003 Values and Ethics Code for the Public Service, 2003 – whistle-blowing protection integrally related to public service charter – e.g. breaching the Code or forcing another public servant to breach the Code covered under disclosure policy

Whistleblowing – Post-Sponsorship, Pre-Gomery Internal Disclosure of Wrongdoing, 2001 Internal Disclosure of Wrongdoing, 2001 Values and Ethics Code for the Public Service, 2003 Values and Ethics Code for the Public Service, 2003 Bill C-11 (November 2005) Bill C-11 (November 2005) precursor – Bill C-25 precursor – Bill C-25

Bill C-25  commits government to establishing a Charter of Values of Public Service that should guide public servants in their work and professional conduct;  defines wrongdoing as: the contravention of relevant laws; the misuse of public funds or assets; gross mismanagement in the federal public sector; an act or omission that creates a substantial and specific danger to the life, health or safety of persons or to the environment; a serious breach of the code of conduct; and the taking of a reprisal against a public servant; requires internal disclosure mechanism, including the appointment of a senior officer to receive and act on wrongdoing disclosures; 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 Public Sector Integrity Commission – ensures that there is an additional avenue for disclosures – investigate alleged wrongdoings and to make recommendations to the relevant chief executive on the Commissioner’s findings; – reports annually to Parliament through a Minister; – investigates reprisal complaints from public servants restrictions on whistleblowing and disclosure of wrong-doing 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 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... public servant believes on reasonable grounds that subject matter relates to... –a serious offence under a federal or provincial Act; or –an imminent and serious danger to the life, health or safety of persons or to the environment

Bill C-25  commits government to establishing a Charter of Values of Public Service that should guide public servants in their work and professional conduct;  defines wrongdoing as: the contravention of relevant laws; the misuse of public funds or assets; gross mismanagement in the federal public sector; an act or omission that creates a substantial and specific danger to the life, health or safety of persons or to the environment; a serious breach of the code of conduct; and the taking of a reprisal against a public servant; requires internal disclosure mechanism, including the appointment of a senior officer to receive and act on wrongdoing disclosures; 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 Public Sector Integrity Commission – ensures that there is an additional avenue for disclosures – investigate alleged wrongdoings and to make recommendations to the relevant chief executive on the Commissioner’s findings; – reports annually to Parliament through a Minister; – investigates reprisal complaints from public servants restrictions on whistleblowing and disclosure of wrong-doing 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 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... public servant believes on reasonable grounds that subject matter relates to... –a serious offence under a federal or provincial Act; or –an imminent and serious danger to the life, health or safety of persons or to the environment.

Statutes of Canada, C-46  commits government to establishing a Charter of Values of Public Service that should guide public servants in their work and professional conduct;  defines wrongdoing as: the contravention of relevant laws; the misuse of public funds or assets; gross mismanagement in the federal public sector; an act or omission that creates a substantial and specific danger to the life, health or safety of persons or to the environment; a serious breach of the code of conduct; and the taking of a reprisal against a public servant; requires internal disclosure mechanism, including the appointment of a senior officer to receive and act on wrongdoing disclosures; requires 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 Public Sector Integrity Commission – ensures that there is an additional avenue for disclosures – investigate alleged wrongdoings and to make recommendations to the relevant chief executive on the Commissioner’s findings; – reports directly to Parliament – investigates reprisal complaints from public servants restrictions on whistleblowing and disclosure of wrong-doing 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 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... public servant believes on reasonable grounds that subject matter relates to... –a serious offence under a federal or provincial Act; or –an imminent and serious danger to the life, health or safety of persons or to the environment.

Statutes of Canada, C-46  commits government to establishing a Charter of Values of Public Service that should guide public servants in their work and professional conduct;  defines wrongdoing as: the contravention of relevant laws; the misuse of public funds or assets; gross mismanagement in the federal public sector; an act or omission that creates a substantial and specific danger to the life, health or safety of persons or to the environment; a serious breach of the code of conduct; and the taking of a reprisal against a public servant; requires internal disclosure mechanism, including the appointment of a senior officer to receive and act on wrongdoing disclosures; requires 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 Public Sector Integrity Commission – ensures that there is an additional avenue for disclosures – investigate alleged wrongdoings and to make recommendations to the relevant chief executive on the Commissioner’s findings; – reports directly to Parliament – investigates reprisal complaints from public servants restrictions on whistleblowing and disclosure of wrong-doing 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 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... public servant believes on reasonable grounds that subject matter relates to... –a serious offence under a federal or provincial Act; or –an imminent and serious danger to the life, health or safety of persons or to the environment.

Gomery Recommendations Re: Whistleblowing agrees that disclosure to the Public Sector Integrity Commission or to the public only be permitted in “exceptional” circumstances agrees that disclosure to the Public Sector Integrity Commission or to the public only be permitted in “exceptional” circumstances suggested changes suggested changes – moderate strengthening of existing provisions broadened to cover anyone carrying out work on behalf of the Government; broadened to cover anyone carrying out work on behalf of the Government; open list of “wrongdoings” and “reprisals” open list of “wrongdoings” and “reprisals” burden of proof (re: reprisals) should be on the employer burden of proof (re: reprisals) should be on the employer

The Federal Accountability Act, 2006 enhance the role of the Public Sector Integrity Commissioner 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 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; 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”; make cash awards of up to $1,000 for public servant who has “shown courage in defending the public interest”; expand coverage of PSDPA expand coverage of PSDPA – include Crown Corporations provide more open access to information about disclosures of wrongdoing provide more open access to information about disclosures of wrongdoing maintains existing restrictions on whistleblowing and disclosure of wrong-doing 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 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... public servant believes on reasonable grounds that subject matter relates to... –a serious offence under a federal or provincial Act; or –an imminent and serious danger to the life, health or safety of persons or to the environment

The Federal Accountability Act, 2006 enhance the role of the Public Sector Integrity Commissioner 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 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; 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”; make cash awards of up to $1,000 for public servant who has “shown courage in defending the public interest”; expand coverage of PSDPA expand coverage of PSDPA – include Crown Corporations provide more open access to information about disclosures of wrongdoing provide more open access to information about disclosures of wrongdoing maintains existing restrictions on whistleblowing and disclosure of wrong-doing 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 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... public servant believes on reasonable grounds that subject matter relates to... –a serious offence under a federal or provincial Act; or –an imminent and serious danger to the life, health or safety of persons or to the environment

The Federal Accountability Act, 2006 enhance the role of the Public Sector Integrity Commissioner 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 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; 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”; make cash awards of up to $1,000 for public servant who has “shown courage in defending the public interest”; expand coverage of PSDPA expand coverage of PSDPA – include Crown Corporations provide more open access to information about disclosures of wrongdoing provide more open access to information about disclosures of wrongdoing maintains existing restrictions on whistleblowing and disclosure of wrong-doing 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 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... public servant believes on reasonable grounds that subject matter relates to... –a serious offence under a federal or provincial Act; or –an imminent and serious danger to the life, health or safety of persons or to the environment

Whistleblowing possible effects of strengthened whistle- blowing protection? possible effects of strengthened whistle- blowing protection? – will have little effect doesn’t go far enough – “whistleblower management” act (Gualtieri) doesn’t go far enough – “whistleblower management” act (Gualtieri) – would prevent wrong-doing in the first place (Gomery) – may create an environment of distrust and avoidance of risk

Values of the New Public Management