Whistle-Blowing and Disclosure of Wrongdoing (Cont’d)

4. Whistle-Blowing and Disclosure of Wrongdoing (Cont’d) March 21st, 2006

5. Whistleblowing by HC Scientists– Justified?

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

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

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

10. Whistleblowing – Post-Sponsorship, Pre-Gomery • Internal Disclosure of Wrongdoing, 2001 • Values and Ethics Code for the Public Service, 2003 • Bill C-11 (November 2004) • precursor – Bill C-25

11. Bill C-25 • commits government to establishing a Charter of Values of Public Service that should guide public servants in their work and professional conduct; • defines wrongdoing as:  the contravention of relevant laws; the misuse of public funds or assets; gross mismanagement in the federal public sector; an act or omission that creates a substantial and specific danger to the life, health or safety of persons or to the environment; a serious breach of the code of conduct; and the taking of a reprisal against a public servant; • requires internal disclosure mechanism, including the appointment of a senior officer to receive and act on wrongdoing disclosures; • requires that public servants report wrong-doing through this mechanism rather than through Commissioner (with some exceptions) • Public Sector Integrity Commission • ensures that there is an additional avenue for disclosures • investigate alleged wrongdoings and to make recommendations to the relevant chief executive on the Commissioner’s findings; • reports annually to Parliament through a Minister; • investigates reprisal complaints from public servants • restrictions on whistleblowing and disclosure of wrong-doing • allows for disciplinary action for public servants who make a wrongdoing disclosure in bad faith; • disclosure to outsiders limited to... • a serious offence under a federal Act is being, or is about to be, committed by another public servant in the performance of his or her duties; or • another public servant is doing (or is about to do) something, or omitting (or is about to omit) to do something, in the performance of his or her duties that creates an imminent and serious danger to the life, health or safety of persons or to the environment.

12. Bill C-25 • commits government to establishing a Charter of Values of Public Service that should guide public servants in their work and professional conduct; • defines wrongdoing as:  the contravention of relevant laws; the misuse of public funds or assets; gross mismanagement in the federal public sector; an act or omission that creates a substantial and specific danger to the life, health or safety of persons or to the environment; a serious breach of the code of conduct; and the taking of a reprisal against a public servant; • requires internal disclosure mechanism, including the appointment of a senior officer to receive and act on wrongdoing disclosures; • requires that public servants report wrong-doing through this mechanism rather than through Commissioner (with some exceptions) • Public Sector Integrity Commission • ensures that there is an additional avenue for disclosures • investigate alleged wrongdoings and to make recommendations to the relevant chief executive on the Commissioner’s findings; • reports annually to Parliament through a Minister; • investigates reprisal complaints from public servants • restrictions on whistleblowing and disclosure of wrong-doing • allows for disciplinary action for public servants who make a wrongdoing disclosure in bad faith; • disclosure to outsiders limited to... • a serious offence under a federal Act is being, or is about to be, committed by another public servant in the performance of his or her duties; or • another public servant is doing (or is about to do) something, or omitting (or is about to omit) to do something, in the performance of his or her duties that creates an imminent and serious danger to the life, health or safety of persons or to the environment.

13. Bill C-11 • commits government to establishing a Charter of Values of Public Service that should guide public servants in their work and professional conduct; • defines wrongdoing as:  the contravention of relevant laws; the misuse of public funds or assets; gross mismanagement in the federal public sector; an act or omission that creates a substantial and specific danger to the life, health or safety of persons or to the environment; a serious breach of the code of conduct; and the taking of a reprisal against a public servant; • requires internal disclosure mechanism, including the appointment of a senior officer to receive and act on wrongdoing disclosures; • requires that public servants report wrong-doing through this mechanism rather than through Commissioner (with some exceptions) • Public Sector Integrity Commission • ensures that there is an additional avenue for disclosures • investigate alleged wrongdoings and to make recommendations to the relevant chief executive on the Commissioner’s findings; • reports directly to Parliament • investigates reprisal complaints from public servants • restrictions on whistleblowing and disclosure of wrong-doing • disclosure to outsiders limited to... • a serious offence under a federal Act is being, or is about to be, committed by another public servant in the performance of his or her duties; or • another public servant is doing (or is about to do) something, or omitting (or is about to omit) to do something, in the performance of his or her duties that creates an imminent and serious danger to the life, health or safety of persons or to the environment.

14. Bill C-11 • commits government to establishing a Charter of Values of Public Service that should guide public servants in their work and professional conduct; • defines wrongdoing as:  the contravention of relevant laws; the misuse of public funds or assets; gross mismanagement in the federal public sector; an act or omission that creates a substantial and specific danger to the life, health or safety of persons or to the environment; a serious breach of the code of conduct; and the taking of a reprisal against a public servant; • requires internal disclosure mechanism, including the appointment of a senior officer to receive and act on wrongdoing disclosures; • requires that public servants report wrong-doing through this mechanism rather than through Commissioner (with some exceptions – more clearly stated than Bill C-25) • Public Sector Integrity Commission • ensures that there is an additional avenue for disclosures • investigate alleged wrongdoings and to make recommendations to the relevant chief executive on the Commissioner’s findings; • reports directly to Parliament • investigates reprisal complaints from public servants • restrictions on whistleblowing and disclosure of wrong-doing • disclosure to outsiders limited to... • a serious offence under a federal Act is being, or is about to be, committed by another public servant in the performance of his or her duties; or • another public servant is doing (or is about to do) something, or omitting (or is about to omit) to do something, in the performance of his or her duties that creates an imminent and serious danger to the life, health or safety of persons or to the environment.

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

16. Gomery Recommendations Re: Whistleblowing • possible effects of strengthened whistle-blowing protection? • will have little effect • 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

17. Values of the New Public Management

18. Ethics in the Public Service March 21st, 2006

20. Public Service Ethics • importance of the public service ethics regime • ethics and the context of the Sponsorship Scandal • ethics and the Gomery Recommendations

21. Public Service Ethics • importance of the public service ethics regime • ethics and the context of the Sponsorship Scanda • ethics and the Gomery Recommendations

22. Ethics and NPM • increased importance of public service ethics under NPM • Why?

23. Values of the New Public Management

24. The Context -- New Public Management • “Major changes are occurring in the way government organizes and delivers its programs. These changes include deregulation, downsizing, increasing delegation of decision making to officials in the field, contracting out and entering into partnerships with the private sector. As well, the government is using new technologies, and its work force is becoming more mobile and diverse. As a result, the government is increasingly relying on a strong foundation of values and ethics to make decisions in the public interest. “ The Auditor General, Report 2000.

25. Ethics and NPM • increased importance of public service ethics under NPM • entrepreneurship, flexibility, creativity and risk-taking

26. Ethics and NPM • increased importance of public service ethics under NPM • entrepreneurship, flexibility, creativity and risk-taking • more complex ethical calculations for individuals

27. Values of the New Public Management

28. Ethics and NPM • increased importance of public service ethics under NPM • entrepreneurship, flexibility, creativity and risk-taking • more complex ethical calculations for individuals • accountability for results (rather than process)

29. Ethics and NPM • increased importance of public service ethics under NPM • entrepreneurship, flexibility, creativity and risk-taking • more complex ethical calculations for individuals • accountability for results (rather than process) • greater reliance on individual public servants (rather than controls and SOPs) to determine how to get things done

30. Subjective vs. Objective Responsibility Objective Responsibility re: Finer Central Concept: Political Responsibility Focus: controls Subjective Responsibility re: Friedrich Central Concept: Moral Responsibility Focus: ethics

31. Ethics and NPM • increased importance of public service ethics under NPM • entrepreneurship, flexibility, creativity and risk-taking • more complex ethical calculations for individuals • accountability for results (rather than process) • greater reliance on individual public servants (rather than controls and SOPs) to determine how to get things done • greater reliance on the private sector to deliver services

32. Ethics and NPM • increased importance of public service ethics under NPM • entrepreneurship, flexibility, creativity and risk-taking • more complex ethical calculations for individuals • accountability for results (rather than process) • greater reliance on individual public servants (rather than controls and SOPs) to determine how to get things done • greater reliance on the private sector to deliver services • Auditor General’s Report 2000 (press conference) – “...few departments...have the ‘solid framework of values and ethics’ that would be needed as the private sector and the government came to work closely together.”

33. Ethics and NPM • increased importance of public service ethics under NPM • entrepreneurship, flexibility, creativity and risk-taking • more complex ethical calculations for individuals • accountability for results (rather than process) • greater reliance on individual public servants (rather than controls and SOPs) to determine how to get things done • greater reliance on the private sector to deliver services • Auditor General’s Report 2000 (press conference) – “...few departments...have the ‘solid framework of values and ethics’ that would be needed as the private sector and the government came to work closely together.” • need to have ethical guidelines to govern the interaction of the public and private sectors

34. Ethics and NPM • increased importance of public service ethics under NPM • entrepreneurship, flexibility, creativity and risk-taking • more complex ethical calculations for individuals • accountability for results (rather than process) • greater reliance on individual public servants (rather than controls and SOPs) to determine how to get things done • greater reliance on the private sector to deliver services • Auditor General’s Report 2000 (press conference) – “...few departments...have the ‘solid framework of values and ethics’ that would be needed as the private sector and the government came to work closely together.” • need to have ethical guidelines to govern the interaction of the public and private sectors • need to have strong public ethical standards to counter-balance the influence of private sector ethical standards

35. Private Sector and Public SectorValues • selflessness vs. self-interest • private sector • personal financial interests in the private sector are often tied to the interests of the corporation (through benefits such as share options) • Gordon Gekko – “Greed is good.” • public sector • public interest is sole focus of decision-making • private interest is never supposed to affect actions of public servants • political neutrality and impartiality • private sector • political neutrality is not required • impartiality is not required • public sector • political neutrality is sacred • impartiality is required

36. Ethics and NPM • increased importance of public service ethics under NPM • entrepreneurship, flexibility, creativity and risk-taking • more complex ethical calculations for individuals • accountability for results (rather than process) • greater reliance on individual public servants (rather than controls and SOPs) to determine how to get things done • greater reliance on the private sector to deliver services • Auditor General’s Report 2000 (press conference) – “...few departments...have the ‘solid framework of values and ethics’ that would be needed as the private sector and the government came to work closely together.” • need to have ethical guidelines to govern the interaction of the public and private sectors • need to have strong public ethical standards to counter-balance the influence of private sector ethical standards

37. Public Service Ethics • importance of the public service ethics regime • ethics and the context of the Sponsorship Scandal • ethics and the Gomery Recommendations

38. Ethics and the Context of the Sponsorship Scandal • “The problems in the administration of the Sponsorship initiatives were disturbing for two reasons: they revealed a breakdown of ethical standards, and they continued for so long without being stopped.” Gomery Report, Recommendations, 10.

39. Ethics and the Context of the Sponsorship Scandal (According to Gomery) • a breakdown of public service ethical standards • adoption of private sector ethical standards

40. Ethics and the Context of the Sponsorship Scandal • “One expert attributed the Sponsorship scanadal to excesses caused by what he called a “private business culture” or “entrepreneurialism” in the public service. This attitude has replaced a “public business” standards based on the public interest. In the Sponsorship Program, acccording to this theory, the Prime Minister and the Cabinet, with the best of intentions, encouraged the entrepreneurialism of certain public servants, who in turn stopped working for and by the rules of their department and cultviated relationships with private-sector sponsorship companies using a different set of rules and standards.” Gomery Report, Recommendations, 46.

41. Ethics and the Context of the Sponsorship Scandal (According to Gomery) • a breakdown of public service ethical standards • adoption of private sector ethics standards • individual self-interest of public servants

42. Ethics and the Context of the Sponsorship Scandal (According to Gomery) • a breakdown of public service ethical standards • adoption of private sector ethics standards • individual self-interest of public servants • acceptance of political intereference

43. Ethics and the Context of the Sponsorship Scandal • “One legal expert spoke of the Government advertising program as having no rules or direction, suggesting that a ‘shift to a rule-of-law culture’ would shelter advertising programs from corruption. Such a culture would shift the balance towards public servants’ loyalty to the rules of the public service rather than to the wishes of their political superiors.” Gomery Report, Recommendations, 46.

44. Ethics and the Context of the Sponsorship Scandal (According to Gomery) • a breakdown of public service ethical standards • adoption of private sector ethics standards • individual self-interest of public servants • acceptance of political intereference • emphasis on policy rather than management

45. Ethics and the Context of the Sponsorship Scandal (According to Gomery) • a breakdown of public service ethical standards • adoption of private sector ethics standards • individual self-interest of public servants • acceptance of political intereference • emphasis on policy rather than management • “...the road to career advancement for aspiring public servants is in the policy advisory field...” (106)

46. Ethics and the Context of the Sponsorship Scandal (According to Gomery) • a breakdown of public service ethical standards • adoption of private sector ethics standards • individual self-interest of public servants • acceptance of political intereference • emphasis on policy rather than management • failure to “speak truth to power”

47. Ethics and the Context of the Sponsorship Scandal (According to Gomery) • a breakdown of public service ethical standards • adoption of private sector ethics standards • individual self-interest of public servants • acceptance of political intereference • emphasis on policy rather than management • failure to “speak truth to power” • esp. DM of PWGSC

48. Public Service Ethics • importance of the public service ethics regime • ethics and the context of the Sponsorship Scandal • ethics and the Gomery Recommendations

49. The Ethical Framework: Post-Sponsorship, Pre-Gomery • The Tait Report, A Strong Foundation