Building a more Effective Whistleblower System for the Government of Canada

… an Atlas blog post

Paul G. Thomas, 1 March 2017

Submission to the House of Commons’ Standing Committee on Government Operations and Estimates

1 Introduction

In the current era when a political culture of suspicion combines with more transparency in government and an aggressive media environment, the public tends to believe that wrongdoing is widespread and that the only one who pays a price when misdeeds are disclosed is the courageous whistleblower. This is a false, or at least highly exaggerated, stereotype of the ethical norms and behaviours that prevail in the public sector. The ethical foundations of Canada’s political system and of its public service are not crumbling. It is time to make improvements to Canada’s whistleblower system to take account of changing circumstances and rising ethical expectations but we need to keep the problems in perspective.

Encouraging, supporting and protecting public sector employees who disclose serious wrongdoing has proven to be difficult in all political systems, even when whistleblower protection (WB) laws exist to serve these purposes. Often those laws have been passed in the aftermath of a scandal with extravagant claims made about how they will expose wrongdoing, hold wrongdoers accountable, protect courageous whistleblowers against retaliation, lead to improved procedures, and enhance trust and confidence in governments.

Constructing a WB regime involves the balancing of a number of interests: the public interest in exposing and correcting wrongdoing, the protection of the whistleblower against reprisal, the interests of the individuals accused of wrongdoing who may be the victims of inaccurate or false claims, and the interests of the organization whose operations are often disrupted, its morale weakened and its reputation harmed by the negative publicity of a whistleblowing incident.

The whistleblower system within the Government of Canada is relatively new. The Public Servant Disclosure Protection Act (PSDPA) only came into force on April 15, 2007, although there was before that date an internal administrative policy and process intended to encourage and protect public servants who disclosed serious wrongdoing.

Experience around the world indicates that governments rarely draft flawless legislation and establish all the appropriate structures and procedures on their first attempt at establishing an effective whistleblower system. That is why a mandatory review after a reasonable period of time is usually included in such laws. Section 54 of the PSDA states that within five years of the coming into force of the law the President of the Treasury Board will cause such a review to take place. More than five years has passed. Lessons have been learned and the circumstances and expectations that prompted the law have changed. Therefore, the work of this committee is both overdue and important.

2 The Multiple Purposes of Whistleblowing Systems

The task of reviewing the law and its impacts is complicated by the fact that the aims of the PSDPA, as set out in the Preamble, are multiple, both specific and general, as well as immediate and long term, and even potentially conflicting. This means that it is difficult to develop, let alone secure agreement on, the best indicators of how well Canada’s whistleblower system is working. Here is a partial list of potential indicators of success:

  • Whether the law encourages organizations to develop their own well understood, fair and efficient disclosure procedures;
  • The confidence of public servants in the safety and fairness of the disclosure procedures and whether wrongdoing will be corrected;
  • The volume of disclosures within the “home” organizations of employees and through the OPSIC;
  • The types of wrongdoing disclosed in terms of their appropriateness under the act and their seriousness;
  • Whether the problems disclosed are corrected and preventive measures taken;
  • Whether public servants who engage in good faith disclosure are protected against reprisal;
  • Whether the law and its operation make internal dissent and disclosure more legitimate and accepted behaviour in the public service culture;
  • How often public servants misperceive wrongdoing and/or act in bad faith;
  • Whether the law and its operation serves a preventative purpose, reduces the incidence of wrongdoing and over time contributes to increased trust and confidence in government.
  • In summary, assessing the effectiveness of the PSDPA must definitely go beyond the two most popular indicators used in criticisms of the law; namely the number of disclosures of wrongdoing made to the Public Sector Integrity Commissioner (PISC) and the number of allegations of reprisals that are upheld. Gathering evidence for a more comprehensive assessment of the success of PSDPA would require multiple types of information gathering. It would also require a causal model of how a range of factors, both internal and external to government potentially affects the operation, outcomes and perceptions of Canada’s whistleblower system. Even with more comprehensive information gathering, the evidence would be subject to varying interpretations.

3 The Disappointing Record of PSDPA

Even with the limited evidence available, most informed observers would argue that the PSDPA has not fulfilled its ambitious aims – many would describe it as a failure in terms of the main aims of encouraging disclosures and protecting whistleblowers.

The deficiencies arise from both a flawed statute and problems related to translating its lofty aims into effective practice.

4 Flawed Legislation

The PSDPA is a complex piece of legislation that produces an elaborate system of institutions interacting with one another and with other actions taking place throughout government. As a non-lawyer and an outsider observer, I cannot claim to know the significance of all parts of the law. However, I believe that the law needs to be improved and modernized in the following respects:

  • Simplify and clarify the law, particularly with respect to use of the three channels for disclosure and the procedures for handling alleged reprisals;
  • The largest number of disclosures rely on the departmental channels so the law (and related administrative practices) should be made as straightforward, easy to understand and as safe to use as possible;
  • Many of the disclosures involve matters related to employment. Amendments to PSDPA should integrate the legislation more effectively with employment law for the public service. In particular amendments should clarify the jurisdictional boundaries between the PSIC and the Public Service Labour Relations and Employment Board, which should be the channel for staffing and workplace issues;
  • Remove the disincentive of the “good faith” requirement for making a protected a disclosure so that the motivation of the whistleblower is not a factor, as was done in Norway and in the UK;
  • Clarify that a disclosure qualify for protection whether it is true or not provided it is not frivolous or vexatious;
  • To provide a greater incentive to disclose, make whistleblowers eligible for priority redeployment status within the public service;
  • The matter of preserving the anonymity of the whistleblower provokes disagreement. Clarify the principles and procedures involved. There are arguments for confidentiality up to a certain stage in the process but absolute anonymity is not consistent with principles of natural justice and fairness for those accused of wrongdoing;
  • Provide protection for the unintentional disclosure of false or misleading information provided it is not frivolous or vexatious;
  • Allow for the investigation of former public servants, not just those who are currently employed within government;
  • Extend the coverage to contractors and public partnerships where public money is involved as was done in Australia;
  • Clarify and expand the meaning of reprisal;
  • Provide a longer time period for complaints about reprisals to recognize that the most common forms of harm to the careers of whistleblowers are indirect and longer term;
  • Shift the burden of proof to require the employer to demonstrate that various kinds of actions were not in fact reprisals;
  • Making a claim of reprisal can be expensive so the act should provide for financial assistance for legal advice and independent counseling.

For several reasons I do not favour cash compensation for whistleblowers who present valid claims. (See Paul G. Thomas, “Paying Too Much for your Whistle, Optimum, 36,2 June 2006.)

5 Complicated Structures/Procedures and Implementation Problems

Based upon the structural framework laid out in the PSDPA, Canada’s disclosure regime involves a complicated, interconnected set of laws, administrative rules, institutions, procedures, reporting requirements and ongoing interactive relationships that make implementation of the law anything but straightforward.

Making the PDSPA work as intended requires understanding, commitment and collaboration by many different actors, such as individual public servants, public service unions, departments/agencies and their leadership, supervisors and the designated Senior Officers responsible for receiving disclosures, the Treasury Board and the Treasury Board Secretariat, the Integrity Commissioner and his office, the Public Servants Disclosure Protection Tribunal and the courts.

Each of these entities has a defined purpose under the PSDPA, but to a front line employee the statutory framework presents a confusing array of offices structures and procedures that can be confusing and intimidating.

Departments, the TBS and PSIC have produced educational materials in different formats and outreach activities have taken place, but ensuring such information reaches 400, 000 employees in a sprawling, diverse public service located in the Capital Region and across the country presents huge communications challenges.

The 2015 report done by Phoenix Strategic Perspectives for the PSIC concluded from ten focus groups held across the country that awareness of PSDPA had increased in recent years. However, awareness of structures and procedures is not the same as having deep understanding, confidence and trust in them.

Ideally a whistleblowing system should be simple, understandable, efficient, expeditious, consistent, reliable, safe, independent, transparent and fair. Achieving all of these attributes is challenging and requires by necessity the involvement of more than one body, including an independent body outside of the administrative framework of government. In the Australian national government, for example, there are departmental structures/procedures, as well as defined roles for the Public Service Commission, the Merit Protection Board and the Ombudsman.

In the interest of simplicity, some commentators have called for a “single window” to handle whistleblower matters but that would inappropriately combine several conflicting roles in one body.

Simply relying on the courts is also not feasible because that process would be excessively legalistic, expensive and time consuming. It is often assumed that courts and court-like procedures are the only means for ensuring fairness and justice, but research (like that of Jeffrey Mashaw on disability claims) indicates that administrative bodies can develop procedures and cultures to support and protect individuals within bureaucratic settings.

If streamlining the structures and procedures of the PSDPA is not easily accomplished, it should be possible to achieve a more coordinated approach within government. Coordination can involve both formal, top-down direction by a central body and/or informal harmonization of activities by the various organizations responsible for the implementation of PSDPA. It is impossible for an outsider to know how much of each type of coordination is occurring.

6 Improved Coordination

Since 2008 the top down direction is meant to come from the office of the Chief of Human Resources Officer (CHRO) in the TBS which (under a previous title of the Human Resources Management Agency) was designated back in 2007 as the policy center for the development of the PDSPA and as the lead agency responsible for the development of a Charter of the Public Service and a new Code of Public Service Values and Ethics. It appears that the CHRO has relied upon “tight-loose” control to ensure that departments meet their obligations under the PSDPA.

CHRO ensures that departments/agencies meet the legal requirement to establish disclosure / protection mechanisms within their organizations. Department heads and agency executives are required to gather and report to the CHRO statistics on the number of inquiries and disclosures and those numbers are available on the TBS website. It is not clear whether compliance with the requirements of the PSDPA are part of the annual Management Accountability Framework MAF) reviews. Such reviews contribute to setting performance pay for deputy heads. It is also not clear whether CHRO conducts regular audits or evaluations of the effectiveness of the procedures and outcomes at the departmental/agency level and works with organizations to improve their fulfillment of the aims of PSDPA.

In its annual report on PSDPA for 2015-16, CHRO presented a table on disclosure activity from 2010-2016. The number of reporting organizations has dropped over that period from 154 to 134. There were 18 smaller organizations where no senior officer or internal reporting procedure existed in 2015-16. The number of inquiries, the number of organizations reporting disclosures, the number of disclosures, the number of reported cases of wrongdoing and the number of corrective actions taken –all remained relatively stable over the time period.

7 The Preference for Resolving Matters Internally

The numbers of inquiries/complaints from the departmental/agency level (compared to the volume handled by the PSIC) indicates the preference of most employees to stay within their “home” organization. There is no legal requirement that they first exhaust internal remedies.

The pattern of reliance upon internal channels probably reflects several factors. There can be uncertainty about whether they have observed actual serious wrongdoing and a lack of confidence may cause them to first seek clarification internally. They may believe that their concerns are best resolved through alternative dispute resolution mechanisms available within the department. Based on prevailing norms, internal resolution is probably preferable to the disruption and harm caused by the display of so-called “dirty linen” to an outside body, even to the PSIC. The small number, but often high profile cases of whistleblowers who have alleged retaliation has no doubt created in some locations and among some employees a climate of fear that external disclosures will cause damage to one’s career, reputation and even personal life.

8 Creating a Safe Culture

Changing the culture of a large, diverse organization like the federal public service is a slow, uncertain process that more resembles gardening than engineering. With respect to whistleblowing, leaders must plant seeds of integrity, openness and safety and they must nurture them to fruition. Creating an interpersonal climate of trust and cultures of safety to encourage and support whistleblowing is proving to be difficult.

Research studies elsewhere indicate that factors such as supervisory support, organizational commitment and the status of the employee (seniority, managerial or non-managerial, male/female, minority group members, etc.) can affect employee perceptions of whether wrongdoing can be safely reported.

With these findings in mind (and with the assistance of an expert from the public service), I reviewed the relevant results from the 2014 Public Service Employee Survey (PSES). There were no direct questions on what determines perceptions of the risks of disclosing, but four questions (Numbers 38, 48, 49 and 50) offer relevant findings.

In response to question #50, only 38% of respondents felt free to initiate a formal recourse procedure (including a grievance or an appeal) without fear of reprisal. The climate of trust and safety varied across departments. Based on a correlation of responses to the four questions, the following pattern emerged: in those departments where a higher percentage of employees said they knew where to raise ethical concerns, and where a higher percentage of employees said ethical matters were regularly discussed, the result was a higher percentage of employees who indicated they did not fear reprisal for using the formal recourse mechanism.

Prevention through education and dialogue about “rightdoing” is much to be preferred over disclosure and punishment of wrongdoing; which is not to minimize the importance of these latter activities.

To the best of my knowledge there has never been a whistleblower system that under performed because of too much communication and ongoing dialogue about the changing environment in which ethical issues arise.

9 The Importance of Shared Leadership

Leadership matters greatly to the success of a whistleblower system. This leadership has to be collective rather than individual and it has to be found on all levels throughout the political and the administrative parts of government. Leaders need to demonstrate commitment to the aims, provisions and spirit of PSDPA.

There is a tendency in the media and in the public mind to see the Public Sector Integrity Commissioner as the defender of PSDPA and the protector of courageous whistleblowers. As an Officer of Parliament the PSIC has significant influence, but there are very real limits on what he alone can accomplish in terms of preventing wrongdoing and dealing with reprisals.

There is often debate over whether officers of Parliament make more progress by being confrontational and outspoken or by working collaboratively with other parties and not “playing to the grandstand.” The founding leader of the PSIC opted for a preventative strategy that led her critics to describe her as a “lapdog” of the bureaucracy because she uncovered no cases of wrongdoing before she was forced to resign, ironically due to a scandal involving the use of her authority and the resources of her office. The second commissioner also did not serve a full term. The fact that there have been three commissioners in less than ten years has obviously weakened the performance of PSIC office, but it has also contributed to deficiencies in the overall system.

To date Parliament has done a poor job in reviewing the backgrounds, qualifications and leadership philosophies of the government nominees for the position of PSIC. It has provided too little ongoing scrutiny of the office. The primary accountability of PSIC is to Parliament, not to the government. Parliamentary scrutiny puts pressure on ministers and senior public servants to demonstrate ongoing commitment to the PSDPA.

10 Conclusion

In summary, I am calling for: strengthened and modernized legislation, clarified structures and procedures, better coordination among the institutions involved, closer central scrutiny of the performance of departments and agencies, research on what determines employee perceptions of potential reprisals, further promotion of cultures of integrity and safety, the selection and development of leaders on all levels who embody in their behaviour the values of PSDPA and, finally more regular scrutiny by Parliament of the operation of all components whistleblower system.

 

Author: Paul G. Thomas is Professor Emeritus and Senior Scholar at the Department of Political Studies, University of Manitoba. Professor Thomas welcomes comment on this post and can be reached at Paul.Thomas@umanitoba.ca.

Page created by: Ian Clark, last modified 29 March 2017.

Image: Office of the Public Sector Integrity Commissioner of Canada, at http://www.psic-ispc.gc.ca/, accessed 29 March 2017.