Is the public sector integrity commissioner a friend or foe to whistleblowers?
By DAVID HUTTON
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 commissioners, 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 Mario 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.
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.
Dion took a slightly different approach when he seemed to permanently restrict his official mandate 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. Whenever 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 suitable 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 committed to protecting whistleblowers—rather than deputy ministers. Canadians—and honest public servants—deserve better than this.
David Hutton is a senior fellow at the Centre For Free Expression at Ryerson University and former executive director of FAIR.