2010–11 Annual Report

Learning and Growing

• Letters
• Excerpt from the Preamble of the Public Servants Disclosure Protection Act
• Our Vision, our Mission, our Values
• Interim Commissioner's Message
• 1  Disclosure and Reprisal Files
• 2  Review of Closed Files
• 3  In Dialogue with Stakeholders
• 4  Increasing Efficiency
• In Closing

Office of the Public Sector Integrity Commissioner of Canada
60 Queen Street, 7th Floor
Ottawa, ON K1P 5Y7
Tel.: 613-941-6400
Toll free: 1-866-941-6400
Fax: 613-941-6535

©Minister of Public Works and Government Services Canada 2011

Cat. No.: PG1-2011E
ISSN: 1925-7732
This publication is also available in paper format.

The Honourable Speaker of the Senate
The Senate
Ottawa, Ontario
K1A 0A4

Dear Speaker,

I have the honour of presenting you with the Office of the Public Sector Integrity Commissioner’s fourth annual report for tabling in the Senate, pursuant to section 38 of the Public Servants Disclosure Protection Act. The report covers the fiscal year ending March 31, 2011.

Yours sincerely,

Mario Dion
Interim Public Sector Integrity Commissioner of Canada

The Honourable Speaker of the House of Commons
House of Commons
K1A 0A6

Dear Speaker,

I have the honour of presenting you with the Office of the Public Sector Integrity Commissioner’s fourth annual report for tabling in the House of Commons, pursuant to section 38 of the Public Servants Disclosure Protection Act. The report covers the fiscal year ending March 31, 2011.

Yours sincerely,

Mario Dion
Interim Public Sector Integrity Commissioner of Canada

Public Servants Disclosure Protection Act

The federal public administration is an important national institution and is part of the essential framework of Canadian parliamentary democracy;

It is in the public interest to maintain and enhance public confidence in the integrity of public servants;

Confidence in public institutions can be enhanced by establishing effective procedures for the disclosure of wrongdoings and for protecting public servants who disclose wrongdoings, and by establishing a code of conduct for the public sector;

Public servants owe a duty of loyalty to their employer and enjoy the right to freedom of expression as guaranteed by the Canadian Charter of Rights and Freedoms and this Act strives to achieve an appropriate balance between those two important principles.

– Excerpt from the Preamble
Public Servants Disclosure Protection Act

Office of the Public Sector Integrity Commissioner of Canada

Our Vision

The Office of the Public Sector Integrity Commissioner of Canada is a trusted place to disclose wrongdoing, to protect disclosers from reprisal and to take appropriate action that will ultimately enhance confidence in the integrity of public servants and public institutions.

Our Mission

The Office provides a confidential, independent and effective response to:

• disclosures of wrongdoing in the federal public sector from public servants or members of the public; and
• complaints of reprisal from public servants and former public servants.

Our Values

Integrity in our actions and processes
Respect for our clients and employees
Fairness in our procedures and our decisions
Professionalism in the manner we conduct ourselves and in our work

Our Approach to our Mandate

The mandate of the Office of the Public Sector Integrity Commissioner of Canada is to establish a safe, confidential and independent mechanism for public servants or members of the public to disclose potential wrongdoing in the federal public sector. Our Office investigates disclosures of alleged wrongdoing and complaints of reprisal. The Public Servants Disclosure Protection Act (the Act) also protects public servants from reprisal for making such disclosures or cooperating in investigations under the Act.

The Office’s work is guided by the following principles:

• Accessibility – We are approachable, our processes are transparent and we are forthcoming about our results
• Independence – We make our decisions impartially and independently
• Timeliness – We are efficient and we act in a timely manner
• Action Orientation – We pursue disclosures of wrongdoing and reprisal complaints diligently and take appropriate action whenever possible
• Confidentiality – We protect the confidentiality of the identity of disclosers and of information disclosed to the extent possible under the law

Interim Commissioner’s Message

In the course of a career that has spanned over thirty years in the federal public service, this is the very first time I have had the honour of contributing to the writing of an annual report tabled in Parliament. Not only is it a new experience for me, it is happening in a relatively rare context where an officer of Parliament appointed on an acting basis for a short period saw himself parachuted, a few months prior to the publication of its annual report, into an organization still reeling from the shock of a highly critical report by the Auditor General of Canada.

2010-11 was therefore not a normal year in the life of the Office of the Public Sector Integrity Commissioner. The sudden retirement of my predecessor in October 2010, followed by the tabling of the Auditor General’s Report in December of that year were two events that had a profound impact on the members of the team and on the reputation of the young Office.

Aside from the appearance, on December 14, 2010, of our Acting Deputy Commissioner before the House of Commons Public Accounts Committee in the aftermath of the report, I have not had any formal opportunity to discuss our situation with any of the Parliamentary Committees. I am therefore taking this opportunity to explain the broad strokes of my strategy for the short term.

After conducting a swift assessment of the situation shortly after my arrival on December 20, 2010, I arrived at the conclusion that my immediate priorities would be centered on the need to re-establish confidence, both internally and externally, by taking concrete measures to identify and correct the shortcomings identified by the Auditor General.
First, concrete measures needed to be taken quickly to review all of the files that had been closed since the Office was created in April 2007. It was absolutely essential to retain the services of an objective third party that would be able to review all of the closed files in a short period of time. I am very pleased that the review of the files was completed by Deloitte within the agreed-upon timeframe so as to allow us to discuss their findings in this Annual Report to Parliament.

I also committed myself to laying the groundwork for the next Commissioner by staffing certain key positions based on the identified needs of the Office. The position of Executive Director, responsible for all of the activities in support of the Office’s mandate, has now been staffed permanently and the position of Deputy Commissioner provided for under the Act is currently subject to an open competition process whereby any Canadian who believes he or she has the required skills can apply.

In addition, over two-thirds of the positions that were vacant when I arrived are currently in the final phases of the staffing process and I expect they will all be filled by the time this report is tabled in Parliament.

Although many policies and procedures had been developed over the years, our processes have now been strengthened through the formal implementation of the Policy and Procedures Manual. Furthermore, solid work has already begun to find a solution to each of the seventy files identified as containing deficiencies following the “administrative” file review by Deloitte. Throughout the development of this plan, I have had sustained discussions with our Audit and Evaluation Committee and its Chairman in order to benefit from their knowledge and experience. I also had fruitful discussions with the Auditor General and other officers of Parliament on accountability issues as they relate to us.

Upon my arrival, it was also necessary to take concrete measures to establish strong relationships with those elements of civil society who are interested in our mandate. Numerous meetings with representatives from advocacy groups provided us with an opportunity to convey our commitment to greater transparency and maintaining a genuine dialogue. They have agreed to participate in the work of a Standing Advisory Committee which will include other key players involved in the implementation of the statute that governs us. The first meeting is to be held in May.

All of these activities have one thing in common: to systemize and continue to build on the Office’s work in a way that allows it to be more efficient, rigorous and stable. From now on, our organization will maximize the opportunities offered by our budget in implementing our constitutive statute. Similarly, complaints and disclosures will be processed using a coherent process with clearly defined timelines. The adoption of the Manual is one step in this process. The hiring of additional investigators and the months spent preparing performance reports are further steps that will go a long way toward helping the Office complete its work harmoniously in the next few years.

There were already dedicated and competent people working in the Office when I arrived. I think that the measures taken and the arrival of their new colleagues will give them an opportunity to perform at the level that is expected of us by Parliament. I was an honour for me to lead this team over these last few months. I remain confident that, at the end of this transformation process, the Office will emerge stronger.

Mario Dion
Interim Commissioner

Chapter 1 – Disclosure and Reprisal Files

2010-11 Report on Disclosures and Complaints of Reprisal

The Office of the Public Sector Integrity Commissioner of Canada (the Office or PSIC) was the subject of much public scrutiny during the second half of this fiscal year. The risk of losing the trust of public servants and the general public was significant, and the ability of PSIC to deliver on its important and sensitive mandate was questioned. However, despite these challenges, the number of inquiries, disclosures and complaints of reprisal to the Office, perhaps as a result of the heightened media attention, increased toward the end of the fiscal year. The report on the level of activity of 2011-2012 will allow PSIC to determine if this increase is either a temporary hike or a sustained trend.

This reporting year, the Office has seen a marked increase in its level of activity. It received 72 disclosures and 25 complaints of reprisal, as well as 256 inquiries. This represents an increase of:

• 56% in the number of reprisal complaints;
• 29% in the number of disclosures of wrongdoing; and
• 23% in the number of inquiries.

Furthermore, at the end of the reporting period there was an increase of 125% in the number of investigations underway compared to the last fiscal year. 

A number of investigations are nearing completion, and depending on the final decision of the Commissioner, are expected to be reported to Parliament or referred to the Public Servants Disclosure Protection Tribunal in 2011-12. These investigations have been ongoing and have required the development of new procedures. These investigations do take time. Not only is the workload in carrying them out significant, they require strict adherence to statutory prescriptions dealing with procedural fairness and other protections.

Report on disclosures of wrongdoing
 

*Two (2) closed files from the previous fiscal year were re-opened and closed over the course of this fiscal year.

Six disclosure investigations were carried over from the previous reporting year. Eleven new investigations were launched. The investigations relate to all components of the definition of wrongdoing in section 8 of the Act.

Decisions to close files were made on one or more of the following grounds:

• Withdrawn by the discloser
• Information provided does not support the allegations
• Subject matter relates to an adjudicative decision
• Matter had been brought forward to the chief executive and addressed internally
• Subject matter relates to a balanced and informed decision-making process on a public policy issue
• Has been or could be more appropriately dealt with under another Act of Parliament
• No jurisdiction because another person or body is dealing with the subject matter
• Disclosure never formally submitted
• No useful purpose to investigate
• Not sufficiently important

Report on Reprisals

The Commissioner must address reprisal complaints within 15 days of receipt, as prescribed in the Act. These timelines ensure that complaints are addressed expeditiously for the benefit of the alleged victim of reprisal. The process for receiving and handling reprisal complaints is similar to the disclosure process.

The Office handled a total of 29 reprisal complaints in 2010-11. Four reprisal files were carried over from the previous reporting year and 25 new complaints were made this year. As of March 31, 2011, there were 17 active reprisal files of which 7 were under formal investigation. There were no files under conciliation or before the Public Servants Disclosure Protection Tribunal.

Twelve files were closed as it was decided that no further action by the Office was warranted under the Act.  No reprisal files were closed after either an investigation or conciliation. 

Files were closed on one or more of the following grounds:

• Withdrawn by the discloser
• The subject-matter of the complaint had been adequately dealt with, or could more appropriately be dealt with, according to a procedure provided for under another Act of Parliament or a collective agreement
• Complaint was not filed within 60 days and no extension granted
• No jurisdiction; not a public servant
• Person or body acting under another Act or collective agreement is dealing with the subject matter

General Inquiries

PSIC received 256 general inquiries from public servants and members of the public about the Act, or about the mandate, activities and procedures of the Office. 

It should be noted that this report does not address internal disclosures made within public sector organizations, which are reported to the Office of the Chief Human Resources Officer at the Treasury Board Secretariat. Under the Act, each Chief Executive, must designate a senior officer to be responsible for receiving and dealing with disclosures of wrongdoing made by public servants within their organizations. Internal disclosures also include disclosures made to a supervisor.

There are many options for public servants when considering disclosing wrongful actions, just as there is a wide range of potential wrongful actions.

Each situation is unique. Anyone can consult the Office in complete confidentiality prior to deciding whether to disclose. And when someone does make a disclosure, they can do so internally, to a Senior Officer or supervisor, or externally to our Office. These options are expressly provided for in the Act. The Office has prepared two valuable tools that can assist people who are faced with making a disclosure: the Guide to making a protected disclosure of wrongdoing in the public interest under the Public Servants Disclosure Protection Act and the List of possible recourse mechanisms.  
 

Chapter 2: Review of Closed Files

On December 9, 2010, the Auditor General tabled a special report to Parliament on the Public Sector Integrity Commissioner of Canada, which was the result of a lengthy performance audit of the Office.

As a follow-up to the Auditor General Report, PSIC decided that it was necessary to conduct a review of all files since the inception of the Office. PSIC decided that the file review period would be expanded from April 1, 2007 to December 20, 2010, when the Interim Commissioner was appointed. This was done to ensure consistency and completeness.

The Conclusions of the Deloitte Review

To ensure complete objectivity, a third party review was considered essential to determine whether disclosures and alleged reprisal complaints were dealt with in a manner consistent with the requirements of the Public Servants Disclosure Protection Act and with applicable legal, investigative and administrative decision-making standards. In order to carry-out the review in a timely fashion, the Office retained, through a competitive process, the services of Deloitte. The firm was asked to identify any issues or errors based on the following criteria:

1. Determine the issues and allegations identified (reported to PSIC) in the disclosure or reprisal complaint;
2. Assess whether the analysis conducted by PSIC addressed all relevant issues and allegations;
3. Assess whether the analysis conducted by PSIC provided a rationale or reasons for the recommendations in accordance with the requirements of the Act; 
4. Assess whether the decision rendered addressed the relevant issues and allegations;
5. Assess whether the decision rendered met the requirements of the Act; and
6. Assess whether there was sufficient documentation on file to support the analysis, recommendations and the decision of the Commissioner.

Based on its review of the 221 closed operational files, Deloitte identified some 114 issues, based on these criteria, in 70 files.

The following table provides the Deloitte results by fiscal year. The results indicate that, as PSIC progressed in the implementation of its mandate, there was a significant decrease in the proportion of files that were identified.  

Table 1: Summary of Files Reviewed, by Fiscal Year

The Deloitte review also provided detailed and valuable feedback on the nature of the issues and identified areas for improvement in file procedures and documentation processes. The Office consequently made adjustments to its case management system and reporting processes.

Corrective Actions

The next step is for the Interim Commissioner to decide what action to take in each of the files identified by Deloitte. He will be guided by two Special Advisors that have been retained to provide recommendations and advice in this regard. Both bring extensive experience as lawyers and have no prior involvement with the Office. Once a decision is made by the Commissioner that corrective actions are required, disclosers and complainants will be contacted to determine if they wish to proceed further. Possible corrective action includes: reopening a file for admissibility review; conducting an investigation, or ensuring the completeness of file documentation.

The interim Commissioner expects that all such decisions will be made by the fall of 2011.

Chapter 3 – In Dialogue with Stakeholders

Reaching and communicating with over 400,000 public sector employees located from coast-to-coast-to-coast and abroad is no small feat. There are key individuals and organizations that can provide valuable insight to the Office and that also assist the Treasury Board Secretariat in raising awareness of the Act. This is why PSIC welcomes opportunities and takes the necessary measures to reach out to key stakeholders such as advocacy groups, international counterparts, Senior Officers responsible for disclosures in their respective organizations and communities of practice. Every realistic and reasonable opportunity to meet with as many stakeholders as possible is sought and considered.

In 2010-11, the Office also met with public sector employees across Canada to increase awareness of its activities, and participated in various conferences as exhibitor, reaching out to about 6,000 public sector employees in the course of doing so.
 

Fall 2010 Senior Officer Practical Workshop

The Office feels it is important that Senior Officers apply the Act in a coherent fashion in order to maintain the value of and the trust in the disclosure regime for public servants. To assist in meeting this objective, PSIC hosted a two-day practical workshop in the fall for all Senior Officers to enable them to share challenges, best practices, tools and techniques for applying the Act and to help build a community of peer support. Bringing together those who are responsible for implementing the Act provided an opportunity for participants to gain a better understanding of each other’s roles, and to learn from each other’s experience. Greater horizontal coordination contributes to a more effective implementation of the Act and ultimately to greater trust in the integrity of the public sector.

Fifty-two (52) departments and federal organizations were represented and the feedback collected showed a 98% overall satisfaction rate.

The keynote speaker was Chris Wheeler, the Deputy New South Wales Ombudsman with over 25 years of experience in handling complaints and investigations. He spoke of the complexities and challenges of internal and external disclosures and how to build confidence through good practice. His address was very well received by participants.

Other key elements of the workshop included a panel of experts on investigations that provided a forum for discussion and sharing of best practices. There were also roundtable discussions on key topics: the upcoming five-year review of the Act; communication practices with disclosers and alleged wrongdoers; assisting disclosers in maintaining confidence in the process, and more.

Finally, given their expertise and their experience, representatives of the advocacy groups Federal Accountability Initiative for Reform, Canadians for Accountability and Democracy Watch participated in a panel discussion that brought their unique and valuable perspective to the discussion. It included first-hand accounts, lessons learned and recommended best practices to help improve the disclosure regime in Canada.

The Office is planning to hold a similar event in the next fiscal year.

Engaging in Continuing Dialogue

The Office recognizes the value of different perspectives and the importance of maintaining an open dialogue with advocacy groups and other key stakeholders. Working together towards a common objective and learning from each other’s experience and expertise can only strengthen PSIC’s ability to carry out its mandate to the benefit of public servants and all Canadians.

During the winter of 2011, the Office met on several occasions with the three identified advocacy groups and proposed the establishment of an Advisory Committee that would provide a more permanent mechanism for stakeholder consultation on disclosure of wrongdoing and reprisal complaints.

The mandate of the Committee will be: to provide recommendations on broad strategic directions, policies and priorities of PSIC; to provide a challenge function to support PSIC being able to most effectively meet the needs of disclosers of wrongdoing and reprisal complainants; and to provide a forum for the provision of advice and the exchange of views of all key stakeholders on issues affecting the management of disclosure of wrongdoing and complaints of reprisal.

The Committee will be comprised of representatives from PSIC, advocacy groups, unions, APEX, the Public Servants Disclosure Protection Tribunal, the Treasury Board Secretariat and the Senior Officers’ community.

The first meeting of the Committee will be held in May 2011.

Engaging Senior Officers

Over the past year, PSIC continued to meet with Senior Officers across the public sector to gain an understanding of their experiences in receiving and handling internal disclosures, to discuss challenges in implementing the Act, to build strong working relationships and to raise awareness of its mandate. To date, the Office has met with close to two-thirds of the federal institutions that have designated a Senior Officer under the Act.

In order to foster collegiality and support among Senior Officers, PSIC continued to facilitate the Senior Officers Support Network, which is made up of a number of Senior Officers with considerable experience who have agreed to make themselves available to members of this community and to provide support and information where required. This network allows Senior Officers who have questions, are newly appointed or who do not have much practice in dealing with protected disclosures under the Act to rely on the expertise and experiences of more seasoned Senior Officers. In addition, members of this support group meet on a regular basis to discuss issues related to the disclosure of wrongdoing and to provide advice, including the planning and design for the next Annual Senior Officers’ Practical Workshop. For more information on the Senior Officers Support Network please visit the PSIC website.

Chapter 4 – Increasing Efficiency

PSIC will always be developing and adapting to ongoing demands and a changing public sector environment. In order to ensure its capacity to continue to grow, the Office developed and implemented a number of key initiatives to ensure the effective and transparent fulfillment of its important mandate.

Human Resources

In its report, the Office of the Auditor General found that PSIC’s employee turnover rate was notably high during the first two years of operation. Since then, the turnover rate has decreased considerably from a 50% turnover rate in 2008-09 to 17% in 2009-10 and 28% in 2010-11.The Office is committed to providing employees with a healthy and stimulating work environment. It is encouraging to note that interest in joining the PSIC team has been stronger than ever in recent months.

Informal Conflict Management System

As part of its implementation of the Treasury Board policy on Informal Conflict Resolution System (ICMS), the Office designated one of its executives as the ICMS officer and has retained the ICMS services of another federal government department. This will provide staff with the maximum flexibility and options to help them manage relationships and to prevent conflict in the workplace. An information session on ICMS was also delivered to PSIC staff and reference material distributed.

Alternative Work Arrangements

To help employees balance work and personal responsibilities, the Office has developed a Practical Guide on Alternative Work Arrangements. Such arrangements are also being used as a tool to recruit and retain a diverse and talented workforce and as a way to support employees to continue to work past their retirement eligibility to facilitate training and knowledge transfer.

Financial Resources

PSIC’s budget was initially allocated on the basis of the Office being at full strength from the onset. The utilization of resources has increased steadily over the past four fiscal years. This is indicated in the table below. Driven by increasing case loads, this trend is expected to continue. In light of this growing demand, the Office is investing in building capacity to deliver its mandate as it implements its revised Strategic Plan. The Office anticipates that it is well positioned to fully utilize its ongoing level of resources in 2011-12.  Further efficiencies have been achieved by entering into shared service arrangements with the Canadian Human Rights Commission and Public Works and Government Services Canada for some corporate activities and systems, namely financial, human resources and information technology services.

Table 2: PSIC Multiyear Resources