whistle-blowing and disclosure of wrongdoing (cont’d) march 21st, 2006

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

March 21st, 2006March 21st, 2006

Whistleblowing by HC Scientists– Whistleblowing by HC Scientists– Justified?Justified?

Yes50%

Depends21%

No29%

WhistleblowingWhistleblowing

basic description of whisteblowing, related basic description of whisteblowing, related issues, and the whistleblowing regimeissues, and the whistleblowing regime

the whistleblowing regime and the context the whistleblowing regime and the context of the Sponsorship Scandalof the Sponsorship Scandal

whistleblowing and the Gomery whistleblowing and the Gomery RecommendationsRecommendations

Whistleblowing – Post-Sponsorship, Whistleblowing – Post-Sponsorship, Pre-GomeryPre-GomeryInternal Disclosure of Wrongdoing, 2001Internal Disclosure of Wrongdoing, 2001

– guide for guide for internalinternal disclosure of disclosure of wrongdoingwrongdoing– policy – not legislationpolicy – not legislation

no legal sanctions against reprisalsno legal sanctions against reprisals

– Public Service Integrity Office, 2001Public Service Integrity Office, 2001 part of TBSpart of TBS not an indpendent officer of Parliament (e.g. Auditor not an indpendent officer of Parliament (e.g. Auditor

General, Information Commissioner, Privacy General, Information Commissioner, Privacy Commissioner)Commissioner)

Whistleblowing – Post-Sponsorship, Whistleblowing – Post-Sponsorship, Pre-GomeryPre-GomeryInternal Disclosure of Wrongdoing, 2001Internal Disclosure of Wrongdoing, 2001Values and Ethics Code for the Public Values and Ethics Code for the Public

Service, 2003Service, 2003– whistle-blowing protection integrally related to whistle-blowing protection integrally related to

public service charterpublic service charter– e.g. breaching the Code or forcing another e.g. breaching the Code or forcing another

public servant to breach the Code covered public servant to breach the Code covered under disclosure policyunder disclosure policy

Whistleblowing – Post-Sponsorship, Whistleblowing – Post-Sponsorship, Pre-GomeryPre-GomeryInternal Disclosure of Wrongdoing, 2001Internal Disclosure of Wrongdoing, 2001Values and Ethics Code for the Public Values and Ethics Code for the Public

Service, 2003Service, 2003Bill C-11 (November 2004)Bill C-11 (November 2004)

precursor – Bill C-25precursor – Bill C-25

Bill C-25Bill C-25 commits government to establishing a Charter of Values of Public Service that should guide public commits government to establishing a Charter of Values of Public Service that should guide public

servants in their work and professional conduct;servants in their work and professional conduct; defines wrongdoing as: the contravention of relevant laws; the misuse of public funds or assets; gross 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 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 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;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 requires internal disclosure mechanism, including the appointment of a senior officer to receive and act on wrongdoing disclosures;act on wrongdoing disclosures;

– requires that public servants report wrong-doing through this mechanism rather than through Commissioner requires that public servants report wrong-doing through this mechanism rather than through Commissioner (with some exceptions)(with some exceptions)

Public Sector Integrity CommissionPublic Sector Integrity Commission– ensures that there is an additional avenue for disclosuresensures that there is an additional avenue for disclosures– investigate alleged wrongdoings and to make recommendations to the relevant chief executive on the investigate alleged wrongdoings and to make recommendations to the relevant chief executive on the

Commissioner’s findings;Commissioner’s findings;– reports annually to Parliament through a Minister;reports annually to Parliament through a Minister;– investigates reprisal complaints from public servantsinvestigates reprisal complaints from public servants

restrictions on whistleblowing and disclosure of wrong-doingrestrictions on whistleblowing and disclosure of wrong-doing– allows for disciplinary action for public servants who make a wrongdoing disclosure in bad faith;allows for disciplinary action for public servants who make a wrongdoing disclosure in bad faith;– disclosure to outsiders limited to...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 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; his or her duties; oror

another public servant is doing (or is about to do) something, or omitting (or is about to omit) to do something, in the 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 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.environment.

Bill C-11Bill C-11 commits government to establishing a Charter of Values of Public Service that should commits government to establishing a Charter of Values of Public Service that should

guide public servants in their work and professional conduct;guide public servants in their work and professional conduct; defines wrongdoing as: the contravention of relevant laws; the misuse of public funds or 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 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 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 environment; a serious breach of the code of conduct; and the taking of a reprisal against a public servant;public servant;

requires internal disclosure mechanism, including the appointment of a senior officer to requires internal disclosure mechanism, including the appointment of a senior officer to receive and act on wrongdoing disclosures;receive and act on wrongdoing disclosures;

– requires that public servants report wrong-doing through this mechanism rather than through requires that public servants report wrong-doing through this mechanism rather than through Commissioner (with some exceptions)Commissioner (with some exceptions)

Public Sector Integrity CommissionPublic Sector Integrity Commission– ensures that there is an additional avenue for disclosuresensures that there is an additional avenue for disclosures– investigate alleged wrongdoings and to make recommendations to the relevant chief executive investigate alleged wrongdoings and to make recommendations to the relevant chief executive

on the Commissioner’s findings;on the Commissioner’s findings;– reports directly to Parliamentreports directly to Parliament– investigates reprisal complaints from public servantsinvestigates reprisal complaints from public servants

restrictions on whistleblowing and disclosure of wrong-doingrestrictions on whistleblowing and disclosure of wrong-doing– disclosure to outsiders limited to...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 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; the performance of his or her duties; oror

another public servant is doing (or is about to do) something, or omitting (or is about to omit) to do 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 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.life, health or safety of persons or to the environment.

Bill C-11Bill C-11 commits government to establishing a Charter of Values of Public Service that should commits government to establishing a Charter of Values of Public Service that should

guide public servants in their work and professional conduct;guide public servants in their work and professional conduct; defines wrongdoing as: the contravention of relevant laws; the misuse of public funds or 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 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 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 environment; a serious breach of the code of conduct; and the taking of a reprisal against a public servant;public servant;

requires internal disclosure mechanism, including the appointment of a senior officer to requires internal disclosure mechanism, including the appointment of a senior officer to receive and act on wrongdoing disclosures;receive and act on wrongdoing disclosures;

– requires that public servants report wrong-doing through this mechanism rather than through requires that public servants report wrong-doing through this mechanism rather than through Commissioner (with some exceptions – more clearly stated than Bill C-25) Commissioner (with some exceptions – more clearly stated than Bill C-25)

Public Sector Integrity CommissionPublic Sector Integrity Commission– ensures that there is an additional avenue for disclosuresensures that there is an additional avenue for disclosures– investigate alleged wrongdoings and to make recommendations to the relevant chief executive investigate alleged wrongdoings and to make recommendations to the relevant chief executive

on the Commissioner’s findings;on the Commissioner’s findings;– reports directly to Parliamentreports directly to Parliament– investigates reprisal complaints from public servantsinvestigates reprisal complaints from public servants

restrictions on whistleblowing and disclosure of wrong-doingrestrictions on whistleblowing and disclosure of wrong-doing– disclosure to outsiders limited to...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 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; the performance of his or her duties; oror

another public servant is doing (or is about to do) something, or omitting (or is about to omit) to do 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 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 environmentlife, health or safety of persons or to the environment ..

Gomery Recommendations Re: Gomery Recommendations Re: WhistleblowingWhistleblowing agrees that disclosure to the Public Sector agrees that disclosure to the Public Sector

Integrity Commission or to the public only be Integrity Commission or to the public only be permitted in “exceptional” circumstancespermitted in “exceptional” circumstances

suggested changessuggested changes– moderate strengthening of existing provisionsmoderate strengthening of existing provisions

broadened to cover anyone carrying out work on behalf of the broadened to cover anyone carrying out work on behalf of the Government;Government;

open list of “wrongdoings” and “reprisals”open list of “wrongdoings” and “reprisals” burden of proof (re: reprisals) should be on the employerburden of proof (re: reprisals) should be on the employer

Gomery Recommendations Re: Gomery Recommendations Re: WhistleblowingWhistleblowingpossible effects of strengthened whistle-possible effects of strengthened whistle-

blowing protection?blowing protection?– will have little effectwill have little effect

doesn’t go far enough – “whistleblower doesn’t go far enough – “whistleblower management” act (Gualtieri)management” act (Gualtieri)

– would prevent wrong-doing in the first place would prevent wrong-doing in the first place (Gomery)(Gomery)

– may create an environment of distrust and may create an environment of distrust and avoidance of riskavoidance of risk

Values of the Values of the New Public ManagementNew Public Management

New PublicManagement

Traditional PublicAdministration

Values entrepreneurship,flexibility, creativity

prudence, stability,probity,accountability

Risk Tolerance risk taking risk averse

Accountability accountability byresults

processaccountability

Structures decentralized,partnerships,contracts

hierarchical,centralized

Ethics in the Public ServiceEthics in the Public Service

March 21st, 2006March 21st, 2006

Public Service EthicsPublic Service Ethics

importance of the public service ethics importance of the public service ethics regimeregime

ethics and the context of the Sponsorship ethics and the context of the Sponsorship ScandalScandal

ethics and the Gomery Recommendationsethics and the Gomery Recommendations



ethics and the context of the Sponsorship ethics and the context of the Sponsorship ScandaScanda


Ethics and NPMEthics and NPM

increased importance of public service increased importance of public service ethics under NPMethics under NPM– Why?Why?

The Context -- New Public The Context -- New Public ManagementManagement

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

The Auditor General, Report 2000.The Auditor General, Report 2000.


increased importance of public service ethics increased importance of public service ethics under NPMunder NPM– entrepreneurship, flexibility, creativity and risk-entrepreneurship, flexibility, creativity and risk-

takingtaking



takingtaking more complex ethical calculations for individualsmore complex ethical calculations for individuals




– accountability for results (rather than process)accountability for results (rather than process)




– accountability for results (rather than process)accountability for results (rather than process) greater reliance on individual public servants (rather than greater reliance on individual public servants (rather than

controls and SOPs) to determine how to get things donecontrols and SOPs) to determine how to get things done

Subjective vs. Objective Subjective vs. Objective ResponsibilityResponsibility

Subjective Responsibility Subjective Responsibility re: Friedrich re: Friedrich Central Concept: Moral Central Concept: Moral Responsibility Responsibility Focus: ethicsFocus: ethics

Objective Responsibility Objective Responsibility re: Finer re: Finer Central Concept: Central Concept: Political Responsibility Political Responsibility Focus: controlsFocus: controls




– accountability for results (rather than process)accountability for results (rather than process) greater reliance on individual public servants (rather than greater reliance on individual public servants (rather than

controls and SOPs) to determine how to get things donecontrols and SOPs) to determine how to get things done

– greater reliance on the private sector to deliver greater reliance on the private sector to deliver servicesservices


increased importance of public service ethics under increased importance of public service ethics under NPMNPM– entrepreneurship, flexibility, creativity and risk-takingentrepreneurship, flexibility, creativity and risk-taking

more complex ethical calculations for individualsmore complex ethical calculations for individuals

– accountability for results (rather than process)accountability for results (rather than process) greater reliance on individual public servants (rather than controls greater reliance on individual public servants (rather than controls

and SOPs) to determine how to get things doneand SOPs) to determine how to get things done

– greater reliance on the private sector to deliver servicesgreater reliance on the private sector to deliver services Auditor General’s Report 2000 (press conference) – “...few Auditor General’s Report 2000 (press conference) – “...few

departments...have the ‘solid framework of values and ethics’ that departments...have the ‘solid framework of values and ethics’ that would be needed as the private sector and the government came to would be needed as the private sector and the government came to work closely together.”work closely together.”



more complex ethical calculations for individualsmore complex ethical calculations for individuals

– accountability for results (rather than process)accountability for results (rather than process) greater reliance on individual public servants (rather than controls greater reliance on individual public servants (rather than controls

and SOPs) to determine how to get things doneand SOPs) to determine how to get things done



need to have ethical guidelines to govern the interaction of the public need to have ethical guidelines to govern the interaction of the public and private sectorsand private sectors



more complex ethical calculations for individualsmore complex ethical calculations for individuals– accountability for results (rather than process)accountability for results (rather than process)

greater reliance on individual public servants (rather than controls greater reliance on individual public servants (rather than controls and SOPs) to determine how to get things doneand SOPs) to determine how to get things done




need to have strong public ethical standards to counter-balance the need to have strong public ethical standards to counter-balance the influence of private sector ethical standardsinfluence of private sector ethical standards

Private Sector and Public Private Sector and Public SectorValuesSectorValues

selflessness vs. self-interestselflessness vs. self-interest– private sector private sector

personal financial interests in the private sector are often tied to the interests of personal financial interests in the private sector are often tied to the interests of the corporation (through benefits such as share options)the corporation (through benefits such as share options)

Gordon Gekko – “Greed is good.”Gordon Gekko – “Greed is good.”– public sectorpublic sector

public interest is sole focus of decision-makingpublic interest is sole focus of decision-making private interest is never supposed to affect actions of public servantsprivate interest is never supposed to affect actions of public servants

political neutrality and impartialitypolitical neutrality and impartiality– private sector private sector

political neutrality is not requiredpolitical neutrality is not required impartiality is not requiredimpartiality is not required

– public sector public sector political neutrality is sacredpolitical neutrality is sacred impartiality is requiredimpartiality is required



more complex ethical calculations for individualsmore complex ethical calculations for individuals– accountability for results (rather than process)accountability for results (rather than process)

greater reliance on individual public servants (rather than controls greater reliance on individual public servants (rather than controls and SOPs) to determine how to get things doneand SOPs) to determine how to get things done




need to have strong public ethical standards to counter-balance the need to have strong public ethical standards to counter-balance the influence of private sector ethical standardsinfluence of private sector ethical standards

Ethics and the Context of the Ethics and the Context of the Sponsorship ScandalSponsorship Scandal““The problems in the administration of the The problems in the administration of the

Sponsorship initiatives were disturbing for Sponsorship initiatives were disturbing for two reasons: they revealed two reasons: they revealed a breakdown of a breakdown of ethical standardsethical standards, and they continued for so , and they continued for so long without being stopped.”long without being stopped.”

Gomery Report, Gomery Report, RecommendationsRecommendations, 10., 10.

Ethics and the Context of the Ethics and the Context of the Sponsorship Scandal (According to Sponsorship Scandal (According to Gomery)Gomery)

a breakdown of public service ethical a breakdown of public service ethical standardsstandards– adoption of private sector ethical standardsadoption of private sector ethical standards

Ethics and the Context of the Ethics and the Context of the Sponsorship ScandalSponsorship Scandal

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

Gomery Report, Gomery Report, RecommendationsRecommendations, , 46.46.


a breakdown of public service ethical a breakdown of public service ethical standardsstandards– adoption of private sector ethics standardsadoption of private sector ethics standards– individual self-interest of public servantsindividual self-interest of public servants



acceptance of political intereferenceacceptance of political intereference

Ethics and the Context of the Ethics and the Context of the Sponsorship ScandalSponsorship Scandal

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



acceptance of political intereferenceacceptance of political intereference emphasis on policy rather than managementemphasis on policy rather than management



acceptance of political intereferenceacceptance of political intereference emphasis on policy rather than managementemphasis on policy rather than management

– ““...the road to career advancement for aspiring public ...the road to career advancement for aspiring public servants is in the policy advisory field...” (106)servants is in the policy advisory field...” (106)



acceptance of political intereferenceacceptance of political intereference emphasis on policy rather than managementemphasis on policy rather than management failure to “speak truth to power”failure to “speak truth to power”



acceptance of political intereferenceacceptance of political intereference emphasis on policy rather than managementemphasis on policy rather than management failure to “speak truth to power”failure to “speak truth to power”

– esp. DM of PWGSCesp. DM of PWGSC

The Ethical Framework: Post-The Ethical Framework: Post-Sponsorship, Pre-GomerySponsorship, Pre-GomeryThe Tait Report, The Tait Report, A Strong FoundationA Strong Foundation

The Ethical Framework: Post-The Ethical Framework: Post-Sponsorship, Pre-GomerySponsorship, Pre-GomeryValues and Ethics Code for the Public Values and Ethics Code for the Public

Service, 2003Service, 2003

Gomery Recommendations Re: Gomery Recommendations Re: EthicsEthics Values and Ethics CodeValues and Ethics Code

– lengthylengthy– public servants cannot easily relate to itpublic servants cannot easily relate to it– cannot be fully comprehendedcannot be fully comprehended– does not define terms adequately (e.g. impartiality, does not define terms adequately (e.g. impartiality,

loyalty, integrity)loyalty, integrity)– does not provide guidance on how to determine the does not provide guidance on how to determine the

public interest in a specific situationpublic interest in a specific situation– does not provide guidance on how to reconcile does not provide guidance on how to reconcile

conflicting valuesconflicting values

Gomery Recommendations Re: Gomery Recommendations Re: EthicsEthicsRecommendation #2: The Government should Recommendation #2: The Government should

adopt legislation to entrench into law a Public adopt legislation to entrench into law a Public Service Charter.Service Charter.

short, simple statement of essential valuesshort, simple statement of essential values will...will...

– signal and symbolize strong political support for the Charter;signal and symbolize strong political support for the Charter;– promote greater public, parliamentary and public discussion of, promote greater public, parliamentary and public discussion of,

familiarity with and respect for Charter;familiarity with and respect for Charter;– inform the public about the values for which public servants inform the public about the values for which public servants

stand and their rights and responsibilities in relation to stand and their rights and responsibilities in relation to politicians;politicians;

– provide a firm legal basis for promoting and requiring provide a firm legal basis for promoting and requiring compliance. compliance.

Assessing the Gomery Ethics Assessing the Gomery Ethics RecommendationsRecommendationsa comparative assessmenta comparative assessment

UK Civil Service CodeUK Civil Service Code

““...revealingly, the introduction of the Code, while ...revealingly, the introduction of the Code, while hailed as “Whitehall’s Cultural Revolution,” has hailed as “Whitehall’s Cultural Revolution,” has in fact produced remarkably little change. Only in fact produced remarkably little change. Only six complaints have been forwarded to the Civil six complaints have been forwarded to the Civil Service Commissioners in the seven years the Service Commissioners in the seven years the Code has been in operation and, according to the Code has been in operation and, according to the head of the Civil Service Commission for the UK, head of the Civil Service Commission for the UK, “the “the CodeCode has not seeped into the culture – it has has not seeped into the culture – it has not changed the way people behave or respond.” not changed the way people behave or respond.”

Sossin, Gomery Research Studies Volume 2, 61Sossin, Gomery Research Studies Volume 2, 61

Assessing the Gomery Ethics Assessing the Gomery Ethics RecommendationsRecommendationsa comparative assessmenta comparative assessment the broader context – political leadership on the broader context – political leadership on

values and ethicsvalues and ethics

Political Leadership and Values and Political Leadership and Values and EthicsEthics

Conflict of Interest Code for Public Office HoldersConflict of Interest Code for Public Office Holders– 1994-20041994-2004– applies to ministers but not to parliamentariansapplies to ministers but not to parliamentarians– not enshrined in lawnot enshrined in law– administered by the Office of the Ethics Counselloradministered by the Office of the Ethics Counsellor

appointed by PM (at pleasure)appointed by PM (at pleasure)

Bill C-4Bill C-4– Code of Conduct for ParliamentariansCode of Conduct for Parliamentarians

March 2004March 2004– created Ethics Commissionercreated Ethics Commissioner

appointed by Cabinetappointed by Cabinet serves 5 year term during good behaviour (may be removed for cause)serves 5 year term during good behaviour (may be removed for cause)

whistle-blowing and disclosure of wrongdoing (cont’d) march 21st, 2006

Documents