whistle-blowing and disclosure of wrongdoing (cont’d) november 16th, 2006

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

November 16th, 2006November 16th, 2006

Whistleblowing...Whistleblowing...

the issue?the issue?– appropriate balance between individual rights of the appropriate balance between individual rights of the

employee, professional responsibilities, and their duty of employee, professional responsibilities, and their duty of loyalty to their employerloyalty to their employer

individual rights individual rights – freedom of speech (rights as citizens)freedom of speech (rights as citizens)

professional responsibilitiesprofessional responsibilities– duty to protect the public interest (as public servant)duty to protect the public interest (as public servant)

duty of loyalty (as government employee)duty of loyalty (as government employee)– ““Public servants owe a duty of loyalty to their employer. In serving Public servants owe a duty of loyalty to their employer. In serving

the public interest, they are entrusted, as a fundamental part of their the public interest, they are entrusted, as a fundamental part of their duties, with access to a wide range of government information and duties, with access to a wide range of government information and are required to treat this information responsibly and with discretion are required to treat this information responsibly and with discretion and integrity.” (TBS, PIDI 2001)and integrity.” (TBS, PIDI 2001)

– what determines the weight one allocates to each of these what determines the weight one allocates to each of these considerations???considerations???

Broader IssuesBroader Issues

How much secrecy is tolerable/necessary in How much secrecy is tolerable/necessary in a democracy?a democracy?

Will protection for whistle-blowers improve Will protection for whistle-blowers improve the performance of the public service?the performance of the public service?

Does punishment of whistle-blowers violate Does punishment of whistle-blowers violate their individual rights?their individual rights?

the seque to the tangent...the seque to the tangent...

NPM and Its Implications for NPM and Its Implications for DemocracyDemocracy liberal democracyliberal democracy

– negativenegative does NPM weaken protection of impartial treatment does NPM weaken protection of impartial treatment

of individualsof individuals– redefines citizens as “customers”redefines citizens as “customers”

• rights adhere to citizens – not customers!rights adhere to citizens – not customers!

– positivepositive dispersion of powerdispersion of power

– throughout governmentthroughout government– between government, private sector, third sectorbetween government, private sector, third sector

NPM and Its Implications for NPM and Its Implications for DemocracyDemocracyparticipatory democracyparticipatory democracy

– negativenegative redefines citizens as “customers”redefines citizens as “customers”

– undermines citizens rights to participationundermines citizens rights to participation

– focuses on “exit” rather than “voice”focuses on “exit” rather than “voice”

– positivepositive may allow for government to be more responsivemay allow for government to be more responsive

– bottom-upbottom-up

– allows for greater potential for bottom-up participatory allows for greater potential for bottom-up participatory mechanismsmechanisms

NPM and Its Implications for NPM and Its Implications for DemocracyDemocracyelite democracyelite democracy

– positivepositive efficiency, effectivenessefficiency, effectiveness does it does it deliverdeliver in terms of fostering the general in terms of fostering the general

welfarewelfare

– negativenegative breakdown of efficiency, effectivenessbreakdown of efficiency, effectiveness

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 and the Sponsorship WhistleBlowing and the Sponsorship ScandalScandal whistleblower protection in place at the time of the whistleblower protection in place at the time of the

Sponsorship Scandal?Sponsorship Scandal? NONE!!NONE!!

broader context of whisteblowing in the broader context of whisteblowing in the Government of CanadaGovernment of Canada

Joanna Gualtieri, Foreign AffairsJoanna Gualtieri, Foreign Affairs Shiv Chopra et al., Health CanadaShiv Chopra et al., Health Canada Brian McAdam (Immigration Canada) and Cpl. Robert Reid Brian McAdam (Immigration Canada) and Cpl. Robert Reid

(RCMP)(RCMP) Allan Cutler and the Sponsorship ScandalAllan Cutler and the Sponsorship Scandal


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

the whistelblowing regime and the context the whistelblowing 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-Gomery Internal Disclosure of Wrongdoing, 2001Internal Disclosure of Wrongdoing, 2001

– guide for guide for internalinternal disclosure of disclosure of wrongdoingwrongdoing internal vs. external disclosureinternal vs. external disclosure

– ““However, in certain exceptional circumstances an employee might be However, in certain exceptional circumstances an employee might be justified in making an external disclosure: for example, when there is an justified in making an external disclosure: for example, when there is an immediate risk to the life, health or safety of the public. Employees immediate risk to the life, health or safety of the public. Employees might be also justified in making an external disclosure where they have might be also justified in making an external disclosure where they have exhausted all internal procedures.” (TBS, PIDI 2001)exhausted all internal procedures.” (TBS, PIDI 2001)

wrongdoing vs. judgementwrongdoing vs. judgement– ““It is recognized that deputy heads are responsible for making decisions It is recognized that deputy heads are responsible for making decisions

which involve weighing the risks and benefits of various courses of which involve weighing the risks and benefits of various courses of action and selecting approaches which they consider to be in the best action and selecting approaches which they consider to be in the best public interest, including some that carry with them a risk. The public interest, including some that carry with them a risk. The judgement call that results from a balanced and informed decision-judgement call that results from a balanced and informed decision-making process would not be considered a wrongdoing within the scope making process would not be considered a wrongdoing within the scope of this policy.” (TBS, PIDI 2001)of this policy.” (TBS, PIDI 2001)

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 2005)Bill C-11 (November 2005)

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...

situations where there is not sufficient time to follow rules for internal disclosure ANDsituations where there is not sufficient time to follow rules for internal disclosure AND public servant believes on reasonable grounds that subject matter relates to...public servant believes on reasonable grounds that subject matter relates to...

– a serious offence under a federal or provincial Act; a serious offence under a federal or provincial Act; oror– an imminent and serious danger to the life, health or safety of persons or to the environmentan imminent and serious danger to the life, health or safety of persons or to the environment

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 or provincial Act; a serious offence under a federal or provincial Act; oror– an imminent and serious danger to the life, health or safety of persons or to the environment.an imminent and serious danger to the life, health or safety of persons or to the environment.

Statutes of Canada, C-46Statutes of Canada, C-46 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...



Statutes of Canada, C-46Statutes of Canada, C-46 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...



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

The Federal Accountability Act, 2006The Federal Accountability Act, 2006 enhance the role of the Public Sector Integrity Commissionerenhance the role of the Public Sector Integrity Commissioner

– officer of Parliament;officer of Parliament;– direct access to PSIC by employees to report wrongdoing in the workplace;direct access to PSIC by employees to report wrongdoing in the workplace;– give the Commissioner the authority to deal with complaints, conduct investigations, and attempt to conciliate a give the Commissioner the authority to deal with complaints, conduct investigations, and attempt to conciliate a

settlement between the parties; settlement between the parties; – give the Commissioner the power to authorize free access to legal advice for both public-sector and non-public-give the Commissioner the power to authorize free access to legal advice for both public-sector and non-public-

sector employees (very limited)sector employees (very limited) create an independent Public Servants Disclosure Protection Tribunalcreate an independent Public Servants Disclosure Protection Tribunal

– power to decide whether reprisal occurred and to order action to remedy the situation and ensure that those who power to decide whether reprisal occurred and to order action to remedy the situation and ensure that those who took reprisal are disciplined; took reprisal are disciplined;

introduce specific penalties for offences under the introduce specific penalties for offences under the Public Servants Disclosure Protection ActPublic Servants Disclosure Protection Act , including , including tougher penalties for those who willfully impede investigations of wrongdoing; tougher penalties for those who willfully impede investigations of wrongdoing;

make cash awards of up to $1,000 for public servant who has “shown courage in defending the public make cash awards of up to $1,000 for public servant who has “shown courage in defending the public interest”;interest”;

expand coverage of PSDPAexpand coverage of PSDPA– include Crown Corporations include Crown Corporations

provide more open access to information about disclosures of wrongdoingprovide more open access to information about disclosures of wrongdoing maintains existing restrictions on whistleblowing and disclosure of wrong-doingmaintains existing restrictions on whistleblowing and disclosure of wrong-doing

– disclosure to outsiders limited to...disclosure to outsiders limited to... situations where there is not sufficient time to follow rules for internal disclosure ANDsituations where there is not sufficient time to follow rules for internal disclosure AND public servant believes on reasonable grounds that subject matter relates to...public servant believes on reasonable grounds that subject matter relates to...

– a serious offence under a federal or provincial Act; a serious offence under a federal or provincial Act; oror– an imminent and serious danger to the life, health or safety of persons or to the an imminent and serious danger to the life, health or safety of persons or to the

environmentenvironment


possible 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

whistle-blowing and disclosure of wrongdoing (cont’d) november 16th, 2006

Documents

public servantduty of

public service

related issues

external disclosurehowever

punishment of whistleblowers

broader issueshow

internal procedures

robert reid rcmpallan