Keyserlingk has graduate degrees in religion and law. From 1989 to 1998 He was
Chair of the Clinical Ethics Committee at the Montreal General Hospital. He was
the Clinical Ethicist at that hospital from 1987 to 2000. He was appointed
Public Service Integrity Officer in 2001. This is a revised version of a
presentation given to the Library of Parliament seminar on October 11, 2002.
November 30, 2001 Treasury Board adopted a policy “On the Internal Disclosure
of Information Concerning Wrongdoing in the Workplace”. The objective of this
policy is to allow public servants to bring forward information concerning
wrongdoing and to ensure that they are treated fairly and are protected from
reprisals when they do so in a matter consistent with the policy. In support of
this policy a position known as the Public Service Integrity Officer was
created. This article outlines the mandate and operation of the office.
Public officials serve the Government
and the public interest by providing professional and neutral advice in a
manner that is consistent with certain ethical standards and values.
Accordingly, when an employee has reasonable grounds to believe that another
person has violated these standards he or she should be able to disclose this
information through a clearly defined processes and with confidence that he or
she will be treated fairly and protected from reprisals.
The mandate of the Public Service
Integrity Officer is to act as a neutral entity on matters of internal
disclosure of wrongdoing. In particular, I assist employees who believe that
their issue cannot be disclosed within their own department; or who raised
their disclosure issue(s) in good faith through the departmental mechanisms but
believe that the disclosure was not appropriately addressed.
The specific responsibilities of the
Public Service Integrity Officer are outlined in Treasury Board Policy. They
- to provide advice to employees who are considering
making a disclosure;
- to receive, record and review the disclosures of
wrongdoing received from departmental employees and/or the requests for
review submitted from departmental employees;
- to establish if there are sufficient grounds for
further action and review;
- to ensure that procedures are in place to manage
instances of wrongdoing that require immediate or urgent action;
- to initiate investigation when required, to review
the results of investigations and to prepare reports, and to make
recommendations to deputy heads on how to address or correct the
- in some special cases or in cases when the
departmental responses are not adequate or timely, to make a report of
findings to the Clerk of the Privy Council in his role as head of the
- to establish adequate procedures to ensure that the
protection of the information and the treatment of the files are in
accordance with the Privacy Act and the Access to Information
- to protect from reprisal employees who disclose information
concerning wrongdoing in good faith;
- to monitor the type and disposition of cases brought
to the attention of the Public Service Integrity Officer; and
- to prepare an annual report to the President of the
Privy Council on his or her activities for tabling in Parliament.
I think it is important to state at the
outset that in keeping with our legal tradition of innocent until proven
guilty, allegations remain just that until they have been investigated and
wrongdoing has been determined by an impartial examination of the facts.
Sometimes complaints or allegations are not substantiated and turn out to be
little more than a grudge or a personality conflict between two individuals.
But there have been occasions, and in a huge organization like the public
service of Canada, it is not imprudent to believe there will be other
occasions, where the public interest has been badly served by decisions and
actions of public servants and our task is to make sure that when such
incidents occur those persons who speak out against the actions are taken
seriously and are not punished for their actions.
We are authorised to look into four
specific kinds of wrong doing. These are:
1. breaking of any law or regulation
2. misuse of government funds or
3. gross mismanagement
4. threats to health or the environment
Each of these raises some interesting challenges regarding definition and
scope. For example “gross mismanagement” is not defined anywhere in law. Not
everyone will agree that an instance is gross. So we had to establish some
criteria. We can ask what kind of harm was inflicted and on how many? Was it a
public interest issue or did it involve only one individual. Is the problem
endemic? Has it gone unaddressed for a long time. Has the problem developed to
a point where a whole department could be limited in its capacity to produce
what it is expected to produce. Is morale affected to the point where it is
incapable of working as a team. Those are some of the factors that go into our
determination of whether wrongdoing constitutes gross mismanagement.
The Question of Independence
The office is meant to be independent
and for obvious reasons must appear to be so, otherwise we would have no
credibility. This presents some interesting challenges as we are created by
policy rather than by statute. The perception of an employee could be that we
are an arm of Treasury Board which is the employer therefore how could we be
independent? I recognised this from the start and before taking the position I
had long discussion with Treasury Board people as to whether the office will be
able to function independently. Can we take cases that we want and deal with
them as we want? Can we develop our own procedures, dispose of complaints as we
wish, make recommendations we feel are warranted and have our recommendations
be taken seriously? In my discussions with officials and indeed with the
President of Treasury Board I received assurances that there would be no
interference from anyone at any time at any level.
Still there are some limitations that
derive from our status as a creature of policy rather than legislation. We do
not have subpoena powers. We do not have a tribunal whereby we make a ruling
and then make it stick according to some established form of legislation.
How the Office Operates
We have seven people in our office
including three investigators, a director and two support staff. That seems to
be enough for the moment. At any one time we have about 60 cases but some do
not require full investigation as they are resolved at an early stage. More
than 2/3 of cases come from outside Ottawa and that is a trend which may
require more staff resources. Not all public servants are eligible to bring
their complaints to us. Only those employees listed in Part 1, Schedule 1 of the
Public Service Staff Relations Act. That includes about half the Public
Service but does not cover employees of Crown Corporations or certain other
institutions including Parliament.
When public servants bring allegations
to us, they must be made in good faith. If we find an allegation is more in the
nature of a gripe, about a staffing issue for example, we may suggest there are
other, more appropriate, avenues to address these problems. In fact we spend a
lot of time determining whether an allegation belongs in our office or is
better dealt with in another forum. We do not want to compete or overlap with
the work of the Human Rights Commission, the Auditor General, public service
unions, departmental co-ordinators for harassment, human resources or staff
relations or with any other organisation that can potentially deal with a
grievance if we believe that forum can handle it better. However, in some
cases, particularly if a long delay can be expected in hearing a complaint by
one of these organisations, we will become involved and try to expedite the
matter. Our goal, for a full investigation, is to resolve it within six months.
That includes our report to the Deputy Minister as to our findings and the
reasons for them along with a recommendation as to what we would like to see
happen. Of course the outcome will depend on the strength of our evidence and
the thoroughness of the investigation. The recommendations we are making must
be reasonable in the circumstances.
Our report is not necessarily the end
of the matter. Unions can still get involved. Lawyers can get involved. If I am
unhappy with the outcome of what we have recommended, I can go to the Clerk of
the Privy Council and ask him to intervene with the Deputy Minister concerned
and see if he will accept my recommendations. So far I have not had to go that
far in any investigation.
My report to Parliament is done through
the President of the Privy Council rather than President of Treasury Board. The
report can be subject to parliamentary and committee questioning. The first
such report will not likely be made until we have been in operation for at
least a year which will take us to April or May 2003.
Confidentiality is central to the work of
my office and we assure complainants that we will provide them with as much
confidentiality as we can. We cannot give absolute assurances. If you are
willing to come forward with an allegation you have to expect that your
identity might be discovered in the course of an investigation simply because
when you ask for records it may become apparent who is making the allegation.
We make sure people understand this and we also give assurances that during the
course of an investigation we will not be forced to cough up any confidential
We also remind people that the alleged
wrong doer has a right to due process and at some point that might involve
knowing who is making the accusation so he or she can defend himself properly.
One way to try to balance the rights is to ask the complainant if we have
permission to proceed through the various steps of the investigation. If the
complainant is unhappy that his identity might become known we can decide not
to proceed. On the other hand if the issue they are complaining about is of
such serious public interest even though they do not want to proceed we might
decide we have to proceed. It could be an issue where there is enormous public
risk to health or the environment and we are not entitled to simply withdraw to
preserve someone’s identity. Thus there is no easy answer to the issue of
confidentiality but it is always a concern for us.
Sometimes information will come to us
anonymously. That is not our favourite way to proceed since we cannot question
the person making the allegation to get more details. While we do not encourage
anonymity we will follow up on such complaints.
Another responsibility we have is to
protect people from job reprisals linked to their allegation of wrongdoing.
Unions in particular have told us they are very worried about job reprisals for
whistleblowers. At the moment we have very little track record in this regard
but this is an important part of our mandate.
Sometimes it is not hard to identify
job reprisals as it is linked closely in time to the allegation of wrongdoing.
But employers could be more subtle and wait until the dismissal or reprimand is
less obviously linked to the allegation. They could also make the case that
there are other arguable grounds for the reprisal such as competence. There is
quite a bit of literature about this in the corporate world and some criteria
can be developed to assist us in making a judgement. We do monitor what happens
to people after they come to us. An individual can come back to us at any point
and make a credible allegation that they suffered some reprisal because of
their actions in coming to us.
Some Thoughts For the Longer Term
The creation of a Public Service
Integrity Office is a good first step in the evolution of our public service
but in my view it cannot be the last step. Certain other things have to happen
if we are to make any real progress in stopping wrong doing. The government and
here I mean section heads, directors and Deputy Ministers have to encourage the
reporting of wrongdoing as an important civic responsibility. They have to make
it clear that unreported wrongdoing impedes delivery of services. It increases
scepticism. It complicates other things we are doing. After all the public
service is about the delivery of services and the public is paying for those
services. This will not, in my view, require a policy change. It simply
means taking seriously what leadership is about and what good organisations are
about and what public service is about.
It follows that allegations of wrong
doing should be rewarded. I am not talking about monetary reward but
recognition that this is a meritorious act and recognized in the way we
recognize other meritorious acts — letter of recommendations, criteria for
promotion, and so on. These two actions will go some way to insuring that
whistle blowing is something that is not limited to kooks or dissidents as is
I think there is also a structural
problem that may need to be addressed. What is the point of going to the
Deputy Minister or Assistant Deputy Minister or director if the person is not
around or has only been around for a short time. Wrongdoing is ideally best
addressed at the department level by going to one’s own superior. That can be
sometimes much more effective than going outside. But what if people are not
prepared to listen or are not accessible. As has been observed by other the
fact is many public service managers do not stay in office long enough to
become familiar with the problems in their departments. It has been calculated
that it takes at least three years to become familiar with a major department
and the career path in many departments is much shorter. It is not unusual to
find three managers in the space of two or three years. All of them may be competent
but none have been there long enough to get a grip on issues and staff members.
The most competent ones move the fastest. But the cost is to those left behind.
My final concern is a perceived lack of
equal standards between different levels of government. Civil servants work
under fairly strict ethical standards but if they perceive that others do not
have to face the same standards they may become cynical and begin to ask why
they should continue to follow their standards.