Friday, December 10, 2010

Fwd: [FAIR Newsletter] OAG report on Integrity Commissioner – a devastating indictment

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FAIR   Newsletter

OAG report on Integrity Commissioner – a devastating indictment

The Auditor General, Sheila Fraser, released yesterday the results of her investigation into the the conduct of the government whistleblower watchdog, Integrity Commissioner Christiane Ouimet – an investigation that was prompted by complaints from three of Ouimet's former employees. These findings amount to a devastating indictment of the Commissioner's conduct.

Fraser concluded that the three areas of complaint were founded:

  1. that the Commissioner failed to perfom her mandated functions, showing great reluctance to accept or investigate cases, failing to establish proper procedures for handling cases, and refusing to investigate for reasons that were not supported by the available evidence
  2. that she engaged in inappropriate conduct towards her staff – that she "yelled, swore, berated, marginalized and intimidated" certain of her employees
  3. that she engaged in reprisals against employees, in one case devoting significant resources to a bogus security investigation against a former employee whom she suspected of complaining about her.

Fraser also reported separately to Treasury Board about allegations related to performance pay decisions, and referred to the Privacy Commissioner violations of the Privacy Act by Ouimet that she uncovered.

FAIR's analysis

The importance of Auditor General Sheila Fraser's thorough investigation cannot be overstated.  Over the past three years FAIR has repeatedly criticized the inadequacy of the law and the lack of results from Christiane Ouimet's office. We are pleased to see our concerns validated and to understand better why this office accomplished nothing.

It is ironic that this commissioner was a role-model for the types of behaviour that she was employed to help drive out of the public service: misconduct in the performance of her mandate; and reprisals against honest employees who objected to this.

OAG's findings lay bare at least three major failures:

  1. A failure of the whistleblower legislation. It is noteworthy that OAG soon found that it could not even conduct its limited investigation effectively under the whistleblower act and decided to proceed under the Auditor General Act instead.
  2. A failure of the appointments process. This commissioner did not suddenly turn into this type of person when appointed to this office – she had a track record which should have been examined. This is the kind of bad decision that so often results from secretive back-room deals.
  3. A failure of oversight. This appalling situation continued for more than three years before being brought to light. The first complaint to OAG was more than two years ago – yet when Ouimet appeared before parliamentary committees she essentially got a free pass. Committee members asked her few tough questions because they had no idea what was going on.

Described by some as a 'reign of terror', Ouimet's actions over the past three years have had very serious negative consequences.

The worst is that instead of deterring wrongdoers she has emboldened them, since they could quickly see that her office presented no threat to them.

And instead of protecting honest public servants from reprisals, she has terrorized her own employees and abandoned to their fate those who came to her office for help: they soon learned that the safe harbour promised to them was an illusion. There is a human tragedy behind so many of the 228 complaints that she ignored, as we know only too well from the many calls we have received from desperate whistleblowers.

Sheila Fraser's description of the lax and arbitrary manner in which cases were disposed of, and the bizarre reasons given for refusals, suggest a contempt for due process and a complete disregard for the plight of many of these truth-tellers who had been brave enough to come forward.

Some of the details revealed by the report are quite surreal. For example, Ouimet launched an investigation of an employee who had left 6 months before because she suspected (incorrectly) that he had complained about her. In the process she compiled four binders of information on him containing more than 375 pages, circulated at least 50 emails about him, and engaged at least six of her 20 staff in this task. She also attempted to get access to the personnel files of this person (and three others) from previous employers and shared confidential personal information about him with others within and outside the public service.

For those who, like us, wondered what the Commissioner was doing with her time – since her office seemed to be doing nothing – here perhaps is part of the answer.

Further revelations to come

There is a lot more information still to come out about what was going on within this office – and across the federal government.

At least two Parliamentary committees have an obligation to examine and learn from this catastrophe – Government Operations for the operational aspects, and Public Accounts for the legislative aspects. The Public Accounts committee has apparently decided already to call Mme Ouimet to appear before it on Tuesday.

We will hear in due course from the Privacy Commissioner the results of her investigation into Ouimet's actions, and the Treasury Board will be under great pressure to release the results of its investigations into allegations of improper performance pay decisions by Ouimet.

There are also the dozens of public servants who went to this office for help – submitting a total of 170 complaints of wrongdoing and 58 complaints of reprisal.  When their cases are re-examined properly there will surely be many more investigations, followed by more exposures of wrongdoing within government departments.

In addition many people who have been silent while waiting for Fraser's findings can now speak out publicly, knowing that their concerns have been vindicated. These include former PSIC employees such as Normand Desjardins (who submitted the first complaint) and Pierre Martel, the acting Commissioner who left within weeks of Ouimet's arrival.

It is noteworthy that, although FAIR has received a steady stream of calls from whistleblowers over the past three years, we never heard from any PSIC staff – until this audit was announced. Now we are in contact with several former employees – some still very fearful and insisting upon complete anonymity – who say that there is yet more more to this story that needs to be told.

Actions required

As recently as October 25, after the OAG audit was announced, President of the Treasury Board Stockwell Day assured the public of his confidence that PSIC "continues to be a safe and independent agency for public servants to bring concerns about wrongdoing in the workplace without fear of reprisals". How was he so badly briefed?

Hopefully Fraser's report will erase the government's past denials that there is a problem, and it will then become possible to have sensible discussions on the Hill about how to fix this mess.

So one of the first things that needs to happen is a frank admission by the government of the magnitude of the problem. Its much-touted "ironclad" protection for whistleblowers, the core of its Accountability Act, is a complete shambles – a bad law compounded by a bad choice of commissioner.

The Liberals also need to avoid turning this situation into a purely partisan debate, since their track record is no better: after promising during their successful 1993 election campaign to clean up government and protect whistleblowers, they reneged and even blocked several private members bills. Only when forced into a corner by the Gomery Inquiry did they introduce legislation – a pitifully inadequate bill that never came into force.

Minister Day's statement today – that he 'assumes' the acting Commissioner will now review all the old files – raises serious concerns.

The current acting Commissioner Joe Friday was Ouimet's long-standing senior legal counsel. In this role he was responsible for reviewing all cases and providing guidance to the Commissioner regarding the legal basis for her decisions. Is it reasonable to expect him to review his own work?

The government must also realize that this review will be a massive task, since it involves essentially re-doing three years of work – the work that this office of more than 20 people was supposed to be doing. This will require an entire team of people, who must not only be competent, but must also be independent of those who did the original work.

Going forward, we see at three major processes that need to be initiated:

  1. The search for a new Commissioner – this time using a public, merit-based appointment process, not the type of secretive back-room process that led to Mme Ouimet's selection and the glowing endorsement of her as the ideal candidate.
  2. A root-and-branch reform of the current deeply-flawed legislation, which was condemned by FAIR and many others even before it came into force. This law creates so many barriers and pitfalls for whistleblowers that most will fare just as badly under a new Commissioner, whose hands will be tied until the law is rewritten.
  3. A complete, thorough and independent re-examination of all the past cases, and thorough investigations of wrongdoing and reprisals where warranted.

There also need to be consequences for those who perpetrated this massive obstruction of justice – and not just the Commissioner. Other senior PSIC staff who willingly collaborated in depriving whistleblowers of due process – and effectively assisted in the cover-up of suspected departmental wrongdoing – need to be disciplined.

This office was created to punish and thus deter wrongdoers, as well as to protect whistleblowers and make them whole after reprisals. These same goals must be pursued in the efforts to clean up the current fiasco. We cannot allow yet another scandal in which the wrongdoers retire in comfort while the truth-tellers have to lick their wounds and adjust to straightened circumstances.

The USA began protecting whistleblowers more than 30 years ago. The UK has had effective protection for truth-tellers for more than a decade. Even former Communist-bloc countries like Bulgaria have made important strides. Meanwhile Canada has been pretending – but doing nothing serious – for 17 years.

This government, with assistance from Mme Ouimet, has brought about a spectacular meltdown of whistleblower protection. On the issue of protecting honest employees, which is central to the entire process of transparency and accountability, we are now the laughing stock of the developed world.

Canadians deserve better.

FAIR looks forward to assisting all sincere efforts to fully understand what went wrong and to develop a way forward. We will work with the government, opposition leaders and any other interested parties to help recover from this body blow to the integrity of our democracy.

We hope that this time around the government will pay attention to the expert advice available from ourselves and others to create a system that's not just for show, but one that will work to protect the public interest.

David Hutton
Executive Director

Read the full text of the Auditor General's report (pdf)

About FAIR

Federal Accountability Initiative for Reform (FAIR) promotes integrity and accountability within government by empowering employees to speak out without fear of reprisal when they encounter wrongdoing. Our aim is to support legislation and management practices that will provide effective protection for whistleblowers and hence occupational free speech in the workplace. FAIR is a registered Canadian charity.

FAIR is a volunteer-run charity with slender resources. If you feel that our work is worth supporting, please consider making a donation.

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