OPSSC - Parliament of Western Australia€¦ · (FESA), where the appointee, Mr David Caporn, had been the subject of ... All too often, agencies rely on folklore when recruiting

OPSSCLittice of the

Public SectorStandardsCommissioner

PARLIAMENTARY SERIES

REPORT FOUR

Management of Recruitment

CONTACTS

Office location: 12th FloorSt Martins Tower44 St Georges TerracePerth WA 6000

Postal address: GPO Box 2581Perth WA 6001

Telephone: (08) 9260 6600

Facsimile: (08) 9260 6611

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Internet: www.opssc.wa.gov.au

Email: [email protected]

AVAILABILITY IN OTHER FORMATS

If you have a disability you can request this publication in an alternative format.

People who have a hearing or speach impairment may call the ACE NationalRelay Service on 133 677 and quote telephone number (08) 9260 6600.

The report is available in PDF format at www.opssc.wa.gov.au.

ISSN 1835-7342

Published by the Office of the Public Sector Standards Commissioner

May 2009

Management of Recruitment OPSSC

OPSSC

THE SPEAKER THE PRESIDENTLEGISLATIVE ASSEMBLY LEGISLATIVE COUNCIL

PARLIAMENTARY SERIES REPORT FOUR - MANAGEMENT OFRECRUITMENT

I submit to Parliament the fourth report of the Office of the PublicSector Standards Commissioner's Parliamentary Series pursuant tosection 21(1)(h) of the Public Sector Management Act 1994.

This series of reports aims to provide Parliament with timelyinformation about the extent of compliance or non-compliancewith the general principles of official conduct and human resourcemanagement.

I seek permission to publish the report following tabling inParliament.

Dr Ruth SheanCOMMISSIONER FORPUBLIC SECTOR STANDARDS

6 May 2009

OPSSC PARLIAMENTARY SERIES REPORT FOUR

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CONTENTS

OPSSC

1 COMMISSIONER'S FOREWORD 1

1.1. Reporting categories 1

1.2. In the public interest 2

2. INTRODUCTION TO THIS REPORT 3

2.1. Implications for agency heads 4

3. MANAGEMENT OF RECRUITMENT 6

3.1. Compliance inquiry one:agency's practice not compliant with PSM Acts.8(1)(b) and s.8(1)(c)

3.2. Compliance inquiry two:agency's practice not compliant with PSM Actss 8(1)(a) and (b) and s.9(b)

6

14

iii


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1. COMMISSIONER'S FOREWORD

OPSSC

This report is the fourth in a series for the Office of the Public Sector StandardsCommissioner (OPSSC) to Parliament. Under the Public Sector ManagementAct 1994 (PSM Act), the Commissioner for Public Sector Standards is required toreport annually or from time to time to each House of Parliament on compliance ornon-compliance with:

some parts of s.8 and all of s.9 of the PSM Act (these detail the generalprinciples of human resource management and official conduct);

the public sector code of ethics;

agencies' own codes of conduct; and

public sector standards.

The Parliamentary Series reporting approach has been introduced for the followingreasons.

Reporting to Parliament as and when matters arise is within the intent ofthe PSM Act.

Where the identity of an informant is known, it may not be unlawfulto report to the informant directly. To do so while not reporting toParliament, however, may not be in the spirit of the PSM Act.

Some matters are referred to OPSSC anonymously and it is notpossible to report back to the informant. If there is any substance to thematter, the Commissioner may need to report to Parliament.

1.1. Reporting categories

Concerns about the public sector are reported in the following ways:

compliance inquiries about alleged breaches of standardsclaims;

general compliance inquiries; and

through provisions of the Public Interest Disclosure Act 2003.


1.2. In the public interest

Matters deemed to be within the public interest are appropriately reportedto Parliament. The release of information is to provide confidence in thepublic sector. The purpose of such reporting is to identify areas whichrequire action to increase public confidence. Not all compliance inquiriesraised with OPSSC will necessarily be reported in these reports. Mostmatters will be reported in summarised data in the OPSSC State of theService Report OPSSC's annual compliance report.

For the most part, OPSSC reports matters by naming agencies rather thanindividuals. In this way, those who have lodged concerns will be able toidentify the situations, while at the same time the identity of individuals willbe protected. In light of recent discussions with chief executive officers,OPSSC has developed public interest guidelines which guide chiefexecutive officers (CEOs) and chief employees regarding the release ofinformation to the public. This guide is available on the OPSSC website.

1


2. INTRODUCTION TO THIS REPORT

This report details two matters relevant to the compliance of s.8(1)(a)-(c) ands.9 of the Public Sector Management Act 1994 (PSM Act) and the public sectorstandards in human resource management.

Both matters relate to the failure of government agencies to follow proper processin recruitment.

The first matter relates to a recruitment process at the Department of Health,where there was a question of giving preference to an internal candidate overexternal candidates, and where an industrial agreement was used to justify thisdecision.

In the case of the Department of Health, OPSSC reports:

that the Department's transactions on this matter were not compliantwith s.8(1)(b) of the PSM Act ("no power with regard to human resourcemanagement to be exercised on the basis of nepotism or patronage")on the grounds of power being exercised on the basis of patronage;

that the Department's actions were not compliant with s.8(1)(c) of thePSM Act on the grounds of employees being subject to arbitrary orcapricious acts, in that the panel was instructed by the Manager to actin a manner which was based on or determined by individual preferenceor convenience rather than by approved procedure; and

that clauses in industrial agreements need to be carefully worded toreduce the likelihood of giving scope to breaching the provisions of thePSM Act. The Department is advised to amend this clause when theindustrial agreement is next under review.

The second matter relates to a recruitment process for the position of ExecutiveDirector Community Development with Fire and Emergency Services Authority(FESA), where the appointee, Mr David Caporn, had been the subject ofdisciplinary action following a Corruption and Crime Commission enquiry.

In the case of FESA, OPSSC reports that FESA's process on this matter is notcompliant with:

the Recruitment, Selection and Appointment Standard; and

s.8 of the PSM Act

because there has been a failure to make a proper assessment due to:

inadequate panel composition;


use of selection criteria not adequate for the position;

failure to manage appropriately the impact of the CCC matter;

inadequate verification of candidate's claims; and

poor documentation resulting in a process that was not transparent andcapable of review.

OPSSC reports that the Western Australian Public Sector Code of Ethics requiresthat all public sector employees must "act with care and diligence and makedecisions that are honest, fair, impartial and timely, and consider all relevantinformation". The decisions in this process do not appear to have been undertakenwith due care and diligence on many elements required for a recruitment processto meet the appropriate standards. Neither did the processes take account of allrelevant information, in that limited attempts appear to have been made to seekfurther highly pertinent information that was available. In this case, which relates tothe appointment of a senior public servant already under investigation for a CCCmatter, OPSSC is not able to confirm FESA's compliance with the Code of Ethics(PSM Act s.9).

Further, OPSSC is of the opinion that:

non-compliance with the PSM Act notwithstanding, Mr Caporn'sappointment is valid; and

while Mr Caporn's resignation from WA Police may leave no legalreason nor channel for the completion of the disciplinary processagainst him, there are ethical reasons to resolve this matter. OPSSCbelieves that it would be appropriate for the Commissioner of Police,following consultation with Mr Caporn, to continue with the disciplinaryprocess relating to Mr Caporn.

2.1. Implications for agency heads

This report raises a number of important issues for agency heads.

Proper assessment is fundamental to meeting the requirementsof the PSM Act and the public sector standards in human resourcemanagement. OPSSC defines "a proper assessment" as examiningeach candidate's claims, independently verifying these claims andensuring scrutiny of the process prior to appointment. A properassessment requires good judgement, and places the onus onthe agency to take steps to apply processes which will inspireconfidence in appointments.

OPSSC again states the importance of external verification ofcandidates' claims. References should test candidates' claims andstatus, especially where there are issues of sensitivity. A range ofreferees should be chosen to provide adequate comment on anindividual and their capacity.


Recruitment reporting which shows key decisions is essentialto good processes. This does not mean that reports need tobe long or intricate. But where decisions are made which maybe questioned, then the reasons for these decisions must alsobe given. This is especially relevant where there are complexcircumstances. Formal advice should be sought as appropriateand documented as part of the process.

All too often, agencies rely on folklore when recruiting. OPSSCis concerned that many of the barriers introduced into recruitingprocesses are there only because "that's the way we'vealways done it". Similarly, the dependence on past practice asa justification for short-cuts or unorthodox practice is of equalconcern. Processes need not be complex, but they must be clearand well documented, and followed until such time as they areformally amended.

CEOs who are directly involved in appointments should take careto separate out their roles in the process, and seek external inputand advice prior to completion of the process. CEOs hold manyroles and responsibilities within their agencies. Where these rolesand responsibilities coincide, seeking the formal support of othersis wise. Most importantly, at the commencement of a processwhere there are complex ethical issues, senior staff are welladvised to consult OPSSC for recruitment advice.

All parties should take care that, while industrial agreementsshould strive to seek the best possible outcomes for employees,to do this in a way which may risk encouraging non-compliancewith the standards is in no one's best interests. All employeesare best served by positive support and a fair hearing duringrecruitment processes. An industrial and recruitment environmentwhich supports this approach, and where there is no possibleaccusation of patronage or favouritism, is the best way to achievethis outcome.


3. MANAGEMENT OF RECRUITMENT

3.1. Compliance inquiry one: agency's practice notcompliant with PSM Act s.8(1)(b) and s.8(1)(c)

Facts and circumstances

The position of Patrol Support Worker at a Department of Health hospitalwas advertised in October 2007. The advertisement advised that whilethe selection process would initially be used to fill a specific vacancy, itwould also be used to fill other "identical" vacancies throughout the healthservice.

Mr A applied for the position of Patrol Support Worker. He was assessedas being a suitable applicant but was not the recommended applicant. Helodged a claim of a breach of the Recruitment, Selection and AppointmentStandard in March 2008. OPSSC commenced investigation of thismatter. When another Patrol Support Worker vacancy came up, Mr A wasappointed to this vacancy and withdrew his claim of a breach of standards.

OPSSC had commenced its review of the matter at the time of Mr A'swithdrawal of his claim. During this review, OPSSC found that Mr Ahad not been short-listed for interview in the first instance as he wasconsidered not as competitive as others. Following a phone call from aunion delegate to a manager who was not part of the recruitment process,the Manager requested that Mr A be included in the short-list. Panelmember two, a human resources consultant, advised that:

(The Manager) advised the selection panel that it washis preference ... that the opportunities available topermanent staff to develop their skills and experienceby being provided with interviews where possible aremaximised.

As a result of this, the section panel reviewed their short-listing thresholdand a further three people were short-listed for interview. Mr A wasone of these people, and while not successful for the first position, wassubsequently appointed to a second on the strength of this single process.

This information was of concern to OPSSC. First, there was concern thatsomeone outside of the selection process had sought to influence theprocess on the strength of "lobbying" from an outside source. On the faceof it, this does not appear to be consistent with the requirements of the


PSM Act. Second, there was concern that through this action, the hospitalhad appeared to give preference to internal candidates. In this particularcase, Mr A was not initially short-listed for interview. Following theintervention of the Manager external to the process, he was interviewed,and as a result of this intervention, subsequently offered a job.

To assist readers in understanding this case without naming theindividuals, OPSSC will refer to the main people involved as follows:

Mr A the person who lodged the breach claim for the positionof Patrol Support Worker;

the Manager a manager within the hospital who was not onthe selection panel but was senior to all on the panel and asenior manager to and three levels higher than Mr A;

Panel Chair an acting assistant manager within the hospitalwho reported to the manager listed above;

Panel Member Two the acting human resources consultant;and

Panel Member Three a contracted security consultant.

OPSSC sought further information from the Department regarding:

the role of the Manager, if any, in this process; and

full details of any contact this Manager had with any individual,including members of the selection panel, with respect to theshort-listing process.

The OPSSC review showed that nine people applied for the position ofPatrol Support Worker. There were two vacancies. Of the nine, four wereinternal applicants and five were external applicants. Three applicants, allinternal, were initially short-listed for interview.

All panel members confirmed that in the initial assessment of applicationsfor the position of Patrol Support Worker, Mr A was not short-listed.

Following short-listing, those who were short-listed for interview had beencontacted to arrange the interview. The Manager became involved afterthe initial short-listing was done, and he confirmed that he did so followingcontact from a colleague who was also a union delegate.

The Manager stated:

(Mr A) had been acting in the role and others had beencontacted regarding interview but (Mr A) had not beenshort-listed for interview. As a result of his contact withme I did contact the panel, I can't remember who first.


I did ask to speak to them as I was concerned aboutthis development, the fact that (Mr A) did not get aninterview. He was a substantive staff member and hadbeen acting in the role. We have an agreed practicewhich has been in place for years indicating we want tobe as inclusive as possible with substantive staff beinggiven opportunities for interviews. .... There are tworeasons for this; one is to maximise opportunities forstaff to go through recruitment exercises as a learningand development opportunity and to understandwhat is required of them. The second reason is toallow us to obtain the optimal candidates for positionsand sometimes this is not demonstrated in writtenapplications. I outlined this practice and values of theDepartment to (panel members). I was surprised Ineeded to but (Panel Member Two) was relatively newto the Department as was (the Panel Chair), and (PanelMember Three) was not part of the Department. .... Ishould have spoken to them prior to the panel beingformed and informed them then that this was what wewanted to do. I did not do this as I thought they hadknown this.

During the OPSSC investigation, the Manager referred to the 2007Western Australian Industrial Relations Commission Agreement 01161which states:

Existing part-time, casual and fixed term contractemployees within a Hospital/facility will be providedwith the opportunity to fill vacant permanent positions.External applicants will only be considered where thereis no suitable pool of existing casuals, part-time or fixedterm contract employees with the required skills withinthe Hospital facility.

The Panel Chair advised:

We conducted the first lot of interviews. The next day(the Manager) took (Panel Member Two) and me intohis office to tell us the union had contacted him. Heasked for (Mr A's) application and on the basis of hisexperience with the Industrial Relations Commission hedeemed that the information that (Mr A) had submittedwas sufficient to grant him an interview. I think (theManager) told us that an existing (staffing) policy wasto interview staff members for equivalent position tothe ones they were working in, if they met the minimumcriteria.


Panel Member Two, the acting human resources consultant, advised:

"We went ahead with the first couple of interviews...Then (the Manager) outlined to us the reasons whythe union had an issue with it... The whole point ofshort-listing is to narrow the field down. I was not awareof any culture or agreement that we would interviewexisting employees. The LHMU' agreement doessay that existing employees should be given the firstopportunity to apply for a permanent position.... Thismeans we advertise internally first and if we get enoughapplications we do not advertise externally for thepositions."

This panel member stated that she was uncertain as to the appropriateaction to be taken when requested by the Manager to interview Mr A.

We discussed it as I had some reservations about doingsomething like this in the middle of the process. I cameback and discussed the decision with (the Coordinatorof Human Resource Operations) because I had not hadexperience with this before. We agreed that reviewingthe applications would be a suitable way of managingthis.

Despite Panel Member Two an acting human resources consultanthaving reservations about the reasons for interviewing him, Mr A wasinterviewed. He was assessed at interview as performing almost as wellas the second recommended applicant, and being superior to a fourth,previously short-listed, applicant.

As a result of the second round of short-listing, two other applicants hadbeen offered interviews. In the meantime, both of these applicants hadbeen offered positions elsewhere and declined the interview.

The Manager, who had not been on the panel, further stated:

From (Panel Member Two's) perspective and minethere was nothing inappropriate about this discussionas it was in line with the Department's stated practicesover a period of years of being inclusive. Althoughthe union brought it to my attention it was not out offear that I held this discussion with the panel. I heldthe discussion because of the inclusive practice ofthe Department. I would have done the same thing nomatter who it was. It had nothing to do particularly withMr A. I have been involved in contentious situationswith the union over the years and have always stood

LHMU: Liquor Hospitality and Miscellaneous Union


my ground on the basis of morals and stated policy andprocesses of the hospital and public sector standardsas I understood them... (Panel Member Two) did sayto me she wished she had understood this before theprocess and I said to her that I had thought she had.

The Coordinator of Human Resource Operations within the hospitaladvised,

I am aware of this practice. There has been ahandshake deal between the hospital and the LHMUregarding giving existing employees opportunities to beinterviewed for vacant positions.

Discussion

This case raises three separate matters:

an attempt from a person outside the selection process toinfluence the selection process;

a request to follow an approach which is reported to becommon practice within the hospital but for which there is nodocumentation; and

reference to and interpretation of the relevant industrialagreement which would appear to be in conflict with thestandard.

An attempt from a person outside of the selection process toinfluence the selection process: It is clear from this investigation thatthere was an attempt by the Manager who was not part of the selectionprocess to influence the process in favour of an internal candidate. ThePSM Act requires that "all selection processes are to be directed towards,and based on, a proper assessment of merit and equity". It furtherrequires that "no power with regard to human resource management isto be exercised on the basis of nepotism and patronage". This attempt toinfluence the process was therefore not consistent with the provisions ofthe PSM Act.

A request to follow an approach which is reported to be commonpractice within the hospital but for which there is no documentation:The Manager, Patient Support Services reported that giving preferenceto internal candidates was in line with the Department's stated practicesover a period of years of being inclusive. One member of the selectionpanel reported that they were aware of this practice and described it as "ahandshake deal between the hospital and the LHMU". This was referred toby one of the panel members when they said:


The LHMU agreement does say that existingemployees should be given the first opportunity to applyfor a permanent position... This means we advertiseinternally first and if we get enough applications we donot advertise externally for the positions.

This panel member is correct. The relevant industrial agreementreferences the patronage of existing employees over and above externalapplicants. This particular situation, however, is different to that which isreferred to in the agreement. The position had been advertised externally.It was following advertising that preference was shown to internalcandidates, a practice not identified in the industrial agreement. TheOPSSC review was not able to identify any documentation of the practiceof short-listing internal candidates. Pressure on the panel to do this, anda suggestion that the panel should exclude external candidates of equalmerit from the process was not treating the panel staff fairly, and in thewording of the PSM Act, could be deemed to be an arbitrary or capriciousadministrative act that is, one which was "based on or determined byindividual preference or convenience rather than by necessity or theintrinsic nature of something"2. The expectation that panel members wouldact on the basis of informal advice is not compliant with the PSM Act.

In this case, the Manager who intervened probably had a sound reasonto do so: that is, the bar was lowered on this occasion on the basis thatsometimes people applying for jobs such as this one are not fluent inwritten expression and hence more leeway should be given to their writtenapplication. Further, OPSSC emphasises that there was no suggestionfrom the Manager that the panel should exclude external candidates ofequal merit. These issues could, however, have been addressed in afar more satisfactory manner. There should have been policy developedahead of time, or at the very least, specific direction at the time of the rolebeing advertised that if all internal candidates were to be interviewed forthis position, then all external candidates of equal merit would also beoffered an interview.

Reference to and interpretation of the relevant industrial agreementwhich would appear to be in conflict with public sector standards: Itis the case that the relevant industrial agreement specifies that:

Existing part-time, casual and fixed term contractemployees within a Hospital/facility will be providedwith the opportunity to fill vacant permanent positions.External applicants will only be considered where thereis no suitable pool of existing casuals, part-time or fixedterm contract employees with the required skills withinthe Hospital facility.

2 Merriam Webster Online Dictionary, 2009, viewed on 18 March 2009,<http://www.nnerriann-webster.conn/dictionary/arbitrary>


Section 8 of the PSM Act and the public sector standards that relate to thispart require that all selection processes are to be directed towards, andbased on, a proper selection of merit and equity. It can be assumed thatstaff filling casual and fixed term position would have undergone a properselection process, compliant with the PSM Act, to have been selected forthese positions.

If positions are advertised as "casual or fixed term with the possibility oftransition into permanent positions" then there would be limited potentialfor conflict with the Act in this respect. In the event that positions areadvertised only as "casual or fixed term", it could be argued that this couldattract a reduced field. When the opportunity for a permanent positionarose, it would then be necessary to "test the market" so that the principleof equity was honoured. In the event that those interpreting the award arenot aware of this requirement, there is the risk of breaching the PSM Act.The clause from the industrial agreement, worded as it is, has the capacityto lead staff to act in a manner which is contrary to the PSM Act.

There may be other good industrial reasons as to why an employer maywish to interview internal staff. For such an approach to be consistent withthe provisions of the PSM Act, however, where such a policy applied, itwould also be necessary to interview all external candidates who were ofsimilar merit. There was no preclusion to this happening in this particularcase, although as it happened, the external candidates declined interview.In other circumstances, however, this approach may well be unwieldy: asthe human resources panel member said, "The whole point of short-listingis to narrow the field down".

The restriction on external candidates currently imposed through thisagreement has been the subject of prior investigation from OPSSC.OPSSC has previously received complaints about the restrictiveemployment practices which resulted from the industrial agreement.In 2007, OPSSC wrote to the Department, drawing attention to theclause within the agreement having the capacity to conflict with theprinciples within the PSM Act and seeking resolution to this matter. TheDepartment had agreed to amend the clause when the agreement wasnext negotiated. On the strength of this commitment, OPSSC exemptedthe Department with respect to employment processes under this clauseuntil April 2008. OPSSC understood that the provision in the agreementwhich required positions to be advertised internally first was to be replacedby an undertaking to review the current process to improve efficiency andensure compliance with the standard. Unfortunately, the agreement hassubsequently been renewed without amending the clause.

In the case of Mr A and his application for the position of Patrol SupportWorker, the matter under investigation was not covered by the exemption:the exemption applied only to advertising. The practices endorsed by theManager were neither consistent with the PSM Act, nor permitted throughthe exemption from the public sector standards.


While OPSSC received this matter originally as a claim that the publicsector standards had been breached, that claim was subsequentlywithdrawn, and a broader issue of compliance became apparent. OPSSCthen considered the matter under the broader scope of ss 8-9 of the PSMAct.

OPSSC reports that the hospital's transactions on this matter werenot compliant with s.8(1)(b) of the PSM Act (no power with regardto human resource management to be exercised on the basis ofnepotism or patronage) on the grounds of power being exercised onthe basis of patronage.

Due to the diligence of the panel, the panel's actions were compliant withs.8(1)(a) (all selection processes are to be directed towards, and basedon, a proper assessment of merit and equity). The Manager instructedthe panel to bias the process in favour of an internal candidate. The panelfollowed this instruction, but also short-listed external candidates of equalmerit. By doing this, they complied with s.8(1)(a) of the PSM Act.

OPSSC also reports non-compliance with s.8(1)(c) of the PSM Act onthe grounds of employees being subject to arbitrary or capriciousacts, in that the panel was instructed by the Manager to act in amanner which was based on or determined by individual preferenceor convenience rather than by approved procedure.

The instruction was inconsistent with documented policy. Informalinterpretation of wording contained within the Department's industrialagreement cannot be considered a definitive guideline to staff. First, itrelates to a practice other than that reported here. Second, an industrialagreement is not considered to constitute departmental policy. Wherean industrial agreement carries practice implications, these should betranslated into policy and procedure to guide practice.

Finally, clauses such as the one under consideration need to be carefullyworded. The wording of this clause has the capacity to lead hospital staffto breach the provisions of the PSM Act. The Department is advisedto amend this clause when the industrial agreement is next underreview.

As is standard practice, the Department of Health was provided with acopy of the draft report on this matter and given the opportunity to providepoints of clarification and asked to correct any errors of fact. They werealso invited to provide an agency response for inclusion in the report.

OPSSC

Agency response

PARLIAMENTARY SERIES REPORT FOUR

I refer to your letters dated 3 and 6 March 2009 providing opportunity forcomment on findings relating to a review of recruitment practices at RoyalPerth Hospital to be reported to Parliament in early April.

As per my previous letter to you dated 4 February 2009 (copy attached),I remain confident that as an organisation the South Metropolitan AreaHealth Service, including Royal Perth Hospital, follows the RecruitmentSelection and Appointment Standard observing s.8(1)(a) and s.8(1)(b)of the PSM Act as they relate to proper assessment of merit, equity, andpatronage.

Notwithstanding, we welcome the lessons and learnings we can take fromyour findings and actions are now to be taken to document and implementstandardised procedures for future recruitment and selection processeswithin Patient Support Services at Royal Perth Hospital.

Further, expectations of adherence to the standards have also beenreiterated to key personnel at other SMAHS sites to ensure practicescontinue to meet the requirements of the Recruitment, Selection andAppointment Standard.

Findings, as they relate specifically to amendment of clause 11.9 of theWA Health, LHMU, Support Workers Industrial Agreement 2007, havebeen forwarded to the Health Industrial Relations Service (HIRS) forconsideration and appropriate action.

DR PETER FLETTDIRECTOR GENERAL

3.2. Compliance inquiry two: agency's practice notcompliant with the Recruitment, Selection andAppointment Standard and s.8 of the PSM Act andOPSSC is not able to confirm agency's compliancewith the Code of Ethics (PSM Act s.9).

Facts and circumstances

On 3 January 2009, the position of Executive Director CommunityDevelopment with Fire and Emergency Services Authority (FESA) wasadvertised in The West Australian newspaper with a closing date of 16January 2009.

On 11 February 2009, under the heading "Mallard cop quits for fire job",The West Australian reported that former senior police officer David


Caporn had been appointed to the role. This led to considerable mediacomment and questioning. The Corruption and Crime Commission's(CCC) inquiry into the wrongful murder conviction of Andrew Mallard hadincluded in its recommendations that "the Commissioner of Police giveconsideration to the taking of disciplinary action against .... AssistantCommissioner David John Caporn."3

At the time of appointment to FESA, Mr Caporn was the subject of aninvestigative report being compiled by Commissioner of Police KarlO'Callaghan following the CCC enquiry. When he left the Police Service,this investigation was terminated.

The process that underpins this is as follows.

The CCC reported an opinion which recommended that theCommissioner of Police consider taking disciplinary actionagainst David Caporn.

The Commissioner of Police initiated the disciplinary process.

In due course, the outcome of the disciplinary process wouldhave been completed.

In due course, the CCC would seek from the agency a report asto how they had dealt with the recommendations arising fromthe CCC report.

As the disciplinary process did not run its full course, it was thereforenot possible for the CCC recommendation to have been fully addressed.The questions surrounding Mr Caporn's conduct during the Mallard caseremained unresolved. Any recruitment process involving Mr Caporn wouldpresent a challenge to process given the unresolved questions regardinghis conduct. Throughout the remainder of the report, OPSSC refers to thisissue as the "CCC matter".

Given this background, the recruitment of Mr Caporn to a second tierposition within FESA was going to attract significant public interestand scrutiny. Various enquiries to OPSSC raised the question as tohow someone under investigation in one area of government could beappointed to a senior position in another area of government without theinvestigation being complete.

OPSSC was of the view that given the circumstances and public interestsurrounding the appointment of Mr Caporn and his previous employmentwith WA Police, OPSSC would audit the FESA recruitment, selection andappointment process for compliance with principles of the Public Sector

3 Corruption and Crime Commission, Report on the Inquiry into Alleged Misconductby Public Officers in Connection With the Investigation of the Murder of Mrs PamelaLawrence, the Prosecution and Appeals of Mr Andrew Mark Mallard, and Other RelatedMatters, Perth, 2008.


Management Act 1994 (PSM Act). The outcome of this audit would bereported to Parliament.

Examination

At the outset, OPSSC wishes to make it clear that it in no way questionsthe merit of Mr Caporn's appointment to this position. OPSSC has noformal scope to examine the capacity of Mr Caporn to fulfill this role, andthis report should not be taken as commenting on this.

OPSSC has a responsibility to monitor compliance with principlesspecified within s.8 (general principles of human resource management)and 9 (general principles of official conduct) of the PSM Act and alsopublic sector standards setting out minimum standards of merit, equity andprobity as referred to in s.21(a)(i). These are further explained later in thisreport. The purpose of this is to enhance the confidence of Parliament,public sector bodies and the community in public sector practices.

This case reports the audit of the process used to fill the position underquestion within the scope of the sections of the PSM Act as specifiedabove.

OPSSC conducted a full review of the recruitment process for theExecutive Director Community Development position. This included:

an audit of the recruitment and selection documentation;

an audit of the short-listing report;

an audit of the selection report for the position;

an examination of relevant FESA policy and guidelines; and

interviewing the three panel members.

The Commissioner for Public Sector Standards sought information andadvice from relevant agencies and individuals including the Commissionerof Police, the Public Sector Commissioner and the State Solicitor withrespect to a potential resolution of the CCC matter in regard to Mr Caporn.

The purpose of this audit was to establish FESA's compliance with:

the PSM Act;

the Public Sector Code of Ethics;

the public sector standards in human resource management;and

FESA policy and guidelines;

in processing this appointment. As is standard practice, FESA was


provided with a copy of the draft report and given the opportunity toprovide points of clarification and asked to correct any errors of fact. Theywere also invited to provide an agency response for inclusion in the report.

The position of Executive Director Community Development, which is aClass 1 second tier position reporting directly to the CEO of FESA, wasadvertised on the WA government electronic job advertisements web site(www.jobs.wa.gov.au) and a commercial vacancy web site (www.seek.com.au) on 2 January 2009 and in The West Australian on 3 January2009 with a closing date of 16 January 2009. Nineteen applications werereceived.

A selection panel for the position was formed comprising:

the Chief Executive Officer of FESA;

the Executive Director, Operations, FESA, a Group 1 MaxSalaries and Allowances Tribunal second tier employee (seniorto the position under recruitment); and

the Director, People and Organisational Development, FESA, athird tier employee.

The panel members first individually short-listed applicants then metto reach a consensus short-list. Five applicants were short-listed forinterview. Interviews were conducted on 22 and 29 January 2009. Oneapplicant was interviewed ahead of the other short-listed candidates attheir request as they were not available on 29 January 2009.

The interview process consisted of three broad questions intended tostimulate open discussion. Candidates were provided with the list ofquestions ten minutes prior to their interview. Supplementary questionswere asked to clarify information provided by candidates. Interviews werescheduled to last 30 minutes. Panel members then reviewed interviewresponses and written applications before agreeing on each applicant'srating against the selection criteria and their overall suitability.

Following interviews, four of the five candidates were rated as unsuitablewith only one candidate being considered suitable. A written reference wasobtained from the recommended candidate's nominated referee, a formercolleague. The panel report was then referred to the CEO for approval.The CEO approved the appointment of Mr Caporn on the recommendationof the selection panel. FESA has subsequently advised OPSSC that thepanel considered and discussed the CCC matter, although OPSSC hasbeen provided with no documentation to this effect. The CCC matter is notreferred to in the selection report.

OPSSC

Discussion


Section 8(1)(a)-(c) of the PSM Act requires that:

all selection processes are to be directed towards, and basedon, a proper assessment of merit and equity (a concept which isexpanded on below);

no power with regard to human resource management is to beexercised on the basis of nepotism or patronage; and

employees are to be treated fairly and consistently and are notto be subjected to arbitrary or capricious administrative acts.

The Recruitment, Selection and Appointment Standard established underthe principles articulated in s.8 of the PSM Act (cited above) requires that:

The minimum standard of merit, equity and probity ismet for recruitment, selection and appointment if:

a proper assessment matches a candidate's skills,knowledge and abilities with the work-relatedrequirements of the job and the outcomes soughtby the public sector body, which may includediversity;

the process is open, competitive and free of bias,unlawful discrimination, nepotism or patronage;and

decisions are transparent and capable of review.

Included in the requirements established under this standard is theconcept of a proper assessment, which requires:

examination of each candidate's claims to the position; and

verification of the candidate's relevant claims.

Over and above these requirements, under s.9 of the PSM Act all publicsector bodies and their employees are bound to observe the generalprinciples of official conduct. This requires that all public sector bodies andtheir employees:

comply with the provisions of the PSM Act and any other Act;

comply with the provisions of public sector standards and codesof ethics;

comply with the provisions of the agency's code of conduct;

are to act with integrity in the performance of official duties andare to be scrupulous in the use of official information, equipmentand facilities; and


are to exercise proper courtesy, consideration and sensitivity intheir dealing with members of the public and employees.

The requirements of such processes are specific. We therefore examinedthe process under the following headings:

composition of the selection panel;

examination of each candidate's claims to the position;

use of selection criteria;

consideration of the CCC matter;

verification of the candidate's relevant claims referencechecking; and

documentation of process decisions are transparent andcapable of review.

Composition of the selection panel: Central to a process which isfree from bias and patronage is the need for a well-balanced panel. Thepanel comprised the agency CEO, another executive director at the sametier (with a higher position classification) as the appointee, and a thirdsubordinate employee. There was no external panel member. FESA policystates that:

The composition of a selection panel is to consistof representation that will ensure all candidates areassessed fairly and equitably.... use of external panelmembers (eg; a person from another agency whounderstands the role or a person from the customerbase) is appropriate in most cases.

This policy reflects the advice on OPSSC's website regarding the criticalrole that panel composition plays in ensuring impartiality and diminishingperceptions of bias or patronage. Public sector standards specificallymake reference to the need for processes to be "open, competitive andfree of bias, unlawful discrimination, nepotism or patronage". Having apanel with external representatives is a prudent step in senior recruitmentand especially so where applicants are known to panel members.

The composition of this panel is of concern to OPSSC, and not consistentwith FESA's own preferred approach. There is no "one size fits all" formulafor what constitutes appropriate panel composition. If a CEO determinesthat three internal panel members are desirable for operational reasons, abetter balance would be achieved by expanding the panel to four membersto provide some independent perspective. In recruiting to second tierpositions within the public sector, particularly when those appointmentsmay result in public scrutiny, it is imperative that the panel composition iscarefully considered to ensure impartiality, avoid any perception of biasand build public confidence in the process.

OPSSC

LU


OPSSC also understands that the recommended applicant had a previousprofessional relationship with two of the three panel members. This isneither unusual nor inappropriate indeed it is probably impossible toavoid in some work areas and regions of WA. It is good practice, however,that prior connections between applicants and panel members be noted onthe recruitment file and that interests are managed accordingly. There isno record that this occurred with this recruitment process.

Examination of each candidate's claims to the position useof selection criteria: The Recruitment, Selection and AppointmentStandard requires that "a proper assessment matches a candidate's skills,knowledge and abilities with the work-related requirements of the job".

The OPSSC audit identified that FESA did not follow the Public SectorCommission's Approved Procedure 2 that requires "all Senior ExecutiveService (SES) positions contain a minimum set of essential selectioncriteria. From 1 September 2007 the selection criteria for non-CEO SESpositions have been aligned to the Five Core Capabilities contained in theLeadership Development Strategy. These are the capabilities that havebeen identified as the key success factors that the Government requiresfrom its current and future leaders."

FESA has indicated that the failure to use these criteria as required byApproved Procedure 2 was an administrative oversight. While this may beso, the occurrence of this administrative oversight is especially unfortunatein the circumstances of this recruitment.

The use of the SES selection criteria would have provided a more robustexamination of each candidate's claims with respect to personal integrityand self awareness.

The Public Sector Commission's web site advises that:

The use of the SES Selection Criteria ensures that aminimum set of essential criteria, reflecting the genericskills required in the SES, are used when selecting SESofficers" and "As a minimum, all senior executive officerpositions must contain the following essential criteria...(one of which is)... exemplifies personal integrity andself awareness."

The selection criteria used by FESA covered leadership, workforceeffectiveness, strategic resourcing, public policy, relationship building,customer focus and risk management. Each of these criteria hadstatements more fully describing what was required. For example, thesecond criterion sought candidates who would:


Facilitate workforce effectiveness by establishing andmaintaining working relationships through effectivecommunication; ethical decision making; empowerment,motivation and development of people; fostering mutualtrust and respect.

OPSSC

Upon receipt of the applications, FESA would have known that one ofthe candidates was subject to ongoing investigation with his currentemployer. Under the circumstances it was critical that there was a properassessment of the conduct and integrity of the candidate. It is difficult tounderstand how the panel could have completed a proper assessmentof this criterion without there being a conclusion as to the CCC matter. Itis OPSSC's view that to a well-constituted panel, the CCC matter wouldhave remained unresolved, and therefore the panel would not have beenable to reach a conclusion against that criterion.

Under these circumstances, OPSSC believes that the panel shouldnot have been in a position to make a final recommendation regardingthis applicant. OPSSC acknowledges that it would have been unfairon Mr Caporn to rule him out of an application process on the basis ofan unfinished investigation neither the timing of the investigation northe timing of the job vacancy were within his control. Mr Caporn wascompletely transparent about his situation and should not have beendisadvantaged because a conclusion had not been reached. FESA reportsthat Mr Caporn was the only applicant who could potentially demonstratemeeting all criteria and the only applicant they considered recommendingfor the position. This being the case, a different approach to the matterwould have represented a more prudent course of action.

Examination of each candidate's claims to the positionconsideration of the CCC matter: Once the panel report was completethe report was referred to the CEO for approval. It is unclear from theaudit as to whether or not this was a separate step in the process dueto the CEO also chairing the panel. It is evident, however, that the CEOapproved the appointment on the recommendation of the selection panel,taking into consideration the `CCC matter'. Panel members indicatedthat the CEO took responsibility for this aspect of the decision-making inconsultation with the Director, People and Organisational Developmentwho was also a panel member. It is unclear from the audit as to formalpanel deliberation on the CCC matter, other than to note that the selectionreport makes no reference to it.

OPSSC believes that the panel was not in a position to make a finalrecommendation to the CEO. The audit found that the CEO indicated thatshe decided to accept the recommendation of the panel on the strength ofthe following.


A copy of Mr Caporn's current Commission as Police Officer,issued by the Governor of Western Australia on 8 January2009, was received by the CEO. The Commission provides fora three year appointment commencing on 11 February 2009.The renewal of the Commission is, however, not intendedto indicate a clean slate. The renewal should not have beeninterpreted as a conclusion relating to the CCC matter or MrCaporn's integrity. The Commissioner of Police has sinceadvised OPSSC that Mr Caporn's Commission was renewedas a matter of natural justice because the disciplinary processagainst Mr Caporn was not complete. OPSSC has also beenadvised by the Police Commissioner that Mr Caporn's contractas Assistant Commissioner was not to be renewed as it couldnot be justified from the perspective of public confidence.

Prior to compiling the original short-list, the CEO also reviewedthe Supreme Court decision of the case W Cox-v-Corruptionand Crime Commission. This dealt with a challenge by apublic official against opinions expressed by the CCC. TheCEO highlighted as relevant a section which focussed on thecapacity of the CCC to offer opinions, and the subsequentdetermination of whether or not a breach of discipline has beencommitted being the province of the employing authority andnot the CCC. Other than the fact that both matters related toCCC investigations, there appears to be little similarity betweenthe two matters, and limited relevance to the matter currentlyunder consideration.

Neither of the above provided relevant information about the CCC matteras it related to the recommended applicant such that the selection panelor CEO could conclude the recruitment process. As acknowledged before,the unique circumstances of this recruitment posed a dilemma for theselection panel and CEO in order to afford natural justice to Mr Capornwhile upholding the high standards expected for SES recruitments. Facedwith this dilemma the CEO did not seek any formal independent advicefrom our own Office, the State Solicitor, or the Public Sector Commission

all agencies which could have assisted in providing objective advice andassistance on the best way to manage this situation.

Had the CEO taken the opportunity to discuss these matters then analternative approach such as suspending the recruitment process whilethe CCC matter was resolved might have been determined.

OPSSC acknowledges FESA's operational need and suggests that givenMr Caporn's unique circumstances, it may have been possible to offer hima temporary placement while the Police resolved the CCC matter.


Verification of the candidate's relevant claims reference checking:OPSSC has previously drawn attention to the need for careful scrutinyof candidates' claims in selection processes.4 As highlighted above, theRecruitment, Selection and Appointment Standard requires "a properassessment" which "matches a candidate's skills, knowledge and abilitieswith the work-related requirements of the job". In seeking to verify acandidate's claims to a position, reference checking should meet thissame standard.

The principal purpose of seeking referee reports is to verify independentlythe claims the candidate is making against the selection criteria. In order todo this, it is important to:

seek comment on the candidate's performance against theselection criteria; and

seek a referee report from a current or recent line mangerwhere possible to ensure that the claims made have currency.

Mr Caporn was the subject of an ongoing investigation under the PoliceAct 1892 at the time of his application. He made this very clear in hisapplication. He also authorised FESA to contact the Commissionerfor Police for verification of his status should they so desire. Given thecircumstances surrounding the recommended candidate with respectto the CCC matter, it was essential to a proper assessment that thecandidate's claims be thoroughly verified. This verification would includethe issue of the ongoing WA Police investigation.

The panel obtained a written reference from the candidate's firstnominated referee who had not been a recent supervisor and who didnot currently work for WA Police. The referee made it clear that he andthe candidate had been colleagues for 28 years. The referee had beenMr Caporn's line manager for around three and a half years in the 1980s(18-24 months in the early 1980s and 12-18 months in the late 1980s).The two had worked closely together on major projects in 2004 and thereferee chaired a number of groups to which the appointee reported. Thewritten request for the referee report outlined the selection criteria, butthe referee was only asked to comment on the applicant's leadership andmanagement skills, how he thought the applicant dealt with challengesand what in his opinion the applicant would bring to FESA in terms ofstrategic direction and management. The areas covered in the writtenreference do not relate directly to the selection criteria. Further, there wasno reference from a recent line manager an important check for anywould-be employer.

4 Office of the Public Sector Standards Commissioner, Parliamentary Series Report TwoScrutiny of Qualifications in Selection Processes, Perth, 2008.


The failure to use the required SES selection criteria compromises thecapacity to follow up specifically on the SES requirement for:

Exemplifies personal integrity and self-awareness(demonstrates public service professionalism andprobity, engages with risk and shows personal courage,commits to action, displays resilience and demonstratesself awareness and a commitment to personaldevelopment)

as required by the Public Sector Commission's Approved ProcedureNumber 2. Given the circumstances of the recommended candidate,inclusion of this criterion and verification of the candidate's claims againstit would have represented a critical step in a process where the conductand the integrity of the individual may have been under question. Further,given the recommended candidate's situation, a reference from a recentline manager would have been essential. In this respect full reliance onone reference from a non-current supervisor was not prudent and notadequate for a proper verification of claims.

Documentation of process decisions are transparent and capableof review: An essential requirement of the public sector standards inhuman resource management is that decisions are transparent andcapable of review.

A short-listing matrix rated each applicant against each criterion anda similar matrix rated each interviewee. The matrix included rankingsplus a single sentence for each interviewed candidate. The body of theselection report included individual comments on each interviewee, statingtheir current position, qualifications and background together with whichcriteria the panel felt the candidate met or failed to demonstrate. Thereare limited comments explaining the rationale behind the ratings. Panelmembers indicated that in providing feedback to applicants they referredto their interview notes for more specific information. These notes weresubsequently destroyed, following conclusion of the breach period. If theselection report is the only document retained for official records, then itneeds to capture the material facts and provide transparency regarding thereasoning of the panel to enable an external person to understand how theconclusion was reached. It is the view of OPSSC that the selection reportalone, without the supporting notes, is inadequate.

Given that key records were destroyed, it was important that thejudgements behind the reasons for the decision made by the panel beincluded in the final report.


Conclusion

We examined the process under the following headings:

composition of the selection panel;

examination of each candidate's claims to the position;

use of selection criteria;

consideration of the CCC matter;

OPSSC

verification of the candidate's relevant claims referencechecking; and

documentation of process decisions are transparent andcapable of review.

OPSSC reports that this process is not-compliant with

the Recruitment, Selection and Appointment Standard; and

s.8 of the PSM Act

because there has been a failure to make a proper assessment dueto:

inadequate panel composition;

use of selection criteria not adequate for the position;

failure to manage appropriately the impact of the CCCmatter;

inadequate verification of candidate's claims; and

poor documentation resulting in a process that was nottransparent and capable of review.

OPSSC reports that the Western Australian Public Sector Code ofEthics requires that all public sector employees must "act with careand diligence and make decisions that are honest, fair, impartialand timely, and consider all relevant information". The decisions inthis process do not appear to have been undertaken with due careand diligence on many elements required for a recruitment processto meet the appropriate standards. Neither did the processes takeaccount of all relevant information, in that limited attempts appear tohave been made to seek further highly pertinent information that wasavailable. In this case, which relates to the appointment of a seniorpublic servant already under investigation for a CCC matter, OPSSCis not able to confirm FESA's compliance with the Code of Ethics(PSM Act s.9).

OPSSC

Further questions


For matters such as this one, the role of OPSSC is to report complianceor non-compliance to Parliament. In the interests of addressing someadditional questions which may be asked, however, OPSSC provides thefollowing information.

Once an appointment process is complete, a finding of non-compliancedoes not invalidate the employment of the individual who has beenappointed. Thus, Mr Caporn's appointment is unaffected by the opinions ofOPSSC. Had there been a breach claim lodged by an applicant during theappeal process, OPSSC would have been able to recommend relief unders.97 of the PSM Act. It is possible that OPSSC could have recommendedrecommencing the process from the short-listing stage and with a differentpanel; the appointment process would have been suspended until suchtime as this was complete and OPSSC would have advised on how to dealwith the assessment of a candidate who is undergoing investigation at thetime of their application.

Under the PSM Act s.21 (1)(a)(i) OPSSC has responsibility for prescribingpublic sector standards including the principles which underpin disciplineprocesses and oversight of the implementation of these principles. Itis beyond the formal brief of OPSSC to comment on the disciplinaryproceedings against a former police officer. Nevertheless, the currentsituation has led to an employee of a government agency remaining underquestion because of an unresolved disciplinary matter. Every public sectoremployee is entitled to procedural fairness in the matter of discipline, and itis in this context that OPSSC offers the following opinion.

The disciplinary action against Mr Caporn ceased when he left WA Police.He subsequently commenced employment as a public servant.

There is public interest in the integrity of Mr Caporn's move, especiallywhen, individual Acts of Parliament notwithstanding, key stakeholderstaxpayers and members of the public have an ongoing interest in the`firm of Government'. While there may be no legal reason or channel forthe matter of the disciplinary process to be resolved, there are ethicalones. Further, from Mr Caporn's perspective, by accepting alternativeemployment, he has been denied the opportunity to clear his name withrespect to the disciplinary matter.

OPSSC therefore believes that it is appropriate for the Commissionerof Police, who is probably best equipped to bring this matter toconclusion, to continue with the disciplinary process relating to MrCaporn. This should be done following consultation with Mr Caporn.The findings of this should then be taken into consideration by anyfuture employer.


Further information

Although this audit is not about the merit or otherwise of Mr Caporn forthis position, central to the process is the fact that Mr Caporn was underinvestigation at the time of the appointment. Mr Caporn made this veryclear to the panel. He provided advice to the selection panel about hiscurrent employment status, and specifically included in his applicationthat:

Due to the Corruption and Crime Commission (CCC)investigation of "the Mallard matter" I have been stoodaside from 'normal duties' in WAPOL since May 2006.The investigation was completed with the final reporthanded down on 7 October 2008 and there were nofindings of corruption, criminal conduct or seriousmisconduct in relation to myself. There were, however,two opinions of misconduct recorded against merelating to my role as a detective in the investigationof the murder of Pamela Lawrence in 1994. I totallyrefute these two opinions and continue to fight to clearmy name. I have been stood down from duty sincethe CCC report was published whilst the Commissionof Police conducts his own review to decide if I cancontinue as a member of WAPOL. On 24 December2008, the Commissioner advised me that his personallegal advisors had been unable to justify the majorityof the CCC findings and that it was his intention tocorrespond with the Commission seeking furtherinformation to substantiate the opinions arrived atin their final report. He made a public statement inrelation to this issue which was published in The WestAustralian newspaper on 27 December 2008. As aresult of this action the Commissioner has advisedme that it is unlikely that his position, in regards to myemployment with WAPOL, will be finalised for severalmonths. The Commissioner's final decision on myfuture will have no bearing on my willingness andintention to seek this position.....

Mr Caporn did not list the Commissioner of Police, Mr Karl O'Callaghan,as a referee, but made it very clear that he was happy for the panelto approach Mr O'Callaghan directly should that be necessary. Hisapplication states:

...my relationship with the Commissioner of Police andhis deputy remains intact and positive and althoughI have not informed them that I have applied for thisposition which is a personal matter, I would have noobjection if the selection panel chooses to contacteither of these men to validate my statements aboutthis issue.

27


Agency response

INTRODUCTION

1. FESA is committed to transparency and integrity in its recruitmentprocess. It is equally committed to the principle that the best personavailable to do a job should be appointed to that job. FESA diligentlyensures that confidentiality throughout a selection process is notcompromised and this is true on this occasion.

2. FESA strongly refutes that it may not be compliant with s.9(b) ofthe PSM Act. FESA has acted in good faith at all times in relation tothis matter. FESA considered all public sector policies and OPSSCstandards and found there were none dealing with instances of thisnature. In hindsight FESA accepts that if the same circumstancearose in the future, an additional step in the process of consultingwith other bodies would be considered.

3. OPSSC's report is about "process". It is not concerned with thesubstantive merit of the appointment made by FESA. Indeed in itsreport the OPSSC records that it, "in no way questions the merit ofMr Caporn's appointment to this position".5

4. FESA accepts some of the criticisms made by the OPSSC aboutits processes and error of judgment in not seeking external advicebut does not accept there was any breach of legislation or seriousbreach of policy in the selection and appointment of Mr Caporn to theposition of Executive Director Community Development (EDCD).

5. In FESA's view the OPSSC's report does not portray a balancedand, thus accurate, account of the careful decision making processengaged in by public servants with combined practical experience ofover 70 years.

6. The OPSSC's report is technical and detailed. It is impossible forFESA to respond fully utilizing the limited right of response affordedto it by the OPSSC. Additionally, a full response would require thedisclosure of the confidential selection report that by its very natureFESA is not at liberty to disclose.

5 OPSSC clarification: The particular statements regarding the merit of Mr Caporn'sappointment need clarification. The statements need to be considered in the contextof the OPSSC report. The purpose of this report is to review process. OPSSC hasexpressed no view as to the merit of Mr Caporn for appointment to this position. As statedon page 16 "OPSSC has no formal scope to examine the capacity of Mr Caporn to fulfilthis role, and this report should not be taken as commenting on this".


7. The one thing about which there can be no debate is that Mr Capornwas appointed because he was the best person for the job.6 Thereport records that:

The OPSSC "in no way questions the merit of Mr Caporn'sappointment to this position"

but it also records that

Mr Caporn was "completely transparent about his situation"

Mr Caporn "should not have been disadvantaged because aconclusion (to the disciplinary process) had not been reached"

Mr Caporn was "the only applicant who could potentiallydemonstrate meeting all criteria"

Mr Caporn was "the only applicant they (the Panel) consideredrecommending for the position"

8. FESA has grave concerns about the processes followed by theOPSSC in undertaking its report and in its dealings with FESA andits officers and will address these issues through the appropriateavenues.

9. Initially a draft report was provided to FESA for comment which hadmany errors. In fact the report has been significantly amended threetimes.'

CRITICISMS FESA ACCEPTS

The composition of the selection panel

10. For operational reasons FESA's CEO and its Director, People andOrganisational Development made a deliberate and considereddecision to include the key stakeholder rather that (sic) an externalperson as a panel member. This was a value judgment that theofficers were entitled to make.

11. The OPSSC report records that the OPSSC disagreed with thisdecision. FESA respects the view of the OPSSC and will takeaccount of the OPSSC views in the future.

6

7

OPSSC Clarification: See Footnote 5OPSSC clarification: OPSSC is keen to ensure that all facts and circumstances in its

reports are correct. Clarification of facts and circumstances can be an iterative process.This is especially the case where incorrect information has been provided, or where thereare nuances to situations which require further examination.


12. Although in the final report the OPSSC suggests that the decision notto include an external panel member in the selection panel involves abreach of section 8 of the Public Sector Management Act, (the PSMAct) an earlier draft provided to FESA on 6 March 2009 stated thatthis decision did not constitute non-compliance with the PSM Act orthe public sector standards in human resource management.

The failure to use the current SES selection criteria

13. FESA accepts that inadvertently an earlier version of the SESselection criteria was used in respect of this selection andappointment. Whilst this is an error which FESA regrets, FESAcontends that this error did not amount to or lead to a breach of thePSM Act.

14. Each application was assessed on the basis of their ability to fulfil thework related requirements of the job in a process based on merit andequity and free from nepotism and patronage.

15. In addition to this position, FESA will also undertake a review of allJDFs that are subject to the SES criteria to ensure that there are nofurther anomalies in this regard.

16. FESA accordingly strongly refutes that the appointment process wasnot compliant with s.8(1)(a) of the PSM Act, nor the public sectorstandards in human resource management.

Inadequacy of reasons for decision in confidential selection report

17. The OPSSC criticizes the adequacy of the confidential selectionreport on the grounds that "the judgments behind the reasons for thedecision made by the panel must be included in the final report". Incompiling the selection report FESA followed the OPSSC's publishedguidelines entitled "Tips from the Commissioner" that read as follows:"When creating minimal documentation for a selection report, don'ttry and replicate in selection reports what is already containedin the selection team's notes. Instead, refer to their notes andmake a point of keeping all the assessments and notes made bydecision makers until after the breach review period has closed toensure that, if necessary the decisions are defensible." (emphasisadded)

18. With the benefit of hindsight FESA accepts that the judgmentsmade by the panel members in relation to what is described in theOPSSC report as the CCC matter should have been recorded in theconfidential selection report.


19. FESA is not at liberty to disclose the confidential selection report andwhilst it accepts OPSSC's criticisms that it could have done better,it contends that any fair minded reader of the report would be left inno doubt as to the analysis undertaken by the panel on the meritsof each of the applicants who reached the interview stage of theselection process.

20. Although the OPSSC offers no criticism of the fact that the individualpanel members' interview notes were destroyed after the conclusionof the breach review period, it refers to this fact on several occasionsin the report. FESA wishes to stress that there is nothing sinister inthe destruction of these records and not only is this FESA's standardpractice but FESA understands that it is standard practice in otheragencies and that contained on the OPSSC website, Tips from theCommissioner.

CRITICISMS FESA REJECTS

21. In understanding FESA's position it is important to note andunderstand that the OPSSC does not suggest that a public servantwho is the subject of the adverse opinions expressed by the CCC inrespect of the discharge of his duties in one capacity could never beappointed in a different capacity by another public service agency.8

22. FESA rejects the criticism offered by the OPSSC of its approach toreference checking. Mr Caporn's referee is a Chief Executive Officerwith a very clear understanding of the SES requirements. He gave acomprehensive and very positive reference.

23. In its report the OPSSC makes reference to statements attributedto the Commissioner of Police made to it in the course of its audit.During the interview process Mr Caporn referred the panel to a letteraddressed to him from the Commissioner of Police in which theCommissioner attested to his positive attributes and commitmentto the public service. In the letter the Commissioner states 'I shouldadd that my decision not to renew your appointment as an AssistantCommissioner is not in any way based on any deficiency in yourperformance, integrity or diligence which performing the duties ofyour office as Assistant Commissioner (or at any other time). Theletter was discussed further at a routine pre-appointment interview. Inthe light of these positive comments from the Commissioner of PoliceFESA was confident that it had selected the right person for the job.

8 OPSSC clarification: OPSSC makes it clear that for the recommended applicant, theselection panel should not have made a final determination until the CCC matter hadbeen concluded (refer to pages 21-22).


24. FESA strives to work to the highest ethical standards in all itsactivities as it did in the selection and appointment of Mr Caporn. Thedeficiencies in process that FESA accepts were minor in nature anddo not warrant the conclusion reached by OPSSC and expressed inthe imprecise terms.

25. Mr Caporn has written to the Commissioner of Police and offered hisfull support and any assistance necessary for the internal disciplinaryinquiry to continue and to be finalised even though he is no longer aserving police officer.

26. FESA accepts that if an internal police discipline inquiry is concluded,it will consider the outcomes and if appropriate, take any necessaryaction through its own discipline procedures

JO HARRISON-WARDCHIEF EXECUTIVE OFFICER

Documents

OPSSC - Parliament of Western Australia€¦ · (FESA), where the appointee, Mr David Caporn, had been the subject of ... All too often, agencies rely on folklore when recruiting