Upload
harvey-holmes
View
214
Download
1
Tags:
Embed Size (px)
Citation preview
Presentation
Public Sector Integrity Commissioner60 Queen Street, 7th floor
Ottawa ON K1P 5Y7(613) 941-64001-866-941-6400
WWW.PSIC-ISPC.GC.CA
Presentation Outline
I. Why a Disclosure Regime
II. Background
III. Our Mandate
IV. Legislative Framework
V. Implementation Factors
2
I. Why a Disclosure Regime?
• Canadians expect the highest standards of conduct within their public institutions.
• The vast majority of public servants serve Canadians with integrity, honesty and pride, a disclosure regime is a safe mechanism allowing public servants who believe that something is wrong or needs further examination to come forward.
• Canadians expect that when mistakes are made or where there is a wrongdoing, that corrections will be made effectively and with
transparency.
3
Historical Context
• Treasury Board Policy on the Internal Disclosure of Wrongdoing in the Workplace adopted in 2001, established the Public Service Integrity Office (PSIO).
• In 2003, a Working Group consisting of experts from outside Government recommended a legislative approach to increase credibility and effectiveness of the disclosure regime and to provide the necessary independence.
4
II. Background
II. BackgroundHistorical Context
• The first Public Servants Disclosure Protection Act (PSDPA), introduced in October 2004 and received Royal Assent in November 2005, but never came into force.
• The Federal Accountability Act, introduced in April 2006 and received Royal Assent in December 2006, brought significant amendments to the PSDPA.
• PSDPA as amended by Federal Accountability Act, came into force on April 15, 2007.
5
II. Background
Objectives of the PSDPA
• Recognizing that the federal public administration is essential to the Canadian parliamentary democracy framework, the PSDPA:
– enhances confidence in public institutions by protecting public servants who act with integrity and who come forward with information about possible wrongdoing in the federal public sector; and
– encourages a collective commitment to contribute to a culture of right doing.
• Strikes a balance between the principles of freedom of expression and duty of loyalty to the employer.
6
III. Our Mandate
Serving all Canadians
• Commissioner established as independent Agent of Parliament.
• Guardian of public interest and public trust.
• Keeping the public informed through transparency and public reports to Parliament.
• Centre of Expertise:
– Working jointly with the public sector to prevent problems through education and promotion of ethical practices;
– Pro-active to effectively resolve cases.
– World leader.
7
III. Our Mandate
Protecting Public Servants
• Office is a safe alternative allowing public servants to come forward if they suspect possible wrongdoing.
• Exclusive jurisdiction to protect public servants from possible reprisals.
• Confidentiality of disclosure process and investigations.
• Procedural fairness and natural justice to all persons involved.
• Commissioner can grant access to free legal advice.
8
III. Our Mandate
Jurisdiction
• Federal “public sector” includes core public administration, separate agencies and parent Crown corporations.
• Jurisdiction over approximately 400,000 employees (in addition, members of the public, not just public servants, can report a possible wrongdoing to the Commissioner).
• Canadian Forces, Canadian Security Intelligence Service, Communications Security Establishment are excluded but must establish their own regimes.
• PSDPA creates two main areas of responsibility: A) Disclosure Process; andB) Reprisal Complaints Process.
9
IV. Legislative Framework
A) Disclosure Process
• Public servants can make a protected disclosure of wrongdoing either to:– their organization’s designated senior officer;– their supervisor; or– directly to the Commissioner.
• There is no requirement to exhaust internal avenues before going to the Commissioner.
• Public disclosures, for example, to the media, are still permitted but under exceptional circumstances only.
10
IV. Legislative Framework
A) Disclosure Process
• Definition of “Wrongdoing” :
– Violation of any federal or provincial law or regulations;
– Misuse of public funds or assets;
– Gross mismanagement;
– Serious breach of a code of conduct;
– An act or omission that creates a substantial and specific danger to the life, health and safety of persons or the environment; or
– Knowingly directing or counselling a person to commit wrongdoing.
11
IV. Legislative FrameworkA) Disclosure Process
Safeguards to avoid duplication of processes:
Restrictions:
Commissioner may not deal with a disclosure when a person or body acting under another Act of Parliament is dealing with the subject-matter, other than as a law enforcement agency.
The Commissioner must refuse to deal with a disclosure when the subject-matter of the disclosure relates solely to a decision that was made in the exercise of an adjudicative function.
12
IV. Legislative Framework
A) Disclosure Process
Discretionary Right to Refuse
The Commissioner may refuse to deal with a disclosure or to commence an investigation or cease an investigation if:a) the disclosure has been or could be more appropriately dealt with
according to a procedure provided by another Act of Parliament;b) the disclosure is not sufficiently important;c) the disclosure was not made in good faith;d) the length of time that has elapsed is such that it would serve no useful
purpose;e) the subject-matter of the disclosure results from a balanced and
informed decision-making process on a public policy issue; orf) there is a valid reason for not dealing with the disclosure.
13
IV. Legislative Framework
A) Disclosure Process
Investigations:
• Purpose is to make recommendations to bring corrective measures.• Conducted as informally and expeditiously as possible.• Has investigative powers under Part II of the Inquiries Act.
• Restrictions:- Access to cabinet confidences and solicitor-client privileges is
restricted. - Investigations limited to public sector only.
14
IV. Legislative Framework
A) Disclosure Process
• Importance of using all appropriate tools, formal and informal, to resolve cases effectively with a view of preserving the public trust in the integrity of federal institutions.
• The use of alternative dispute resolution (ADR) could be envisaged, with the consent of parties, at various stages of the disclosure process:
- to facilitate the screening of allegations;- identify causes of conflicts; - resolve differences of opinion or interpretation on specific
issues; and- identify options for resolution.
15
IV. Legislative FrameworkA) Disclosure Process
Reporting Obligations
• Report findings and make recommendations for corrective measures to chief executives.
• Power to present special reports to the Minister / Board of a Crown Corporation if delays in implementing recommendations or if required by urgency of situation.
• Report to Parliament within 60 days of finding of wrongdoing, including chief executive’s response to any of the Commissioner’s recommendations.
• Power to present special reports at any time to Parliament.
16
17
B) Reprisal Complaints Process
Reprisal Protection• Preventing reprisals is a collective responsibility.• Reprisals against public servants who make in good faith a
protected disclosure or who are witnesses in a disclosure process are clearly prohibited.
• “Reprisal” includes disciplinary sanction and any measure that adversely affects the employment or working conditions of the public servant.
IV. Legislative Framework
IV. Legislative Framework
B) Reprisal Complaints Process
• Commissioner has exclusive jurisdiction to deal with reprisal complaints from public servants.
• Public servants must file complaints within 60 days of reprisal.
• Commissioner has 15 days to decide if investigation is warranted.
• Commissioner can refer at any time a complaint to a conciliation process.
• Investigations as informal and expeditious as possible.
18
IV. Legislative Framework
B) Reprisal Complaints Process
Safeguards to avoid duplication of processes:
Discretionary Right to Refuse:
Commissioner may refuse to deal with a complaint if:
- it has been or could be more appropriately dealt with according to a procedure provided by another Act of Parliament or through collective agreement;
- it is beyond jurisdiction of Commissioner; or
- complaint not made in good faith.
19
IV. Legislative Framework
B) Reprisal Complaints Process
Restriction:
Commissioner may not deal with a complaint when a person or body acting under another Act of Parliament or a collective agreement is dealing with the subject-matter, other than as a law enforcement agency.
20
IV. Legislative Framework
B) Reprisal Complaints Process
Public Servants Disclosure Protection Tribunal
• After investigation, Commissioner decides if a referral to the Public Servants Disclosure Protection Tribunal is warranted.
• Tribunal composed of four Federal Court judges.
• Tribunal has power to order remedial measures and disciplinary sanctions.
21
V. Implementation Factors
Complementary Roles
• There are several other independent bodies that carry out oversight or investigative functions, for example:
– Auditor General
– Privacy Commissioner
– Access to Information Commissioner
– Canadian Human Rights Commission
– Public Service Commission of Canada / Public Service Staffing Tribunal
• Chief executives play a key role in establishing effective internal organizational disclosure regimes.
22
23
V. Implementation Factors
Considerations for Success
• Key leadership role in promoting integrity and transparency.
• Important implementation role by providing education, communication and outreach.
• Horizontal integration and complementary roles of several oversight mechanisms.
• Shared responsibilities between Commissioner and stakeholders to prevent and deal with wrongdoings and protect public servants.