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Values and Ethics Code for the Public Service


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Chapter 3: Post-Employment Measures

This section of the guide deals with questions related to the Values and Ethics Code for the Public Service, Chapter 3 "Post-Employment measures" by presenting situation scenarios that public servants could potentially encounter.

Case No. 1: A change of career

In six months, Dr. Smith, Associate Assistant Deputy Minister (ADM), Research Branch, will be leaving the department to join the University of Waterloo as Chair of the School of Applied Research in the Science faculty.

As part of her new duties, Dr. Smith will direct the school's activities, establishing links to government and non-government groups and developing proposals to funding organizations that make grants to support work in the fields of applied research.

The position involves establishing contacts with private and public sector organizations to carry out research and setting up an advisory committee for the school. The position also involves directing multi-disciplinary research teams and publishing the results of studies. The school could conduct research and scientific studies in applied sciences for Dr. Smith's current department.

Dr. Smith's new role seems to have advantages for the department, in particular in generating research results and evidence-based decision making for policy development.

Factors to consider

  • Does the Values and Ethics Code for the Public Service apply in Dr. Smith's case?
  • What steps must Dr. Smith follow to avoid any real, apparent or potential conflict of interest?
  • How can the department ensure that there will be no perception of preferential treatment or undue influence on Dr. Smith's part as she prepares to assume her new role?
  • Could a third party have reasonable doubts about Dr. Smith's neutrality or objectivity as a public servant?

References

Values and Ethics Code for the Public Service

Chapter 3: The following measures apply specifically to public servants in positions classified at the senior executive level (EX) or its equivalent level, as well as to levels EX minus 1 and EX minus 2 and their equivalent levels (for example, PM-06, IS-05, AS-07).

Chapter 3: Limitation period Within a period of one year after leaving office, public servants are forbidden: b) to make representations for, or on behalf of, persons to any department or organization with which they personally, or through their subordinates, had significant official dealings during the period of one year immediately prior to termination of their service.

Suggested solution(s)

  • As a senior manager in the department, Dr. Smith must comply with the Values and Ethics Code for the Public Service and, in fact, must report the offer of employment with the university and her acceptance of the offer.
  • If it is determined that, Dr. Smith has significant official dealings with the University of Waterloo in her role as Associate ADM, Research Branch, she should be assigned new responsibilities as quickly as possible. She should also submit a request for reduction of the limitation period when she accepts the university position. The period following her reassignment to new duties would be considered the limitation period.
  • Since the work to be carried out by Dr. Smith with the university will benefit the Public Service, she can request a reduction of the limitation period as provided for in Chapter 3 of the Code.

Thematic considerations: Solicitation

The Values and Ethics Code for the Public Service, which replaces the Conflict of Interest and Post-Employment Code for the Public Service, clarifies the employer's position concerning solicitation. Some relevant questions have been presented in the previous case studies. You will find below an overview of what is, or is not, allowed.

It states that :

At no time should public servants solicit gifts, hospitality, other benefits or transfers of economic value from a person, group or organization in the private sector who has dealings with the government.

In the case of fundraising for charitable organizations, public servants should ensure that they have prior authorization from their Deputy Head to solicit donations, prizes or contributions in kind from external organizations or individuals. The Deputy Head may require that the activities be curtailed, modified or terminated where it is determined that there is a real or apparent conflict of interest or an obligation to the donor.

What does this mean? What activities do these passages cover?

Solicitation for charitable activities (such as the Government of Canada Charitable Workplace Campaign) is allowed, but requires the prior approval in writing of the Deputy Head (Deputy Minister, Agency Head). This is to ensure that the Deputy Head, who has full accountability for upholding the Code in his or her department, can make the final determination as to whether conflict of interest considerations apply. Specifically, the Deputy will want to ensure that soliciting private agencies with which the department or agency has a business relationship or is in negotiations to establish a business relationship does not give rise to concerns about a real, potential or apparent conflict of interest.

Soliciting support for official social activities is not permitted. A number of organizations within the Public Service are accustomed to offer activities such as golf tournaments. In these situations, the organizations frequently turn to the private sector to obtain prizes in cash or in kind. Although the practice was not permitted under the earlier Conflict of Interest and Post-Employment Code for the Public Service, we recognize that the latter may not have been strictly enforced. Nonetheless, the new Code makes the ban on soliciting the private sector clearer. Golf tournaments can still be organized. However, organizers can no longer solicit prizes from the private sector

Draws, usually called "50-50" draws, i.e., collections taken up by public servants to establish a sum of money, half of which would go to the winner of the draw and the other half to a charity are not covered by the Values and Ethics Code because they do not constitute solicitation of the private sector. The draws are social and voluntary activities, shared by public servants. However, public servants should be aware that draws of this type are regulated by provincial authorities and subject to licensing requirements. Further, departments and agencies may have specific policy related to these kinds of activities, and organizers should seek permission before getting started.(recent addition)

Thematic considerations: Post-employment

The Values and Ethics Code for the Public Service (the Code), which replaces the Conflict of Interest and Post-Employment Code for the Public Service, clarifies the measures to be taken when a government public servant leaves the public service. Some relevant questions have been presented in the previous case studies. You will find below an overview of how best to proceed.

A public servant who decides to leave the Public Service shall inform management. The managers shall then remind the public servant's obligations to conform with the post-employment measures set out in Chapter 3 of the Code.

If the public servant judges that future employment could place him or her in real, apparent or potential conflict of interest, the public servant should inform the Deputy Head through a confidential report submitted to the human resources services.

After assessing the confidential report, the Deputy Head (or the delegated authority) shall contact the public servant and inform that person of the post-employment measures to be taken. In most cases, a one-year limitation period will be imposed in order to limit contacts between the ex-public servant and private-sector organizations with which that person had business dealings. However, depending on the situation, the Deputy Head may waive the limitation period or, on the other hand, may impose stricter measures.

Once the public servant has left the Public Service, there is now way to guarantee that the ex-public servant will comply with the post-employment measures set out in the Code. The Code is an employer's policy, not a statute. It applies only to government public servants. That said, the employer can ensure that former colleagues do not contravene the Code by providing the ex-public servant with inside information (preferential treatment).

Thematic considerations: Supervising or working with a friend or family member.

The Values and Ethics Code for the Public Service (the Code), which replaces the Conflict of Interest and Post-Employment Code for the Public Service, clarifies the employer's position in regard to preferential treatment. However, this is a serious issue and it merits further consideration.

Can I compete for a position that is supervised by my spouse or a member of my family? The answer is yes but certain measures need to be taken. While it is true that a person cannot be "punished" because he or she is a member of the family of the manager, the appearance of conflict of interest is a serious matter that needs to be taken into account.

In such a situation, the manager should recuse himself completely and publicly from the competition and hiring process. It would also be recommended that candidates selected to go on in the competition should be informed of the situation. The most important thing is to ensure that the competition is as transparent as possible. These measures do not completely eliminate the possible appearance of conflict of interest but they make certain that managers can explain and justify their decisions.

Chapters 2 and 3 - Jurisprudence

Introduction

This section presents a series of cases for which the Public Service Staff Relations Board (PSSRB) has tabled a decision. While the cases refer to the Conflict of Interest and Post-employment Code for the Public Service, they offer useful instruction for questions that may be raised by application of the Values and Ethics Code for the Public Service.

Case No. 1: Preferential treatment and acceptance of benefits for services rendered

Values and Ethics Code for the Public Service: Chapter 2

The griever, a commodities specialist at Customs and Excise, was suspended for three months for accepting benefits in the form of reduced chiropractic fees in return for advice that he gave to a chiropractor on ways of reducing customs duties on a chiropractic table. The griever contended that he was not aware that the reduction of fees was related to the advice provided. The adjudicator ruled that the griever had committed a grave error of judgment in accepting the benefits and in failing to disclose the conflict to his supervisors. However, he reduced the suspension to one month (reference: Larmond A. 166-2-9414).

Case No. 2: Outside employment activities

Values and Ethics Code for the Public Service: Chapter 2

The griever, an employment counsellor in Toronto, was suspended for three days for conflict of interest for printing his government telephone number on his professional business cards. In addition, he tried to persuade a client, an expanding sales company, to join his business activities. The adjudicator ruled there was a conflict of interest and abuse of confidence that the griever still refused to recognize. The adjudicator found the penalty bordered on leniency, and the grievance was dismissed (reference: Ennis B. F. 166-2-8773).

Case No. 3: Assets /liabilities / full disclosure / outside employment

Values and Ethics Code for the Public Service: Chapter 2

The public servant, a primary products inspector, employed as a supervisory meat grader, filed grievances after being suspended for 10 days, for 30 days, and discharged. The adjudicator ruled, on the evidence, that the griever had not provided a full report, when requested to by departmental authorities as required under conflict of interest guidelines. The adjudicator also ruled, on the evidence, that the employer was justified in instructing the griever to divest himself of his outside interests (a butcher's shop) and that if the employer had not done so, it would have significantly damaged its reputation and credibility among meat-processing plants and consumers in general. The grievances were dismissed. (reference:166-2-10263 Paterson, R.J.).

Case No. 4: Deriving extra benefit from official duties / Abuse of confidence / Breach of security / Violation of oath of office

Values and Ethics Code for the Public Service: Chapter 1, Ethical values and Chapter 2.

The griever, an office public servant, was discharged for knowingly using confidential departmental information to create a data base which he offered for sale to drug stores. His activities were quickly stopped, but he had time to receive three cheques and to cash one of them. The griever stated that his supervisor had approved the plan but the adjudicator was not convinced. He ruled that the griever had violated conflict of interest guidelines and that the employer-public servant relationship was beyond repair. The grievance was dismissed (reference: Kemle S.J. 166-2-25305).

Case No. 5: Outside employment / Potential risk of conflict

Values and Ethics Code for the Public Service: Chapter 2.

The griever challenged a two-month suspension for refusal to disassociate himself entirely from a business company of which he was president, given the serious risk of conflict of interest associated with his duties as nautical services officer. The adjudicator held that the griever had demonstrated very poor judgment and an unreasonable attitude in refusing to recognize, over a period of several weeks, and even several months, that his activities on behalf of the private company and for himself, were entirely incompatible with his position as a public servant. It is not enough that a public servant is convinced of his innocence and his integrity, nor is it necessary to prove that he has been disloyal to his employer. Even in the absence of proof of voluntary improper action, an intelligent person could easily recognize that a real or potential conflict of interest goes against government policy. The grievance was dismissed (reference: Atkins 166-2 889).

Annex 1

Delegation of Authority under the Values and Ethics Code for the Public Service

The Values and Ethics Code for the Public Service is a policy of the Treasury Board of Canada.

This policy is governed by the Financial Administration Act (RS 1985, c. F-11). Subsection 11(2) gives the Treasury Board the authority to issue policies on human resources management.

The Treasury Board may delegate, under the terms and conditions it determines, its authority for human resources management to a department's Deputy Head or to the chief executive of any portion of the Public Service (subsection 12 (1)). This policy delegates its powers and functions for its administration to these officials, who may in turn delegate them to their subordinates or any other individual, subject to the terms and conditions of delegation (subsection 12(3)).

Notwithstanding the fact that sub-delegation is permitted, the Office of Public Service Values and Ethics suggests that sub-delegation be limited to the Director General level. Too much sub-delegation would increase the number of interpretations of the Code, thus resulting in an uneven application of the Values and Ethics Code for the Public Service.

Given the sensitivity of some of the conflict of interest and post-employment issues, it would be important to bear in mind that the Senior Official may be accountable to the House of Commons and the public. As well, conflict of interest issues may easily attract media attention.

Annex 2 - Post-employment measures

Table of positions classified as EX, EX minus 1, EX minus 2 and their equivalent

EX equivalent   EX minus 1 equivalent   EX minus 2 equivalent
ac-03   ac-02    
    ag-05   ag-04
ai-nop-06, 07,08   ainop-04, 05; aiopr-04,05   ainop-02, 03; aiopr-03
aoetp-01, 02   aocai-05, aohps-03   aocai-04, aohps-02
ar-07   ar-06   ar-05
as-08   as-07   as-06
au-06   au-05   au-04
    bi-05   bi-04
    ca-02   ca-01
    ch-05   ch-04
co-04   co-03   co-02
cs-05       cs-04
de-03,04   de-02    
ds-05,06,07,08dsaaa07, dsbbb07   ds-04    
ededs-06   ededs-05   ededs-04, edlat-03
    eg-08   eg-07
    el-09   el-08
eneng-06, ensur-06   eneng-05, ensur-05   eneng-04, ensur-04
es-07, es-08   es-06   es-05
    fi-04   fi-03
    fo-04   fo-03
    fs-02    
    gt-08   gt-07
    hr-05   hr-04
    is-06   is-05
laaaa02, 03; labbb02, 03, laccc03; lai 02, laii 02       la-01
    ls-06   ls-05
ma-06,07   ma-05   ma-04
mdmof-02, 03, 04, 05; mdmsp-01, 02, 03   mdmof-01    
mt-08   mt-07   mt-06
    ndadv03, ndhme05    
    nucon-01; nuhos-08; nuchn-08   nuchn-07, nuhos07
    om-06   om-05
    op-04   op-03
pc-05   pc-04   pc-03
    pe-06   pe-05
    pg-06   pg-05
    ph-04   ph-03
        picgc-08
pm-07   pm-06;   pm-05
    pr-05   pr-04
    ps-05   ps-04
    ro-07   ro-06
serem01, 02, 03; seres03, 04, 05   seres-02    
    sgpat-07; sgpat-08; sgsre-08   sgpat-06; sgsre-07
    si-07, 08   si-06
somao13   soins-02; somao-12   soins-01; somao-11
    swscw-05    
ti-09   ti-08   ti-07
    tr-05   tr-04
ut-04       ut-03
vm-05   vm-04   vm-03
wp-07   wp-06   wp-05


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