Annual Report on the Public Servants Disclosure Protection Act 2007-08

Promoting Ethical Practices: Implementing the Act

Canada Public Service Agency

The Canada Public Service Agency is the policy centre for the Act and has been working on implementation of the Act since before it came into force. The Agency worked with the former Public Service Integrity Office to ensure that the necessary infrastructure was in place to establish the position and office of the Public Sector Integrity Commissioner as an independent Agent of Parliament. The Agency also led the establishment of the Public Servants Disclosure Protection Tribunal and did the initial work to set up the Registry that supports the Tribunal. Both the Commissioner's office and the Tribunal's Registry were in place at the time the Act came into force, and the Commissioner and Tribunal members were appointed shortly thereafter.

Since the fall of 2006, the Canada Public Service Agency has provided briefings to chief executives, senior officers, key personnel and bargaining agents. The Agency also provided chief executives with communiqués and information for distribution to employees at the time the Act came into force.

The Agency realizes the importance of supporting Senior Officers designated under the PSDPA, and is committed to building and maintaining this key community. The Agency hosted seven two-day workshops for Senior Officers[2] and, throughout the year, has handled many of their questions related to the Act. The Agency also developed and delivered other learning and communications tools to help organizations in their implementation of the Act. This includes several technical guides, which were posted on the Agency's website before the Act came into force. The Agency has also provided ongoing policy support to organizations as they develop and implement their own internal procedures for managing disclosures and as they handle the first disclosures made under the Act. Supported by an implementation working group, the Agency continues to develop and update learning and communications products related to the Act.

The Agency continues to help federal public sector organizations to implement the Act and to build on initial successes so that the long-term objectives of the Act will be achieved. A central part of this implementation will be the Treasury Board's establishment of a code of conduct applicable to the public sector, as required by section 5 of the Act, to guide values and ethics in the federal workforce. The Act also requires that bargaining agents be consulted in the development of this code. In September 2006, the Human Resources Management Advisory Committee directed the Agency to commence work on the development of a code of conduct that would meet these requirements.

The Agency has begun consultations with public sector organizations and bargaining agents on a draft version of this code and expects to submit it for final approval in the spring of 2009. After that, the Agency will continue to provide expert advice and guidance to organizations as they work toward implementation.

Public Sector Integrity Commissioner

Ms. Christiane Ouimet was appointed as the first Public Sector Integrity Commissioner and took office on August 6, 2007. Her office is now fully established and is receiving disclosures and reprisal complaints. She is also performing outreach throughout the federal public sector.

The Commissioner receives and investigates disclosures about potential wrongdoing in the federal public sector, as well as complaints of reprisal from federal public sector employees. The Commissioner may also investigate possible wrongdoing in response to information provided by any member of the public. As an Agent of Parliament, the Commissioner reports directly to Parliament, and complements the Agency's work in supporting organizations and Senior Officers as they establish internal disclosure procedures and handle disclosures.

While this report describes activities related to disclosures made in public sector organizations subject to the Act, the Commissioner is also required to report annually to Parliament on the activities of her office, including disclosures made directly to her. For more details, and an elaboration of the Commissioner's role under the Act, please see the Commissioner's first annual report, Inform. Protect. Prevent. Building Trust Together, which was tabled in Parliament on May 28, 2008.

Public Servants Disclosure Protection Tribunal

The inaugural members of the Public Servants Disclosure Protection Tribunal were appointed on July 3, 2007, and the Tribunal is ready to hear cases of possible reprisal under the Act referred by the Public Sector Integrity Commissioner. The Tribunal currently consists of three Federal Court judges, the Honourable Richard Mosley, the Honourable Judith A. Snider, and the Honourable Luc Martineau. The Chairperson's position has been vacant since February 20, 2008, the date the Honourable Pierre Blais was appointed to the Federal Court of Appeal.

The Tribunal is supported by the Registry of the Tribunal. The Registrar of the Tribunal and the other staff of the Registry have been appointed under the Public Service Employment Act. The Registry has created processes for the handling of cases and, in consultation with all interested parties, has developed rules of procedure for the Tribunal. More information about the Tribunal can be found on its new website at www.psdpt-tpfd.gc.ca

Organizations subject to the Act

There are 153 active organizations in the federal public sector that are currently subject to the Act.[3] These organizations inform the Canada Public Service Agency of the appointment of Senior Officers under the Act. Among these organizations, 24 declared during the reporting period that, in accordance with section 10(4) of the Act, they would not establish internal disclosure procedures or appoint a Senior Officer as their organizational size made it impractical to do so. An additional 12 organizations had exercised the option under section 10(3) of the Act to have a Senior Officer from another organization.

Some organizations reported that their internal disclosure procedures are being finalized, or are already in place, though there is insufficient information available to determine the extent to which this requirement has been satisfied. The majority of organizations reported that they had delivered general communications about the Act to their employees, most commonly by e-mail and internal websites. Some organizations reported making presentations to employees about the Act, including some targeted specifically to senior management.

Many organizations reported having provided or developed some form of training on the Act, such as including information about the Act in employee orientation. Generally, organizations appreciate that training is an essential element of promoting the Act, and that such training must be provided to employees at all levels.

A significant number of organizations reported that they had begun work on an organizational code of conduct such as by performing risk assessments or holding consultations on existing or draft codes. Many of these organizations indicated that they will not finalize their organizational codes of conduct until Treasury Board has established the code applicable to the entire public sector. Some organizations, however, have gone ahead and established an organizational code of conduct as a code under the Act, which they will review after the public sector code is established. One such organization, Health Canada, reported that approximately half the disclosures made internally related to their organizational code of conduct, which may be a reason why they reported a relatively high number of disclosures (see Appendix).

Some other organizations deserve specific mention. The Royal Canadian Mounted Police (RCMP) is currently undergoing a substantial renewal and change process, under the guidance of the RCMP Change Management Team. This team is responsible for developing and coordinating the RCMP Change Management Implementation Plan, which will include actions being taken to respond to recommendations of the Task Force on Governance and Cultural Change in the RCMP. In this context, the RCMP has recently completed a comprehensive national stakeholder consultation, which has included senior management and the Change Management Team, to support the development of a sustainable internal disclosure process under the Act.

In consultation with the Agency, and as required by the Act, the Canadian Forces, the Canadian Security Intelligence Service and the Communications Security Establishment have each begun work to establish internal disclosure procedures similar to those provided for in the Act. Each of these organizations is otherwise excluded from the requirements of the Act, due to their unique mandates. These organizations have been consulting with the Canada Public Service Agency and are expected to finalize their procedures in 2008–09.

As a whole, the details that organizations have provided on their activities to promote the Act demonstrate that there is a growing understanding of the Act and its requirements throughout the public sector. It is clear, however, that many organizations are still in the process of finalizing and promoting internal disclosure procedures. Furthermore, some anecdotal evidence suggests that many employees are not yet fully aware of the Act and its provisions.

A selection of best practices

Federal public sector organizations can learn a lot from one another about implementing the Act effectively, despite the diversity of their operational and organizational structures. In her first annual report, the Public Sector Integrity Commissioner cited a variety of best practices that demonstrate "leadership in promoting integrity through prevention."

The following selection of best practices is drawn from information submitted in annual reports to the Agency as well as from information collected as part of Round V of the Management Accountability Framework assessments.

• At the Atlantic Canada Opportunities Agency, all employees are required to acknowledge familiarity with the Act and its procedures as part of the annual performance-review process. Each employee is provided with information about the Act on the Annual Employee Performance Agreement, helping to ensure a very high level of awareness of the Act throughout the organization.

• The Canada Border Services Agency has established an Internal Disclosure Advisory Committee, made up of representatives from Internal Affairs, Internal Audit, Access to Information and Privacy, Labour Relations, Legal Services and Values and Ethics to support the Senior Officer in the analysis of the disclosure cases and to offer advice and guidance on the disclosure process.

• Many organizations reported including details about the Act in existing required training and orientation materials, and some have established specific training materials on the Act. For example, the Canadian Food Inspection Agency has developed an online course on internal disclosure for all employees.

• Many organizations report having delivered numerous presentations on the Act throughout their organizations, including to senior management teams and in regional offices. For example, Fisheries and Oceans Canada delivered information sessions to each of its regional management committees and to employees at all-staff forums and provided additional training for supervisors. Organizations that reported giving presentations indicated that they generated a great deal of interest from their audiences and this represented a key activity in disseminating information about the Act.

• National Defence provides a manual on disclosure of wrongdoing to supervisors, managers and employees and covers information on the Act in workshops on risk management.