Annual Report on the Public Servants Disclosure Protection Act 2009-10

Message from the Chief Human Resources Officer

I am pleased to present this report on activities related to the Public Servants Disclosure Protection Act as carried out by federal public sector organizations during 2009–10.

It is clear that organizations across the public sector have now implemented the Act and that the Act has been effective in supporting public servants who make disclosures under it. The activity reflected in this report is a sign that the procedures established under the Act are contributing to integrity in public sector organizations.

Public service renewal remained a high priority in 2009–10. Work related to the codes of conduct required under the Act has been an essential part of our activities this year. We have conducted extensive consultations with bargaining agents, senior leaders, public servants and federal public sector organizations. In addition, we have researched best practices and codes in other jurisdictions and consulted academics. The new Values and Ethics Code for the Public Sector will be an evolution of the current one; it will reflect what we have learned through consultation and research and will build on the successes and lessons learned under the current Code.

Like the current Code, the new Values and Ethics Code for the Public Sector will emphasize the tradition of non-partisanship and impartiality in the Canadian public service in setting out the values of respect for democracy, respect for people, integrity, stewardship and excellence. One significant improvement of the new Code is that it will more clearly distinguish between values and expected behaviours. This will pave the way for individual organizational codes of conduct to provide detailed direction to public servants and be tailored to meet each organization's specific culture, mandate and areas of risk. The new Code will be finalized by fall 2010, and deputy heads will develop and implement their organizational codes by March 31, 2011.

We look forward to continuing to support chief executives in carrying out their responsibilities under the Act. At the same time, as part of the mandate of the Office of the Chief Human Resources Officer for the Government of Canada, we will continue to provide leadership in values and ethics and promote ethical practices across the public sector.

Original signed by

Daphne Meredith, Chief Human Resources Officer
Treasury Board of Canada Secretariat

Introduction

The Public Servants Disclosure Protection Act (PSDPA) is an important part of the federal government's framework to maintain the trust and confidence of Canadians in the public sector. While wrongdoing is rare in the Canadian public sector, it is important to have mechanisms in place that allow each case of suspected wrongdoing to be dealt with in a manner that maintains the effective and efficient operation of public sector organizations and Canadians' confidence in those organizations.

Section 38.1 of the PSDPA requires that the Chief Human Resources Officer prepare an annual report for the President of the Treasury Board to table in Parliament. The report must provide information on activities related to the disclosures made in public sector organizations that are subject to the Act, including:

• the number of general inquiries relating to the Act;
• the number of disclosures received under the Act and whether they were acted upon;
• the number of investigations commenced;
• whether any systemic problems were found that led to wrongdoing; and
• any other matter that the Chief Human Resources Officer deems necessary.

This document, the third annual report under the PSDPA, covers these reporting requirements for the period of April 1, 2009, to March 31, 2010. It is divided into the following sections:

• Background—A brief summary of the purpose of the Act and its key concepts.
• Promoting Ethical Practices—A summary of activities related to the promotion of ethical practices in the public sector and a positive environment for disclosing wrongdoing, in light of section 4 of the Act.
• Reported Disclosure Activity—Information about specific activities related to disclosures of possible wrongdoing reported by organizations subject to the Act.
• Observations—An interpretation of reported activity under the Act in the context of other measures related to values and ethics.

The Appendix provides more detailed information as reported by public sector organizations.

Background

The Public Servants Disclosure Protection Act establishes procedures for handling allegations of wrongdoing and complaints of reprisal and provides concrete support for grounding public sector culture firmly in values and ethics. Through its provisions, the Act enhances the ability of organizations to identify and resolve incidents of wrongdoing, while supporting employees who disclose wrongdoing and protecting them from reprisal. For details of the origins and intent of the Act, please see the 2007–08 PSDPA annual report[1] and the website of the Office of the Chief Human Resources Officer (OCHRO).[2]

Key terms

The Act applies to most organizations in the federal public sector, namely, the core public administration, separate employers and parent Crown corporations.[3] The Canadian Forces, Communications Security Establishment Canada and the Canadian Security Intelligence Service are excluded, but the Act requires that these organizations establish comparable disclosure protection regimes.

For the purposes of the Act, and of this report, "public servant" denotes every person employed in the public sector. This includes the deputy heads and chief executives of public sector organizations but does not include other Governor-in-Council appointees (such as judges or boards of directors of Crown corporations) or parliamentarians or their staff.

The Act defines "wrongdoing" as any of the following actions in or relating to the public sector (wrongdoing is not restricted to the activities of public servants):

• the violation of a federal or provincial law or regulation;
• a misuse of public funds or assets;
• gross mismanagement in the public sector;
• a serious breach of a code of conduct established under the Act;
• an act or omission that creates a substantial and specific danger to the life, health and safety of Canadians or the environment; or
• knowingly directing or counselling a person to commit wrongdoing.

A protected disclosure is a disclosure that is made in good faith by a public servant, as follows:

• in accordance with the Act and made to the public servant's immediate supervisor, to the Senior Officer or to the Public Sector Integrity Commissioner;
• in the course of a parliamentary proceeding;
• in the course of a procedure established under any other Act of Parliament; or
• when lawfully required to do so.

Furthermore, any person can provide information about wrongdoing in the public sector to the Public Sector Integrity Commissioner.

The Act defines "reprisal" as any of the following measures taken against a public servant who has made a protected disclosure or who has, in good faith, cooperated in an investigation into a disclosure:

• any disciplinary measure;
• the demotion of the public servant;
• the termination of employment of the public servant;
• the taking of any measure that adversely affects the employment or working conditions of the public servant; or
• a threat to do any of those things or to direct a person to do them.

Each organization subject to the Act is required to establish internal procedures to manage disclosures made in the organization. Organizations that are too small to establish their own internal procedures can request an exception under section 10(4) of the Act. In this case, employees of such organizations can make protected disclosures to the Public Sector Integrity Commissioner.

The Senior Officer is the person appointed within each organization to receive and deal with disclosures made under the Act. The Senior Officer has a key leadership role in the Act's implementation in the organization and is responsible for the following:

• providing information and advice to employees and supervisors about the Act;
• receiving, recording and reviewing disclosures of wrongdoing; and
• leading investigations of disclosures, and recommending to the chief executive corrective action that could be taken to correct any incidents of wrongdoing found. These actions could range from training, to the suspension or removal of delegated authority, to taking disciplinary action, or any combination of these measures, which fall under the usual mechanisms and rules for discipline, as determined by the chief executive.

An investigation is a systematic process of gathering evidence in order to prove or disprove the validity of a set of allegations. The Act states that investigations are to be conducted as informally and expeditiously as possible.

The forthcoming Values and Ethics Code for the Public Sector will further define the Senior Officer's duties and powers.

Scope of this report

This report includes information provided by public sector organizations related to disclosures made according to internal procedures established under the Act, as reported to OCHRO by the Senior Officer or Chief Executive Officer of each of those organizations. It does not cover disclosures or reprisal complaints made to the Public Sector Integrity Commissioner, which are covered by the Commissioner's report to Parliament.

Promoting Ethical Practices

Office of the Chief Human Resources Officer

OCHRO's mandate recognizes supports and creates the conditions for deputy heads to take full responsibility for people management in their organizations. OCHRO is therefore the centre of leadership for the Act and continues to support the President of the Treasury Board in promoting ethical practices and a positive environment for disclosing wrongdoing as required under section 4 of the Act. OCHRO provides advice and guidance on the PSDPA to chief executives and the appointed Senior Officers as they exercise their responsibilities under the Act.

Office of the Public Sector Integrity Commissioner

As an Agent of Parliament, the Public Sector Integrity Commissioner has an independent function under the Act and reports directly to Parliament on her Office's activities, including disclosures and reprisal complaints received. For more information, please see the Commissioner's annual report on the website of the Office of the Public Sector Integrity Commissioner.

Public Servants Disclosure Protection Tribunal

The Public Servants Disclosure Protection Tribunal's mandate is to protect federal public servants who disclose wrongdoing against reprisals. The Tribunal has the power to grant remedies to public servants who experience reprisals and to order disciplinary action against managers who take reprisals against employees who disclose wrongdoing or who cooperate in an investigation of wrongdoing. Although several jurisdictions in Canada and abroad have disclosure regimes in place, none of them offers the same level of protection to public servants.

Cases are referred to the Tribunal by the Public Sector Integrity Commissioner. Since no cases have been referred to the Tribunal since its inception in 2007, it may be that public servants do not understand the full extent of the protection provided by the PSDPA or are fearful of the consequences of making a disclosure. For these reasons, the Tribunal has begun in 2009–10 to implement a series of communications initiatives designed to let public servants know about the powers the Tribunal has to protect them from reprisals.

More information about the Tribunal can be found on its website.

Organizations subject to the Act

There are 155 active organizations in the federal public sector that are currently subject to the Act.[4] These organizations inform OCHRO of Senior Officer appointments under the Act. Pursuant to section 10(4) of the Act, 35 organizations have declared that they would not establish internal disclosure procedures or appoint a Senior Officer because the size of the organization made it impractical to do so.

Progress was made in 2009–10 by the organizations that have specific legal obligations under the PSDPA. A milestone for the Royal Canadian Mounted Police (RCMP) this year was the creation of the Office of Professional Integrity. This change in governance seeks to align all systems that deal with the management of employee behaviour. In addition to these changes, it should be noted that the RCMP's Professional Integrity Officer has been appointed as the designated Senior Officer under the PSDPA.

Three organizations are excluded from the requirements of the Act because of their unique mandates. They continued to work on establishing internal disclosure procedures similar to those contained in the Act.

The Canadian Security Intelligence Service has established similar procedures under the PSDPA and has received the approval of Treasury Board in December 2009.

In the interest of strengthening Communications Security Establishment Canada's (CSEC's) capacity to address ethics issues more generally, CSEC has established and staffed an Ethics Officer position within the Directorate of Audit, Evaluation and Ethics. CSEC is expected to present its procedures to Treasury Board for approval in 2010–11.

The Canadian Forces has embedded the key elements of the PSDPA related to prohibiting reprisals in their existing Queen's Regulations and Orders. It has also referenced this in the "general responsibilities" that apply to officers and non-commissioned members. The Canadian Forces has been consulting with OCHRO and expects to present its procedures to Treasury Board for approval in 2010–11.

A significant amount of outreach and learning has been done over the past fiscal year in numerous organizations to promote the PSDPA. These activities include information and training on the main aspects of the PSDPA, the internal mechanisms available, and recourses in case of reprisals. While several organizations have developed an internal website, others have developed guides, question-and-answer documents and posters. It is also worth mentioning that several organizations have sent broadcast emails to their employees to promote awareness of the PSDPA and internal disclosure procedures.

The following are some examples of organizational practices drawn from the annual reports submitted by public sector organizations to OCHRO in 2009–10:

• Canadian Heritage developed a procedures manual to provide guidance on processing internal disclosures and undertook a risk assessment of the function of the Senior Officer responsible for internal disclosures. It has also developed a governance structure proposal for matters related to values and ethics.
• In 2009, the Atlantic Canada Opportunities Agency (ACOA) continued with the practice of having all employees complete an annex to their respective annual performance evaluations indicating their familiarity with the PSDPA and their awareness of the procedure for making a disclosure. All letters of offer to new employees will include the Confirmation of Awareness annex that must be signed and returned when they accept an employment offer. In 2010, ACOA will be adding information on the PSDPA to its new employee-orientation program, which is published on the agency's intranet site.
• The Public Prosecution Service of Canada has distributed and posted in all its offices the poster titled "The Integrity of Our Public Institutions," published by the Office of the Public Sector Integrity Commissioner of Canada, in order to promote the disclosure of wrongdoing.
• The RCMP External Review Committee renewed its one-year contract with an external confidential access point to provide confidential services on an as-needed basis to its staff members.
• The Department of Finance Canada maintained a dedicated telephone line, email account and secure filing system for maintaining documentation in respect of disclosures made in accordance with the Act. An overview of the Act has been included in orientation sessions for new staff.
• An entire module dedicated to internal disclosure will be added to the Agriculture and Agri‑food Canada web-based training platform.
• Parks Canada has developed a tool to clarify the terms "misuse," "gross mismanagement" and "important" as part of the definition of wrongdoing.
• Environment Canada offered support to managers in assuming their responsibilities under the PSDPA by providing tips on how to create a safe place for people to raise values and ethics issues. The assistant deputy ministers regularly communicated their commitment to and support for ethical practices in the department in their messages to employees. Environment Canada also included information for managers in its monthly publication Let's Talk: one on creating a safe space for discussing ethical issues and another on building trust and keeping one's promises.

Reported Disclosure Activity

Section 38.1 of the Act requires each chief executive to prepare and submit to OCHRO, within 60 days after the end of every fiscal year, a report on the activities related to disclosures made to the Senior Officer or supervisors in his or her organization. The following is a summary of those reports.

Disclosure Activity	Reported Numbers
Number of active organizations	155
Number of general inquiries relating to the Act Number of organizations that reported inquiries	281 29
Number of disclosures received according to the Act Number of organizations that reported disclosures	213 32
Number of referrals resulting from a disclosure made in another public sector organization	4
Number of cases carried over based on disclosures made in 2008–09	31
Total number of disclosures handled in 2009–10 (new disclosures plus cases carried over and referrals)	248
Number of disclosures received that were acted upon	218
Number of disclosures received that were not acted upon	30
Number of investigations commenced as a result of disclosures received	75
Number of disclosures received that led to a finding of wrongdoing Number of organizations that reported findings of wrongdoing	7 4
Number of disclosures received that led to corrective measures Number of organizations that reported corrective measures	36 14
Number of organizations that reported finding systemic problems that gave rise to wrongdoing	4

In accordance with paragraph 11(1)(c) of the Act, it is the responsibility of each organization to provide public access to information describing findings of wrongdoing and any follow-up action taken. This information is not collected and repeated in this report.

Statistics on organizational reports of activities related to disclosures made under the Act are available in the Appendix.

Observations

Reports submitted by organizations continue to show that a great deal of work is being done to provide information about the PSDPA to employees and to handle internal disclosures made in accordance with the PSDPA. These essential steps should increase awareness among public servants that making a disclosure in good faith is an ethical act and should increase their trust that organizations will act with integrity in handling allegations of possible wrongdoing. More broadly, along with the establishment of the Values and Ethics Code for the Public Sector by Treasury Board and of internal codes of conduct by federal organizations, these steps will help to entrench public sector values more deeply in government organizations and enrich the public sector's ethical culture.

Nevertheless, it is difficult to clearly determine the degree to which individual organizations may, through their PSDPA-related efforts, be achieving these goals. Clearly, a count of disclosures does not necessarily correlate with the steps taken by organizations to establish internal disclosure procedures and communicate those procedures to employees. As well, the disclosures reported by organizations account for only a small portion of disclosures made under protection of the Act. Protected disclosures also include those made to the Public Sector Integrity Commissioner, those made through procedures established under other Acts of Parliament, and those made by public servants to their supervisors, which are dealt with as part of good management.

The disclosures reported here nevertheless provide a useful snapshot of activity under the PSDPA and are a measure of whether its processes are used by employees. Reported activity under the PSDPA, in combination with information about the consequences of disclosures, such as whether they led to corrective measures, also demonstrates whether disclosures are achieving one of the goals of the PSDPA, which is to encourage employees to come forward with information about possible wrongdoing.

In 2009–10, the number of general inquiries about the PSDPA increased by 49 per cent. This could reflect a healthy curiosity on the part of employees about the PSDPA. We also have registered a 17-per-cent increase in disclosures received in organizations in 2009–10, while only 7 disclosures out of 218 disclosures acted upon actually led to a finding of wrongdoing. Clearly, more public servants are making disclosures using their respective organization's internal disclosure procedures. This level of activity is very encouraging. While serious wrongdoing is extremely rare in the federal public sector and ethical behaviour is the norm for public servants, internal procedures established under the PSDPA are nevertheless leading to the discovery of incidents of wrongdoing and to actions to correct them.

While most organizations that reported findings of wrongdoing under the Act also reported subsequent corrective measures, some organizations reported corrective measures without having found wrongdoing or systemic problems. This is explained by the fact that some incidents or situations that do not fall under the Act's definition of wrongdoing may bring to light minor issues that the organizations have addressed.

Reports also show an increase in organizations reporting findings of systemic problems that have been addressed by corrective measures.

Looking forward, the substantial progress made in the first three years since the implementation of the PSDPA should not lead to complacency. Much work remains to be done:

• There continues to be varying levels of awareness of the Act in different public sector organizations. All public servants, regardless of their position and level, should know how to make a disclosure and how they are protected if they do so, and they should understand that if they have knowledge of possible wrongdoing, making a disclosure in good faith is the right thing to do. Ongoing communication of the basic elements of the PSDPA is therefore necessary, and public sector organizations should embed information about the PSDPA in the essential resource material available to all employees.
• Organizations, and particularly the Senior Officers appointed under the Act, need continued support to ensure that the requirements of the PSDPA are fully met. In particular, due to the relative infrequency of disclosures, except at the larger organizations, few Senior Officers devote all of their time to handling PSDPA matters. OCHRO will maintain its leadership role and continue to assist Senior Officers when necessary, while respecting the responsibilities of public sector organizations under the PSDPA.

Public sector values are reflected in the day-to-day activities of public sector organizations, from the most basic employee interactions to the most significant decisions of senior leaders. These values underpin public service renewal, and they guide us in how we serve Canadians. In the Seventeenth Annual Report to the Prime Minister on the Public Service of Canada, the Clerk of the Privy Council stated:

Further, the Values and Ethics Code for the Public Sector and the individual organizational codes of conduct required under the PSDPA are intended to support organizations' ability to attract and engage employees who are committed to excellence in the public service. The Values and Ethics Code for the Public Sector will describe values in a general way so that they can be applied to all organizations, while individual organizational codes will translate those values into specific organizational expectations. In this way, employees should be able to see how high-level values translate into expected behaviours relevant to their specific organizational mandate and culture.

Once established, these codes of conduct will provide a normative foundation for ethical culture in the federal public sector. They will reflect the values that have long defined public service in Canada and will also provide the public sector with a statement of the values and expected behaviours that must be embodied in public sector work.

The 2010–11 Public Service Renewal Action Plan states that the Chief Human Resources Officer will finalize the Values and Ethics Code for the Public Sector by fall 2010 and that deputy heads will develop and implement their organizational codes by March 31, 2011. The establishment of this Code, and the corresponding work that organizations perform on their internal codes of conduct, will provide all public sector organizations with a valuable opportunity to engage their employees in discussions about public sector values and the elements that support an ethical organizational culture.

Ultimately, values and ethics are not separate functions or responsibilities independent from other aspects of the work of public servants; they form the foundation of everything we do. For this reason, OCHRO and Treasury Board of Canada Secretariat remain committed to the promotion of public sector values and to supporting the PSDPA.