Case Summaries 2013-2014
Allegation of gross mismanagement due to improper influence by a stakeholder over public servant staffing (Commissioner’s Investigation)
Introduction
The discloser is a public servant who is also a member of a designated profession. He alleged that he had been restricted from dealing with certain files at the request of stakeholders who viewed the discloser as an impediment to achieving desired goals.
If the discloser was inappropriately restricted in his job duties, the public servant(s) responsible for the decision could have engaged in gross mismanagement in the work of the Ontario Public Service within the meaning of the Public Service of Ontario Act, 2006. The Integrity Commissioner investigated the matter rather than referring it because of a possible conflict of interest. The investigation did not find wrongdoing, but it revealed that the circumstances led to a perception of wrongdoing that had a corrosive effect on the integrity of the public service. The Commissioner made recommendations to prevent similar events from occurring in the future.
Context
The OPS, the executive branch of the Ontario government, is required to adhere to unique and high standards in carrying out its work. Principal among these standards is that the public service be “non-partisan, professional, ethical and competent.” The issue of inappropriate influence over staffing decisions cuts to the very core of a professional public service.
It is to be anticipated that external stakeholders will attempt to influence government about staffing decisions by providing feedback. The circumstances of this investigation confirm that it is important that such feedback be received and addressed in a transparent way. Senior public servants must be clear with stakeholders that while feedback is welcome, it remains within the control of the officials within the OPS to make decisions about which public servants work on which files.
Findings
The investigation found that the discloser was restricted from working on certain files at various times in his career. The decision to restrict the discloser was made by a senior official within the ministry and continued by others, even beyond the tenure of the senior official who had made the decision. While the senior official had received feedback from stakeholders about the discloser, directly and indirectly, the main reason for his decision was his own observations and views about how the discloser carried out his work. Assessing the merits of the senior official’s determination was beyond the scope of the investigation.
The investigation established that the senior official and another senior manager, the two public servants with the most responsibility for the restriction (i.e., making the decision and implementing it, respectively), had no private interests in relation to the stakeholders and that there was no conduct motivated by bad faith or improper purpose.
The senior official failed to communicate the reasons why he held the view that the discloser should not be involved in front line activities. This failure to communicate created a vacuum that was filled with speculation. The decision had lasting effects, spanning almost 10 years. This caused three problematic outcomes.
First, it created a reasonably held perception among senior public servants in the OPS that a well-placed phone call to senior government officials by stakeholders could result in an otherwise qualified and respected public servant being removed from a file without any scrutiny or due diligence. If the perception existed inside the public service, it may well have existed outside of the OPS.
Importantly, this perception had a damaging impact on the integrity of the public service.
Second, the discloser may have been removed from his job duties without the opportunity to challenge the reasons why.
Third, the government was not able to benefit from the discloser’s advice. However, the investigation showed that the government was not deprived of necessary professional advice. Regarding this issue, the Commissioner observed that there appeared to be insufficient clarity within the ministry about the proper roles and responsibilities of regulated professionals within the decision-making process.
Although the evidence revealed three problematic outcomes, the Commissioner concluded that the respondents did not engage in gross mismanagement in the work of the OPS because a perception of improper conduct could not form the basis of a finding of “gross mismanagement of a public servant … in the work of the public service of Ontario.” Given the gravity of the concern, however, and the corrosive effect on the independence of the public service of such perceptions, steps must be taken to minimize the risk of something like this happening in the future.
Other Issues
The evidence in this investigation showed that there may be lobbying activity ongoing in a particular sector that was not reflected on the Ontario Lobbyists Registry. The Commissioner has since taken steps to raise awareness of the obligations under the Lobbyists Registration Act, 1998, in the particular sector at issue.
Conclusion
There was broad consensus among all of those who gave evidence that the public service must guard against intrusions that threaten its integrity and impartiality, and that it would be wrong for a stakeholder to direct a staffing decision. There was no debate about this core principle.
This case illustrates that failing to address the perception of improper stakeholder influence over staffing decisions has a corrosive effect on the OPS. The Commissioner called on the senior leadership of the OPS to take the lessons learned from this case and demonstrate to public servants that it agrees with the core principle of integrity and impartiality and that intrusions will not be tolerated. To address the broader issues raised in this investigation, the Commissioner made three recommendations to the Secretary of the Cabinet, all of which have been accepted and acted upon:
- That the Secretary of the Cabinet communicate the key findings of this investigation to deputy ministers to raise awareness about the risks of a perception of improper stakeholder influence over staffing decisions.
- That, if none exist, guidelines be established for senior managers within the OPS about how to manage stakeholder feedback regarding the assignment and removal of public servants from files.
- That the Secretary of the Cabinet and other appropriate officials convene a working group, or other appropriate forum, to consider the issues that were raised in this investigation relating to the role of professional public servants.
Alleged criminal use of a computer
It was alleged that a public servant was using a work computer for a criminal purpose. The matter was referred to the Ethics Executive for investigation. The investigation concluded that the public servant was not using a work computer for any improper purpose, criminal or otherwise. The Commissioner was satisfied with the investigation and closed the file.
Alleged gross mismanagement for management’s failure to address bullying and harassment in a particular work unit, and preferential treatment of a vendor
It was alleged that a vendor was bullying and harassing employees in a particular work unit and that management had not addressed these allegations. There were also concerns about whether management improperly favoured the vendor in the procurement process. The matter was referred to the Ethics Executive for investigation.
The investigation established that there was no gross mismanagement for the following reasons:
- the vendor was not engaging in bullying or harassment, but there were issues with how the vendor communicated with employees;
- management was aware of the issues and had taken steps to address employee concerns; and
- the services were procured in accordance with procurement policies, but there could be improvements made to the process in the future.
Although no wrongdoing was found, the investigation shed light on important issues that required correction. The Ethics Executive took further steps to address the issues established by the investigation.
The Commissioner was satisfied with the investigation and its findings. The file was closed.
Allegation of conflict of interest
It was alleged that a public servant’s outside activities conflicted with his duties to the Crown and resulted in a particular stakeholder being given preferential treatment, contrary to Ontario Regulation 382/07, the Conflict of Interest Rules.
It was also alleged that the public servant’s manager engaged in gross mismanagement for failing to deal properly with the conflict of interest.
The Commissioner referred the matter for investigation to the appropriate Ethics Executive. The investigation found no evidence of actual preferential treatment being given to the stakeholder. It further found that a conflict of interest declaration had been made and steps had been taken to address the conflict.
The Commissioner was satisfied with the investigation and closed the file. Although there was no wrongdoing or any improper conduct found, the Commissioner recommended that the Ethics Executive seek guidance from the Conflict of Interest Commissioner to ensure that the conflict of interest processes in place are optimum. The Ethics Executive agreed with the recommendation.
Allegation of cover up of loss of evidence held pursuant to court order
The discloser alleged that evidence held pursuant to court orders was lost or stolen and that managers covered up the loss. Before making the disclosure to the OIC, the matter had been investigated but the discloser was not satisfied that appropriate corrective actions had been taken.
The Commissioner referred the matter, requesting information about the prior investigation and corrective actions first. The prior investigation substantiated that evidence had gone missing, although it had subsequently been returned, and that two managers responsible for dealing with the missing evidence had engaged in wrongdoing for failing to report the loss to superiors and to other appropriate authorities. The ministry/agency took corrective action including disciplining employee(s) and revising the procedures for handling similar evidence.
The Commissioner was satisfied that the ministry/agency had investigated the allegations meaningfully and taken the misconduct seriously. However, the Commissioner recommended additional corrective action including: informing the court and the parties about the loss of evidence, informing police authorities of the circumstances, and conducting a further investigation relating to the conduct of another individual. All of the additional recommendations were completed and the Commissioner closed the file.