2014 April Report of the Auditor General of Canada under the Public Servants Disclosure Protection Act Case Report 2—The Office of the Public Sector Integrity Commissioner of Canada
2014 April Report of the Auditor General of Canada under the Public Servants Disclosure Protection Act
Case Report 2—The Office of the Public Sector Integrity Commissioner of Canada
Wrongdoing under subsection 8(a) of the Public Servants Disclosure Protection Act—Contravention of an Act of Parliament
Wrongdoing under subsection 8(c) of the Public Servants Disclosure Protection Act—Gross mismanagement
The Office of the Public Sector Integrity Commissioner of Canada (PSIC) is an independent organization created in 2007 under the Public Servants Disclosure Protection Act (PSDPA) to establish a safe and confidential way for public servants or members of the public to disclose wrongdoing in, or relating to, federal organizations.
Mandate of the Auditor General
When a disclosure of alleged wrongdoing concerns PSIC, the PSDPA gives the Auditor General the mandate to investigate.
The purpose of these investigations is to bring the findings of wrongdoing to the attention of the organization’s chief executive and recommend corrective action.
Scope and context of this case
This report presents the findings of one such investigation as it relates to the disclosure of wrongdoing brought forward to the Auditor General.
We emphasize that this investigation concerns a single file among several hundred files handled by PSIC. This case report does not comment on the overall management of all files at PSIC, which was not investigated. Our findings relate solely to procedural matters. We found that the substantive decisions reached by the Commissioner were reasonable.
Further, this file was inherited by the current Public Sector Integrity Commissioner upon his appointment as Interim Commissioner in December 2010. Given the recent history of PSIC and the enormous transition within the organization while it was dealing with this file, we did not expect that 100 percent of its files would have been managed without error.
Disclosure to the Office of the Auditor General
1. On 2 April 2013, the Office of the Auditor General (OAG) received a disclosure of alleged wrongdoing concerning the Office of the Public Sector Integrity Commissioner (PSIC) under the Public Servants Disclosure Protection Act (PSDPA). The disclosure was received from an individual (“the alleged wrongdoer”) who had been the subject of a PSIC investigation.
2. On 8 May 2013, the Auditor General informed the Public Sector Integrity Commissioner (the Commissioner) that he was starting an investigation into the complainant’s allegations against PSIC, including that PSIC officials had committed wrongdoings under subsection 8(a) of the PSDPA (contravention of an Act of Parliament) and subsection 8(c) of the PSDPA (gross mismanagement).
Period under investigation
3. The Auditor General’s investigation focused on PSIC’s management of its investigation file from December 2009 to January 2014.
4. In December 2009, PSIC received a disclosure of alleged wrongdoing under the PSDPA. In May 2010, PSIC started an investigation into these allegations.
5. The alleged wrongdoer was notified of PSIC’s investigation on 15 July 2010 and was interviewed by a PSIC investigator on 20 August 2010.
6. On 29 November 2010, the alleged wrongdoer emailed the PSIC investigator to ask about the status of the investigation. The alleged wrongdoer did not receive a response.
7. On 4 January 2011, the alleged wrongdoer spoke with PSIC officials. There was no further communication between PSIC and the alleged wrongdoer between 4 January 2011 and 26 September 2012. On 26 September, the alleged wrongdoer received a telephone call from a different PSIC investigator and was informed that a report that could contain an adverse finding would be sent.
8. From October 2012 to March 2013, the alleged wrongdoer and PSIC communicated frequently about the investigation and PSIC’s preliminary findings.
9. On 5 April 2013, PSIC informed the alleged wrongdoer that it had put the investigation into abeyance because the Public Service Commission had begun an investigation into the subject matter.
10. On 16 January 2014, the OAG was informed that the Public Sector Integrity Commissioner had ceased his investigation.
Timeline of activities regarding PSIC’s file
Wrongdoing under subsection 8(a) of the Public Servants Disclosure Protection Act—Contravention of an Act of Parliament
Contravention of subsection 26(2) of the PSDPA—PSIC’s investigation was not conducted as informally and expeditiously as possible
11. The Public Sector Integrity Commissioner’s (PSIC) investigation into the disclosure of alleged wrongdoing was ongoing for 44 months, with cumulative periods of inactivity exceeding 24 months. Overall, PSIC’s investigation was not conducted as informally and expeditiously as possible, which is a contravention of subsection 26(2) of the Public Servants Disclosure Protection Act (PSDPA).
12. We found that PSIC officials conducted the investigation as expeditiously as possible between December 2009 and 13 January 2011. During that period, PSIC analyzed the disclosure of alleged wrongdoing, the former Public Sector Integrity Commissioner decided to start an investigation, the PSIC investigator was assigned to the file, interviews were conducted, and a draft investigation report was produced.
13. The PSIC investigator’s term of employment ended on 31 December 2010. In early January 2011, there was some communication between PSIC officials and the alleged wrongdoer. PSIC senior officials informed us that the responsibility for the file was reassigned in July 2011; however, we determined that no investigation work was conducted at that time.
14. On 20 April 2012, responsibility for the file was formally reassigned to an investigator in PSIC’s electronic case management system. This PSIC investigator began to work on the file on 1 May 2012.
15. We determined that PSIC did not conduct any investigation work between 13 January 2011 and 1 May 2012 (more than 15 months). Given the delay caused by this period of inactivity, the investigation was not conducted as expeditiously as possible.
16. We found that from 1 May 2012 to 2 October 2012, the PSIC investigator was actively working on the file. This investigator produced a second draft investigation report that was approved by PSIC senior officials.
17. On 26 September 2012, the PSIC investigator contacted the alleged wrongdoer. The alleged wrongdoer was advised that a draft investigation report was forthcoming that may contain adverse findings. This was the first communication between PSIC officials and the alleged wrongdoer since January 2011.
18. We found that from 2 October 2012 to 5 April 2013, PSIC officials were communicating frequently with the alleged wrongdoer and other affected individuals about the investigative process and the preliminary findings. PSIC officials were conducting the investigation as expeditiously as possible during this period.
19. On 21 March 2013, PSIC was informed that the Public Service Commission had started an investigation into some of the subject matter that PSIC had been investigating. The Public Service Commission could not investigate the other part of the subject matter because it was outside its jurisdiction.
20. On 5 April 2013, the Public Sector Integrity Commissioner decided to put PSIC’s entire investigation into abeyance pending the outcome of the Public Service Commission’s investigation.
21. On 9 January 2014, the Public Service Commission provided PSIC with a report on its investigation. On 16 January 2014, PSIC informed the Office of the Auditor General that the Public Sector Integrity Commissioner had decided to cease his investigation.
22. The Public Sector Integrity Commissioner’s decision to put his investigation in abeyance, including the part that was not being investigated by the Public Service Commission, resulted in a period of inactivity of more than nine months (5 April 2013 to 16 January 2014).
23. The Public Sector Integrity Commissioner informed us that this decision to put the investigation into abeyance was based on the public interest. We note that the PSDPA does not contain an express power to put investigations into abeyance when another person or body is dealing with the subject matter. However, paragraph 22(f) of the PSDPA allows the Commissioner to establish procedures for processing disclosures, and it can be implied that the Commissioner can make procedural decisions that pertain to investigations. In our opinion, there is a lack of clarity in the PSDPA regarding the Commissioner’s authority to hold all or part of an investigation in abeyance for an indeterminate period.
Contravention of paragraph 22(e) and section 44 of the PSDPA—PSIC failed to protect confidential information
24. On 17 October 2012, the PSIC investigator sent a redacted copy of PSIC’s preliminary investigation report, and supporting documents, to the alleged wrongdoer. We found that in failing to properly redact some information that should have been protected, the investigator contravened paragraph 22(e) and section 44 of the PSDPA.
25. Information such as the name of the individual who disclosed the alleged wrongdoing (the “discloser”) was redacted in the supporting documents. The redactions were performed with a marker, but the first name and gender of the discloser could still be seen through the marker. This allowed the alleged wrongdoer to identify the person who made the disclosure of alleged wrongdoing to PSIC.
26. Paragraph 22(e) of the PSDPA requires PSIC to protect, to the extent possible in accordance with the law, the identity of persons involved in the disclosure process. PSIC, therefore, had an obligation to protect the identity of the person who disclosed the alleged wrongdoing.
27. Section 44 of the PSDPA contains a similar confidentiality requirement. It states that unless the disclosure of information is required by law or permitted by the Act, PSIC officials should not disclose any information that comes to their knowledge in the performance of their duties under the PSDPA.
28. Given that the investigator decided to redact certain information about the discloser in documents provided to the alleged wrongdoer, the failure to properly redact information that identified the discloser represents a contravention of paragraph 22(e) and section 44 of the PSDPA.
29. In addition, on 10 December 2012, the investigator sent an email to their own personal email account outside PSIC’s secured environment. The email contained the alleged wrongdoer’s name and identified the alleged wrongdoer as being affected by a PSIC investigation.
30. The failure to protect the alleged wrongdoer’s identity and information pertaining to the investigation represents a contravention of paragraph 22(e) of the PSDPA.
31. PSIC senior managers should ensure that all employees document their confirmation that they have read, understand, and agree to abide by, security and confidentiality requirements that apply to information gathered in investigations.
Wrongdoing under subsection 8(c) of the Public Servants Disclosure Protection Act—Gross mismanagement
32. The Public Servants Disclosure Protection Act (PSDPA) does not provide a definition of “gross mismanagement.” In recent case reports that the Office of the Public Sector Integrity Commissioner (PSIC) has submitted to Parliament, the following factors were considered in investigations into allegations of gross mismanagement:
- matters of significant importance;
- serious errors that are not debatable among reasonable people;
- more than de minimis wrongdoing or negligence (de minimis is a legal word for “trivial”);
- management action or inaction that creates a substantial risk of significant adverse impact on the ability of an organization, office, or unit to carry out its mandate;
- the deliberate nature of the wrongdoing; and
- the systemic nature of the wrongdoing.
33. Overall, we consider these factors reasonable when determining whether gross mismanagement has occurred. All factors do not need to be present to reach a finding of gross mismanagement.
The lack of oversight by PSIC senior managers amounted to gross mismanagement
34. We found that the actions and omissions of PSIC senior managers (the Commissioner and Deputy Commissioner) regarding this file amount to gross mismanagement. While these actions and omissions were not the only reasons for the delay in PSIC’s investigation, the lack of management oversight allowed the problem to continue.
35. We found that the Commissioner and Deputy Commissioner knew that the investigation had been ongoing for a long time but failed to ensure that the investigation work was conducted and that the investigation was properly supervised between 13 January 2011 and 1 May 2012 (more than 15 months). Therefore, we found that there was more than de minimis wrongdoing or negligence in this case.
36. In our view, the inaction of PSIC senior managers contributed to the Commissioner’s inability to carry out his mandate in a timely manner in this case. While PSIC senior managers may not have intended to ignore this file, the mismanagement of the file was systemic and was compounded by the confusion among managers regarding their responsibilities.
37. The PSIC investigator who conducted the initial part of the investigation left the organization on 31 December 2010. The Deputy Commissioner informed us that he believed it was reassigned in July 2011. The new PSIC investigator did not believe that responsibility for the investigation had been formally reassigned. PSIC’s electronic case management system did not show that the file was reassigned until 20 April 2012.
38. The Deputy Commissioner informed us that it is the responsibility of investigators to ensure that PSIC’s electronic case management system is updated. We note, however, that PSIC’s Intake, Inquiries & Investigations Manual states that analysts, investigators and managers are responsible for updating the case management system regarding case activities and status.
39. From May to November 2011, the Deputy Commissioner also performed the functions of the Director of Operations, and was, therefore, directly responsible for supervising the PSIC investigator. The Deputy Commissioner’s failure to ensure that PSIC’s case management system was properly updated to formally reassign responsibility for the investigation led to some confusion regarding responsibilities for this investigation in 2011.
Responsibilities of PSIC managers and investigators
Director of Operations
|*PSIC files include reprisals and disclosures of wrongdoing.|
40. Based on our interviews with PSIC managers, we determined that they had differing views about their responsibilities in managing this investigation. It is our view that much of the delay in this file could have been avoided by ensuring that all the PSIC managers understood and followed through on their responsibilities.
41. The Commissioner explained that he does not usually get involved in the direct management of individual files, but he relies on PSIC managers to keep him informed of the progress of all files. The Commissioner also referred to management meetings during which every PSIC file is discussed as a way to remain informed of the status of each file.
42. According to the Commissioner, the Deputy Commissioner and Director of Operations were responsible for managing this investigation file.
43. The acting Director of Operations was an employee seconded to PSIC in November 2011 from the federal organization named in the complaint that PSIC was investigating. The acting Director of Operations had informed the Commissioner of a direct conflict of interest in relation to this investigation. The acting Director of Operations stated that the Deputy Commissioner had management responsibility for this investigation file.
44. The Commissioner and the Deputy Commissioner stated that, due to the declared conflict of interest, the acting Director of Operations was not expected to manage the substantive aspects of the investigation. Despite the conflict of interest that had been declared, the Commissioner and Deputy Commissioner stated that they expected the acting Director of Operations to manage the procedural aspects of the investigation.
45. The acting Director of Operations stated that the Commissioner and the Deputy Commissioner failed to explain that responsibility for supervising the procedural aspects of the investigation remained with the acting Director of Operations. The acting Director of Operations informed us that such responsibility would have been inappropriate given the nature of the conflict of interest, and that if the Commissioner or the Deputy Commissioner had asked the acting Director of Operations to manage any aspect of the investigation, the acting Director of Operations would have objected.
46. In our view, the conflict of interest declared by the acting Director of Operations was significant, and the acting Director of Operations should not have had any responsibilities in relation to this investigation.
47. The confusion surrounding the responsibilities of PSIC managers for this file, and the failure by PSIC senior managers to manage its progress, contributed to significant periods of inactivity in the investigation.
48. In this case, the lack of management activity, and the lack of follow-up on the file, contributed to the delay in dealing with this matter, and represent serious errors that are not debatable among reasonable people.
PSIC senior managers did not actively manage declared conflicts of interest
49. It should be noted that we did not see any formal PSIC procedures requiring employees to identify and document real or perceived threats to their ability to perform their duties in an objective and impartial manner. With respect to this file, we did not see documentation that set out the nature and scope of the real or perceived conflict of interest identified by the acting Director of Operations.
50. We also did not see any evidence of mitigation measures outlining the management accountabilities that needed to be put in place to ensure that the investigation would be monitored by other PSIC managers.
51. PSIC should establish a process to ensure that all PSIC employees document real or perceived threats to their independence or objectivity in relation to specific operational files. PSIC should also put in place the safeguards to manage those threats, including the assignment of management responsibilities to other PSIC managers where appropriate.
52. PSIC managers should regularly update the PSIC electronic case management system to document case activities and status.
53. On the basis of the information gathered during this investigation, we concluded that the Public Sector Integrity Commissioner committed wrongdoings as defined in subsections 8(a) and (c) of the Public Servants Disclosure Protection Act (PSDPA) by
- failing to ensure that the investigation was conducted as informally and expeditiously as possible, as required by subsection 26(2) of the PSDPA;
- not ensuring that PSIC managers understood and followed through on their responsibilities with regard to the investigation file; and
- not having a process in place to manage declared conflicts of interest.
54. On the basis of the information gathered during this investigation, we concluded that the Deputy Commissioner committed a wrongdoing as defined in subsection 8(c) of the PSDPA by grossly mismanaging the oversight of the investigation file.
55. On the basis of the information gathered during this investigation, we concluded that the PSIC investigator committed wrongdoings as defined in subsections 8(a) of the PSDPA by failing to properly protect information relating to the alleged wrongdoer and the identity of the individual who made the disclosure of alleged wrongdoing to PSIC, as required by paragraph 22(e) and section 44 of the PSDPA.
56. In accordance with paragraph 22(h) of the PSDPA, we have made recommendations to the Commissioner in paragraphs 31, 51, and 52 of this report.
Comments from the Public Sector Integrity Commissioner
I accept certain factual conclusions contained in this report, specifically the timeline of the file and the lack of appropriate procedures in certain areas during the period in question. My Office takes timeliness of file processing seriously, and I have undertaken, since 2012, a number of operational measures to ensure that files are processed in a timely yet fair and thorough manner.
I would like to reiterate certain contextual facts that we feel are important to take into consideration when reading this report.
The events that unfolded on this file and the previous file reported by the Auditor General were symptomatic of an exceptional transition period following the December 2010 Report of the Auditor General. The Office was under-staffed, with numerous positions encumbered by acting assignments, with one staff member responsible for three different functions simultaneously. Half of the positions were vacant in December 2010, and by 2012 we had a full staff complement. In addition, as the file review process was being addressed, the Office experienced a sharp increase in disclosures of wrongdoing.
My priority at the time of my interim appointment was to address the review of all the files handled by the Office since its inception, stabilize the organization by staffing all vacancies with qualified personnel and engage the Office’s key stakeholders. Further, in light of the sensitive mandate of the Office, a significant amount of time was dedicated to training new employees in order to ensure that our important function is delivered effectively.
As acknowledged in the comments by the Auditor General, it would not have been reasonable to expect that 100 percent of the files would be without error, given the recent history of the Office and the enormous transition within the organization over the time periods in which both of the files were active.
Before being informed of the investigations by the Auditor General, I launched a business process reengineering exercise in order to improve our file management procedures and to establish performance standards to ensure that files are dealt with in a timely manner. We have also completed an organizational review to ensure that essential skills are more precisely identified and key positions are appropriately classified and resourced.
The performance standards were implemented internally on 1 April 2013. Barring exceptional circumstances, we commit to making decisions to investigate a disclosure of wrongdoing within 90 days of the discloser’s first contact with the Office, and investigations will be completed within one year of being launched.
We fully agree with the recommendations made in paragraphs 31, 51, and 52 in the report.
Although several measures are already implemented, such as the adoption of the Office of the Public Sector Integrity Commissioner of Canada Policy on Conflict of Interest and Post-Employment as well as improvements to the file management procedures and the signing of a confidentiality agreement at the time of employment with the Office, we will undertake a review of their full scope in order to implement any additional measures to assist in addressing these recommendations in 2014–15.