03 January 2009

Bond Papers unveils BP’s draft whistleblower legislation

Williams acknowledged one election promise he hasn't kept yet is to enact whistleblower legislation, which would protect government employees who come forward with complaints against the province that could otherwise cost them their jobs.

"We indicated that we would try and get that done by the end of this year. We realized getting into that, that that's a very complex piece of legislation that we have to make sure that it's done properly," says Williams.

"I would think, that would be one thing that was probably on the list for this year but couldn't get accomplished."

That’s from the Premier’s year-ender with the Telegram.  You’ll find references to whistleblower legislation all over the place, including some year-end comments from the leader of the New Democratic Party in Newfoundland and Labrador, Lorraine Michael. She’s complained before but somehow over the past 12 months neither the government nor opposition could find time to sort this out. 

Perhaps this fall they thought it best to repeal a raft of old statutes one at a time in order to appear busy rather than actually produce some meaningful legislation.

Last spring, the Premier promised consultations and a bill would be completed by last fall:

Justice Minister Jerome Kennedy indicated in May that those consultations were holding up the development and implementation of the law.

"We are, and have been working on the whistleblower legislation," Kennedy said in the House of Assembly May 20. "We have looked at the legislation that is in place across this country, and we have had extensive discussions as to the nature and content of this legislation.

"However, what we are looking at now, there does need to be some consultation with certain groups to determine the matters of significance that would come under the whistleblower legislation."

The lack of whistleblower protections became an issue in the 2007 provincial election. During the September 2007 televised debate, NDP Leader Lorraine Michael said she has received clandestine, late-night phone calls from provincial employees informing her about potential problems in government.

Premier Danny Williams reacted angrily to the claim anyone would feel afraid of coming forward with such information.

At a campaign stop in Carbonear Oct. 6, Williams pledged that his government would implement whistleblower laws in the first session of the legislature after the election.

"We'll get that on at the very earliest opportunity," Williams said in response to questions from reporters last October.

"The very first session of the House that we have, that's something we'll have a look at.

All the public got by year-end were excuses for a failure to deliver.  The legislation may be complex, but with all the lawyers on the government payroll, all the public servants tasked with working on legislation and  - here’s the kicker – a government firmly committed to delivering whistleblower protection the thing could get done.

Surely whistleblower legislation is considerably less complex than the expropriation bill that was – if you believe the government explanations – drafted and rammed through the legislature in less than two weeks.   That wasn’t hasty, though, according to the official line.

Surely whistleblower legislation is less complex than the energy act amendments (Bill 35) speeded through the House last spring.)

Well, to demonstrate that drafting legislation to protect the public interest isn’t all that complicated, we present the following draft for public consideration.

The draft bill establishes a simple, transparent system in which public servants can blow the whistle on illegal acts without running the risk of employer retaliation. The bill also describes the types of information which can be made public in conformity with existing open records and privacy laws.

The bill gives important responsibilities to the Citizen’s Representative and the Auditor General in dealing with any disclosures.  This is intended to ensure – to the fullest extent possible – that partisan considerations are not involved in the disclosure or in the response to a disclosure.

The bill also whistleblower protection to individuals who are not public servants or who are working on government contracts. It establishes a fine of up to $10,000 for wilfully obstructing an investigation under the whistleblower act.

This draft bill appeared in your humble e-scribbler’s e-mail last April  - that’s right April 2008 - as the result of a discussion with several interested people. It is modelled on successful legislation from other jurisdictions.  That’s because there is no need to reinvent the wheel when it comes to legislation that exists in other parts of the country.

This draft bill circulated through a few hands in late April and early May  but since no one – government or opposition –has bothered to bring this or any similar measure forward for public discussion in the legislature, the time has come to put this into the public domain and open it up for wider discussion.

Whistleblower Protection Act

Whereas it is important to facilitate the disclosure and investigation of significant and serious matters in or relating to the public service, that are potentially unlawful, dangerous to the public or injurious to the public interest; and

Whereas it is important to protect persons who make those disclosures; and

Whereas despite promising, more than a year ago, to bring forward whistleblower protection legislation in the first session of the Legislature after the most recent election, the government has still not done so;

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

Analysis

Short Title

1. This Act may be cited as the Whistleblower Protection Act.

Definitions

2. The following definitions apply in this Act.

“board” means The Labour Relations Board appointed under The Labour
Relations Act.

“chief executive” means

(a) in relation to a department, the deputy minister of that department;

(b) in relation to a public body or agency, the chief executive officer of that
body or agency; and

(c) in relation to an office, the officer of the House of Assembly in charge of
that office.

“department” means a department of the government.

“designated officer” means the senior official designated under section 6 to receive and deal with disclosures under this Act.

“disclosure” means a disclosure made in good faith by an employee in accordance with this Act.

“employee” means an employee or officer of a department, public body or office.

“public body” means

(a) a public body as defined in The Financial Administration Act;

(b) a regional health authority established or continued under The Regional
Health Authorities Act
;

(c) a child and family services agency as defined in The Child Care Services Act; and

(d) any other body designated as a public body in the regulations.

“office” means

(a) the office of the Auditor General;

(b) the office of the Chief Electoral Officer;

(c) the office of the Child and Youth Advocate; and

(d) the office of the Citizen’s Representative.

“Citizen’s Representative” means the Citizen’s Representative appointed under The Citizen’s Representative Act.

“public service” means departments, government bodies and offices.

“reprisal” means any of the following measures taken against an employee because the employee has, in good faith, sought advice about making a disclosure, made a disclosure, or co-operated in an investigation under this Act:

(a) a disciplinary measure;

(b) a demotion;

(c) termination of employment;

(d) any measure that adversely affects his or her employment or working
conditions;

(e) a threat to take any of the measures referred to in clauses (a) to (d)

“wrongdoing” means a wrongdoing referred to in section 3.

PART I

Disclosures of wrongdoing

Wrongdoings to which this Act applies

3. (1) This Act applies to the following wrongdoings in or relating to the public service:

(a) an act or omission constituting an offence under an Act of the Legislature or the Parliament of Canada, or a regulation made under an Act;

(b) an act or omission that creates a substantial and specific danger to the life, health or safety of persons, or to the environment, other than a danger that is inherent in the performance of the duties or functions of an employee;

(c) gross mismanagement, including of public funds or a public asset;

(d) knowingly directing or counselling a person to commit a wrongdoing described in clauses (a) to (c)

(2) For greater certainty, this Act applies to wrongdoings which were committed or otherwise occurred before the coming into force of this Act.

Discipline for wrongdoing

4. An employee who commits a wrongdoing is subject to appropriate disciplinary action, including termination of employment, in addition to and apart from any penalty provided for by law.

Procedures

Procedures to manage disclosures

5. (1) Every chief executive must establish procedures to manage disclosures by employees of the department, public body or office for which the chief executive is responsible.

Content of procedures

(2) The procedures established under subsection (1) must include procedures

(a) for receiving and reviewing disclosures, including setting time periods for action;

(b) for investigating disclosures in accordance with the principles of procedural fairness and natural justice;

(c) respecting the confidentiality of information collected in relation to disclosures and investigations;

(d) for protecting the identity of persons involved in the disclosure process, subject to any other Act and to the principles of procedural fairness and natural justice;

(e) for reporting the outcomes of investigations; and

(f) respecting any other matter specified in the regulations.

Designated officer

6. Every chief executive must designate a senior official to be the designated officer for the purposes of this Act, to receive and deal with disclosures by employees in the department, public body or office for which the chief executive is responsible.

Exception

7. (1) Sections 5 and 6 do not apply to a chief executive who determines in consultation with the Citizen’s Representative that it is not practical to apply those sections given the size of the department, public body or office for which the chief executive is responsible.

Chief executive to be designated officer

(2) If no designation is made under section 6, the chief executive is the designated officer for the purposes of this Act.

Information about Act to be communicated

8. The chief executive must ensure that information about this Act and the disclosure procedures is widely communicated to the employees of the department, public body or office for which the chief executive is responsible.

Making a disclosure

Request for advice

9. (1) An employee who is considering making a disclosure may request advice from the designated officer or the Citizen’s Representative.

Request may be in writing

(2) The designated officer or Citizen’s Representative may require the request for advice to be in writing.

Disclosure by employee

10. If an employee reasonably believes that he or she has information that could show that a wrongdoing has been committed or is about to be committed, the employee may make a disclosure to

(a) the employee’s supervisor;

(b) the employee’s designated officer; or

(c) the Citizen’s Representative.

Disclosure to Auditor General re Citizen’s Representative

11. If an employee of the office of the Citizen’s Representative is seeking advice or making a disclosure regarding that office, the advice may be sought from, or the disclosure made to, the Auditor General. If a disclosure is made, the Auditor General must carry out the responsibilities of the Citizen’s Representative under this Act in relation to that disclosure.

Content of disclosure

12. A disclosure made under section 10 or 11 must be in writing and must include the following information, if known:

(a) a description of the wrongdoing;

(b) the name of the person or persons alleged to

(i) have committed the wrongdoing, or

(ii) be about to commit the wrongdoing;

(c) the date of the wrongdoing;

(d) whether the wrongdoing has already been disclosed and a response received.

Citizen’s Representative to facilitate resolution within department, etc.

13. When an employee makes a disclosure to the Citizen’s Representative, the Citizen’s Representative may take any steps he or she considers appropriate to help resolve the matter within the department, public body or office.

Making a disclosure about an urgent matter

Public disclosure if situation is urgent

14. (1) If an employee reasonably believes that a matter constitutes an imminent risk of a substantial and specific danger to the life, health or safety of persons, or to the environment, such that there is insufficient time to make a disclosure under section 10, the employee may make a disclosure to the public

(a) if the employee has first made the disclosure to an appropriate law enforcement agency or, in the case of a health-related matter, the chief medical officer of health; and

(b) subject to any direction that the agency or officer considers necessary in the public interest.

Disclosing to supervisor or designated officer

(2) Immediately after a disclosure is made under subsection (1), the employee must also make a disclosure about the matter to his or her supervisor or designated officer.

Types of information that can be disclosed

Disclosure despite other Acts

15. Subject to section 16, an employee may make a disclosure under this Act, even if a provision in another Act or regulation prohibits or restricts disclosure of the information.

Where disclosure restrictions continue to apply

16. (1) Nothing in this Act authorizes the disclosure of (a) information described in subsection 18 (1) of The Access to Information and Protection of Privacy Act (Cabinet confidences), except in circumstances
mentioned in subsection 18 (2) of that Act;

(b) information that is protected by solicitor-client privilege;

(c) in the case of a disclosure to the public under subsection 14 (1), information that is subject to any restriction created by or under an Act of the Legislature or the Parliament of Canada, or a regulation made under an Act.

Caution re disclosure of personal or confidential information

(2) If the disclosure involves personal information or confidential information, the employee must take reasonable precautions to ensure that no more information is disclosed than is necessary to make the disclosure.

Other obligations to report not affected

17. Nothing in this Act relating to the making of a disclosure is to be construed as affecting an employee’s obligation under any other Act or regulation to disclose, report or otherwise give notice of any matter.

Annual report about disclosures

Report about disclosures

18. (1) Each year, a chief executive must prepare a report on any disclosures of wrongdoing that have been made to a supervisor or designated officer of the department, public body or office for which the chief executive is responsible.

Information to be included

(2) The report must include the following information:

(a) the number of disclosures received and the number acted on and not acted on;

(b) the number of investigations commenced as a result of a disclosure;

(c) in the case of an investigation that results in a finding of wrongdoing, a description of the wrongdoing and any recommendations or corrective actions taken in relation to the wrongdoing or the reasons why no corrective action was taken.

Public access to report

(3) The report must be included in the annual report of the department, public body or office if an annual report is made publicly available. Otherwise, the chief executive must make the report available to the public on request.

Part II

Investigations by the Citizen’s Representative

Purpose of investigation

19. The purpose of an investigation into a disclosure of wrongdoing is to bring the wrongdoing to the attention of the appropriate department, public body or office, and to recommend corrective measures that should be taken.

Investigation by Citizen’s Representative

20. (1) The Citizen’s Representative is responsible for investigating disclosures that he or she receives under this Act.

Informal investigation

(2) An investigation is to be conducted as informally and expeditiously as possible.

Right to procedural fairness and natural justice protected

(3) The Citizen’s Representative must ensure that the right to procedural fairness and natural justice of all persons involved in an investigation is respected, including persons making disclosures, witnesses and persons alleged to be responsible for wrongdoings.

When investigation not required

21. (1) The Citizen’s Representative is not required to investigate a disclosure — and the Citizen’s Representative may cease an investigation — if he or she is of the opinion that

(a) the subject matter of the disclosure could more appropriately be dealt with, initially or completely, according to a procedure provided for under another Act;

(b) the disclosure is frivolous or vexatious, or has not been made in good faith or does not deal with a sufficiently serious subject matter;

(c) so much time has elapsed between the date when the subject matter of the disclosure arose and the date when the disclosure was made that investigating it would not serve a useful purpose;

(d) the disclosure relates to a matter that results from a balanced and informed decision-making process on a public policy or operational issue;

(e) the disclosure does not provide adequate particulars about the wrongdoing as required by section 12;

(f) the disclosure relates to a matter that could more appropriately be dealt with according to the procedures under a collective agreement or employment agreement;

(g) there is another valid reason for not investigating the disclosure.

Referral to Auditor General

(2) If the Citizen’s Representative believes that a disclosure made to the Citizen’s Representative would be dealt with more appropriately by the Auditor General, the Citizen’s Representative may refer the matter to the Auditor General to be dealt with in accordance with The Auditor General Act.

Reprisal protections apply

(3) If a matter is referred to the Auditor General under subsection (2), the reprisal protections set out in Part 4 of this Act apply to the employee or former employee who made the disclosure to the Citizen’s Representative.

Conducting an investigation

22. The Citizen’s Representative and persons employed under the Citizen’s Representative have the powers and protections provided for in The Citizen’s Representative Act when conducting an investigation of a disclosure under this Act.

Investigating other wrongdoings

23. If, during an investigation, the Citizen’s Representative has reason to believe that another wrongdoing has been committed, the Citizen’s Representative may investigate that wrongdoing in accordance with this Part.

Citizen’s Representative’s report re investigation

24. (1) Upon completing an investigation, the Citizen’s Representative must prepare a report containing his or her findings and any recommendations about the disclosure and the wrongdoing.

Copy to employee and chief executive

(2) The Citizen’s Representative must give a copy of the report to the employee and the chief executive of the appropriate department, public body or office.

Matter being investigated involves chief executive

(3) When the matter being investigated involves the chief executive, the Citizen’s Representative must also give a copy of the report,

(a) in the case of a department, to the minister responsible;

(b) in the case of a public body, to the board of directors and the minister responsible; or

(c) in the case of an office, to the Speaker of the House of Assembly.

Department to notify Citizen’s Representative of proposed steps

25. (1) When making recommendations, the Citizen’s Representative may request the department, public body or office to notify him or her, within a specified time, of the steps it has taken or proposes to take to give effect to the recommendations.

Report to minister or Speaker

(2) If the Citizen’s Representative believes that the department, public body or office has not appropriately followed up on his or her recommendations, or did not co-operate in the Citizen’s Representative’s investigation under this Act, the Citizen’s Representative may make a report on the matter

(a) in the case of a department, to the minister responsible;

(b) in the case of a public body, to the board of directors and the minister responsible; or

(c) in the case of an office, to the Speaker of the House of Assembly.

Annual report

26. (1) The Citizen’s Representative must make an annual report to the House of Assembly on the exercise and performance of his or her functions and duties under this Act, setting out

(a) the number of general inquiries relating to this Act;

(b) the number of disclosures received and the number acted on and not acted on;

(c) the number of investigations commenced under this Act;

(d) the number of recommendations the Citizen’s Representative has made and whether the department, public body or office has complied with the recommendations;

(e) whether, in the opinion of the Citizen’s Representative, there are any systemic problems that give rise to wrongdoings; and

(f) any recommendations for improvement that the Citizen’s Representative considers appropriate.

Report to be tabled in Assembly

(2) The report must be given to the Speaker, who must table a copy of it in the House of Assembly within 15 days after receiving it if the Assembly is sitting or, if it is not, within 15 days after the next sitting begins.

Special report

(3) Where it is in the public interest to do so, the Citizen’s Representative may publish a special report relating to any matter within the scope of the Citizen’s Representative’s responsibilities under this Act, including a report referring to and commenting on any particular matter investigated by the Citizen’s Representative.

Part III

Protection from Reprisal

Protection of employee from reprisal

27. No person shall take a reprisal against an employee or direct that one be taken against an employee because the employee has, in good faith,

(a) sought advice about making a disclosure from his or her supervisor, designated officer or chief executive, or the Citizen’s Representative;

(b) made a disclosure; or

(c) co-operated in an investigation under this Act.

Complaint to Labour Relations Board

28. (1) An employee or former employee who alleges that a reprisal has been taken against him or her may file a written complaint with the board.

Board order

(2) If the board determines that a reprisal has been taken against the complainant contrary to section 27, the board may order one or more of the following measures to be taken:

(a) permit the complainant to return to his or her duties;

(b) reinstate the complainant or pay damages to the complainant, if the board considers that the trust relationship between the parties cannot be restored;

(c) pay compensation to the complainant in an amount not greater than the remuneration that the board considers would, but for the reprisal, have been paid to the complainant;

(d) pay an amount to the complainant equal to any expenses and any other financial losses that the complainant has incurred as a direct result of the reprisal;

(e) cease an activity that constitutes the reprisal;

(f) rectify a situation resulting from the reprisal;

(g) do or refrain from doing anything in order to remedy any consequence of the reprisal.

Part IV

General Provisions

Information about wrongdoing provided by persons outside the public service

Disclosure of wrongdoing by others

30. (1) If a person who is not an employee reasonably believes that he or she has information that could show that a wrongdoing has been committed or is about to be committed, the person may provide that information to the Citizen’s Representative.

Information to be provided

(2) Information provided to the Citizen’s Representative under subsection (1) must be in writing and must include the following information, if known:

(a) a description of the wrongdoing;

(b) the name of the person or persons alleged to

(i) have committed the wrongdoing, or

(ii) be about to commit the wrongdoing;

(c) the date of the wrongdoing;

(d) whether the information has already been provided to the department, public body or office concerned and a response received.

Citizen’s Representative may investigate

(3) Upon receiving information under this section, the Citizen’s Representative may investigate the wrongdoing. In that event, Part 3 applies, other than subsection 21 (3) (protection from reprisal)

Report

(4) The Citizen’s Representative must give a copy of the report of an investigation under this section to the person who provided the information about the wrongdoing.

Protection for private sector employee who provides information

31. (1) No employer of a private sector employee shall take any of the measures listed in subsection (2) against an employee by reason only that

(a) the employee has, in good faith, provided information to the Citizen’s Representative about an alleged wrongdoing; or

(b) the employer believes that the employee will do so.

Prohibited measures

(2) The measures prohibited by subsection (1) are

(a) a disciplinary measure;

(b) a demotion;

(c) termination of employment;

(d) any measure that adversely affects the employee’s employment or working conditions

(e) any measure that otherwise harms the interests of the employee; and

(f) a threat to take any of the measures referred to in clauses (a) to (e)

Other rights not affected

(3) Nothing in this section affects any right of a private sector employee either at law or under a collective agreement or employment contract.

Meaning of “private sector employee”

(4) In this section, “private sector employee” means an employee or officer other than an employee or officer of a department, public body or office.

Protection for person contracting with government

32. No person acting or purporting to act on behalf of the government, a public body or an office shall

(a) terminate a contract;

(b) withhold a payment that is due and payable under a contract; or

(c) refuse to enter into a subsequent contract;

by reason only that a party to the contract or a person employed by a party to the contract has, in good faith, provided information to the Citizen’s Representative about an alleged wrongdoing in or relating to the public service.

General Offences

False or misleading statement

33. (1) No person shall — in seeking advice about making a disclosure, in making a disclosure, or during an investigation — knowingly make a false or misleading statement, orally or in writing, to a supervisor, designated officer or chief executive, or the Citizen’s Representative, or to a person acting on behalf of or
under the direction of any of them.

Obstruction in performance of duties

(2) No person shall wilfully obstruct a supervisor, designated officer or chief executive, or the Citizen’s Representative, or any person acting on behalf of or under the direction of any of them, in the performance of a duty under this Act.

Destruction, falsification or concealment of documents or things

(3) No person shall, knowing that a document or thing is likely to be relevant to an investigation under this Act,

(a) destroy, mutilate or alter the document or thing;

(b) falsify the document or make a false document;

(c) conceal the document or thing; or

(d) direct, counsel or cause, in any manner, a person to do anything mentioned in clauses (a) to (c)

Offence and penalty

(4) A person who contravenes this section or section 27, 31 or 32 is guilty of an offence and is liable on summary conviction to a fine of not more than $10,000.

Commencement of prosecution

(5) A prosecution under this Act may not be commenced later than two years after the day the alleged offence was committed.

Legal Advice

Arranging legal advice

34. If the designated officer or Citizen’s Representative is of the opinion that it is necessary to further the purposes of this Act, he or she may, subject to the regulations, arrange for legal advice to be provided to employees and others involved in any process or proceeding under this Act.

Liability Protection

Protection from liability

35. No action or proceeding may be brought against a supervisor, designated officer or chief executive, or the Citizen’s Representative, or a person acting on behalf of or under the direction of any of them, for anything done or not done, or for any neglect,

(a) in the performance or intended performance of a duty under this Act; or

(b) in the exercise or intended exercise of a power under this Act;

unless the person was acting in bad faith.

Regulations

Regulations

36. The Lieutenant Governor in Council may make regulations

(a) designating a public sector body as a public body for the purposes of this Act;

(b) designating an entity that receives all or a substantial part of its operating funding from the government as a public body for the purposes of this Act;

(c) for the purpose of section 5, respecting the procedures to be followed in managing and investigating disclosures and reporting the outcome of investigations, including setting time periods for action;

(d) exempting Acts or regulations from the application of section 15 where the exemption is in the public interest;

(e) respecting the provision of legal advice under section 34, including determining the circumstances under which legal advice may be provided and the amounts that may be paid;

(f) defining any word or phrase used but not defined in this Act;

(g) respecting any other matter that the Lieutenant Governor in Council considers necessary or advisable to carry out the purposes of this Act.

Coming into force

37. This Act comes into force upon Royal Assent.

-srbp-

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