Some old fellow by the name of Williams once said that there was no greater fraud than an unkept promise.
He said that around the time he promised to bring in a law that would protect public servants who protected the public interest by disclosing wrongdoing.
Well, he never kept that solemn promise to protect whistleblowers.
Justice minister Felix Collins offered a spectacular example on Wednesday of how serious is the current administration’s political problem.
Collins makes a complete arse of himself trying to explain why he and his colleagues are refusing to act on a promise they made in 2007 to introduce legislation that would protect public servants who disclose information - in the public interest - about wrongdoing in government.
The video of Collins’ scrum with reporters is worth watching
“Do you want legislation well-prepared or do you want us to think seriously about the impacts that this is gong to have? (Like), is there is a sentence here that could be written one way and we think it means one thing but it could be interpreted another way and have a detrimental affect on people?”
That’s Kathy Dunderdale, lately chief excuse-monger of the former Republic of Dannystan on why she and her colleagues can’t seem to extract their collective thumbs from their collective anal sphincters long enough to deliver a piece of legislation – whistleblower protection – having promised it so long ago, people can’t even remember how long it is they’ve been committing this particular Great Fraud.
There is no greater fraud, after all, than a promise unkept. Some politician used to run around saying that about everyone else.
Well, anyway, since Kath is wondering, we could start with a premier who can speak in coherent English sentences. Maybe then she wouldn’t be so afraid of the language and what one sentence might mean if you say it backwards while dancing around naked in the moonlight on a winter solstice [such] that government has been paralysed over this particular promise.
On the other hand, if you were part of a government that fracked up on such a regular basis, then maybe you’d be a little fearful of those letters and bits of punctuation. Thanks to these goomers, you may recall, the people of the province now own a gigantic environmental mess in the middle of Grand Falls-Windsor.
It’s going to be a long four years.
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* edit to clarify a sentence.
For starters, there is no news in telling us that the provincial Conservatives are not delivering on their promised whistleblower legislation in 2010.
Thanks, CBC, for that bulletin. Maybe we can get an update on that Lindberg guy flying the Atlantic next.
What really stands out in this bit of non-news from the provincial legislature’s extremely short fall sitting is what the mighty Ceeb tells us about Danny Williams and this bit of legislation.
Williams committed to bringing in whistleblower legislation during this term in office, but would not specify when the public might expect to see it.
There’s no question Williams promised it.
There’s also no question he promised it for the very first sitting of the legislature after the October 2007 provincial general election.
Here’s what the Telegram reported on October 7, 2007 [quoted at labradore]:
Progressive Conservative Leader Danny Williams pledged Saturday a new Tory government will implement whistleblower laws in the first session of the legislature after the Oct. 9 election.
"We'll get that on at the very earliest opportunity," Williams said in response to questions from reporters at a Carbonear shopping mall.
"The very first session of the House that we have, that's something we'll have a look at. As a matter of fact, there'd be no reason why we wouldn't get it on."
In other words, CBC’s claim is factually incorrect.
Then there’s the line that in 2009 Williams “reiterated his government's promised [sic] to create the legislation.”
That would be a huge “not exactly” on that one too.
In June 2009, Williams started inventing excuses for the lack of legislation. He claimed that there wasn’t much experience with whistleblower laws even though the first one was enacted in the United States in 1863. By one count, there are no fewer than 18 separate federal whistleblower protection statutes in the United States. Then there are ones in various state jurisdictions, provinces, the United Kingdom, Australia and elsewhere.
What the Ceeb is referring to in its story are comments Williams made in may 2009. At that time he linked whistleblower laws to access to information legislation. The record shows he had a chronic problem with those laws that allows people to access such secrets as his public speeches. Williams said he was worried about people with a personal vendetta against the government.
So basically the real story is that we are now long past the third anniversary of Williams’ broken promise. Williams has skedaddled and his former caucus colleagues are left holding the bag.
CBC might not be quite that blunt, but at least they could try and report accurate information rather than things that are – quite obviously – false.
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In honour of the third anniversary of Danny Williams’ promise to bring a whistleblower protection bill before the House of Assembly in the spring of 2008, here are a few relevant links.
1. The draft public interest disclosure law offered by Bond Papers to assist the Premier in keeping his promise.
Yes, you read that correctly: a complete piece of legislation ready for someone to lay before the legislature. Could be government. Could be the opposition.
There are three parties in the legislature and either of them could introduce the bill. Of course, if the government doesn’t want it, they will work to defeat it or stall the bill. But since it is their promise that remains unkept three years later, any action to further delay the bill would only add ignominy on top of shame.
In any event, there’s the bill if anyone in the House of Assembly is genuinely interested in protecting public interest disclosure. So far all the people of Newfoundland and Labrador have heard from the three parties is blather.
2. From May 2009, a post that picks up on some comments by the Premier with the conclusion that the Premier is evidently scared to death of a whistleblower protection law. Frankly there’s no other reason for his failure to keep his own promise.
He’s obviously scared.
3. From June 2009, here’s another post in which the Premier resorts to complete bullshit to deflect from his fear.
Well, fear or maybe he was just playing politics, like he did with a completely unfounded accusation he, himself, made in 2002.
4. And just for good measure, in a province with one of the highest levels of unionisation in North America, not to mention the highest level of public sector employment in North America, a reminder that the province’s largest public sector union talks a lot about about protecting public interest disclosure but just can’t deliver.
Come to think of it, there might be a shame that is at least equal to the unkept promise. Carol, Yvonne and Lorraine can collect their prize alongside the promise unkeeper himself.
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From January 2009, here’s, here’s the link to the text of a draft bill to protect people who blow the whistle on misdeeds by public officials.
Your humble e-scribbler offered up this self-contained piece of draft legislation as a way of helping a government that seems to have a spot of trouble meeting its campaign commitments.
This one dated from 2007 and in his 2008 year-ender with the Telegram, the Premier said:
"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…".
No need to fear complexity. This draft bill is based on a tested example from another province.
Never let it be said that your humble e-scribbler didn’t try and help out the provincial government, especially since it has been off for the past month recovering from major heart surgery.
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An unnamed senior public sector manager has termed a move by government to eliminate briefing notes for ministers “bizarre”.
The official is quoted in a post by Telegram blogger Geoff Meeker. The unidentified official spoke only on condition of anonymity.
“I don't think it's possible to keep up to speed without a briefing book,” said the person, who has worked at some of the highest levels of the public service.
“It will make it very difficult to understand, in retrospect, why certain decisions were made - very dangerous for the staff who must execute them and very problematic if one needs to retrace and do a course-correction on something that's gone off the rails. Without briefing books, corporate memory is very much reduced and future government decisions rendered more difficult.”
The comment came after another Telegram story (not online) in which Joan Burke, government house leader and minister of a newly created child, youth and family services department, said that she had received no briefing notes when taking over her new portfolio. Burke told the Telegram’s Rob Antle that
“I didn’t want to be handed a binder with 500 to 1,000 sheets of paper to try to determine what’s important and what’s not, and what’s current and what I need on my radar.”
As Meeker points out, Burke’s attitude may have little to do with what she described as her desire to get down to work.
Burke was embroiled in a controversy last year over the hiring of a new president for Memorial University. Details of the minister’s involvement became embarrassing when the Liberal opposition office obtained copies of government records through the Access to Information and Protection of Privacy Act and provided them to local media.
The documents including e-mails and briefing notes that included questions for Burke to use during her screening interviews with the two finalists selected by the university’s hiring process. Burke rejected both candidates.
Briefing notes have also proved embarrassing for other cabinet ministers.
A note prepared for Burke’s successor in November 2008 on financial implications of “autonomy” for Grenfell College from Memorial University, another controversial policy from Burke’s tenure in education, was virtually completed deleted before being released under the province’s open records laws. While promised two years ago, there is still no sign of the enabling legislation.
During the Cameron inquiry into the hormone receptor scandal, health minister Ross Wiseman stated under oath that he had not read briefing notes on the issue when he took over the portfolio. As CBC reported,
… Wiseman said he did not have the opportunity to read briefing notes about the cancer testing after he was sworn in as health minister, because he was busy tackling other pressing issues and preparing for the annual budget.
Opposition politicians have also claimed that ministers apparently no longer receive briefing notes to use in preparation for the House of Assembly.
Meeker’s public sector manager also described some of the concerns about the new policy which would see the elimination of any paper trail of documents and backgrounders for ministers.
“Without briefing documents, the public can never really know what grounds decisions were made on - cutting the foundation out from under transparency and accountability, not to mention history - how will future generations understand the story of this government and this time without primary research sources?
“This puts a great burden on senior and mid-level public officials to keep good records in their own briefing books and black books. These would be accessible under ATIPP, but that leaves the paper trail with the officials, not the Minister. And if they don't keep good records, well - we all heard during the Cameron inquiry how difficult it is for these busy, busy people [cabinet ministers and political staff] to recall details from 6 or 12 months ago.”
That last point is particularly cogent: at one point during the inquiry, an exasperated commissioner Justice Margaret Cameron commented that many of the witnesses seemed to have difficulty recalling anything at all.
The premier's chief of staff, Brian Crawley, was sent an e-mail in July, 2005 that warned of a major story about to break involving breast cancer testing mistakes.
But Crawley testified he can't remember getting the e-mail or even talking to anyone in the premier's office — including the premier — about it.
"I really don't remember anything about those early days at all," he said.
Judge Margaret Cameron asked Crawley whether he remembered any of the events of July and he responded, "No."
"You don't remember seeing anything about this until the story broke in the Independent [Newfoundland & Labrador Independent newspaper] and you don't even really remember reading the Independent story," she said.
Crawley was not alone and that exchange prompted an angry premier Danny Williams to criticise Cameron over the remark, as cbc.ca/nl reported:
When Crawley answered one question about what he would have done in a situation, Cameron replied, "Well, I'm getting a lot of that, 'This is what I would've done,' but nobody ever remembers seemingly having done much."
On Friday, Williams fired back.
"I have to say I was disappointed. I was disappointed as I watched Madame Justice Cameron show disdain for a professional witness who was before her, giving testimony, honestly, forthright, under oath, to the best of his or her ability," Williams told reporters.
Meeker’s post and the comments by the unnamed official echo concerns identified in Donald Savoie’s recent book on the erosion of accountability at White hall and in Ottawa.
In Court government: the collapse of accountability in Canada and the United Kingdom, Savoie documents a similar practice of eliminating briefing notes and other official written documents in order to avoid the access to information laws.
In addition to the move to eliminate a paper trail, Savoie also notes concerns among politicians with whistleblower legislation as part of a larger trend away from government openness and internal and external accountability.
Savoie also points to the appearance of unofficial practices within the administration of government that are also designed to avoid disclosure under access to information laws. For example, one study cited by Savoie found that requests from politicians and the media took longer to process than those from others even though there did not appear to be any particular difference in one request from another.
Similar efforts by officials to skirt open records laws have already been noted in Newfoundland and Labrador.
For example, officials have invented a concept called non-responsive records to refer to documents which are apparently covered by an access request but which are not released. One of the Burke e-mails on Memorial University, for example, includes a deletion marked “non-responsive” rather than use the official requirement to cite a specific section of the access law under which a deletion is made.
Perhaps the most notorious example was a claim that records did not exist even though the Premier and other officials acknowledged that they did.
In another case, access to documents was denied on the grounds that the review was ongoing. The request had not been for a final report but for documents relating to the study and an accounting of its costs.
Officials have also been able to avoid disclosure based on questionable claims about the scope of the request.
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In a scrum with reporters last week, Premier Danny Williams said he has instructed government officials to gather evidence on experience with whistleblower legislation because there is “not much precedent” around the world for whistleblower legislation.
Nothing could be further from the truth.
The United States Congress enacted the false claims act of 1863 to protect the public from unscrupulous manufacturers who substituted sawdust for gunpowder in Union Army contracts during the Civil War. The legislation, updated in 1986, allowed citizens to file claims against manufacturers and awarded the citizens – effectively whistleblowers – a portion of any subsequent award.
There are 18 other American federal statutes that contain whistleblower protection.
A 2002 statute, enacted in the wake of Enron, extended protection to private sector employees who blow the whistle on wrongdoing.
The US federal government has had a whistleblower statute to protect federal employees since 1989. The earliest such law for federal employees was enacted in 1912.
Most American states have protection for employees who disclose unethical or illegal acts by employers.
The United Kingdom has had whistleblower protection since 1998.
Various Australian states and the Australian Capital territory have whistleblower legislation. The earliest dates from 1988.
The Government of Canada has had a whistleblower protection law since 2005 and in 2006, Manitoba passed a public interest disclosure statute.
Williams promised whistleblower legislation during the last general election, in 2007, saying:
The very first session of the House that we have, that's something we'll have a look at. As a matter of fact, there'd be no reason why we wouldn't get it on.
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Forget all the excuses offered by cabinet ministers before about a whistleblower protection law being complex.
The real reason the provincial government hasn’t introduced whistleblower protection legislation as promised by the Premier is because the Premier is worried about what happens afterward.
Danny Williams told reporters on Friday he wants to make sure the law isn’t used by people who have “a personal vendetta against government.” You’ll find that quote in a Telegram story from the Saturday edition that sadly isn’t on line.
Williams promised whistleblower protection two years ago during the last provincial general election campaign. He apparently promised it swiftly suggesting it would turn up in the first session of the new legislature.
In his report on the House of Assembly spending scandal, Chief Justice Derek Green called for whistleblower protection. Green described such protection as “internal [government] policies designed to encourage internal enforcement of ethical behaviour.”
Green linked disclosure to public confidence in government and cited federal legislation introduced in the wake of the sponsorship scandal. Green also linked whistleblower protection with open records laws as a means of promoting public confidence in ethically sound government.
Two years after Green’s report and Williams’ promise and three years after the House of Assembly scandal first broke, there’s no whistleblower protection laws.
Williams linked whistleblower protection to access to information laws but not in a positive way. Williams told reporters that his senior staff are consumed with vetting access to information requests Williams termed “frivolous”. He said he was concerned that whistleblower protection could “create another situation where we're going to put a stranglehold on government.”
Whistleblower statutes like the one proposed by Bond Papers specifically define the types of incidents covered by the disclosure and provide a mechanism for investigation allegations by an independent third party.
Under the Bond Papers bill, based on the 2006 Manitoba public interest disclosure law, the legislation would apply “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)…
There is no room for a personal vendetta. The acts subject to disclosure are all in the public interest and it’s hard to see how anyone could consider disclosure of such lawbreaking as part of a personal attack by the whistleblower. of course, attacking the motives of the whistleblower is part of the climate frequently used to discourage disclosure in the first place.
The draft law allows for disclosure of wrongdoing to an official designated in each department or to the Citizen’s Representative. Green used the Manitoba legislation in drafting his report.
Green noted the potential that whistle blowing laws could lead to some risk for politicians. However, Green said that a thorough and independent investigative process “should, however, screen out unfounded allegations of a vindictive nature.”
Green also said the public value of restoring confidence in government outweighed such issues:
I do not believe that a concern of this nature is sufficiently strong to overbalance the other benefits of implementing such a policy, particularly the removal of public suspicion that MHAs have something to hide and the bolstering of public confidence in the open and transparent nature of the political system.
Williams disdain for public access to government information isn’t new.
Early in his administration, Williams tried to withhold polling results even though provincial open records law specifically listed them as being subject to disclosure.
More recently, government officials successfully stymied a request for e-mails by essentially inventing excuses based on how much information was covered by the request and how much time it would take to process the request.
In another example, requests for specific documents were denied on the grounds that the documents didn’t exist even though government officials acknowledged the records actually did exist.
In that case, Williams went so far as to call personally the reporter making the request to complain about the fact the request had been appealed to the province’s information and privacy commission.
In January 2009, a survey by the Canadian Newspaper Association showed that the provincial government didn’t fully respond to any of six specific information requests used in the study. A request for information in electronic format (Excel or a similar spreadsheet program), netted a bizarre but increasingly typical response:
The letter from the Transportation and Public Works department in Newfoundland stated that the information “does not exist in electronic form within this department,” even though the record released was a computer printout.
The provincial government is also sitting on information related to a review of inland fisheries policy that has been ongoing for an unknown period.
Even requests for information not handled through access to information laws have run into stone walls.
The natural resources department refused to answer questions about compensation talks with Abitibi over expropriated assets because there were compensation stalks with Abitibi over expropriated assets.
The same department also refused to give any details of the minister’s trip to Ottawa last winter.
As for the claim about how much time is consumed vetting requests, testimony last year at the Cameron inquiry into the breast cancer testing scandal revealed that some of the reasons staff spend so much time on access requests involves vetting public information.
In one notorious example, the name of a judge presiding over a case which had been reported in the news media was redacted for an access request. The same approach came to light in a report on the provincial prisons service only because government officials mistakenly released a copy of the document electronically with faulty redactions. None of the information blacked out actually met the disclosure exemptions under the provincial access law, but they were blacked out any way.
If there is a “stranglehold” on government, it seems to be coming from intense and persistent efforts to avoid public disclosure of government information under provincial laws. Adding whistleblower legislation wouldn’t add to that and the provincial government itself can avoid getting strangled by reducing its self-imposed efforts at secrecy.
Perhaps they should take a cue from Chief Justice Green. After all, he did say that implementing open records laws and protecting whistleblowers would bring benefits, “particularly the removal of public suspicion that MHAs have something to hide.”
All the foot-dragging and such does make one wonder.
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Update: The online CBC version of the story with a link to a David Cochrane report. This is by no means as complete as the Telly story and the interpretation is more than a bit generous to the Premier. His juicy quotes about access to information, for example, are clipped in favour of his throw-away line about how important ATIPPA is.
In the interests of helping out justice minister Tom Marshall, here’s a link back to a January 2009 in which your humble e-scribbler offered the members of the provincial legislature the entire text of draft whistleblower protection legislation.
We are now two years into the unfulfilled promise of such protection and all government has offered is excuses like ‘Oh it’s complicated.’ Well, legislation is apparently not so complicated that they couldn’t ram through the expropriation bill last December or bring other legislation in the recent sitting that amended legislation from last year that isn’t even implemented yet.
And here’s the kicker: the draft whistleblower legislation first appeared in Ye Olde Bond E-mail Inbox in April 2008!
Jinkies, as Velma would say.
With this draft legislation, the boys don’t even have to sweat it. They can just cut and paste the bill and send it offer to work through the system.
Incidentally, back in January, we were helping out then-justice minister Jerome Kennedy*. Seems like this is getting to be a trend.
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*R’uh R’oh Update: That would be a mistake. Jerome and Tom swapped portfolios the previous fall. Jerome was quoted last year giving excuses as to why his department still wasn’t ready with whistleblower legislation, but the minister of justice since 31 October 2008 has been Tom Marshall.
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.
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.
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