Harper government heads in wrong direction in anti-corruption battle

David Hutton – November 7, 2011

Protecting honest employees who speak out is one of the most important things that any country can do to combat misconduct and corruption in its institutions. In the wake of the sponsorship scandal, the Harper government came to power on a promise to do just this—but once elected did an immediate 180-degree about-turn.

Recent events suggest that despite its past rhetoric about transparency and accountability, this government is determined to silence whistleblowers rather than protect them.

Photograph by Jake Wright, The Hill Times
Whistleblowers: Prime Minister Stephen Harper, pictured in this file photo on the Hill.

In parallel with the recent spectacular meltdown of Canada’s whistleblower protection system under disgraced integrity commissioner Christiane Ouimet, a remarkably similar drama was unfolding in the U.S.A. The office of the special counsel (OSC) is the direct counterpart of our public sector integrity commissioner (PSIC), and has a similar job—to protect government whistleblowers. In 2003, Scott Bloch was appointed to head the OSC, and immediately embarked on a series of actions that seemed to defy the very purpose of his office.

Bloch allegedly closed hundreds of files on whistleblower allegations without investigating them. He was accused of aggressively probing complaints against political enemies while ignoring allegations about allies. He was the subject of numerous whistleblower complaints by his own staff, many of whom were abruptly reassigned to distant offices. When the FBI began investigating Bloch for obstruction of justice, he employed a firm of local geeks to wipe the hard drives of his office computers, thus destroying emails that would have been sought as evidence.

Bloch ultimately pled guilty to criminal contempt of Congress under a plea bargain which allowed him narrowly to avoid jail—thanks to the tireless efforts of his lawyer and (ironically) the equally tireless support of the government lawyers who were supposed to be prosecuting him.

In the U.S.A., there is a dramatic turnaround now under way within OSC, while in Canada the changes that have taken place seem largely cosmetic.

The individual appointed to replace Bloch was considered a dream candidate by those who wanted a strong OSC: Carolyn Lerner, the founder of a Washington, D.C., civil rights and employment law firm that represents whistleblowers—a highly-qualified and respected individual who had spent her career fighting for the underdog.

Lerner’s commitment to OSC’s mission was quickly evident in the type of staff she hired. For her right-hand man she went straight to the leading whistleblower NGO in Washington, the Government Accountability Project, hiring GAP’s Executive Director Mark Cohen, another life-long warrior for employee rights.

Within months of Lerner’s appointment, Lerner had gone to court to obtain stays of dismissal for several whistleblowers—a dramatic move, almost unprecedented at OSC. It is clear that the OSC finally has a boss who means business, and this has raised the hopes of millions of federal public servants who have had no-one in their corner for a long time.

Lerner still has a mountain to climb in terms of restoring an agency demoralized by years of mismanagement, burdened by a massive backlog of cases, and viewed with deep hostility by the elite in Washington. But as the first steps in a turnaround, her appointment and her initial actions at OSC are impressive.

Unfortunately, nothing remotely similar is happening in Canada. Following Christiane Ouimet’s departure, it seems to be pretty much business as usual at PSIC—albeit with much more finesse. Rather than undertaking the serious, meaningful reforms that are so badly needed, our government seems to be merely papering over the cracks.

A full year after Ouimet’s abrupt departure there is still no sign of a successor being chosen. The published job description suggests that PCO is not looking for someone like Carolyn Lerner, but for an insider—perhaps someone like the interim commissioner, Mario Dion. A seasoned bureaucrat, with many years in the upper echelon of the federal government bureaucracy, Dion likely has long-standing professional and personal ties to the very people whose departments he is supposed to be investigating.

It’s human nature to avoid embarrassing one’s buddies (or one’s own political bosses in government) with revelations about nasty goings-on in their departments. Appointing another insider as commissioner would be a disaster.  To have any credibility the next appointee must be an outsider, with no such potential conflicts of interest and a strong record of service in exposing wrongdoing—but there’s no sign of this happening.

Dion has, like Lerner, recently appointed a new right-hand man. Joe Friday, now promoted to the position of deputy commissioner (salary band $130,000 to $150,000) is the lawyer who served as Ouimet’s senior legal counsel for most of her tenure, as she closed files without proper examination, abused her staff, declined to investigate almost all cases, and maintained her perfect score (zero cases of misconduct found, and zero whistleblowers protected from reprisals).

It’s difficult to see how Ouimet could have done all of this in a 20-person office without the full knowledge and support of many staff, especially the senior people who like Friday were closest to her.

For example, according to the AG, Ouimet engaged at least six staff in compiling a 375-page dossier on a former employee—in apparent reprisals against him, which included circulating more than 50 emails about him, and disclosing his personal information to third parties.

Friday was also the senior officer designated to receive from PSIC staff any complaints of wrongdoing within the agency—such as anyone who wanted to blow the whistle on Ouimet’s actions. No one ever submitted a complaint to him.

Friday reported directly to Ouimet, appeared with her whenever she was called to testify regarding her annual reports, and sat beside her as she blandly assured Parliamentarians that she was doing a splendid job. The two laughed and joked together as they left these meetings, while informed observers like me left deeply distressed—by the brazenness of these performances, by the ongoing slaughter of whistleblowers going on behind the scenes, and by the committees’ apparent inability to see that there was a problem.

Was it appropriate for Dion to promote Friday to second-in-command at PSIC, as a top official so closely associated with the Ouimet débacle? We don’t think so. Friday may be innocent of any misconduct and he may be well-qualified in terms of legal expertise, but the optics are awful. Far from signalling a turnaround, this key appointment indicates a continuation of the old guard, and it will surely undermine the trust of public servants for whom PSIC is supposed to provide a safe haven.

There’s unquestionably been a major change of style at PSIC: Dion appears much more open about what he is doing and has established an Advisory Committee that includes FAIR and other NGOs. Those who approach PSIC may be greeted with more professionalism and empathy. Yet there are other tell-tale signs that the substance has not changed and the outcomes may not be significantly different.

For example, after much effort was put into a paper review of Ouimet’s work (which revealed errors in 70 out of 221 files) some of the most troubling cases remain closed. An allegation that has been ignored and sat on for five years— that PCO pressured Health Canada to approve inadequately tested drugs—will not be investigated. PSIC has also refused to investigate Sean Bruyea’s allegations of serious misconduct within Veterans Affairs, which goes far beyond the violations already uncovered by the privacy commissioner. PSIC is supposedly investigating serious allegations against a deputy minister who, like Ouimet, resigned following a critical report—but apparently none of the suggested witnesses has yet been interviewed.

We have also been told that some of the active investigations are ‘small potatoes’—alleged minor infractions by low-level people. We wonder—how are the priorities being set? Are any serious allegations being properly investigated?

As for the new openness, Dion recently declined to have his advisory committee hold a meeting to discuss FAIR’s intensively-researched analysis of the shortcomings of the current law—an analysis whose factual basis PSIC has been unable to fault. When challenged Dion told us that these meetings are not the place for “open criticism of the statute.” We had to organize a separate meeting at a non-government venue for those who are interested.

It’s difficult to see this agency, or the government that created it, as champions for honest employees, who apparently face another four years with none of the protection that is being established in some other countries. This means that, 18 years after whistleblower protection was first promised in a federal election campaign, the stage is set for yet another failure.

In Canada, we need protection from misconduct and corruption in government just as much as our cousins to the south. When the vast resources of the federal government are being managed behind an impenetrable cloak of secrecy, when the prime concern of those in charge seems to be managing perceptions rather than reality, when mistakes are being covered up rather than corrected—these are the conditions under which misconduct and outright corruption flourish. Yet these are conditions that now prevail all too often.

We continue to hear regularly from would-be whistleblowers who contact us about serious, entrenched abuses that are being covered up. We do not have the authority or the resources to verify these allegations—that’s PSIC’s job—but from our perspective the situation is worsening.

Unless this government can find the moral strength to do what’s right on this issue, it will likely suffer the same fate as its predecessors, eventually falling under the weight of scandals that alienate the public and even its most loyal supporters. That’s the bitter harvest ultimately reaped by rulers who treat transparency and accountability as election slogans rather than values to live by.

In the meantime, countless honest public servants will continue to toil in workplaces where personal integrity makes them targets for reprisals—and countless ordinary Canadian men, women and children will suffer in various ways through government misconduct—all because some of our federal leaders seem focused more on serving their own interests than the public interest.

David Hutton is the executive director of Federal Accountability Initiative for Reform (FAIR), a registered Canadian charity whose mission is to protect whistleblowers who protect the public interest.

Original article on Hill Times website (subscription required)