The man who built Canada’s first integrity office says he warned the Privy Council Office against appointing a senior bureaucrat as commissioner because most don’t have the courage and the independence for the job.
Edward Keyserlingk, a leading expert on bioethics who laid the groundwork for the Public Servants Disclosure Protection Act, said he advised officials at the PCO to recruit candidates from outside government for the integrity commissioner job.
“The more qualified you are in the public service, then the less qualified you are for this job,” said Keyserlingk in an interview.
He argued outsiders are more objective, independent, aggressive and don’t know the managers and executives they may have to investigate. This distance brings a “freedom to do the right thing” and eliminates fear of stepping on toes and jeopardizing their future public sector careers. This is particularly the case for bureaucrats with ambitions for another federal job.
“They shouldn’t have appointed a senior public servant. That job calls for someone outside of government and who is perceived as an independent. ... I think a senior public servant will always be perceived as not being independent and objective enough, even if they’re trying to be.”
Keyserlingk was recruited by the Liberals nearly a decade ago to oversee a new whistleblower policy. He became a driving force in turning that policy into a law that distinguished Canada as the only country with an integrity commissioner that reports directly to Parliament with sweeping investigatory and enforcement powers. The law became a centrepiece of the Conservatives’ Federal Accountability Act.
For him, Auditor-General Sheila Fraser’s damning report into the conduct of Public Sector Integrity Officer Christiane Ouimet drives home the perils of making a bureaucrat the ethical watchdog over the system they came from.
Keyserlingk worries the government will react with new rules, more oversight or tinker with the legislation when the real issue is ensuring “ the right person is appointed.”
“The choice of the next commissioner will make or break the office. If the track record doesn’t change and investigations aren’t done Parliament is going to say ‘ why are we funding this if nothing is happening,’” he said.
“And it’s inconceivable to me that in an organization of more than 350,000 people there aren’t more instances of wrongdoing that need identifying and fixing.
He questioned whether the Privy Council Office and the parliamentary committee that approved Ouimet’s appointment, put enough “care and attention” into assessing her suitability for the job. The PCO recommends candidates to the prime minister for appointments.
He also questioned how hard the government searched for outside candidates. He said the government did some advertising and he personally encouraged several outside candidates to apply but he said their applications weren’t even acknowledged.
Within the bureaucracy, rumours abound about how Ouimet landed the job. Some say the government simply plunked her in the job as a way to move her and make room for other aspiring deputy ministers.
She looked good on paper. An experienced executive in various departments and lawyer by training, Ouimet had been on the deputy minister track but, by some accounts, was going no further when this job came up.
Some say she didn’t even want the job.
Fraser recently suggested MPs examine the appointment process and how character and behaviour are assessed. She said politicians rely on the “validation” done by bureaucrats when filling these jobs.
The Harper government’s promised Public Appointments Commission has been sitting on the shelf since a parliamentary committee rejected oilman Gywn Morgan as its first commissioner.
It was supposed to reduce patronage in political appointments by advertising more widely and setting merit-based criteria for selecting candidates.
Keyserlingk rejects suggestions that Ouimet was silenced by the government.
“I don’t believe anyone wanted to stifle investigations ... I really think this is a case of sloppiness, inattentiveness and a failure to think out what it takes to be the right person for such an appointment,” he said.
“It will now be very difficult for the office to recover and depend on who is appointed. The legislation isn’t perfect but a commissioner determined to do the job with aggression, lack of fear can use it to great advantage.”
Similarly, Keyserlingk worries the appointment of retired bureaucrat Mario Dion, former boss of the National Parole Board, as interim commissioner could further erode trust in an office whose credibility is on the line.
One of Dion’s first jobs during his six-month appointment is to reopen investigations into the more than 200 files that Ouimet did nothing with.
He argues the government is losing critical time to rebuild trust in the office and develop a “ track record” so whistleblowers will believe they will be heard. The office needs stable leadership, not an interim boss.
The investigations of old files, which could drag on, should be handled by the executive who will be responsible in the long run.
Keyserlingk argued Ouimet strayed from her mandate by focusing too much on prevention rather than investigation and enforcement.
This preoccupation with prevention also put her in too close contact with deputy ministers and senior managers, leaving an impression with would-be whistleblowers that the office was another “public service agency” rather than officer of Parliament, said Keyserlingk.
And he argues, investigating cases and fixing or punishing wrongdoing will do more to prevent wrongdoing that talking about it.
“If this office doesn’t have a track record pretty soon then I think the whole enterprise is in trouble.”