Bill C-520 Letter Submission to ETHI Committee

Mr. Pat Martin, M.P.
Chair, Standing Committee on
Access to Information, Privacy and Ethics
House of Commons
Ottawa ON  K1A 0A6

Dear Mr. Martin:

I understand that the committee will begin its clause-by-clause study of Bill C-520 at its next meeting on May 13, 2014.

In this regard, please find enclosed for the consideration of the members of the Standing Committee on Access to Information, Privacy and Ethics, a submission concerning Bill C-520, An Act supporting non-partisan agents of Parliament.

We respectfully request that the members review the issues raised in our submission and consider amending the Bill accordingly.

Sincerely,

Emily McCarthy
Assistant Information Commissioner of Canada

Encl.

c.c.:   Chad Mariage
Clerk, Standing Committee on Access to Information,
Privacy and Ethics

 

A) Bill C-520 Overview and Issues

 
Bill C-520 Current Regime Issues
Section 1 Short Title : “Supporting Non-Partisan Agents of Parliament Act”
and
Section 3 Purpose:
Avoid conflicts between partisan activities and the official duties of Agents and persons who work in their offices
  • Impartiality of Agents of Parliament can be reviewed at time of appointment
  • Agents of Parliament sign Oath upon appointment
  • Agents of Parliament are prohibited under the Public Service Employment Act (PSEA) from engaging in political activities (s.117)
  • Public Service Commission has jurisdiction to ensure impartiality of the Public Service
  • Public Service Commission under Part 7 of PSEA, can investigate unauthorized political activities
  • Public Service Code of Values & Ethics requires impartiality by Public Service
  • Agents of Parliament have adopted a Code of Values & Ethics
  • Compliance with Codes of Values & Ethics is a condition of employment
  • Public Sector Integrity Commissioner may investigate breaches of Codes of conduct
  • OIC employees have an obligation to declare conflicts in relation to files on which they may be asked to work
  • Difficult to understand the need for the Bill; or what problem it is attempting to resolve
  • Creates a duplication of regimes
  • Although the stated purpose is to avoid conflicts related to “partisan activities” that term is not defined or mentioned in the Bill
  • Creates an environment that may hinder the independence and the execution of the mandate of the OIC
Section 2 Interpretation (Definitions)
  • Most definitions include by reference definitions of other legislation
  • List includes a variety of employment positions in the political arena 
  • Definition of “politically partisan position” which includes an exhaustive list is novel
  • Past employment outside public services considered personal information under the Privacy Act
  • Most of the positions listed (ie. (b) to (e)) may be found temporarily in the public domain but not going back 10 years
  • Definitions of “ministerial staff”, “parliamentary staff” and “political staff” provide for individuals who “work” in their respective offices. Unclear whether “work” would include “volunteer work”
Section 4 Application
Applies to Agents, any person who applies or is selected for a position in the office of an Agent of Parliament
  • Agents of Parliament are by their functions and mandate required to be impartial
  • Employees are required by the PSEA, the Public Service Code of Values and Ethics, and by the Agents of Parliament’ respective Codes to act impartially
  • An Agent can be required to answer to Parliament at any time
  • Duplication of regimes
  • Coverage is overly broad, applying to all employees and candidates irrespective of their level of responsibility, accountability and decision making authority
Section 6 Declaration of Agent of Parliament
  1. Intention to occupy a partisan political position
  2. Declaration to be posted on Agent’s internet
  • PSEA at s.117 prohibits Agents of Parliament from engaging in any political activity
  • Defies the purpose of the Bill where the PSEA already prohibits such activity for Agents of Parliament
  • Posting on the internet will be unnecessary for Agents of Parliament in light of prohibition

Section 7 Declaration – Office of an Agent of Parliament

(1)Applicant for a position must declare at earliest opportunity whether they occupied a partisan political position in the last 10 years

(2)Current employees who intend to occupy a partisan political position must declare this intention

(3) and (4) – These declarations must be posted on Agent’s internet within 30 days of declaration * Transitional provisions provide that these obligations would apply to persons occupying a position at the time of the coming into force of the Bill

  • There are no requirements under the PSEA to disclose past political partisan positions during a selection process
  • Appointments under s. 30 of the PSEA must be based on the merit principle “and must be free from political influence”
  • Intention to participate in certain political activities must be approved by the Public Service Commission under Part 7 of the PSEA
  • Except for past electoral candidates which can be found going back to 1996 on the Elections Canada website, there are no public postings of past political positions held by employees or posting of intentions to occupy such positions
  • Asking candidates to disclose past political positions may jeopardize the merit-based appointment process under the PSEA in that it may be perceived that such information will be considered in the appointment process. This goes against s.30 of the PSEA requiring that appointments be made on the basis of merit and “free from political influence”
  • Right to participate in political activities by public servants was recognized by the Supreme Court decision in Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69
  • Intention to participate in political activities must be subject to the Public Service Commission’s jurisdiction to authorize such participation under Part 7 of the PSEA. This creates an overlapping of regimes
  • Declarations of past political positions raise privacy concerns in that it requires the disclosure of personal information without any nexus or connection between this disclosure and their ability to perform their functions as there are regimes already in place to address political activities

Section 8 Written Undertaking Agents, candidates and persons who work at the office of an agent of Parliament who intend to occupy a politically partisan position must undertake to conduct themselves in a non-partisan manner  

*Section 5 – the Governor in Council may by regulations prescribe the form and content of declarations listed at ss 6, 7 and undertaking of s. 8

  • Agents of Parliament sign an Oath at the time of appointment
  • Agents of Parliament are also subject to the Conflict of Interest Act
  • Employees accept as a condition of employment to abide by the obligations of the PSEA, the Public Service Code of Values and Ethics and the respective Agent of Parliament’s Code of Values and Ethics
  • Duplication of regime currently in place. This requirement appears unnecessary
Section 9 - Examination of Alleged Partisan Conduct Upon a written request by a member of the Senate or House of Commons that alleges that a person who occupies a position conducted their duties in a partisan manner, the Agent of Parliament may examine the matter and take such steps as they consider necessary
  • An Agent of Parliament can review at any time the impartiality of employees
  • Public Service Commission has exclusive authority to investigate unauthorized political activities by public servants
  • The Public Sector Integrity Commissioner can also be asked to review conduct of employees alleged to have breached the Codes
  • Allegations of impartiality in the context of an investigation conducted by an Agent of Parliament is subject to standards of judicial review before the Federal Court
  • OIC has internal regime to declare conflicts of interest
  • Duplication and overlapping of mechanisms. The Public Service Commission, Integrity Commissioner and the Federal Court could be asked to review issues of impartiality.
  • Lack of threshold for parliamentarians to raise allegations of partisan conduct
  • No definition of ‘partisan manner”
  • Lack of confidentiality obligations surrounding the requests made to Agents of Parliament
  • Allows parliamentarians to raise unfounded allegations under the protection of parliament privilege, leaving an employee without recourse to defend allegations impacting on their reputation
  • Such type of allegations within the Public Service would be raised in confidence and treated confidentially by the Agent of Parliament, the Public Service Commission or the Public Sector Integrity Commissioner
  • Lack of clear consequences or outcome for the employee subject to an examination
  • Clear impact on the execution of the OIC mandate in relation to ongoing files; will cause undue delay
  • Complainants to the OIC can be parliamentarians. C-520 could give them another avenue to question either the OIC investigation or the unwanted results of such investigation while the Access to Information Act provides that the second level of review is the Federal Court
Section 10 - Report to Parliament Following an examination the Agent of Parliament must submit a report to Parliament
  • Reports related to the conduct of an employee by either the Public Service Commission or Integrity Commissioner are made public only after a proper process ensuring procedural fairness and confidentiality to employees
  • Report will be made public even if there was no basis for the allegation
  • Privacy concerns in the requirement to submit a report to Parliament following an examination; the necessity for such report making public personal information may not be reasonably justified in every circumstances
  • Issuing a report would likely lead to a breach of confidentiality obligations of the Access to Information Act in relation to ongoing investigations

B) Results of Internal Consultations with OIC employees

We consulted our employees to get their views on Bill C-520. They participated in an internal survey published on the Office’s Intranet site. Here are the results.

  • Approximately 60% of employees responded to the survey.
  • The majority or 75% of employees who responded to the survey expressed concern with the Bill.
  • Many of the concerns were directed at the examination process and the lack of clarity with the term “partisan conduct”, the lack of grounds for triggering an examination, the absence of confidentiality rules around the examination process, and the absence of means for employees to defend themselves against non-meritorious allegations of partisan conduct. Employees were also concerned about disclosing personal information on the Office’s website and the broad application of the Bill to all employees, notwithstanding their substantive levels.
  • The majority of the respondents stated that Bill C-520 would not have changed their decision to come and work at the Office and will not affect their decision to remain at the OIC if the Bill becomes law. However, for some, it will. This is a huge concern as it may have an impact on the ability of the Commissioner, now and in the future, to perform her mandate.
  • Many asserted that they conduct themselves in a non-partisan or impartial way. One employee noted: “In investigating complaints against government institutions since the Access to Information Act came into force, our office has been at the forefront of maintaining neutrality and non-partisanship regardless of the complainant or the government in power at the time. This has been an overwhelming success and is a testament to the past and present employees of our office.”