The 17-member, all-party Select Special Ethics and Accountability Committee is currently reviewing four key pieces of provincial legislation: the Election Act, the Election Finances and Contributions Disclosure Act, the Conflicts of Interest Act, and the Public Interest Disclosure (Whistleblower Protection) Act, and is inviting written public and stakeholder submissions until February 26.
This blog focuses on providing context and suggestions on the last of these acts, the Public Interest Disclosure (Whistleblower Protection) Act, which is aimed at protecting whistleblowers – those who seek to disclose information regarding wrongdoing in order to promote the public interest.
Background of the current act
A commitment to whistleblower protection legislation was a central plank in Alison Redford’s campaign for the PC party leadership and the subsequent 2012 provincial election.
When Bill 4 (which would be passed as the Public Interest Disclosure (Whistleblower Protection) Act) was tabled in October 2012, then-premier Redford stated, “[w]e promised a fundamental change in the way government works and this new Act is a critical part of that pledge to Albertans… [b]y putting whistleblower protection in place we will continue to lead the way in open, accountable government.”
At the time, the lack of adequate legislation aimed at encouraging public interest disclosure and protecting employees from reprisals following disclosure was being acutely felt as allegations swirled of doctor intimidation and queue-jumping schemes with Alberta Health Services, questionable expenses and conflicts of interest among members of cabinet – not least of which, Redford herself.
The Public Interest Disclosure (Whistleblower Protection) Act came into force on June 1, 2013, along with the newly created Office of the Public Interest Commissioner.
While the effort was laudable, at least in theory, the problem is that the tools made available by the act were neither adequate nor impartial. As David Hutton, then-executive director of the Federal Accountability Initiative for Reform (FAIR), put it in his 2013 Parkland Institute report, Shooting the Messenger: The New for Effective Whistleblower Protection in Alberta, “the government introduced a bill that, far from representing the best examples from around the world, sets a new low, even within Canada. Largely copied from other provinces, the few modifications made by the government further emasculate an already weak and outdated bill.”
The act professes to preserve the public interest and to protect the whistleblowers who speak out in its defense – it’s right there in the title of the legislation – but when held up to scrutiny, each of the fundamental pillars of the act fails to hold up.
Structure: what the act does
Who is covered?
The first problem with the act is that it applies only to public employees in Alberta – provincial departments and legislative offices; public bodies such as agencies, boards, commissions, and crown corporations; health organizations, including Alberta Health Services and Covenant Health; and educational institutions including post-secondary, public school boards, charter schools, and private schools that receive public funding.
The act does not apply to employees in the private sector (as is the case in world-leading UK legislation); contracted employees (including physicians contracted to Alberta Health Services); private health services, regardless of whether they receive public funding (this includes, for example, seniors homes – public facilities are regulated by the act, but private ones are not); and solicitors or Crown Prosecutors.
Also excluded are those who request an exemption and are granted one by the commissioner under Section 31 of the act. Between 2013 and 2015, partial exemptions have been granted to a number of early childhood services and private schools, on the basis that their small staff size make the regulations regarding designated officers and the development of disclosure procedures unduly difficult to carry out. In these cases, disclosure is to be made directly to the commissioner.
The act applies only from June 1, 2013, covering disclosure of information relating to wrongdoings that have taken place not more than two years previous.
To whom is disclosure made?
The act states that employees should disclose, in the first instance, to a designated officer within their department. In cases where the designated officer may be implicated in the wrongdoing, or if there is an immediate risk to public health or safety, the employee may disclose to the Public Interest Commissioner directly.
The act does not extend protection to employees who disclose to the media, to their MLA or another public figure.
Who determines the appropriate process?
Each department, office, or body regulated under the act must develop a set of protocols for the disclosure of information in the public interest, and submit these plans to the commissioner. The Office of the Commissioner does not devise, nor enforce, a common or standard protocol for all public employees to follow; nor is there a hard timeline for departments to submit their plans.
As of 2015, 94% of government departments, agencies, boards, health organizations, and post-secondary institutions had submitted their plans and named designated officers, and 89% of school authorities had put procedures in place. However, among the rest of the covered entities, 69% of charter schools and only 3% of private schools and private ECS operators had done so.
What oversight is mandated for the enforcement of the act?
The act created the office of the Public Interest Commissioner, which currently coincides with the position of Alberta Ombudsman, whose office is charged with responding to complaints of unfair treatment by provincial government authorities and designated professional organizations.
The commissioner is the final arbiter regarding allegations of wrongdoing or reprisal: his office alone determines if an investigation will be taken forward, if penalties are to be applied, and what recommendations are to be made to offending departments or bodies.
Section 19(1) states that the commissioner should not investigate a disclosure if it ought to be investigated under the auspices of another body or procedure (such as a union collective agreement or human resources matter); if that disclosure “relates to a decision, action, or matter that results from a balanced and informed decision-making process on a public policy or operational issue”; or even if “there is another valid reason for not investigating the disclosure.”
The overly vague and broad wording gives the commissioner full discretion over each case, and effectively precludes any scrutiny of departmental decisions. If a complaint of wrongdoing is brought against the commissioner, an investigation may be taken up by the Auditor General, but the decisions of the commissioner are not subject to an appeals process. Moreover, the act expressly states that these decisions may not be challenged before the courts.
What penalties apply?
Where wrongdoing is determined, the commissioner may make recommendations to the department in question. However, there is no mechanism within the legislation to enforce recommendations, or to penalize departments who fail to comply with recommendations. Rather, Section 22 (5) provides that, “if the Commissioner believes that the department, public entity or office of the Legislature has not appropriately followed up on the Commissioner’s recommendations, if any, or did not co-operate in the Commissioner’s investigation under this Act, the Commissioner may make a report on the matter” to the relevant chief officer of the Executive Council, minister responsible, board of directors, Speaker of the Assembly, or the premier.
If a department is found to have engaged in reprisals against a whistleblower, a fine of $25,000 is levied in the first instance, and $100,000 for additional reprisals. However, unlike the federal Public Servants Disclosure Protection Act, there is no specific process to allocate those funds to the victim (i.e. the whistleblower) as compensation, nor to have them reinstated should they be fired or unduly transferred from their position.
Then-opposition MLA Rachel Notley pointed out this shortcoming during debate on Bill 4, stating, “nowhere [in this bill] do I see a section that talks about a remedy for the whistle-blower who has been wronged by an employer who is upset about information being disclosed. I don’t see the authority for a commissioner to give them their job back. I don’t see the authority for the commissioner to pay them damages. I don’t see the authority for the commissioner to ask for the perpetrator of the wrong against the whistle-blower to pay pecuniary damages to the whistle-blower.”
Intention: what the act (says it) ought to do
Has the act been used?
During the first reporting period under the act (June 1, 2013 – March 31, 2014), the commissioner received a total of five disclosures, two of which were investigated by the commissioner. Only one of these investigations was completed during the reporting period, and resulted in no recommendations being made. During this period there were no complaints of reprisals.
During the second reporting period (April 1, 2014 – March 31, 2015), the commissioner received a total of 21 disclosures, of which 13 resulted in an investigation. Again, “no recommendations, relative to findings of wrongdoing were made by the commissioner.” There were eight complaints of reprisals received during this period; one was still under investigation when the report was issued, one was withdrawn, and six were investigated and “determined not to be reprisal but rather reasonable human resources management decisions.”
The commissioner has released three investigative reports to date. The first report found no wrongdoing under the act, and made a series of “observations” rather than recommendations. The second report found “wrongdoing” and “gross mismanagement of public funds” and resulted in five recommendations and three observations. The third report found “no wrongdoing occurred,” but made a series of 16 recommendations.
Does the act protect whistleblowers?
By forcing employees – even those just seeking advice or information on the disclosure process – to first work through an internal chain of disclosure, with a very limited recourse to the commissioner, the act places whistleblowers in a precarious position. Whistleblowers are asked to work through procedures set and enacted by the very department they hold information against, meaning the act treats public interest disclosure as a primarily internal matter first and foremost.
The act also puts the onus on the whistleblower to prove reprisals have taken place or are likely.
The act also diminishes the employee’s ability to access other avenues of recourse – such as collective agreement rights or human rights – forcing them to choose between these venues as either/or. The process restricts already existing legal pathways for employees to fight wrongful dismissal, workplace harassment, etc.
Does the act promote the public interest?
One of the most concerning features of the act is that it contains no provision for regular, consistent, and transparent reporting of wrongdoings investigated under its auspices. As David Hutton wrote in his 2013 analysis, “There is no requirement to report the specifics of any wrongdoings found – these can remain secret forever.” While the Office of the Public Interest Commissioner releases annual reports, complete with two pages of statistics outlining the number of complaints filed and whether investigation was pursued, no specific details are provided. The onus, therefore, is on the commissioner to publicize this information (or not), and for the government to detail to the public what recommendations will be adopted (or not).
Combined with the lack of protection extended to whistleblowers who disclose to the media, the dissemination of information to the public sphere is severely restricted.
The loopholes woven into this legislation, by carelessness or by design, leave Albertans vulnerable to betrayals of the public trust – and that is precisely what effective whistleblower protection is intended to avoid.
Conclusion and recommendations
During the second reading of Bill 4, Liberal MLA David Swann stated:
Several questions have to be answered with any whistle-blower legislation. First of all, does it make it safe to raise objections or concerns about a particular process or expenditure; secondly, will there be anonymity for the individual; thirdly, will there be an opportunity for any kind of retaliation or negative impact on the individual; and finally, will there be accountability for the offender as well as compensation for the whistle-blower should they pay an inordinate or any significant price for their speaking out?
The fundamental problem with the current act is that, when posed these questions, the government of the day was quick to answer in the affirmative; yet opposition parties, transparency advocates, and other external critics all resoundingly challenged this position.
These flaws were identified when the bill was debated in the legislature. As an opposition MLA, Premier Notley was frank in her appraisal of the bill, saying, “it took me literally 15 minutes to scan through and see a whole bunch of things that just jump out at you as something that will be abused and used wrongly by this government to further clamp down on information and to further undermine the rights of the hard-working people who are employed in the public sector. … Really what this is going to do is clamp down on disclosure in a way that is unprecedented.”
The opposition parties put forward 29 amendments during debate on Bill 4, with the Wildrose and the NDP being in surprising agreement. In fact, the NDP commended the Wildrose on their dedication to improving the bill, and the two parties expressed many of the same concerns. The fact that not one of the amendments was passed speaks to the inherent inadequacy of the legislation: all of the problems outlined above were known, debated, and potential solutions proposed, but the government chose to leave them in place.
Our recommendation, following from Parkland’s 2013 and 2005 reports on whistleblower protection, is to completely revise the Public Interest Disclosure (Whistleblower Protection) Act to adequately address the shortcomings outlined above in order to produce a piece of legislation that truly prioritizes the transparency and accountability that were promised to Albertans. Our key recommendations are:
- Revise the Act to provide comprehensive coverage of vulnerable workers in Alberta, including those contracted to provide public services, and employees of privately-operated healthcare facilities.
- Extend whistleblower protection to also include private sector employees.
- Close the loopholes built into the legislation by removing the overly broad powers of exemption and discretion granted to the commissioner.
- Establish a standard set of procedures for disclosure across the public service and streamline the process to limit the number of “hoops” employees must jump through.
- Provide a mechanism for tangible redress or compensation for those who experience reprisals.
- Promote the actual public interest first and foremost by including disclosure to the media in the act.