It was a never a good idea to make the public interest commissioner (PIC), who administers Alberta’s public sector whistleblower protection, the centrepiece of a legislative review. You would not normally expect an administrator to be too critical of their own legislation, much less the role they play in it.
However, you do expect them to be accurate, which makes Public Interest Commissioner Marianne Ryan’s misleading submissions before the committee on April 28, responding to proposed ideas for reform, a positively bad idea.
Strong protections are needed for public sector employees who come forward to challenge their bosses over wrongdoing, otherwise they shut up (most likely) or go to the press (by far the most common route for bringing scandals to light).
The commissioner opposed four of my recommendations that are basic to ensuring whistleblowers feel safe to come forward to report wrongdoing. These reforms are based on my Parkland report released late last year. All are considered part of international best practices and have precedent in other jurisdictions.
However, all were portrayed by the commissioner as deeply problematic, reflecting her lack of understanding about whistleblower protection outside of the Alberta experience, and a troubling misinterpretation of the law and her particular administrative role.
Here is how she led the committee astray on my four recommendations:
No Loopholes Protection
Right now, the legislation says you must report to a designated officer and it has to be in writing; otherwise, no protection against reprisal for you.
The no loopholes reform is the simple idea that employees are protected regardless of which superior they report to, or whether or not they do it in writing. The rationale is that if you want someone to come forward to challenge their boss, you cannot play gotcha with technicalities.
The commissioner’s office called this reform a “dangerous precedent.” There is nothing dangerous about this reform. The U.K. whistleblower law has a version of no loopholes which seems to be working just fine.
Perhaps she thinks whistleblower complaints will run rampant and it will become more difficult to dismiss employees for cause. The PIC has shown itself quite adept at allowing employers to dismiss for cause – they have not found a single reprisal in 55 complaints, including firings, since the act’s inception eight years ago.
Given the PIC has five investigators, initiates a handful of investigations each year, and has issued only eight detailed investigative reports in as many years, I am guessing they can handle a few more complaints if that is what happens.
Right now, the legislation places the onus on the employee to prove, on a balance of probabilities (the burden of proof), that a workplace reprisal is the result of a whistleblowing complaint. This is notoriously difficult as employers usually disguise reprisals as a contrived workplace performance issue.
A reverse onus reform simply shifts that burden of proof onto the employer to show the dismissal is for just cause (not whistleblowing). It has precedent in various legal regimes in Canada, particularly where one party is at an evidentiary disadvantage.
The public interest commissioner’s response was that a reverse onus would jeopardize the impartiality of investigations and “does not conform to the principals (sic) of procedural fairness and natural justice.”
This conflates two distinct roles of her office, that must be kept separate: (1) to conduct investigations and (2) to make findings of either wrongdoing or reprisal based on the evidence that the investigation produces. This is analogous to the distinct roles of the police (to conduct investigations and produce evidence) and of the judge (who must assess the evidence and make findings as to whether a crime is committed).
In her response, the PIC combines both these roles into one process, betraying both an ignorance of the law and the distinct roles her office performs. Neither the impartiality of investigations nor the duty of fairness is impacted in the least by who bears the burden of proof.
Appealing Investigation/Findings of PIC to the Labor Relations Board
Investigations and decision-making about whether a wrongdoing or reprisal occurred happen behind closed doors. The fate of a whistleblower’s job is therefore left at the mercy of an unaccountable process without him or her ever having the opportunity to know and challenge the evidence and the findings.
The proposed reform would allow an employee to go the Alberta Labour Relations Board (ALRB) for a hearing to ensure all evidence was uncovered and, if not, to have it presented before the board. It would also ensure that proper factual determinations of the PIC are reviewed by a board that is expert in assessing workplace reprisals.
The PIC response is that this already exists – but it does not. She confuses a review of the investigation at the ALRB with a right of judicial review to court, which is strictly limited to errors of law or jurisdiction, e.g. the commissioner acted beyond her powers under the act.
Public Sector Survey
A public servant survey about perceptions and understandings of the act seems like a great idea for identifying problem areas that need to be fixed. You would think an administrator would embrace this opportunity.
But the PIC presented a host of reasons for why a survey is not a good idea, including possible breaches of confidentiality and that a survey might disclose instances of wrongdoing. Such claims are ridiculous. This begs the question, why would the PIC not want the MLA committee to consult the members of the public service about an important piece of legislation there to protect them if they want to expose wrongdoings?
Moreover, these claims were made without the least amount of research as to how public servant surveys are conducted in Alberta and at the federal level. Examples of security measures used in large-scale organizational surveys can be found here and here.
An expert at the firm I contacted – which has many years of experience administering large-scale public-sector surveys – refuted each claim the PIC presented in her submissions for why a survey should not be done (albeit he did not comment on this reason put forward by the PIC: “The concept of a public survey of whistleblowers is counter to the concept of preserving and strengthening confidentiality within the act.”) The expert’s response has been filed with the RSC.
Getting Back on Track
Albertans are straight shooters. They don’t like bad actors who break the law, mismanage public money or undermine the public interest for their own private gain. Whistleblower protection was supposed to be a means to encourage those within the government to speak up – without fear of reprisal – when they see wrongdoing.
The statistics seem to show employees don’t come forward to speak up, and probably shouldn’t feel safe. Protections need to be shored up for employees to make the system work.
For politicians who might be indifferent or even hostile to whistleblower protection, the choice can be between internally managing wrongdoing or splashy headlines of a scandal that helps bring down a government (just ask yourself how many public sector scandals have been leaked to the press over the past eight years compared to the six mostly minor cases of wrongdoing found by the commissioner during that time).
There are experts who have years of experience with whistleblowing legislation and who advise governments. The Centre for Free Expression (at Ryerson) and the U.S.-based Government Accountability Project are examples. The gold standard would be for members of the committee to access this expert advice that is objective, globally informed and, to the extent possible, evidence-based.
At a minimum, an effective response would be to adopt the four recommendations I propose above.
Or will the MLA committee simply follow what the public interest commissioner says and refuse to make any changes to protect whistleblowers who expose wrongdoings? There is still time to get this right.