Sharing Our Stories Easily! – A New Search Tool

In my previous blog, I discussed how our agency routinely publishes summaries of decisions that are novel or interesting in order to assist public servants and ethics executives in consistently interpreting and applying the conflict of interest and political activity rules. These are available in our annual reports and from our internet site.

I also discussed an initiative to invite other ethics executives to provide our office with summaries of decisions made by them, so that we could make them available on our internet site together with our own. We had already received 27 decision summaries from various ministry ethics executives, and would soon be reaching out to public bodies (agencies).

Most important of all, I explained that we were working  on developing a more useful and sophisticated search tool for decision summaries. This tool would allow users to find relevant summaries much more quickly and easily.

It is done!

We have now launched our new search tool for decision summaries.

The tool allows the user to search summaries by type of matter (e.g., conflict of interest, political activity), by a particular rule (e.g., accepting gifts, hiring family members, switching sides), and by source of decision (i.e., Conflict of Interest Commissioner, ministry ethics executive, or public body ethics executive). There is also a keyword search.

Please visit our decision summaries page and try our new search tool.

Agencies and ministries should feel free to send us summaries of interesting conflict of interest or political activity decisions they have made.

Our aim is to accumulate a significant number of diverse, rich and interesting decision summaries that will serve as an important resource and promote the consistent application of Ontario’s public service ethics rules.

Sharing Our Stories

It is not uncommon for agencies like ours, that make decisions in specific cases, to prepare and publish summaries of those decisions that are novel or interesting or that illustrate particularly well the statutory rules that the agencies apply.

Every year, in our annual report, our office publishes a number of decision summaries. They are not considered binding precedent, but are intended to assist public servants and ethics executives in consistently interpreting and applying the conflict of interest and political activity rules. And these are also made available on our internet site so they can be easily accessed. Needless to say, decision summaries are completely anonymized.

Over the years, our office has received a lot of positive feedback from members of the ethics community, including OPS ethics executives, legal counsel and staff, on the usefulness of these summaries.

However, other ethics executives, including agency chairs and deputy ministers, have the same statutory authority as I do to receive inquiries, from employees of their respective organizations, about application of the conflict-of-interest or political activity rules, and to make determinations on such inquiries. Our office is not an appeal or review body for such decisions.

And so it has always made sense to me to invite other ethics executives to provide our office with summaries of decisions made by them, and then to make them available on our internet site, together with our own. With the support and assistance of the Chief Administrative Officers’ Forum, we have now made this happen. We have collected 27 decision summaries from various ministry ethics executives. The particular value of these summaries is that they address ethics issues arising in the ministry context and may therefore be more useful and relatable for deputy ministers and their staffs.

These summaries can be found on our Decision Summaries internet page, under Other Ethics Executives. We hope to grow the number of summaries every year. Note that at present, the summaries are listed using the “nick names” we have given them. We are working with our technology cluster to develop a more useful search tool for decision summaries that will allow users to find relevant summaries quickly and easily.

We also hope to expand our collection to include decision summaries provided by agencies, which would provide yet another useful perspective for the benefit of this large and important sector.

We wish to thank the Chief Administrative Officers’ Forum for its support and assistance in this initiative, and especially Lydia Proctor, head of the Forum secretariat, and all the deputy ministers and their staffs who provided summaries this time round.

Building Trust in Government – Publication of Ethics Conference Proceedings

Our recent public sector ethics conference, entitled “Building Trust in Government”, as discussed in two of my earlier blogs in July and December 2016, was a great success. The goal of the conference was to bring a diverse group of professionals together to discuss public sector ethics, strengthen relationships within the ethics practitioner community, expand our networks and identify potential solutions to common challenges.

Feedback from conference participants was overwhelmingly positive, and hopefully the conference was the beginning of what will be an active and ongoing discussion.

The conference took place in the shining new Jackman Law Building, re-furbished headquarters of the University of Toronto Law School. The Honourable Hal Jackman, noted philanthropist and former Lieutenant Governor of Ontario, whose generosity made the new facility possible, attended the conference. And of course, we are grateful to Ed Iacobucci, Dean of U of T Law School, for his remarks and for allowing us to use the venue.

The proceedings of the conference have been recorded in an issue of Public Sector Management, the magazine of the Institute of Public Administration of Canada (IPAC), whose invaluable partnership was critical to the success of the conference. IPAC also produced a short video synopsis of the conference. Anita Anand and Lorne Sossin are editing a volume of papers to be published in Canadian Public Administration.

Once again, I want to thank all the conference organizers, speakers, and panel members, as well as the many participants who gave us their time and interest.

Talking and Learning About Ethics

As we near the end of 2016 and look back on the year that was, I think it’s fair to say that public sector ethics issues have been front-and-centre. From scrutiny over senate expenses and the moving expenses of political staff, to the ongoing spotlight on so-called cash-for-access political fundraisers – ethical issues are attracting a lot of public attention these days, and that’s unlikely to change any time soon.

This makes it even more important for those of us who work in this field to discuss the collective challenges and issues that we face.   Our inaugural Public Sector Ethics Conference: Building Trust in Government held in Toronto on September 29 and 30 provided a forum and an opportunity to do just that.

Participants included ethics executives and senior public servants from all three levels of government, public body chairs and senior executives, lawyers, academics and integrity officials.   Our goal in bringing this diverse group of people together was to penetrate the silos we too often work in, strengthen our relationships, expand our networks and identify potential solutions to the common challenges we face.  The overwhelmingly positive feedback we received through our post-conference survey suggests that we achieved our objectives.  In the next month, IPAC, our conference partner, will publish a special edition of its Public Sector Management Magazine that will capture the insights shared by our distinguished speakers and panelists.  We hope that this experience is just the beginning of what will become an active and ongoing national discussion about how we can continue to work together to help strengthen and protect public service ethics in Canada.

As part of our effort to keep that conversation going, we partnered with Ontario’s Treasury Board Secretariat to produce two educational videos. The first video, “Deputy Minister turned Vice President”, addresses the question of what kind of work you can do when you leave the public service – something no doubt top-of-mind for many public servants approaching retirement.  The second video, “Hockey Mom” tackles the issue of preferential treatment.  Both videos depict actual scenarios you may encounter as a public servant and provide tips on how ethics executives can apply Ontario’s conflict of interest rules in these two areas.   These videos add to our already existing video archive.  I hope you enjoy them and I encourage you to share them with colleagues and staff.

I wish you all a restful and rejuvenating holiday season and all the best in 2017.

Commissioner Sidney Linden

 

Guest Blog: Paperless Office

The emergence of digital technology was supposed to reduce the need for paper. Instead, paper has seemed to multiply.  We squeeze it into filing cabinets, pile it on our desks and jam it into drawers. Going paperless might seem like an impossible dream, but recently our office decided to take on that challenge.  The following is a description of what we did and how we did it.

-Commissioner Sidney Linden

 

Having a paperless office does not mean there is no paper. There is always paper.

It means that all business records, including case records, are kept in digital form, which is considered the authoritative form of the record.

It means that business records made or received in paper form are converted to digital form.

It means that print-outs of digital records, or paper originals, are considered transitory.

It means that digital business records are organized and disoverable within a logical and controlled filing scheme.

It means that all digital business records observe a standard naming convention and that no central paper filing system is maintained or purported to be maintained.

It means, basically, that the official record of the organization is digital.

And it means all this must be done legally and properly.

The COIC Information Renewal Project realized this vision of the paperless office.

The project was driven by the office being designated in 2013 as a public body under the Archives and Recordkeeping Act and by the simple fact that we were running out of space for our paper case files.

We needed expert help, so we recruited a practicum student from the University of Toronto School of Information Sciences. And of course we worked closely with Archives of Ontario.

First, we needed to develop archival records series for the office. We had already adopted the common records series for such things as policy, administration and communications. But we also needed agency-specific records series, in particular for case files which documented our core business function.

Our practicum student developed records series using Archives templates, for our digital case file documents, for case file data, for commissioner engagements (not covered by the common series), and, perhaps most importantly, for source documents.

While digitized originals can be treated as transitory, Archives advised that best practice is to have a source document records series dealing specifically with paper records that are digitized. The series authorizes destruction after the record has been scanned and a quality control check performed.

So now, case files do not have to be kept in paper form. All records relating to a case are stored in the shared directory. Case records made or received in paper form (usually just case notes and signed letters) are scanned and do not have to be retained.

You may ask: But the commissioner is a statutory decision-maker. What if someone appeals one of your decisions? What about the best evidence rule that says a paper original has greater probative value than a copy?

That’s not much of an issue. Recent changes to the Evidence Act mean that a print-out has the same weight as a paper original, as long as the integrity of your electronic records system can be demonstrated if the record is challenged.

All our records series were submitted to Archives for review and approval. They had to be approved by the Archivist before we could dispose of any of our case records.

Now, there is no use doing any of this, that is to say, making digital records authoritative, if they are disorganized and hard to find. This is no better than having a disorganized paper filing system.

So we got up to speed on functional classification, which enables you to classify digital records according to the functions and activities they support, which is better than doing so by, say, subject, or creator name, or project name, or just ad hoc.

In a series of workshops, we established the main functions of the organization and their constituent activities. The shared drive was reorganized accordingly. Scope notes were prepared describing the contents of activity folders and related records series. A file naming convention was adopted. Function and activity folders cannot be created or modified without formal approval.

Finally, a set of concise information management policies was written to formalize all of this, and to ensure the office can demonstrate system integrity if a print-out is ever challenged in court.

Before we could start destroying paper case files, we had to make sure the digital version of a file in the database was complete. So, our practicum student reviewed all paper case files going back to the beginning of the office, and made sure the entire contents of these files were mirrored in the digital case folder.

All this in place, we could now legally shred all the paper files that had accumulated over 10 years, as well as case files from the predecessor, part-time commissioner prior to the establishment of the office. Every destruction event was meticulously documented by a Record of Destruction signed by the Executive Director.

About 25 linear feet of paper files were thus eliminated. Two large filing cabinets were emptied, liberating about 450 cubic feet of space for other uses.

I have often dreamt about being able to implement a records rationalization project, including something radical like going genuinely paperless. It is often hard to do so because of competing priorities, resource constraints, internal dynamics, and management hesitancy. So this was great.

The project could not have succeeded without the support of Commissioner Linden, who, despite his quite healthy concerns about going paperless, embraced the project enthusiastically, but also the support and encouragement of our Executive Director, Derek Lett, and legal counsel, Daman Thable.

I also wish to acknowledge the excellent work of our UofT practicum student, Peter Murray, and the generous guidance and encouragement of Minaz Dharssi of the Archives of Ontario.

James De Monte

Senior Policy Advisor

 

Public Sector Ethics Conference

It has always been my view that people doing similar work, or with similar responsibilities, should come together to discuss issues and developments of mutual concern, or just to share knowledge, experience, and expertise. It helps to break down “silos”, encourages new ideas and lessons to surface and circulate, fosters the creation of relationships and networks, and promotes consistency in approaches.

So organizing a public sector ethics conference has been something we’ve wanted to do for some time.

Our objective for this conference is to raise the profile of the subject by bringing together public servants and oversight bodies from the federal, provincial and municipal levels of government, practitioners and academics. Having a good mix from within the ethics community is important, as it will foster the exchange of diverse views, and hopefully  make the event interesting and worthwhile.

This all-day conference will take place on Friday, September 30th, with dinner and keynote speech the night before. It will consist of four expert panels, covering what we hope is an engaging array of public-sector ethics issues:

  • What are some of the emerging issues and challenges in public-sector ethics?
  • Are ethics and integrity regimes most effective if they are proactive or reactive?
  • Is the existing balance between free speech and public service neutrality sustainable, especially in the information age?
  • What are some of the successes in ethics oversight from different jurisdictions?

The keynotes are very exciting. For the dinner keynote, we have former Supreme Court Justice Frank Iacobucci, and for the luncheon the Honourable Bob Rae, who will speak to us about the value and efficacy of public service ethics oversight. These gentlemen need no introduction.

In planning this event, we have been fortunate to assemble an excellent advisory committee, which, like our various panelists, represents an exceptional talent mix. It includes academic luminaries like Anita Anand, Lorne Sossin and Phil MacEwen. It also includes Mary Dawson, David Wake and Valerie Jepson, the federal, Ontario, and Toronto integrity commissioners respectively, as well as the Deputy Attorney-General and Secretary of Cabinet.

The event is being organized in partnership with the Institute of Public Administration of Canada (IPAC), whose CEO, Dr. Robert Taylor, has been invaluable with his advice and support. IPAC will also assist in preparation of the post-event publication. Mary Gusella, who is a director of the Ethics Practitioners’ Association of Canada, has also been very helpful. Our Executive Director, Derek Lett, has been holding it all together.

The number of seats for this event is limited, and our target audience is essentially ethics executives in ministries and public bodies, senior officials and academics and practitioners in the field. Even so, we’re sure the conference will prove to be a valuable contribution to public service ethics discourse. Finally, our hope is that this conference will lead to many similar events in the years to come.

Additional information on the conference can be found on IPAC’s dedicated website page.

Ontario’s New Integrity Commissioner

Ontario has a new Integrity Commissioner. The Honourable J. David Wake began his five-year term on February 1. He replaces Lynn Morrison, who was associated with the office since its inception in 1988, and served as Commissioner since 2007. I am proud to say I had a warm and collegial relationship with Lynn, who incidentally was my ethics executive, since the establishment of our office that same year. Lynn was always a willing,  knowledgeable and experienced partner in the field of public service ethics. One of our most valuable collaborations was incorporating Lynn and her counsel into the ethics executive orientation sessions we host periodically, where Lynn discussed whistleblowing  and lobbyist registration with agency chairs and CEOs and acquainted them with the functions of her office. I wish Lynn a long, happy and productive retirement.

Commissioner Wake and I go back a long way too. David was appointed a judge of the Ontario Court (Provincial Division) in 1994, when I was the Chief Justice. These were busy years for the court, with many challenges and reforms. David was an active and enthusiastic supporter of these reforms while also presiding in court. He obviously did a good job, because in 1999, when my term as Chief Justice ended, one of my associates became the Chief Justice, and David was appointed Associate Chief Justice in his place. I congratulate David on becoming Integrity Commissioner and am thrilled that an individual with his background and experience has been appointed to fill Lynn’s shoes. David’s full biography can be found on the Integrity Commissioner’s website.

We are often asked how our office relates to that of the Integrity Commissioner? Needless to say, the existence of two ethics commissioners in Ontario has the potential to confuse (of course, if a person approaches the wrong office on a particular ethics matter, we ensure that he or she is redirected to the correct office).

The Integrity Commissioner is an officer of the legislature. As such, he is separate from the executive branch of government. This more arms-length relationship is essential to the types of mandates the commissioner has responsibility for, including those relating to the conduct of elected officials and the disclosure of wrongdoing. In contrast, our office is an agency of the Crown, subject to the same rules as other agencies, although still at arms-length and independent regarding procedural and substantive decision-making. As I have written in a previous blog, this is consistent with the notion that overseeing the ethical behavior of public servants is part of the larger public service management system.

The Integrity Commissioner’s  “core mandate” is to oversee the ethical conduct of members of provincial parliament and Cabinet ministers. But the Integrity Commissioner also oversees the ethical conduct of ministers’ staff, and he is the Lobbyist Registrar. He also reviews expenses for certain politicians and agency employees, and oversees the disclosures of wrongdoing.  In contrast, our office, the Office of the Conflict of Interest Commissioner, is concerned with the ethical conduct of public servants, including those in the agency sector.

Notwithstanding our differences, and our separate mandates, both of our offices are important to the overall objective of the government. We are both “ethics commissioners”, operating in the same general field, and the ethics rules we apply are broadly similar. In fact, for public servants and ministers’ staff, they are almost identical. Our mutual goal is ethical government and helping to create a province where people trust government, both political and bureaucratic. The over-arching principles guiding both offices are universal. I am confident that going forward, we will continue the productive and collegial relationship that our two offices have cultivated.

Post-Service Rules

We often hear about conflict-of-interest rules that public servants are expected to follow. As we know, these rules help to ensure that our public service is professional, ethical and competent.

It is also important to know that certain rules continue to apply after an individual leaves public service. These are called “post-service” rules, and they are applicable to former public servants. They are equally important. Just as public servants must not allow their personal interests to conflict with their public service duties, so also must former public servants not derive undue advantage, or disadvantage the Crown, by virtue of their former public duties. Having both sets of rules ensures a balanced and equitable ethics regime.

The post-service rules are relatively few and easy to remember. There are only five in total. Three apply to all former public servants, and have no time limit:

  • Don’t seek preferential treatment. For example, one might be tempted to call a former colleague for help with a matter involving a non-profit organization one has become involved with. Don’t. Use the same channels available to all other citizens. You would also be putting your former colleague in a difficult position, because it is equally against the rules for a public servant to give preferential treatment.
  • Don’t disclose confidential information. This is information that is not available to the public at large, and which, if disclosed, could disadvantage the Crown or unfairly advantage someone else. The second part of this test may be difficult to assess. The best course: don’t risk it. If the information has not been made public, don’t discuss it after you leave public service.
  • Don’t switch sides. The Crown is entitled to benefit from your advice. If you worked on a matter while a public servant, you must not advise anyone on that matter as a former public servant, until the Crown is no longer involved. You may continue to advise the Crown if asked to do so.

The next two rules apply only to former public servants who worked in a “designated senior position” basically at the director level or higher or the equivalent in a public body. They are somewhat more complicated, and only apply for twelve months after leaving public service:

  • Don’t accept employment with any organization that you were substantially involved with in the twelve months prior to leaving the public service, if you had access to confidential information. An example might be accepting a job with a company that you worked closely with as a director in a public body on a major procurement initiative. Substantial involvement needs to be more than simply being briefed on a matter periodically.
  • Don’t lobby a public servant, or any minister or minister’s staff, in any ministry where you worked for the 12 months prior to leaving public service. So, if you were a director in the Ministry of Education, you can’t join an education advocacy group and immediately start lobbying the minister.

Former public servants have ethics executives just like current public servants. These are the individuals former public servants should consult if they have questions about the application of conflict-of-interest rules, and who can make determinations about specific cases and situations. The ethics executive for former ministry employees is the Public Service Commission. The ethics executive for almost everyone else – former deputy ministers, secretaries of cabinet, and agency appointees and employees – is the Conflict of Interest Commissioner.

Individuals leaving public service – at whatever level – should be made aware of their post-service ethical obligations. Our website contains a page on post-service rules. A more comprehensive information sheet, linked below, is also available, and it is good practice to provide this resource to every public servant, whether in a ministry or public body, and regardless of level of seniority, who is about to end his or her employment with the Crown.

Post-Service Information Sheet

Public Service and Political Activity

The next federal election will take place on October 19th, the first instance of a fixed election date in Canadian federal politics.

It used to be the case that public servants, at both the provincial and federal levels, were subject to broad political activity prohibitions. This was seen as necessary to uphold the neutrality and professionalism of the public service in a democratic system.

The Charter of Rights and Freedoms changed things. Evolving attitudes probably also played a role. Today we have a more nuanced and workable system that balances the rights of citizens to participate in the democratic process with the need for a neutral and professional public service.

According to the Supreme Court, political expression is fundamental to the guarantee of freedom of expression, and is therefore entitled to a high degree of protection. Any limit on political expression is only justifiable if it furthers an important objective and is proportionate to this objective, i.e., the limitation is related to the objective, is as minimal as possible, and produces more good than harm.

The old rule for the federal public service, prohibiting Crown employees from engaging in any political activity, was considered not minimal but overkill, encompassing everyone from deputy minister to cafeteria worker, not taking into account either the nature of the public servant’s work or the type of political activity involved.

However, the court also accepted that restricting political activity is related to an important objective, namely maintaining the neutrality, professionalism, and loyalty of the public service, which is also a legitimate public expectation. The court has therefore allowed political activity restrictions that are justifiable. Restrictions can be based on:

  • the extent of the public servant’s policy advice,
  • the scope of discretion exercised by the public servant,
  • the visibility of the public servant’s position, and
  • the nature of the prohibited political activity.

In Ontario, these constraints developed by the Supreme Court were given expression in the Public Service of Ontario Act, 2006, and in its predecessor statute. In fact, Ontario is unusual in placing its political activity rules directly into legislation, as opposed to corporate policy. Political activity rules form Part V of the Act

Ontario created two categories of public servant. A “specially restricted” class of public servants in senior positions, such as directors, ADMs, and deputy ministers, and some tribunal members, is subject to more stringent rules. Members of this class can only engage in certain permitted political activities, such as voting and contributing money to a political party. Some members of this class may also seek authorization from the Conflict of Interest Commissioner to engage in other activities.

The “non-specially-restricted class” – basically everybody else, can engage in any type of political activity except that which is specifically restricted, like running for office, which can only be done while on a leave of absence.

And of course there are certain prohibitions that apply to both groups – and they are just common sense. For example, no one is allowed to engage in political activity while at work or in uniform or use government resources for political purposes.

The political activity rules in Ontario are carefully crafted and designed to meet the Supreme Court’s test for reasonable restrictions on political expression. Most importantly in my view, they are consistent with maintaining a public service which is neutral, professional and loyal on the one hand, but also part of a politically engaged citizenry on the other.

Since the establishment of our office, I have dealt with a number of political activity matters, including requests for both advice and determinations, which usually arise only during a municipal, provincial or federal election campaign. All of these matters have been dealt with based on the facts at hand and the rules outlined above.

Many public servants in Ontario may not wish to engage in political activity, but for those who do – and it is their right within limits, Ontario has a fair, transparent and balanced framework in place.

Do the Right Thing

In previous blogs I explained that conflicts of interest may sometimes occur as a fact of life in a complicated society and that people should develop their own ethical compass and know when to seek advice.  I discussed how leaders are responsible for their own and their organization’s ethical integrity and they should foster an ethical culture.

In this blog I am writing about something that supports most of what I havepreviously written, namely, that after decades of public service in a variety of roles, I am convinced that most people in government want to do the right thing simply because it is right.

I believe there is a heightened awareness of the importance of ethical conduct among public office holders and public servants, and an increasing sensitivity to, and declining tolerance for, ethical misdeeds.

In performance measurement we talk about sustained changes in awareness and behavior leading to more durable, long-term changes in conditions and attitudes. This is a good analogy. There has been an increased emphasis on ethical awareness and behavior over time.  This has become internalized as part of our culture, and has actually changed societal conditions and attitudes.

Even in private enterprise, where profit rules, companies are increasingly under pressure to become more transparent in their practices, to demonstrate the positive societal impact of their activities, to establish rigorous corporate ethics and to embrace community involvement. Many companies see this as contributing to their success.

From my perspective, this is all very good because society is and has been moving in the right direction.  Although there have been several recent high profile public sector ethical incidents, at all levels of government , one should pause to reflect that not so long  ago , such things might have gone unnoticed.

The greater frequency and public exposure of these incidents could well mean that we have become a more conscientious society as a whole.

The role of our office is to reinforce this natural impulse to do the right thing. There will always be those who do not wish to do the right thing, and they may never come to our office for advice or a determination.

But I am impressed with how often senior public servants have approached our office with questions or concerns simply because they wanted to ensure that they were moving in the right direction. In today’s society, that is what good public service is all about. We encourage and commend such behavior and, in return, we will always try to provide reasonable, consistent and constructive advice.

Recently, Toronto Star columnist Rosie DiManno wrote something that resonated with me: “Ethics is doing the right thing when people are watching; integrity is doing the right thing when nobody’s looking.”

I interpret this to mean that regardless of codes of conduct and oversight bodies, those of us in the public service should always rely on our own personal integrity and instinctive sense of doing the right thing simply because it is right.