What is the basis for the commissioner to make a political activity determination?
Under the Public Service of Ontario Act, 2006 (the Act), sections 84 and 93, the commissioner may make determinations about the application of the political activity rules.
Who may seek a political activity determination from the commissioner?
The following persons may request that the commissioner make a political activity determination:
- The public servant involved
- The supervisor of the public servant involved
- The ethics executive of the public servant involved (the ethics executive may request that a matter be referred to the commissioner)
In addition, the commissioner may make a political activity determination upon being made aware of concerns that a public servant has engaged in or is about to engage in political activity in contravention of Part V of the Act.
How is the process initiated?
The above-mentioned persons may contact the commissioner’s office, preferably in writing, to request that the commissioner make a political activity determination. The request should include enough background information for the commissioner to understand the nature of the activity in which the public servant wishes to engage. A referral request from an ethics executive should include information about why the ethics executive is requesting to refer the matter rather than making the determination. The commissioner may request additional information.
Will the commissioner always provide a determination if asked?
In some cases, the commissioner may decide not to proceed to a determination, such as where another process under the Act is more appropriate (e.g., providing advice under section 64 of Act) or where it would be more appropriate for the ethics executive to make the determination.
Will the public servant have an opportunity to provide comments to the commissioner?
Yes. Before making a determination, if the public servant has not already provided comments, the commissioner will contact the public servant to seek his or her comments on the issues raised by the political activity matter.
What might the commissioner’s determination include?
In making a determination, the commissioner may include the following:
- Relevant provisions of the Act and regulations
- Relevant factual and legal issues to be considered
- Findings on the factual and legal issues
- Relevant previous decisions of the commissioner, agencies, or the courts
- Directions appropriate to addressing the matter
- Advice on how to reduce the risk of a breach of the Act
Do determination and directions have to be followed?
Yes. Determinations and directions under the Act are final and public servants must comply with them. Specially restricted public servants may subsequently apply for authorization to engage in political activity as set out in section 90(2) or 92(2). Public servants who contravene a rule or direction under the political activity provisions of the Act may be subject to disciplinary measures, including suspension and dismissal.
Will the commissioner contact any other individuals?
The commissioner may contact other individuals for the purpose of confirming or supplementing the information received. Also, the commissioner may notify other individuals (such as the ethics executive) of the outcome of the matter, but only to the extent required to discharge the commissioner’s duties under the Act.
What happens after the determination?
The commissioner may contact the public servant or ethics executive after the determination to ensure that suggested or required actions have been followed, provide additional advice, or add further determinations or directions.