Letter to Independent Review Authority Attachment 3

Delay in receiving financial delegations

The delays are calculated from the date of appointment to the position of Ombudsman until the date of receipt of all delegations required to administer the Office.

First Ombudsman

not available

Second Ombudsman

 7 months

Third Ombudsman

2 years 3 months

Fourth Ombudsman

1year

Fifth Ombudsman

6 month

Until the financial delegation instrument is signed by the DM of DND, the Ombudsman cannot approve financial transactions for his own organization. This means that Ombudsman employees with active and sufficient delegations have to back-fill for the Ombudsman. For some transactions, back-filling is not possible as Ombudsman employees do not have the required authorities.

There is no real independence if the DM of the organization that is subject to review can delay or withhold delegations.

It is untenable that the head of a federal organization can be without financial authority to approve transactions related to operational business. 

If included in the NDA and conferred deputy head status, the Ombudsman would have the necessary financial authorities as of the date of appointment to the position.

Overall budget allocation

Departmental procedure requires annual budget requests and operational plans to be submitted for review and decision by the Internal Review Management Committee (IRMC). Prior to the IRMC decision, the VCDS vets submissions and recommends prioritization.

The IRMC is composed of the senior leaders whose organizations are subject to oversight by the Ombudsman (i.e. the DM, CDS, VCDS, CFO, Senior Associate DM, Associate DM, and ADM(Mat)). The Ombudsman does not sit on this committee and does not have the opportunity to defend the office’s submission.

For fiscal year 2020-21, the VCDS requested additional details related to the Ombudsman’s submission, specifically about basic operational plans and a systemic investigation that was directed by the Minister of National Defence. Further details were provided. Funding for SWE (Salaries and Wages Envelope) of $477K was denied. The response from the IRMC was that “there were many high priority items completing this year and not enough funding to resource them all.”

Placing budgetary allocation and review of operational priorities of the Ombudsman in the hands of the organizations subject to the Ombudsman’s review is problematic.

First, it gives the power to deny funding.

Second, it allows questioning of operational priorities and justifies demands for a level of information about Ombudsman investigations and internal decision-making that compromises the integrity of the investigations.

Third, the IRMC explanation of ‘too many competing priorities’ rings false when the Ombudsman’s overall budget in 2020-21 was .003% of the total departmental budget.

Independence and impartiality are both compromised where the organization subject to review has any measure of control over the organization performing the review.

The process of budget allocation undermines the integrity of Ombudsman operations and compromises investigation plans. A truly independent investigative authority would not be compelled share the details of its investigative plans with the organization being reviewed.

If included in the NDA and conferred deputy head status, the Ombudsman‘s overall budget would not be controlled by the organizations it is mandated to review.

Cap for Travel and Hospitality

Caps are imposed annually on travel and hospitality by IRMC for the purpose of controlling the total travel budget for the department.

The Ombudsman submits a travel and hospitality plan through the business planning process. The Ombudsman’s operations require travel for:

· periodic visits to Bases and Wings for constituent engagement,

· some systemic investigations

· meetings of the Ombudsman’s Advisory council

· the annual Ombudsman Commendation ceremony

Every fiscal year, the approved caps for travel and hospitality have been lower than required.

In 2018, the Ombudsman’s request to the DM to travel for core business was delayed such that the Ombudsman was put in a position to abandon plans or travel without authority. The purpose of the travel was to meet a constituent group for the purpose of an investigation. The Ombudsman had to chase down authorization which was never issued without explanation.

In 2019-20 the cap would not have allowed the Ombudsman to travel for the systemic OUTCAN investigation (report now published). Even with scaling back, the Ombudsman had to make an additional submission to the DM. In this case, the DM approved the supplementary submission, thereby authorizing the Ombudsman to pursue the investigation.

Nevertheless, the process is such that the departmental authority has direct power to impede Ombudsman investigations.

Independence is compromised where the resourcing of the Ombudsman’s operations depends on approval from the head of the organization that is subject to review. This puts the DM in a position to approve or deny specific activities within the Ombudsman’s overall budget allocation.

If included in the NDA and conferred deputy head status, the Ombudsman would be able to manage within the overall budget allocation.

Integration with departmental financial delegations

In 2015, a unilateral decision by the Department was made to integrate the Ombudsman into the departmental financial delegation matrix. Previously, the office of the Ombudsman had its own matrix.

A separate matrix, as well as other hallmarks of independence, was negotiated when the office was established. The rationale was to ensure that Ombudsman operational needs were considered separately from departmental needs.

The consequence of integrating the matrices is that the Ombudsman is now equated with L1 Advisors (i.e. L1Advisors have a direct reporting link to the DM). This means that the Ombudsman’s direct reports have delegation thresholds commensurate with the direct reports of L1 Advisors. While this may work for L1s, it does not give all Ombudsman direct reports the necessary authorities to perform the functions of their positions. This is particularly critical in the case of the Director of Corporate Services who, as comptroller for the Ombudsman, has insufficient financial authority to perform the functions of the position.

Other authorities were also changed or eliminated in 2015 without consultation to reflect departmental needs and did not consider the impact on the operations of the office of the Ombudsman.

Independence

It is challenging to remain independent when administrative controls are managed by the department and changed without notice and without consideration of how they impact on the operations of the Ombudsman.

If included in the NDA and conferred deputy head status, the Ombudsman would address delegations for the organization and the functions of his direct reports.

Contract management

From 1998 to 2015, the authority of the Ombudsman to contract for competitive service was limited to $400K.

In 2015 the limit was reduced to $75k and in 2020 it was increased to $95K. The changes had more to do with consistency with departmental Level 1s than Ombudsman needs.

The general default position for the department is that contracting for amounts over the set limit must be reviewed and authorized by the ADM(Mat).

It is also possible to have PSPC act as a contractive authority. However, PSPC has previously refused to deal with the Ombudsman’s contracts based on their relatively low dollar values (usually PSPC does not deal with contracts lower than $2M and most Ombudsman contracts fall between $25K and $250 K.).

In 2020, because a work-around was necessary, the Ombudsman signed an MOU with PSPC to address possible contracting needs without defaulting to the ADM(Mat). The annual cost of this MOU is $100K.

Initially when the limit was lowered, the Ombudsman managed by narrowing the scope of contractual requirements or abandoning projects altogether.

In 2017-18, PSPC denied their services to set up a contract for an instructor to deliver a learning and development program on the basis of the low value of the contract ($100K).

In 2020, a contract for renewal of software licences for an educational resource we created and support became problematic even though it fell within the Ombudsman’s delegation limit ($1,500). The software company would not contract directly with the Ombudsman because the Ombudsman is not listed in the FAA.

It took multiple communications to convince PSPC that we required their assistance on this contract. The administrative frustration and time wasted, despite the MOU was unreasonable.

In addition to the points set out above, the operational impact of allocating 100K to PSPC annually on a small budget is significant. 

Independence cannot exist where approvals of contracts rest with the organization that is subject to review. Not only does this give power to the department to refuse legitimate contracting, but it also gives critical, possibly confidential, information related to the Ombudsman’s operations.

Even where there is an alternative, it has proven to be very expensive and less effective than hoped.

If included in the NDA and conferred deputy head status, the Ombudsman’s Office would be a distinct entity within the federal public administration and listed in a schedule to the FAA.

Information Technology infrastructure

When the office was established, the need to ensure confidential communications was recognized. A stand-alone computer system for storing constituent information (Protected B information) was provided.

In 2011, IT infrastructure management was consolidated under Shared Service Canada (SSC) with limitations on what departments could procure and manage on their own.

While SSC, the Ombudsman and the department agree in principle that the Ombudsman should continue to have its own IT infrastructure, difficulties arise because SSC systems only support entities listed in the FAA.

The mandate specifies that constituent information and communications are confidential.

There is a risk to our confidential constituent information where the department is in any way involved in the design and maintenance of the Ombudsman’s IT infrastructure.

Even with agreement to work with SSC, there are significant delays negotiating and arguing with both DND and SSC officials to get anything done (mobile devices, infrastructure changes, general IT and telecommunication services, video conferencing, etc.). The need for repeated negotiation stems from having to deal with officials who have established processes to deal with technical matters and are not interested in any deviation therefrom. It needs to be noted that Ombudsman governance and its complexities are not well understood and Ombudsman matters are too often re-routed to the department.

As concrete examples, it took 6 months to get a mobile phone issued to an employee. It took 6 months to build our MS TEAMS account and 1-800 system that has allowed us to work remotely from home during COVID. These services normally take 2 to 3 weeks.

The principles of independence, both real and perceived, and confidentiality are impacted.

Having the department involved in any way with the design and maintenance of Ombudsman IT infrastructure compromises the confidentiality of Protected B and constituent information. Efforts to work-around the issue (even with the department’s support) have been ineffective.

If included in the NDA and conferred deputy head status, the Ombudsman’s Office would be a distinct entity of the federal public administration and listed in a schedule to the FAA.

Authority to respond to human rights complaints against the office

The authority to address human rights issues was comprehensive when initially granted. The authority was removed entirely in 2015 without notification. After an exchange of correspondence it was partially reinstated.

The authority to negotiate ex gratia settlements has been permanently removed.

A human rights complaint was filed against the Department of National Defence by a constituent of the Ombudsman regarding an investigation by the Ombudsman into activities of the CAF. The complaint should have been filed against the Ombudsman instead of the Department.

The departmental officials responsible for managing human rights complaints insisted on obtaining the confidential file materials and information necessary to defend against the complaint.

The Ombudsman refused based on confidentiality of constituent information. This was not well received as ultimate responsibility rests with the department.

The outcome, for the sake of interest, is that the Ombudsman managed the complaint file more expeditiously and effectively than could otherwise have been done. The Canadian Human Rights Commission decided that the complaint was unfounded.

However, the actual authority and the time spent arguing over governance and responsibility was equal or greater than responding to the substantive file.

The lack of comprehensive authority to address complaints against the office threatens the confidentiality of constituent files should the department insist on responding to the file.

This is also an issue of independence from the organization subject to review.

Issues of significant importance such as responding to a human rights complaint against one organization should never be managed by the organization that is subject to review.

If included in the NDA and conferred deputy head status, the Ombudsman would be recognized as an entity and would have the requisite authorities to manage its own affairs.

Ombudsman authority to hear grievances at the final level

Grievances concern the interpretation of the terms and conditions of employment. The process usually has three levels of appeal, the final one being the deputy head or a designate.

The designation of the Ombudsman as final authority in the grievance process was in place until 2015 when it was removed.

Efforts were made to have the authority reinstated. It took two years and five months over the tenure of two DMs and two MNDs to get truncated authority.

Recently, a grievance was heard by the Ombudsman under the now partially reinstated authority. The Ombudsman received advice from the departmental Labour Relations Team. This advice was contrary to the advice provided by the Ombudsman’s internal legal counsel. A meeting took place that included the Ombudsman’s legal counsel, the legal counsel to the Labour Relations Team and the Labour Relations Advisor. At that meeting it became evident that the departmental legal advisor to the Labour Team was also providing legal advice to the departmental L1 who made the decision that was being grieved. 

This is a clear example of conflict of interest, improper involvement and interference in the operations of the Ombudsman. This was made clear to the participants attending the meeting.

This is contrary to the principle of independence. The individual responsible for the operations must have authority to hear the grievances of employees and should not advised by departmental functional authorities.

Even with the acknowledgement that there was no legislative issue, the DM decided to unilaterally withdraw an authority that existed for 14 years.

If included in the NDA and conferred deputy head status, the Ombudsman would be the final level in the grievance process.

Management of disclosures under the Public Servants Disclosure Protection Act (PSDPA)

Under the PSDPA, the DM designates a senior departmental office to receive disclosures of wrongdoing under the act. This means that:

· a disclosure of wrongdoing by an employee of the Ombudsman would be directed to the department

· decisions regarding remedial measures rest with the DM or departmental official with whom the Ombudsman has no reporting lines

· mutual investigation are possible where the department has authority in this area to investigate complaints within the Ombudsman’s’ office.

There were two instances where complaints of wrongdoing were filed. 

The first one, after preliminary investigation by the department, was deemed to be unfounded despite evidence that processes were not followed. This prompted an audit by the Auditor General of Canada. All recommendations regarding processes were implemented.

The second, and more troubling instance, involved allegations against multiple members of the Ombudsman senior staff. 

The investigation was managed by the department despite significant correspondence expressing concerns related to the implications of mutual investigations, as well as actual bias and unfairness in the process. The department found wrongdoing.

One of the individuals brought the case to Judicial Review and prevailed on the basis that the investigation conducted by the department ignored fair process. Two individuals grieved their findings of wrongdoing and prevailed based on factual evidence that exculpated them but was ignored by the department.

2019 FC 975 online at https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/419267/index.do

Independence is not possible in a structure where two organizations have authority to investigate each other. It undermines the integrity of both investigative bodies.

If included in the NDA and conferred deputy head status, the Ombudsman would be responsible for dealing with internal disclosures under the legislation.

EX appointments

Appointment and other powers related to human resources set out in the Public Service Employment Act are delegated from the Public Service Commission to deputy heads in the public service, and can be sub-delegated within the deputy head’s organization to individuals accountable to the deputy head.

The Ombudsman is not accountable to the deputy head, however, HR authorities are delegated by the PSC and the DM.

Over time, the power to make executive (EX) appointments has been withheld from the Ombudsman more often than it has been granted.

There are two EX positions in the Ombudsman’s Office: the Director General, Operations and the Director General, Legal Services. Both are key positions. When the Ombudsman does not have power to make EX appointments, someone at the appropriate level within DND must do so, currently the DM. 

In 2018, the DG Operations position needed to be filled for one year while the incumbent was on leave. DND advertised and held a competition for the position without involving or even consulting the Ombudsman, who had made other arrangements to fill this key position.

In cases where interference is not as blatant, the lack of authority to make EX appointments adds time to what is already a lengthy process, when the critical roles played by these positions within the office means they should not be unfilled for a significant period of time.

The Ombudsman cannot be independent when someone else controls the selection and appointment of key senior staff.

If the Ombudsman were a deputy head, the default would be for the PSC to delegate all appointment powers to the Ombudsman as deputy head.

New laws and policies require negotiation to apply in a manner that respects Ombudsman independence

The Mandate was negotiated in 1998 to allow the office to work in a manner that respects legal obligations as well as the need for the Ombudsman to be independent from DND. 

Almost every new law or policy applicable to the federal public sector has required negotiation in an attempt to ensure it is implemented in similar manner. This negotiation has always had to be initiated by the Ombudsman. Some of these efforts include:

negotiating memoranda of understanding when the Public Service Employment Act was amended in 2003; attempts to determine how the Public Servants Disclosure Protection Act should be applied, since 2005; implementation of measures in the Federal Accountability Act in 2006; preparing for changes to the Canada Labour Code that come into effect in 2021.

During some systemic investigations, the possibility of hiring someone to conduct focus groups was identified as an efficient means of gathering evidence. However, the public opinion research procurement process that needs to be followed in order to obtain this service requires departmental submissions to PSPC and the Privy Council Office. Having to go through the departmental process impedes our independence, while negotiating to make the submissions directly is so onerous as to negate any efficiency for the investigative process. As a result, any investigative activities that are not capable of being conducted by Ombudsman personnel are simply not pursued.

Generally, independence will be affected if the departmental policies are applied to the office and its activities without regard for the special nature of the office. 

As well, depending on the situation, DND may require what would be routine information from other sections of the department, but for us to provide it would be a breach of complainant confidentiality. 

Finally, with regard to the public opinion research process, the Ombudsman’s ability to determine its own investigative process is limited.

If included in the NDA and conferred deputy head status, the Ombudsman would be recognized as an entity and new laws and policies would apply in a manner that do not interfere with independence or confidentiality.