Framework for Investigations of Improper Political Activities

(Updated November 21, 2012)

A. Statutory regime

The Public Service Employment Act (PSEA) allows an employee to engage in any political activity so long as it does not impair, or is not perceived as impairing, the employee's ability to perform his or her duties in a politically impartial manner (PSEA, s. 113).

A deputy head shall not engage in any political activity other than voting in an election (PSEA, s. 117)

B. Authority for Investigations

The PSEA sets out specific issues regarding political activities which the Public Service Commission (PSC) is authorized to investigate. These are:

1. The PSC is authorized under section 118 of the PSEA to investigate any allegation that an employee:
   1. has been involved in an improper political activity or;
   2. failed to obtain permission from the PSC to seek nomination or be a candidate in an election.
2. Under section 119, the PSC may investigate an allegation that a deputy head has engaged in a political activity other than voting in an election (s. 117).

The PSC has made Political Activities Regulations (PAR) under the PSEA that outline the format of the allegation (PAR s. 7), the time frame in which an allegation may be brought (PAR s. 8) and the situations where personal information gathered during an investigation may be disclosed (PAR ss. 14(1)).

Political Activity is defined in the PSEA (ss. 111(1)) as follows:

1. carrying on any activity in support of, within or in opposition to a political party;
2. carrying on any activity in support of or in opposition to a candidate before or during an election period; or
3. seeking nomination as or being a candidate in an election before or during the election period.

C. Values

Investigations represent a vital part of the PSC's oversight function and are designed to ensure that the values and objectives outlined in the PSEA are carried out as follows:

• Canada will continue to benefit from a public service that is based on merit and non-partisanship and in which these values are independently safeguarded (preamble);
• The purpose of this Part of the PSEA is to recognize the right of employees to engage in political activities while maintaining the principle of political impartiality in the public service (s. 112).

D. Principles in Investigations

In conducting investigations into allegations of improper political activity, the PSC will implement the following principles:

• Normally, investigations are conducted confidentially, but if the PSC is of the opinion that it is in the public interest to conduct a public investigation, it will do so. A decision in this regard will be taken by the Commission at the beginning of the process. In such cases, measures will be taken to ensure the public nature of these investigations.
• The person who made the allegation and the employee or deputy head against whom it is made – or their representatives – are entitled to an opportunity to be heard (PSEA s. 122). In most cases the department would also be an interested party and would be given an opportunity to make submissions. The principles of procedural fairness apply to the person who made the allegation and the employee or deputy head against whom the allegation is made.[1]
• Principles of procedural fairness apply to these people and consist of:
  • right to be heard;
  • right to an impartial investigation;
  • right to be represented;
  • right to have a decision with reasons.
• Each analysis and conclusion will be based on the evidence obtained by the investigator during the fact gathering.

E. Role of the Commission

The Commission:

• decides whether an investigation process will be public, when deemed appropriate;
• delegates to the Vice-President, Investigations Branch (IB) the full authority to manage the investigations function regarding allegations of improper political activities, including the approval of all final decisions on investigations;
• retains the authority to make all final determinations regarding appropriate correction action, where required, for all investigations regarding allegations of improper political activities by employees.
• informs the deputy head and the Clerk of the Privy Council (PAR 9(b)) and provides them with a copy of the allegation (PAR s.11) when a decision is made by the IB to investigate an allegation against a deputy head.
• advises the deputy head, the Clerk of the Privy Council and the person who made the allegation as to whether or not the allegation was substantiated, and provides them with a copy of the investigation report (PAR ss. 13(2)) after the investigation concerning the deputy head.

F. Roles and Responsibilities of the Investigations Branch

The Vice-President, IB is delegated to carry out the investigations function regarding allegations of improper political activities. As a result, through the IB Management team, the Vice-President is responsible for all phases of the investigation process, from the receipt of allegations and decisions to investigate (Jurisdiction) to the investigation phase, review process and final disposition stage.

The following paragraphs describe the roles and responsibilities of the IB at each phase of the process, including the Vice-President's direct responsibility at the end stages with regard to final approval of reports and proposals for corrective actions.

1. Jurisdiction Phase

Any person, including a member of the public, may file an allegation that any public servant [2] subject to Part 7, of the PSEA is involved in an improper political activity (s. 118). This includes failing to seek permission to be a candidate.

Any person who is or has been a candidate in an election may file an allegation that a deputy head is engaging in any political activity other than voting in an election (s. 119).

The IB will receive and review all allegations of improper political activities.

Submitting an allegation

The PAR specifies that a person may submit an allegation concerning improper political activities in any format. An allegation may also be made anonymously.

An allegation of improper political activities must be submitted within 30 days after the election period, if the alleged contravention began during that period. It can also be submitted within 30 days after the person making the allegation became aware of the alleged activity, but no later than one year after the beginning of the contravention, if the contravention began outside an election period (PAR ss.8(1)).

Even if the allegation is not submitted in writing or within these time frames, the PSC may investigate it if the alleged activity might impair the ability of the respondent to perform their duties in a politically impartial manner or if it is in the public interest to do so (PAR, ss. 7(2) and 8(2)).

Decision to Investigate

Once an allegation is received, the IB will determine whether there are sufficient grounds to pursue the matter.

The PSC has the discretion under the legislation to investigate an allegation or not. As a result, the IB may consider:

• Whether it is within the PSC's jurisdiction to investigate;
• Whether the allegation was submitted within the time-frames stated above;
• Whether if proven true, the allegation would constitute improper political activity as defined in PSEA;
• Whether the person against whom the allegation is made, is still an employee in the public service.

2. Notification of Investigation

If the IB decides to not investigate, the person who submitted the allegation will be so informed in writing, with reasons (PAR s. 10)

Against an Employee

Where the IB decides to investigate the allegation, it will inform in writing the person who made the allegation. The IB will also inform the employee against whom the allegation was made and the deputy head of the employee's organization of its decision (PAR par. 9(a)) and include a copy of the allegation (PAR s. 11).

Against a Deputy Head

Where the IB decides to investigate the allegation, the PSC will inform the deputy head and the Clerk of the Privy Council (PAR par. 9(b)) and provide a copy of the allegation (PAR s. 11).

3. Investigation Phase

a) Role of the Vice-President, Investigations Branch

The Vice-President of Investigations Branch is delegated by the PSC to approve all final decisions on investigations conducted by IB.

Against an Employee

The IB will advise, in writing, the person who made the allegation and the employee against whom the allegation was made and the deputy head of the department involved as to whether or not the allegation was substantiated, and will provide them with a copy of the investigation report (PAR ss. 13(1)).

Against a Deputy Head

The PSC will advise, in writing, the person who made the allegation, the deputy head and the Clerk of the Privy Council as to whether or not the allegation was substantiated, and will provide them with a copy of the investigation report (PAR ss. 13(2)).

b) Role and Responsibility of the Investigator

The PSEA states that the PSC may direct that the investigation be conducted by one or more Commissioners or other persons. The IB management will assign an investigator to conduct the investigation under the various sections of the PSEA.

In conducting an investigation, the PSC has all the powers of a Commissioner under Part II of the Inquiries Act. An investigator assigned by the IB, acts on behalf of the PSC and would have the same powers. If necessary, the investigator may therefore subpoena witnesses and documents relevant to the investigation, may enter or have access to any public office and may examine all documents and records therein.

The investigator will collect the facts, conduct an analysis and determine if the allegation is substantiated.

If no decision was made by the Commission to conduct the investigation through a public hearing, then the investigator, in consultation with the IB management, will determine the methodology of the investigation and will conduct an investigation in keeping with the statutory requirements and in accordance with any policies and guidelines established by the IB.

Methodologies may include telephone/video conferences, exchange of e-mails, file analysis, written submissions, individual interviews, fact-finding meetings (a meeting attended by all the parties). The investigator will ensure that the principles of procedural fairness are followed for the person who made the allegation and the employee or deputy head against whom it is made. This will include, when a methodology other than fact-finding meeting is used, the distribution of the draft report (facts only) to the parties (for their review and comments) prior to the analysis and conclusion on the case. In most cases, the department would also be an interested party and would be given an opportunity to make submissions.

c) Role of Legal Services

All draft reports will be sent for review to IB Management and subsequently to PSC Legal Services. All reports will be reviewed to ensure thoroughness, consistency, appropriate format and language/translation, and to avoid legal errors such as errors in law, errors in fact, lack of jurisdiction or arbitrary decisions.

4. Corrective Action Phase

Against an Employee

In a substantiated case against an employee, the PSC may take any corrective action that it considers appropriate or may dismiss the employee (s. 118).

As a result, the investigator, in consultation with the Director, Investigations Directorate, will prepare a list of possible corrective action and send it to the Vice-President, IB for consideration.

IB will then request the Commission's permission to consult with the employee and deputy head of the department involved, concerning the proposed corrective action.[3]

Once consultation has taken place, the matter will then be referred back to the Commission for a final decision on the corrective action. IB will notify all parties of the decision (PAR ss. 13(1)).

The department will implement the corrective action in accordance with the order of the Commission.

Against a Deputy Head

In a substantiated case against a deputy head, the Governor in Council may dismiss the deputy head (ss. 119(1)).

5. Follow-up on Corrective Actions Involving Employees

The PSC will be responsible for follow-up with the department concerned to ensure that the ordered corrective actions are implemented.

G. Distribution and publication of investigation reports

Each investigation report is sent to the parties involved.

IB may publish an anonymous summary on the PSC's website.

IB may publish a disclosure summary on the PSC's website if the Commission determines that the public interest in disclosure outweighs those privacy interests and if the disclosure test, provided in section 14 of the PAR, is met.

In this regard, subsection 14(1) of the PAR provides the possibility to disclose personal information obtained in the course of an investigation if such disclosure would:

• promote political impartiality in the public service;
• promote accountability;
• ensure that action is taken to correct improper political activity on the part of employees or deputy heads or prevent the recurrence of such activity; or
• encourage the adoption or continuance of proper practices regarding political activity on the part of employees or deputy heads ".

Moreover, subsection 14(2) of the PAR requires that:

"Prior to a disclosure under subsection (1) that could infringe privacy interests, the Commission shall consider whether the public interest in disclosure outweighs those privacy interests". When applying subsection 19(2), the PSC will request the views of the persons concerned.

If no decision was made by the Commission to conduct the investigation through a public hearing, then from the outset of an investigation, PSC investigators will advise those persons involved that the PSC has the discretionary authority to disclose the results of any investigation, including the possible disclosure of personal information. However, pursuant to established privacy requirements, all information gathered during an investigation will be considered ‘Protected B'.

H. Liaison with Public Service Commission Policy Branch

IB is strongly committed to maintaining permanent bilateral means of communications with Policy Branch with regards to ensuring Oversight of Political Activities. IB will regularly share information with Policy Branch and identify any emerging trends in political activities that may require more systemic examination. IB will also follow up on any individual files that have been identified as concerns by Policy Branch and inform Policy Branch on the progress of the actual investigations. IB will also consult Policy Branch before recommending corrective action on the identified issues.

I. Review / Challenges of Public Service Commission Decisions

Pursuant to the Federal Court Act, PSC decisions regarding investigations and corrective action may be subject to judicial review by the Federal Court.

J. Reporting

IB will submit a Quarterly summary to the PSC on the number, nature and outcome of cases investigated under the authority of sections 118 and 119 of the PSEA. Using the new electronic Investigation Management Information System (IMIS) data collection system, such a report would provide more detail on the "nature" and "outcome" of these cases than standard statistical reports provided for Annual Report purposes.

1 Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [Return]

2 In this context a public servant means a person employed in an organization under the PSEA jurisdiction and employees of the Canada Revenue Agency, the Canadian Institutes of Health Research, the Financial Transactions and Reports Analysis Centre of Canada, the Parks Canada Agency, the National Film Board and the Public Service Staffing Tribunal. [Return]

3 McAuliffe (T-2373-95) raised the issue of the need to consult the parties before applying corrective measures. [Return]

1 Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [Return]

2 In this context a public servant means a person employed in an organization under PSEA jurisdiction and employees of the Canada Revenue Agency, the Canadian Institutes of Health Research, the Financial Transactions and Reports Analysis Centre of Canada, the Parks Canada Agency, the National Film Board and the Public Service Staffing Tribunal. [Return]

3 McAuliffe (T-2373-95) raised the issue of the need to consult the parties before applying corrective measures. [Return]