Investigations Summary and Observations - Atlantic Canada Opportunities Agency (ACOA)

Mandate

Under the Public Service Employment Act (PSEA), the Public Service Commission (PSC) promotes and safeguards merit-based appointments, and, in collaboration with other stakeholders, protects the non-partisan nature of the public service. The PSC reports on its mandate to Parliament.

Investigations of appointment processes are one means by which the PSC carries out its oversight mandate. Pursuant to sections 66, 67(1), 68 and 69 of the PSEA, the PSC may investigate the following:

1. Any external appointment process, to examine if the appointment was not made or proposed to be made on the basis of merit, or that there was an error, an omission or improper conduct that affected the selection of the person appointed or proposed for appointment (section 66).
2. An internal appointment process, that has not been delegated to a deputy head, to examine if there was an error, an omission or improper conduct that affected the selection of the person appointed or proposed for appointment (subsection 67(1)).
3. An appointment or proposed appointment, if the PSC has reason to believe, it was not free from political influence (section 68).
4. An appointment process if the PSC has reason to believe that fraud may have occurred (section 69).

In cases of founded investigations, the Commission may take any corrective action that it considers appropriate, including revoking the appointment or not making the appointment, as the case may be. In accordance with section 18.1 of the Federal Courts Act, persons affected by the Commission's decisions following an investigation have a right to file an application for judicial review with the Federal Court of Canada, should they wish to contest the Commission's decision, and they are so informed.

The Commission also has the discretion to disclose personal information obtained in the course of investigations pursuant to section 19 of the Public Service Employment Regulations (PSER) if the disclosure would promote fair and transparent employment practices; promote accountability; ensure that action is taken to correct wrongdoing or improper employment practices and prevent recurrences of such practices; or encourage the adoption or continuance of proper employment practices. In exercising its discretion, the Commission must consider whether the public interest in disclosure outweighs privacy interests.

After consulting with the persons affected by the ACOA investigations, and deliberating extensively, the Commission has concluded that their privacy interests outweigh the public interest. As a result, there will be no disclosure of their personal information. A key consideration was the fact that an anonymous summary could achieve the Commission's goals of:

• maintaining confidence in the staffing systems of key public institutions;
• informing and educating the human resources community, managers, and deputy heads, about the importance of upholding the letter and spirit of the PSEA and meeting the expectations outlined in the preamble of the PSEA; and
• serving as a useful reminder with the objective of avoiding recurrence.

Background

In May 2006, concerns were raised in the House of Commons regarding possible political interference in a staffing process to fill a senior position at ACOA. In November 2006, some Members of Parliament (MPs) representing ridings in Atlantic Canada wrote to the PSC, and other organizations, regarding a number of staffing activities at ACOA.

The then Public Service Human Resources Management Agency of Canada (PSHRMAC) and the PSC were involved as service providers in some of the hiring processes referred to in the MPs' letters. Both organizations responded to the MPs indicating that the hiring processes in which their respective organizations were involved were conducted in compliance with applicable requirements. Also in 2006, the Privy Council Office wrote to the MPs indicating that it was satisfied that ACOA had proceeded with fairness and impartiality.

In February 2011, concerns were raised with the PSC pertaining to the political affiliation of other individuals hired at ACOA and at the Enterprise Cape Breton Corporation (ECBC). In light of this information, and following the preliminary review of a number of hiring processes at ACOA, the PSC determined that it had jurisdiction and reasons to launch investigations into six appointment processes at ACOA. Appointments to ECBC are not made under the PSEA and are not within the PSC's jurisdiction. No investigations were launched related to ECBC.

Investigations at ACOA

In February 2011, when the PSC was presented with information suggesting that several appointments at ACOA might possibly have been subject to political influence, it examined numerous files¹ to determine whether investigations were warranted. Following this examination, the PSC launched investigations into 6 appointment processes² at ACOA pursuant to the PSEA under section 66 (error, omission, improper conduct), section 68 (political influence), or both (see Table below).

In addition, the PSC conducted 2 preliminary reviews in order to determine if 2 Interchange Canada assignments constituted appointments under the PSEA. The reviews concluded that the assignments did not constitute appointments pursuant to the PSEA and therefore were not within the PSC's jurisdiction.

Summary of Investigation Conclusions

During the course of the 6 investigations conducted under s. 68 that examined issues of political influence, the evidence gathered revealed that:

• In all 6 investigations, the evidence gathered does not show that actions from the Ministers of ACOA or their political staff influenced any decisions made in the appointment processes.

Of the investigations into the 5 appointments, conducted pursuant to s. 66, one was under under judicial review. Therefore, the following addresses the remaining 4 appointments. The evidence gathered during the course of the 4 investigations that examined issues of error, omission or improper conduct revealed that:

• In 2 investigations, no error, omission or improper conduct took place;
• In 1 investigation, errors affected the selection of the person appointed; and
• In 1 investigation, improper conduct affected the selection of the person appointed.

Corrective actions were ordered by the Commission to address the finding of improper conduct. These included:

• Revocation of one appointment as a result of improper conduct which affected the selection of the person appointed;³
• Suspension of delegated staffing authority for a period of time for various managers; and
• Training requirements for various individuals.

Summary of Founded Investigations

Investigation into the appointment of individual 1

This investigation was conducted to determine whether, on the balance of probabilities, an error, an omission or improper conduct affected the selection of the individual for an executive position with ACOA.

In accordance with the PSC's Policy on Choice of Appointment Process⁴, ACOA established criteria that set out the circumstances in which a non-advertised appointment process could be used. In this case, a human resources (HR) official recommended that the non-advertised appointment be approved in accordance with the following criterion: Other exceptional circumstances. The circumstance in which the appointment was made was to replace an employee who was proceeding on training for developmental reasons. However, developmental training is an event that can be planned for and, as such, does not appear to be exceptional in nature.

PSC's Policy on Choice of Appointment Process also sets out the requirements for using non-advertised appointment processes. This policy requires deputy heads to ensure that a written rationale demonstrates how a non-advertised process meets the established criteria and takes into account access, transparency, fairness and representativeness.

The evidence gathered shows that an HR official used discretion to recommend approval of the external non-advertised appointment. This official did not adequately demonstrate how the use of an external non-advertised process addressed access, transparency, fairness and representativeness. In those circumstances, approving the use of a non-advertised process constituted an error on the HR official's part which affected the selection of the individual for appointment.

The evidence also shows that a senior official, the hiring manager for this appointment, did not assess the appointee against all of the essential qualifications of the position before the latter was appointed. This, combined with the advice of the HR official to use a narrative assessment, the lack of the required structured interview and structured reference check constitute errors made by both the hiring manager and the HR official that affected the selection of the individual for appointment to an executive position.

There was also an error in that an inadequate assessment and rationale for using a non-advertised appointment process was accepted, which affected the selection of the individual for appointment to the position.

No corrective action was ordered as the individual appointed no longer occupies that position.

Investigation into the appointment of individual 4

This investigation was conducted to determine whether, on the balance of probabilities, an error, an omission or improper conduct affected the selection of the individual for appointment to the position with ACOA.

Creation of the position

The investigation shows that positions in three occupational groups⁵ were explored by two senior officials, and an HR official, to see whether the individual eventually appointed would be eligible to compete for such positions. Enquiries were made about the number of individuals with priority status⁶ for appointment to positions at a specific group and level; at that time, 16 individuals had priority status for appointment. Ultimately, the occupational group and level were selected to match the individual's background and education qualification for that group.

The investigation concluded that choosing to create that particular position was based on a desire to allow the individual an opportunity to compete in an appointment process.

Choice of appointment process

As a result of changes to the PSEA in 2006, political staff working in Ministers' offices can no longer obtain priority status for appointments to positions in the public service⁷. Under the former PSEA, a political staffer would have been considered as a priority after ceasing to be so employed. Under the current requirements, this priority no longer exists. Political staff members are not considered employees under the PSEA. They may join the public service through an external appointment process. Moreover, if they have worked in a Minister's Office for three years and ceased to be so employed, they may participate in internally advertised appointment processes for a period of 12 months.

The hiring manager, a senior official, was aware of these changes to the PSEA. Although this was not the only job opportunity at that group and level that ACOA has advertised externally, the HR official testified that the choice of an externally advertised process was likely to give an individual, who was still working in a Minister's Office, an opportunity to apply. Another witness testified about being approached by the HR official to launch an externally advertised process in order to hire a particular individual, later confirmed to be the individual appointed.

The evidence shows that the reason for advertising the job opportunity externally was to allow the individual appointed an opportunity to be considered in this process.

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The job opportunity was advertised for a period of 48 hours. According to the HR official, the hiring manager had requested the absolute minimum posting period. The HR official implemented the hiring manager's decision despite receiving advice that positions at that level are usually posted for a longer period. The hiring manager informed the individual that the job opportunity would be posted and that the individual should monitor the jobs.gc.ca web site. The hiring manager did not recall the reasons for choosing such a short advertising period. However, the hiring manager was aware that the individual was on the watch for the job posting and that the individual would apply.

A short advertising period provided access to the individual appointed while potentially limiting the number of other candidates who would apply.

Language requirement

The hiring manager requested that the position be created with a language requirement of “English only”. This position is located in a bilingual region, with responsibilities normally associated with a bilingual requirement. This was the only non-bilingual position at that group and level in a bilingual region at ACOA. There was no evidence that a bilingual designation was ever considered. The hiring manager did not recall the reasons behind the decision to choose an English only designation, although another witness indicated that, based on a conversation with a human resources official at the time, the decision was based on the fact that the individual appointed was not bilingual.

The evidence shows that the decision to designate the position as “English only” was not based on the responsibilities of the position, but rather on the fact that the individual appointed was not bilingual.

Screening of the applications

The wording of the advertisement allowed for a broad interpretation of the education qualification, however, the hiring manager chose to apply a narrow interpretation. It was the first time that the hiring manager applied the education qualification so restrictively for a position in that group. The explanation that it was done in this case because of the concern of the number of applicants is not credible. Had a broader interpretation been applied, there would still have been fewer than ten applicants to consider. The hiring manager was aware of the consequence of applying the education qualification restrictively: only two candidates would be screened in, one of whom was the individual appointed.

The evidence shows that the decision to apply a narrow interpretation of the education qualification was based on the fact that the individual met that requirement and that it would limit the number of qualified candidates.

Interview question

The hiring manager was aware that the individual appointed had been involved in handling the particular situation described in one of the interview questions. Regardless of whether the hiring manager chose this particular situation on purpose, the individual appointed had an advantage during the interview.

Overall, the evidence shows that the appointment process was tailored in various ways to allow for the individual's appointment. The Commission recognizes that there was no improper conduct on the part of the individual appointed. However, improper conduct was found within the appointment process, bringing into question the integrity of the appointment process.

The hiring manager, a senior official, was responsible for the decisions which provided an advantage in this process and allowed for the appointment of this individual. Consequently, the hiring manager's actions constitute improper conduct that affected the selection of the individual for appointment.

HR officials are expected to offer advice and exercise a challenge function. In facilitating decisions in this appointment process, knowing that they were made to tailor the process for the specific individual, the HR official's actions did not meet this expectation. Consequently, the HR official's actions (and inaction) constitute improper conduct that affected the selection of the individual for appointment.

Tailoring of this appointment process also took place since positions at various groups and levels were considered and a decision was taken to create a new position at the group and level which allowed the individual appointed to participate in an appointment process; as such, these actions constitute improper conduct and affected the selection of the individual appointed.

General Observations on ACOA Investigations⁸

It is rare for the PSC to receive allegations regarding political influence in staffing. Prior to these investigations referred to above, the PSC had conducted only 1 investigation (unfounded) into allegations of political influence since the coming into force of the new PSEA in 2005.

The protection and preservation of a non-partisan public service has always been a central function of the PSC. The expectation is that a neutral public service will provide objective advice to government as well as implement policy decisions. This requires that federal employees be non-partisan and be seen as being non-partisan by the government and by Canadians. Allegations of political influence in staffing are taken seriously by the Commission and investigations are conducted when warranted. No evidence was found to support allegations of political influence in the ACOA investigations.

Several issues have emerged from the analysis of these investigations. Foremost, despite the number of files reviewed in this instance, the Commission does not believe that a systemic problem exists regarding the non-partisanship of the public service. The existing framework which promotes merit-based appointments across the public service remains strong and effective, and the systems in place continue to provide the foundation for the hiring of professional and competent employees.

Some of the investigations did identify errors and improper conduct on the part of senior officials, and corrective actions were taken. The Commission is concerned by the absence of an effective internal challenge function and monitoring system that would have identified and addressed errors and improper conduct in a timely way.

Ultimately, it is the PSC's expectation that deputy heads of organizations are responsible for ensuring that an environment exists in which human resources staff can function effectively and can fulfill their responsibilities in terms of challenging proposed actions in areas of risk. Further, deputy heads are expected to ensure that their organizations develop and implement adequate internal monitoring systems and ensure that such a capacity exists and operates effectively. This responsibility flows from the delegation of authority from the Commission to deputy heads. In cases where the responsibility is not fulfilled, the Commission may review its delegation of authority to a deputy head to ensure that risks to the staffing system are mitigated. Notwithstanding the responsibilities of deputy heads, the Commission also expects human resources staff and managers to whom appointment authority has been sub-delegated, to uphold the letter and spirit of the PSEA.

The appointment of former political staff to the federal public service is not problematic in and of itself. Frameworks are in place to ensure that their appointments, like those of any other federal public servant, are merit-based. It is the Commission's position that any tailoring of an appointment process to match the qualifications or circumstances of a particular individual is improper. Decisions and actions by managers clearly indicated that an appointment process had been tailored to a specific individual. It was the accumulation of these decisions and actions which ultimately resulted in the founded investigation based on improper conduct. Deputy heads are expected to monitor patterns of staffing within their organization to ensure that the fundamental principles of merit and non-partisanship are being respected.

As follow-up to the findings of these investigations, the PSC is working closely with ACOA on an Action Plan to address issues related to their staffing practices.

Endnotes

1. All files were examined to determine whether investigations were warranted. Those files that did not proceed to investigation were closed for reasons such as the absence of jurisdiction or insufficient grounds to investigate. (return)

2. In total, 11 files were opened: 6 under section 68 (political influence) of the PSEA and 5 under section 66 (error, omission, improper conduct). These 11 files concerned the appointment of 5 individuals. Six investigations were conducted resulting in 5 investigation reports: 1 investigation under the authority of section 68 alone and 5 under the authority of both section 68 and section 66. (return)

3. Further to the revocation of the appointment and under section 73 of the PSEA, the Commission has allowed that the Deputy Head of ACOA may choose whether to exercise his delegated discretionary authority to appoint the person to another position. (return)

4. PSC Choice of Appointment Process Policy (return)

5. Treasury Board Secretariat, Occupational groups (return)

6. Individuals with priority status have an entitlement under the PSEA or the Public Service Employment Regulations, for a limited period, to be appointed ahead of all others to vacant positions in the public service. These individuals must meet the essential qualifications of the position. (return)

7. The entitlement to a priority appointment for former ministers' staff previously found under subsections 41(2) and 41(3) of the PSEA was repealed in December 2006 when amendments contained in the Federal Accountability Act came into force. (return)

8. These observations relate to 5 of the 6 investigations. It excludes the Commission's conclusion in the investigation that was under judicial review. (return)

Issued 2012-10-19, updated 4:09 p.m.