2014-2015 Annual Report - Chapter 3

A non-partisan public service

Highlights

  • In 2014-2015, to ensure employee awareness of their legal rights and responsibilities related to political activities, the Public Service Commission (PSC) continued building on tools and conducted outreach with departments and agencies, including the following:
    • Launched the Suite of Political Activities (PA) Tools;
    • Explored new and innovative ways to raise employee awareness by conducting a workshop related to the Suite of PA tools for Designated Political Activities Representatives in departments and agencies;
    • Produced a two-minute animated video explaining the candidacy process by which employees must request and obtain permission from the PSC prior to seeking nomination as, or being, a candidate in an election; and
    • Updated the on-line Political Activities Self-Assessment Tool and the Guidance Document for Participating in Non-Candidacy Political Activities.
  • In 2014-2015, the PSC received 133 requests related to candidacy permission from public servants, the second consecutive year in which the PSC has received more than 100 requests.
  • A total of 46 requests were received at the federal level; of those 25 represented requests from employees for permission to seek nomination as, or be, a candidate. All decisions rendered by the Commission respected the 30-day requirement prescribed in the Political Activities Regulations.

3.1 The Preamble to the Public Service Employment Act (PSEA) recognizes that Canada will continue to benefit from a non-partisan public service to which access is merit based and where these attributes are independently safeguarded.

3.2 Under the PSEA, the Public Service Commission (PSC) has specific responsibilities in this respect. First and foremost, the PSC is responsible for ensuring that appointments underFootnote 16 the PSEA are free from political influence.

3.3 The political activities provisions set out in Part 7 of the PSEA recognize the right of 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 their duties in a politically impartial manner.

3.4 The PSC administers the provisions of the PSEA that relate to the political activities of employees and deputy heads. Specifically, the PSC plays three roles. First, it provides guidance to employees regarding their legal rights and responsibilities related to political activities. Second, it renders decisions regarding permission to seek nomination and be a candidate in federal, provincial, territorial and municipal elections, as well as a leave of absence without pay (LWOP), if applicable. Third, the PSC has exclusive authority to conduct investigations into allegations that employees or deputy heads have engaged in improper political activity. If the investigation establishes that there was improper political activity, the Commission may take any corrective action that it considers appropriate.Footnote 17

3.5 Upholding the non-partisan nature of the public service is the responsibility of all employees, whatever their level and duties. In particular, deputy heads play a leadership role in safeguarding non-partisanship as they oversee the conduct of their employees. The PSC, in collaboration with other stakeholders, plays a key role in ensuring that the public service remains non-partisan.

Non-partisanship in staffing

3.6 A non-partisan public service is one in which appointments are based on merit and are free from political influence, and where employees perform their duties, and are seen to perform their duties, in a politically impartial manner.

3.7 Political influence in staffing – Under the PSEA, the PSC has exclusive authority to investigate any allegations of political influence in staffing. Information on PSC investigations in any given year may be found at the end of Chapter 3 and in Chapter 4 of this report.

3.8 Bill C-520: An Act supporting non-partisan agents of Parliament – At the Standing Senate Committee on National Finance on January 28, 2015, the PSC shared its concerns regarding the proposed Private Member’s Bill C-520, An Act supporting non-partisan agents of Parliament, which was introduced in the House of Commons on June 3, 2013. The fact that there is no requirement in the PSEA to disclose information on political affiliation as part of the appointment process is, the Commission believes, essential in ensuring confidence, on the part of the public and applicants, in the impartiality and fairness of the merit-based appointment system.

3.9 Mobility provision for former ministerial staff – Ministerial staff are hired by ministers pursuant to section 128 of the PSEA. Section 35.2 of the PSEA allows eligible former ministerial staff to apply to advertised internal appointment processes that are open to employees of the federal public service for a period of one year. To be eligible, they must have worked as ministerial staff for at least three consecutive years and have ceased to be employed in that capacity. After their eligibility period, they continue to have access to external job postings. The PSC confirms whether ministerial staff meet the necessary criteria for mobility and provides those who do with electronic access to internal job postings throughout their eligibility period.

3.10 Mobility provision for persons formerly employed in certain excluded positions at the Office of the Governor General’s Secretary – In line with the mobility provision for former ministerial staff, persons formerly employed in certain excluded positions at the Office of the Governor General’s Secretary (OGGS), pursuant to section 4.1 of Office of the Governor General’s Secretary Employment Regulations, may also participate in advertised internal appointment processes that are open to employees of the public service for a period of one year. The provision applies to eligible persons, hired after September 23, 2010, who have been employed for at least three consecutive years in certain excluded positions after they cease to be employed at the OGGS.

3.11 Similar to the approach for former ministerial staff, the PSC confirms whether former OGGS employees meet the criteria for this mobility provision and provides those who do with electronic access to internal job postings throughout their eligibility period.

3.12 The appointment of former ministerial staff and OGGS individuals into public service positions, like all appointments to the public service, must respect merit.

3.13 Since 2006, the PSC has received a total of 49 requests to confirm eligibility for mobility for former ministerial staff, of which 44 were confirmed. In 2014-2015, the PSC received 10 requests from former ministerial staff. Of these, nine individuals were confirmed and one individual met the three-year criteria but had not ceased to be employed as ministerial staff. No OGGS requests have ever been received.

Political activities by employees

3.14 Overview of political activities – The PSC is responsible for administering the political activities provisions of the PSEA. It provides advice and guidance to employees, departments and agencies about political activities and reviews requests for permission to run as a candidate in an election. The PSEA prohibits the PSC from delegating its authority for political activities to deputy heads and limits the political activity of deputy heads to voting.

3.15 The political activities provisions of the PSEA applied to 231 234Footnote 18 employees as of March 31, 2015. This includes deputy heads and employees in all departments and agencies to which the PSC has the authority to make appointments (186 634 employees). They also apply to fiveFootnote 19 other organizations whose enabling legislation stipulates that only the political activities provisions of the PSEA apply to their employees (including students only if the organization considers that they are employees), namely the Canada Revenue Agency, the Parks Canada Agency, the Canadian Institutes of Health Research, the Financial Transactions and Reports Analysis Centre of Canada and the National Film Board of Canada (44 600 employees).

3.16 Political candidacy – For federal, provincial and territorial elections (section 114 of the PSEA), an employee must request and obtain permission from the PSC prior to both seeking nomination as a candidate, before or during the election period, and being a candidate before the election period. Additionally, they must request, and be granted, a LWOP to be a candidate during the election period. For municipal elections (section 115 of the PSEA), an employee must request and obtain permission from the PSC prior to seeking nomination as, or being, a candidate, before or during the election period.

3.17 The PSC requires sufficient information and time to consider each candidacy request on its own merit, taking into consideration factors such as the nature of the election, the nature of the employee’s duties within the context of their organization and the level and visibility of the employee’s position.

3.18 The PSC will only grant permission if it is satisfied that seeking nomination as, or being, a candidate will not impair or be perceived to impair the employee’s ability to perform their duties in a politically impartial manner.

3.19 The PSC may grant permission to seek nomination as or be a candidate, at the municipal level on the condition that employees be on a LWOP before or during the election period or, if elected, either be on a LWOP for the duration of the mandate or cease to be an employee. A full-time commitment at the municipal level is seen to raise the activity level, profile and visibility of employees, no matter their level, such that permission is conditional on LWOP for the duration of the elected mandate. Permission could also be conditional on operational arrangements, such as not dealing with constituent files or with suppliers or contractors in the municipality.

3.20 If an employee wishes to take part in political activities in support of their nomination or candidacy at the federal, provincial or territorial level, they must inform the PSC in advance. If the PSC is of the view that such activities could raise the employee’s visibility and might impair, or be perceived as impairing their ability to perform their duties in a politically impartial manner, it may then make permission conditional on a LWOP for the period or any part of the period during which they undertake such activities.

3.21 An employee ceases to be an employee of the public service on the day on which they are elected in a federal, provincial or territorial election.

3.22 Review of requests – In 2014-2015, the PSC received 133 new candidacy requests related to permission from federal public servants. This is the second consecutive year in which the PSC has received more than 100 requests. All decisions rendered by the Commission in 2014-2015 respected the 30-day requirement in the Political Activities Regulations. Table 20 provides an overview of the nature and status of the requests.

Table 20: Status of requests (April 1, 2014 to March 31, 2015)
Level of election Carried forward from 2013-2014 Decisions rendered in 2014-2015 New candidacy requests received in 2014-2015
Permission granted Permission previously granted still applies Permission not granted Requests withdrawn prior to PSC review Requests pending PSC review Total 2014-2015 new candidacy requests
Federal 2 (granted) 36(a) 1 1 3 5 46
Provincial 1 (granted) 16(b) 0 0 1 0 17
Territorial 0 0 0 0 0 0 0
Municipal 4 (granted) 55(c) 8 0 6(e) 1 70
Total 7 107 9(d) 1 10 6 133

Source: Public Service Commission Internal Tracking System

(a) Twenty requests related to a leave without pay (LWOP) as a condition of permission previously granted to allow for campaigning activities prior to the election period.

(b) Nine requests related to LWOP as a condition of permission previously granted to allow for campaigning activities prior to the election period.

(c) Two requests related to LWOP as a condition of permission for campaigning activities prior to the election period for full-time elected municipal office.

(d) Nine requests related to an analysis of a change of circumstances for employees who had previously been granted permission. One request at the municipal level led to an additional condition.

(e) One request related to an employee who had been a candidate in a municipal election without requesting and obtaining permission. The employee was not elected and no analysis was conducted.

3.23 Municipal elections – In 2014-2015, fixed-date municipal elections were held in five provinces (British Columbia, Saskatchewan, Manitoba, Ontario and Prince Edward Island) and in two territories (Nunavut and the Northwest Territories). However, the PSC also received requests for municipal by-elections in four provinces (New Brunswick, Newfoundland and Labrador, Saskatchewan, and Ontario).

3.24 Municipal requests – In 2014-2015, municipal requests represented the majority of new candidacy requests received by the PSC (70 out of 133, or 53%). A total of 105 requests (68%) were made by employees who had not previously requested permission. The majority of requests were for the Ontario municipal election held on October 27, 2014 (37 out of 70, or 53%).

3.25 Provincial and territorial elections – In 2014-2015, elections were held in three provinces (Ontario, Quebec and New Brunswick). Of the 17 requests received, six requests were received for New Brunswick and one for the election in Ontario. No requests were received during this review period for the Quebec provincial election held on April 7, 2014. The remaining 10 requests were received for the upcoming 2015 fixed-date provincial elections in Saskatchewan, and Newfoundland and Labrador, as well as for the Alberta provincial election held on May 5, 2015. There was one request received for the Manitoba provincial election to be held on April 19, 2016. There were no territorial elections held in 2014-2015.

3.26 Federal election – In 2014-2015, the PSC received a total of 46 requests at the federal level. Of those, 25 were requests from employees seeking nomination as or to be a candidate. Twenty requests pertained to making permissions that were previously granted conditional on LWOP for campaigning activities prior to the election period for these same employees; and one related to the PSC conducting an analysis related to a permission that was previously granted, given a change to the employee’s public service duties.

Non-candidacy political activities

3.27 The political activities provisions set out in Part 7 of the PSEA recognize the right of 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 their duties in a politically impartial manner.Footnote 20 Employees do not need permission from the PSC to undertake non-candidacy political activities such as, “carrying on any activity in support of, within or in opposition to a political party” and “carrying on any activity in support of or in opposition to a candidate before or during an election period.” However, employees are responsible for examining their specific circumstances to assess and make an informed decision about whether engaging in a given non-candidacy political activity would impair, or could be perceived as impairing, their ability to perform their duties in a politically impartial manner.

3.28 To help keep employees informed of their legal rights and responsibilities related to political activities, the PSC conducted outreach activities and worked in close collaboration with departments and agencies. It also continued to develop and enhance tools to ensure employee awareness.

Awareness and outreach

3.29 Awareness – The most recent Survey of Staffing collected data from questions related to political activities, including employee participation in non-candidacy political activities and their degree of awareness of, and the extent to which their organization keeps them informed of, their legal rights and responsibilities regarding political activities. The Survey was sent to employees of departments and agencies that conduct their staffing in accordance with the PSEA and that had at least 350 employees on the last day of the reference period which dated from October 1, 2012, to December 31, 2013. The five organizations whose enabling legislation provides that the political activities provisions of the PSEA apply to their employees do not fall within the scope of the Survey.

3.30 In 2014-2015, the PSC further analyzed the Survey data. Highlights of this analysis included the following:

  • The proportion of employees indicating that they were aware of their legal rights and responsibilities with respect to political activities increased from 73% in 2012 to 75% in 2013;
  • More managers and supervisors were aware than other employees, at 85% vs. 73%;
  • The proportion of employees indicating that their organization keeps them informed of their legal rights and responsibilities went up, from 65% in 2012 to 67% in 2013; and
  • The proportion of employees engaged in non-candidacy political activities decreased from 7% in 2012 to 4% in 2013.

3.31 The PSC also shared with departments and agencies the Survey of Staffing results related to their employees’ awareness of their legal rights and responsibilities with respect to political activities and will offer assistance to those with lower averages of awareness.

Employee awareness and political activities by tenure

The data from the most recent Survey of Staffing show that the level of employee awareness of their legal rights and responsibilities regarding political activities is positively related with their accumulated experience within the federal public service. For example, 82% of employees with 20 or more years of experience possess a higher level of awareness, as compared to their counterparts with 10 to 19 years (76%), 3 to 9 years (72%), 1 to 2 years (68%), and less than a year (67%).

The data further reveal that participation in non-candidacy political activities tends to gradually decline with employee tenure within the federal public service. For example, only 3.5% of public servants with 20 or more years of experience participated in non-candidacy political activities, compared to 4% for employees with 3 to 19 years of service), 4.5% for employees with 1 to 2 years, and 5.4% for employees with less than a year of service respectively.

3.32 In 2015-2016, the PSC will focus outreach activities to new employees with fewer years of experience working in the federal public service to help them understand their legal rights and responsibilities related to political activities.

3.33 Outreach – In its 2013-2014 Annual Report, the PSC committed to building on tools and outreach with departments and agencies in 2014-2015 to ensure that employees are aware of their legal rights and responsibilities related to political activities.

3.34 In 2014-2015, to assist departments and agencies with their outreach activities and ensure employee awareness regarding political activities, the PSC developed and launched its Suite of Political Activities Tools. The Suite includes the following:

  • Video – Candidacy Process: A short animated video, produced by the PSC, that explains the process by which employees request and obtain permission from the PSC prior to seeking nomination or being a candidate in an election. This innovative video is designed to provide a quick overview of the candidacy process and create interest for viewers to seek further information.
  • Political Activities Quiz: An on-line, interactive tool providing a series of 10 multiple choice questions to test employees’ awareness of their legal rights and responsibilities. This tool is often used during employee information sessions.
  • Political Activities and You brochure: An on-line or paper brochure providing information on both candidacy and non-candidacy related political activities. It can be used in orientation sessions and included in new employee information packages.
  • Political Activities Self-Assessment Tool: An on-line self-assessment tool to assist employees in making an informed decision on whether to participate in non-candidacy related political activities.
  • Guidance Document for Participating in Non-Candidacy Political Activities: A reference document providing information on non-candidacy political activities, best used in conjunction with the Political Activities Self-Assessment Tool.
  • Video – Political Activities: Make an Informed Decision!: A two-minute animated video produced by the PSC to provide guidance to employees regarding their participation in political activities to support or oppose a candidate or political party.
  • Political Activities Myth Busters: An on-line interactive tool intended to raise employees’ awareness by providing a series of 12 brief statements that are either a myth or a fact, followed by an explanation.

Suite of Political Activities Tools – Usage statistics

Political Activities and You brochure: Approximately 13 000 brochures have been distributed since 2010.

Political Activities Self-Assessment Tool: Completed 1 661 times in 2014-2015; completed a total of 3 961 times between its launch in March 2013 and March 31, 2015.

Political Activities Quiz: Completed 249 times in 2014-2015; completed a total of 5 065 times between its launch in the fall of 2012 and March 31, 2015.

3.35 In 2014-2015, to explore new and innovative ways to raise employee awareness within their organizations, the PSC conducted a successful workshop for Designated Political Activities Representatives in departments and agencies on the Suite of Political Activities Tools. Every participant said that the workshop was relevant and created a forum that allowed them to share best practices about the use of the tools within their organizations. Seventy-eight percent of them agreed that the workshop generated new and innovative ways in which the tools could be adapted to meet their needs.

3.36 To promote the use of its Suite of Political Activities Tools, as part of its communications strategy, the PSC delivered presentations to various stakeholders which will continue throughout 2015-2016.

3.37 The PSC continued to provide deputy heads and heads of human resources with information regarding political activities, including upcoming elections, for distribution to employees. The PSC also continued to liaise with provincial and municipal election authorities and associations to provide information about federal public service employees’ legal rights and responsibilities related to political activities, for use in their publications and on their Web sites.

3.38 To identify areas in their curriculum where political activities-related information could be added or enhanced, the PSC continued to work in partnership with the Canada School of Public Service (CSPS). In 2014-2015, political activities content was added to two human resources courses: Staffing for Staffing Specialists and Staffing for Staffing Assistants. Further, political activities content was revised for one of the Authority Delegation Training courses, as well as the Orientation to the Public Service course. Political activities learning material is now included in 13 courses at the CSPS. As the CSPS revises its curriculum, the PSC will continue to work in close collaboration to enhance political activities content in CSPS courses.

Investigations into political activities of employees

3.39 Authority – Under the PSEA, the Commission has exclusive authority to conduct investigations into allegations that an employee has failed to comply with subsections 113(1), 114(1) to (3) or 115(1) of the PSEA, that is, that they engaged in improper political activity.

3.40 Approach: Improper political activity related to municipal candidacy – In low-risk municipal candidacy cases, such as an employee not requesting permission prior to registering as a candidate or not adhering to certain conditions of permission that was previously granted, the PSC may decide, based on the information available at the time of review, not to refer such cases of non-compliance for jurisdictional analysis. This administrative approach has allowed the PSC to focus its resources on informing and educating employees about their legal rights and responsibilities related to political activities. However, this does not preclude the PSC from investigating allegations of improper political activity related to municipal candidacy addressed under this approach if additional information comes to light.

3.41 During 2014-2015, the PSC reviewed eight cases. Each file was examined on a case-by-case basis and it was determined, based on the information available at the time, that none would be referred for jurisdictional analysis. However, the employees were reminded in writing of their responsibility to request permission for candidacy each time they wish to seek election and to respect any associated conditions.

Table 21: Approach: Improper political activity related to municipal candidacy
Fiscal year Number of cases reviewed Cases referred for jurisdictional analysis
Yes No
2014-2015 8 0 8
2013-2014 19 3 16
2012-2013 14 0 14
2011-2012 2 0 2
Total 43 3 40
Table 22: Public Service Commission investigations into allegations of improper political activity
   
Number of active cases carried over from previous years 4
Number of requests received in 2014-2015 4
Total number of active cases in 2014-2015 8
Number of cases completed in 2014-2015 8
Number of cases closed at intake(a) 3
Number of cases discontinued after referral to investigation 1
Number of investigations unfounded 0
Number of investigations founded 4
Number of active cases remaining as of March 31, 2015 0

Source: Public Service Commission Investigations Management Information System

(a) Cases closed due to unreasonable grounds (3).

3.42 Four investigations into allegations of improper political activity were completed in 2014-2015. In all cases, the allegations were founded.

Case summary 1 (under section 118 of the Public Service Employment Act)

Improper political activity: Municipal election – Failed to seek permission from the Commission prior to seeking nomination as, or being, a candidate

This investigation, conducted pursuant to section 118 of the PSEA, was to determine whether an employee failed to comply with subsection 115(1) of the PSEA, by seeking nomination as, or being, a candidate in a municipal election before or during the election period, without first having requested and obtained permission from the Commission to do so.

A request for permission was submitted to the PSC, for which the employee was granted permission. However, information obtained led the PSC to believe that the employee may have engaged in improper political activity prior to seeking permission.

The investigation found that there were numerous media citations dispersed over five months prior to the PSC receiving a request for permission, announcing the employee’s involvement, and eventual candidacy, in a municipal election. In the past, the organization had a discussion with the employee regarding some political comments that the employee had posted on social media. The employee m0aintained that the more recent media announcements concerning their intention to run as a municipal candidate were as a result of media leaks without the employee’s consent, and that they had not engaged in candidacy activities until after they received permission from the Commission.

The evidence showed that the employee failed to comply with subsection 115(1) of the PSEA by seeking nomination as, or being, a candidate in a municipal election before or during the election period, without having first requested and obtained permission from the Commission to do so.

After the investigation, the Commission ordered that the following corrective actions be taken:

  • A letter be sent to the employee and the deputy minister of their home organization informing them that the employee failed to comply with subsection 115(1) of the PSEA. The letter is to be kept in the employee’s personnel record for a period of two years;
  • Within six months, the employee must complete a course on values and ethics; and
  • Within six months, the employee must learn about the political activities regime applicable to federal public servants and become familiar with the Suite of Political Activities Tools available on the PSC Web site.

Case summary 2 (under section 118 of the Public Service Employment Act)

Improper political activity: Not related to candidacy

This investigation, conducted pursuant to section 118 of the PSEA, was to determine whether an employee, occupying the position of director, failed to comply with subsection 113 of the PSEA by engaging in political activities that impaired, or were perceived as impairing, their ability to perform their duties in a politically impartial manner. This investigation was completed in 2013-2014; however, the Commission made the decision this fiscal year to publish a summary of the investigation on the PSC Web site, in accordance with the Commission’s discretionary authority under section 14 of the Political Activities Regulations.

Following an administrative inquiry into the organization’s internal professional standards, the organization forwarded to the PSC information indicating that the employee, as a member of the executive of a political party association, used a computer and the computer network of the organization to perform work for the association.

In their capacity as director, the employee was responsible for providing office space to organizational employees in a region. The nature of the employee’s public service duties provided a certain level of visibility in the community in that they sometimes dealt directly with private sector building owners.

The employee had been a member of the political party association executive for a number of years and held the volunteer position of association secretary for just over three years.

The evidence showed on the balance of probabilities that the employee engaged in political activities in support of a political party and a candidate when they revised and translated the association’s agenda using the organization’s computer resources and performed the duties of secretary of the association’s executive.

Further, given the nature of the employee’s duties in the organization, the level and visibility of their position, the nature of the political activities in which the employee engaged and the materiality of the organization’s mandate, the evidence showed that the political activities in which the employee engaged were perceived as impairing their ability to perform their duties in a politically impartial manner. As a result, the employee did not comply with subsection 113(1) of the PSEA.

The employee retired from the federal public service during the course of the investigation. The Commission ordered that the following corrective action be taken:

  • For a period of three years, the employee must notify/obtain the Commission’s written approval before accepting any position or work within the federal public service.

3.43 Corrective actions following founded investigations – Following an investigation under section 118 of the PSEA, when employees fail to comply with subsections 113(1), 114(1) to (3) or 115(1) of the Act, the Commission may take any corrective action that it considers appropriate. Corrective actions are determined on a case-by-case basis.

3.44 Since the coming into force of the PSEA in 2005, the Commission has ordered a range of corrective actions, including, but not limited to, the following: recovery of pay; requirement to attend training; requirement that a letter be sent to the employee and a copy of that letter sent to the deputy head and placed in the employee’s file; requirement to obtain the Commission’s approval prior to returning from LWOP; or requirement to be placed on a LWOP.

3.45 Table 23 indicates the corrective actions ordered by the Commission over the past three years:

Table 23: Corrective actions ordered for founded cases of improper political activity, over the last three fiscal years (a)
2012-2013 2013-2014 2014-2015 Total
Letter sent to deputy head and placed on employee file for two years 2 2 2 6
Values and ethics training 1 0 1 2
Recovery of pay 1 0 0 1
Three-year approval clause(b) 0 1 0 1
Investigation report and Record of Decision sent to deputy head 0 1 0 1
Become familar with the political activities regime of the federal public service via the PSC Web site and notify the PSC once completed 0 0 1 1
Provide a copy of the minutes of all municipal council meetings 0 0 1 1

Source: Public Service Commission Investigations Management Information System

(a) The number of corrective actions may not necessarily match the number of founded investigations as multiple corrective actions can be ordered for a single file or a file may not require corrective actions.

(b) For a specific period, the requirement to obtain the Commission’s written approval before accepting any position or work within the federal public service.

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