Blowing the Whistle on the Whistle-Blowers Act

To be effective, whistle-blower legislation requires an arms-length process that protects workers from reprisals for reporting government wrong-doing. Everyone understands that; except, apparently, Premier MacLauchlan.

The Premier designed the Public Interest Disclosure and Whistle-Blowers Act so employees must either disclose wrong-doing to their department head, or to the Commissioner of Public Interest Disclosure, who is then legally-compelled under Section 13(1) to inform that worker’s department head!

Does the Premier honestly believe employees will report their superiors knowing they’ll be reading their reports and involved in the investigation?  How can the Premier possibly justify such a misguided approach? Judge for yourselves if his answer in his CBC year-end interview makes any sense:

Louise Martin: “The new whistle-blower protection Act involves Deputy Ministers both investigating and reporting on wrong-doing. Opposition tried to amend the Bill to make it arms-length from government, why not do that?”

Premier: “I think that’s a fundamental misconception of why you have whistle-blower protection, or why you have a public interest disclosure regime. The Deputy Minister is the administrative head of the department; you couldn’t run a public service without Deputy Ministers, and really, what whistle-blower legislation does is build a culture within a public service where people feel protected when they make disclosures and encouraged to make disclosures. There’s a crucial part for Deputy Ministers in leading that effort and, indeed, our Deputy Ministers have been doing that.”

Louise Martin: “So why not just separate it so it’s just not a part of government at all and there’d be no criticism of anything regarding that?”

Premier: “It has to be part of government…it’s the Public Service. You have to engage the leadership of the Public Service, of the Departments and the Agencies, in order to have in place a regime that is, that works, frankly, where you build awareness and confidence that people will use it….and in circumstances where a person making a disclosure would prefer to take another route, that’s where a Commissioner of Public Interest Disclosure has been appointed and does have that independence should it be desirable to go that route.”

His legislation doesn’t “build a culture…where people feel protected,” it does exactly the opposite!  Whistle-blower legislation should offer employees a confidential process where wrong-doing can be reported without fear of reprisal. And such a “regime” most certainly doesn’t have to be a part of government, as the Premier says….in fact it shouldn’t be.  CSA Group, a leading global provider of standards development and testing and certification services, published “Whistleblower Systems: A Guide” in February, 2016 emphasizing this very point: “It is important to develop a program that is at arm’s length from management and the executive cadre, and that is resourced appropriately. Establishing a program that meets these criteria will facilitate trust and credibility in the minds of potential whistleblowers.”

Let’s not be naive…a whistle-blower process is needed so employees can report “senior” bureaucrats who abuse power. Recent Auditor General Reports document many such incidents, like when rules were changed allowing three deputy ministers to access PNP money; or when a deputy minister and CEO of IIDI broke the law by signing-off on a million dollar e-gaming loan without authorization and MacLauchlan had to write it off as a complete loss.

If department heads knew they wouldn’t get a “heads up” when employees reported their wrong-doing, they’d also know they wouldn’t have time to delete files and cover their tracks prior to an investigation by the Commissioner and they’d be a lot less likely to engage in wrong-doing in the first place.

By giving department heads access to their employee’s disclosures of wrong-doing, Premier MacLauchlan has effectively institutionalized the intimidation of government workers, who won’t report wrong-doing under such circumstances. Was that the plan all along? Regardless, it’s a farce to call it “whistle-blower” legislation.