Chapter 4

Table of Contents

A non-partisan public service

Highlights:

  • The Public Service Commission’s (PSC) assessment of non-partisanship in the public service in 2010-2011 found that work needs to continue to ensure that the real and perceived non-partisanship of the public service is safeguarded in the following areas: staffing and senior appointments; political activities by public servants; and the relationship between the public service and the political spheres.
  • In 2010-2011, the PSC opened a number of investigations into possible political influence in appointments. Both real and perceived political influence in staffing pose risks to the non-partisanship of the public service.
  • Employees’ awareness of their rights and responsibilities with respect to engaging in political activities has increased; however, a significant number are still not well‑informed about their rights and responsibilities in this area.
  • In 2010-2011, the PSC continued to provide guidance to assist employees in making decisions about whether to engage in a particular political activity; however, it remains up to each employee to exercise judgement in deciding whether or not to participate. The PSC is committed to reviewing the questions in its political activities self‑assessment tool to address concerns raised during the last federal election that it unduly discourages public servants from participating in political activities.

4.1 Non-partisanship, like merit, is a cornerstone of an independent, professional public service and responsible democratic government. A non-partisan public service provides ministers with objective policy advice and administers programs and services for Canadians in a politically impartial way. It provides stability during political successions.

4.2 Non-partisanship is a core value of the Public Service Employment Act (PSEA). The Preamble to the Act recognizes the importance of ensuring that the non-partisan nature of the public service is independently safeguarded. Subsection 30(1) of the Act requires that all appointments to and within the public service be free of political influence. Part 7 recognizes the right of public servants to engage in political activities, while maintaining the principle of political impartiality in the public service, and sets out specific roles and responsibilities for employees and the PSC regarding participation in political activities.

4.3 This chapter reports on the state of non-partisanship in the public service in 2010-2011. It provides an overview of developments over the course of the year in the following areas: non-partisanship in staffing and senior appointments; political activities by public servants; and the relationship between the public service and the political sphere. In all three, both the real and perceived non-partisanship of the public service affect the level of confidence that Canadians have in the public service and its role in serving the public interest. Progress on merit, the other core PSEA value, is examined in Chapter 3.

Non-partisanship in staffing and senior appointments

Political influence in staffing

4.4 In 2010-2011, the PSC continued to ensure that, as specified under subsection 30(1) of the PSEA, appointments to and within the public service are based on merit and free from political influence.

4.5 Prior to 2010-2011, only one allegation of political influence in staffing, supported by evidence, had been brought to the attention of the PSC since the coming into full force of the PSEA in late 2005. That case was examined in 2006-2007 and was determined to be unfounded.

4.6 In 2010-2011, the PSC received a number of allegations of political influence in staffing at the Atlantic Canada Opportunities Agency. An additional related allegation was received in early 2011-2012. The allegations were brought forward by the then Member of Parliament for Moncton-Riverview-Dieppe, on behalf of the Atlantic caucus of the then Official Opposition party, to the President of the PSC in February 2011.

4.7 The PSC subsequently opened five investigations under the authority of section 68 of the PSEA regarding political influence in appointments and section 66 of the Act regarding the integrity of external appointment processes. These investigations are designed to determine, based on available evidence, whether the appointments were free of political influence and made on the basis of merit, or whether there was an error, an omission or improper conduct. The investigations are expected to conclude in 2011-2012 and the PSC will report on the results.

4.8 PSC investigations of allegations of political influence in staffing are one of the important tools for safeguarding the non-partisan character of the public service as an institution. Communication of the results of investigations helps the PSC and others, including deputy heads, play their respective roles in maintaining the real and perceived non-partisanship of the public service. When an appointment is found to be not free of political influence, the Commission may take any corrective action that it considers appropriate, including the revocation of the appointment.

Appointments of former ministerial staff

4.9 In 2010-2011, the PSC continued to follow the appointments of former ministerial staff into, or back into, the public service in order to provide assurance that these movements did not pose a real or perceived risk to the non-partisanship of the public service.

4.10 Ministerial staff are hired by ministers pursuant to section 128 of the PSEA. While experience working in a minister’s office presents an important asset for some public service positions, the appointment of former ministerial staff into public service positions, like all appointments to the public service, must respect the core and guiding values. These appointments must not be the result of unfair access to public service positions or political influence.

4.11 Based on the PSC’s central data holdings, the total population of ministerial staff was 503 as of March 31, 2011. This was down from 521 as of March 31, 2010, and marked the first decline in the population after four years of steady increase. The 10-year average for the population is 437.

4.12 Section 35.2 of the PSEA allows ministers’ staff, or staff working in the office of the Leader of the Opposition in the Senate or Leader of the Opposition in the House of Commons, to participate in internal advertised appointment processes open to employees of the federal public service for a period of one year upon ceasing to be employed (after a period of at least three years working in these offices). The PSC confirms whether former ministerial staff meet the criteria for this mobility provision and provides those eligible with access to internal advertised job postings.

4.13 In 2010-2011, the PSC received seven requests from former ministerial staff to confirm their eligibility for the mobility provision. Of these, five were confirmed and became eligible to apply to internal advertised processes, one was denied and one chose not to proceed with the confirmation process.

4.14 When individuals are eligible for the mobility provision or are appointed from the political sphere to positions in the public service, it is important that they be aware of the core values of merit and non-partisanship. In 2011-2012, the PSC will therefore begin providing information on the core values to those eligible for the mobility provision for former ministerial staff. An awareness of the core values will help increase understanding of the essential elements of a professional public service and facilitate potential transition into the federal public service.

4.15 In 2010-2011, a total of 9 former ministerial staff moved into the public service, a decrease from 17 in 2009-2010. Three of these nine individuals were public servants reintegrating into the public service. The remaining six were appointed to the public service following employment in a minister’s office.

4.16 Of the six former ministerial staff appointed to the public service in 2010-2011, four were appointed to the same organization where they were employed as ministerial staff. The majority of these appointments (three of the four) were made through non-advertised processes or where the choice of process (i.e. advertised or non-advertised) was not known.

4.17 In 2010-2011, the PSC examined the appointments of former ministerial staff into and back into the public service since the coming into full force of the PSEA in 2005-2006. During the period, 189 former ministerial staff were appointed to, or reintegrated into, the public service.

4.18 Of the 189 former ministerial staff appointed during the six‑year period, 100 were public servants returning to the public service. The remaining 89 were new appointments to the public service. Over one quarter of these new appointments (25 out of 89) were made to the organization where the individual was previously a member of the minister’s staff. Further, over two‑thirds of the new appointments (62 out of 89) were made through non-advertised or unknown processes, which may pose higher risks for the non-partisanship of the public service.

4.19 All public servants, including former ministerial staff, are expected to perform, and be seen to perform, their duties in a politically impartial manner. To facilitate this and address a broader need identified in its March 2011 Special Report to Parliament,12 the PSC will move forward in 2011-2012 on developing enhanced guidance about roles, responsibilities and appropriate behaviours of public servants with regard to the non-partisanship of the public service, in collaboration with other stakeholders (see paragraph 4.85).

New mobility provision for the Office of the Governor General’s Secretary

4.20 On September 23, 2010, in line with changes introduced in the Federal Accountability Act, the entitlement for priority appointment for persons at the Office of the Governor General’s Secretary (OGGS), previously found under section 6 of the Public Service Employment Regulations (PSER), was repealed and replaced with a mobility provision. The provision is included in section 4.1 of Office of the Governor General’s Secretary Employment Regulations.

4.21 The provision allows eligible persons at the OGGS, hired after September 23, 2010, who have been employed for at least three consecutive years in certain excluded positions, to participate in internal advertised appointment processes open to employees of the public service for a period of one year after they cease to be employed at the OGGS.

4.22 Similar to the approach for former ministerial staff (see paragraph 4.12), the PSC retains the authority to confirm whether the former OGGS employees meet the criteria for this mobility provision. A confirmation process is in place for the mobility provision, and the PSC will provide those eligible with electronic access to internal advertised job postings.

4.23 The PSC continues to manage the priority entitlement for two persons who were already employed at the OGGS in the excluded positions at the time the entitlement to priority appointment previously found under section 6 of the PSER was repealed.

Appointments of former Governor in Council appointees

4.24 The PSC remains concerned about the risks to non-partisanship that may arise when former Governor in Council (GiC) appointees are appointed to the public service. In last year’s Annual Report, the PSC began to report on these appointments and made a commitment to monitor them more closely.

4.25 GiC appointments are appointments made by the Governor General, on the advice of ministers. Appointments of former GiC appointees to positions in the public service, like all other appointments, must be made in accordance with the PSEA and the core and guiding values. They must not be the result of preferential treatment or political influence.

4.26 Once appointed to the public service, former GiC appointees must perform, and must be seen to perform, their duties in a politically impartial manner, especially given the senior levels to which they are often appointed. In addition, as the PSC observed in its March 2011 Special Report to Parliament, to the extent that initial GiC appointments are not independently assured to be merit-based, the risks they pose to the core PSEA values of merit and non‑partisanship are elevated.

4.27 As of March 31, 2011, there were 411 GiC appointees in the core public administration and in separate agencies. Over the course of 2010-2011, five former GiCs were appointed to positions in the public service, an increase from one the previous year.

4.28 In 2010-2011, the PSC examined the appointments of former GiCs into the public service during the six-year period following the coming into full force of the PSEA. Between 2005‑2006 and 2010-2011, the size of the population remained relatively stable. The number of appointments of former GiC appointees into the public service was low, totalling 36. However, these appointments were concentrated in a small number of organizations; nearly half (16) of former GiCs were appointed to three organizations, namely the Citizenship and Immigration Canada, Correctional Service Canada and Immigration and Refugee Board. Over one third (13) of the appointments between 2005-2006 and 2010-2011 were to executive‑level or equivalent positions in the public service.

4.29 Further, more than half (20) of the former GiCs appointed during the six-year period were not public servants immediately prior to their GiC appointment. Of these 20 appointments, 14 were made through non-advertised processes, or where the choice of process (i.e. advertised or non-advertised) was not known.

Political activities by public servants

4.30 The regime for governing the political activities of public servants, as set out in Part 7 of the PSEA, recognizes the need to balance the rights of employees with the principle of an impartial public service. The PSC is responsible for administering Part 7 of the PSEA. It provides advice to employees and organizations about political activities and reviews requests for permission from employees who wish to seek nomination as, or be, a candidate in federal, provincial, territorial or municipal election. The PSC’s authority for political activities cannot be delegated to deputy heads.

4.31 Approximately 216 709 employees in the 83 federal organizations for which the PSC has the exclusive authority to make appointments are subject to Part 7 of the PSEA. There are also about 47 272 additional employees, including deputy heads and equivalents, in the six following organizations whose enabling legislation provides that the political activities provisions of the PSEA apply: Canada Revenue Agency; Parks Canada Agency; Canadian Institutes of Health Research; Financial Transactions and Reports Analysis Centre of Canada; National Film Board of Canada; and Public Service Staffing Tribunal.

4.32 All deputy heads play a unique leadership role in ensuring the non-partisanship of the public service given the nature of their positions and their responsibilities. As such, the PSEA limits the political activities of deputy heads to voting in federal, provincial, territorial or municipal elections.

4.33 Effective July 7, 2010, students appointed under the Federal Student Work Experience Program, the Research Affiliate Program, the Post-Secondary Co-op/Internship Program or any other student employment program established by the Treasury Board became subject to Part 7 of the PSEA. This resulted from the update of the Student Employment Programs Participants Exclusion Approval Order and Regulations. Students hired by the six above‑mentioned organizations that do not conduct their staffing in accordance with the PSEA are subject to Part 7 of the PSEA only if the organization considers them to be employees. Permission was granted to a student in 2010-2011 to seek elected office at the municipal level.

Political candidacy

4.34 Under Part 7 of the PSEA, an employee may seek nomination as, or be, a candidate
in a federal, provincial, territorial or municipal election before or during the election
period only if the employee has requested and obtained prior permission from the PSC (sections 114 and 115).

4.35 The PSC reviews 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 organizational context and the level and visibility of the employee’s position. Permission is granted only if the PSC is satisfied that seeking nomination as, or being, a candidate will not impair, or be perceived by others as impairing, the employee’s ability to perform their duties in a politically impartial manner.

4.36 The PSC requires both sufficient information and time to consider each candidacy request in order to balance the right of the employee to engage in political activities with maintaining the principle of political impartiality in the public service. The Political Activities Regulations require that candidacy requests be submitted to the PSC for review no later than 30 days before the date by which the employee requires a decision from the PSC. This is particularly challenging if an election or by-election is announced earlier than expected.

4.37 In situations where there may be concerns about the political impartiality of the public service, the PSC may make its permission conditional on the employee taking a leave of absence without pay (LWOP) for any period, or part of the period, before the election period. LWOP must be granted to be a candidate during an election period. In cases where the PSC has concerns about the type of work performed or the specific files processed by the employee, the PSC can impose operational work arrangements or other conditions to mitigate the real or perceived risk to political impartiality.

4.38 In 2010-2011, a total of 94 new candidacy requests were submitted to the PSC. Table 12 provides an overview of the nature of these candidacy requests.

Table 12: Status of requests (April 1, 2010 to March 31, 2011)
Level of election Carried forward from 2009-2010 Permission granted in 2010-2011 New candidacy requests received in 2010-2011
Permission granted Permission previously granted still applies Permission not granted Requests withdrawn prior to PSC review Requests pending PSC review Total 2010-2011 new candidacy requests
Federal1 0 13 0 0 1 4 18
Provincial1 1 5 0 0 0 2 7
Territorial 0 0 0 0 0 0 0
Municipal 7
(2 with leave of absence without pay)
(4 streamlining)
65
(19 with leave of absence without pay)
(45 streamlining)
1 0 2 1 69
Total 8 83 1 0 3 7 94

Source: Public Service Commission Internal Tracking System

1 Some of the requests were from the same employee requesting periods of leave of absence without pay before the election period.

4.39 As committed to in last year’s Annual Report, in 2010-2011 the PSC conducted an analysis of political activities by public servants since the coming into force of the PSEA. As shown in Table 13, between December 31, 2005 and March 31, 2011, employees from 41 organizations submitted candidacy requests to the PSC. Eighty-three percent of the total number of requests came from employees in 15 of the 89 organizations subject to Part 7 of the PSEA.

Table 13: Requests for permission to be a candidate: Top 15 organizations between December 31, 2005 and March 31, 2011
Organization Requests
Canada Revenue Agency1 47
National Defence 37
Canada Border Services Agency 36
Parks Canada1 30
Correctional Service Canada 26
Human Resources and Skills Development Canada (Service Canada) 24
Public Works and Government Services Canada 24
Fisheries and Oceans Canada 23
Environment Canada2 15
Veteran Affairs Canada 14
Agriculture and Agri-Food Canada 11
Department of Justice Canada 11
Royal Canadian Mounted Police 11
Health Canada 10
Natural Resources Canada 10
Subtotal
More than three quarters (83%) were from employees in the above 15 organizations
329
Total 396

1 Separate employer.

2 One request was for approval to resume substantive duties following a leave of absence without pay pursuant to corrective actions (fiscal year 2008-2009).

4.40 Over the five years, the PSC’s examination found that the highest volumes of candidacy requests were from highly decentralized organizations. This poses a challenge to communicating with employees about their rights and legal obligations with respect to political activities and providing advice and guidance. To help address this, the PSC has maintained on-line guidance tools and forged strong relationships with the designated political activities representative (DPAR) in each organization subject to Part 7 of the PSEA. The PSC meets annually with all DPARs to discuss emerging issues and share best practices, and semi-annually with newly identified DPARs to discuss administrative matters. The PSC also provides updates on political activities to bargaining agents through the Public Service Commission Advisory Council.

4.41 Municipal elections – In 2010-2011, municipal requests again represented the majority of total new candidacy requests received by the PSC (69 out of 94, or 73%). Half of the requests came from employees in Ontario. No municipal requests were submitted from individuals in the Northwest Territories or Nunavut.

4.42 Municipal elections were held in 2010-2011 in Prince Edward Island, Ontario, Manitoba, Saskatchewan, Alberta, the Northwest Territories and Nunavut. This is the second round of elections under the current political activities regime.

4.43 The PSC may make permission at the municipal level conditional on an employee taking LWOP before or during the election period. If the employee is elected, the PSC may require them to either take LWOP for the duration of the mandate, or cease to be an employee. Otherwise, if the PSC has determined that there is no risk, real or perceived, to political impartiality, the employee could continue to work as a public servant while seeking nomination as, or being, a candidate or if they are elected municipally.

4.44 In 2010-2011, 72 employees were granted permission at the municipal level. In five instances, permission was conditional on operational arrangements that were discussed with, and ultimately implemented by, the employee’s organization, such as ensuring that the employee did not deal with constituent files. A total of 10 permissions were conditional on the employee taking LWOP if elected, and 11 were conditional on both LWOP and operational arrangements.

4.45 In 19 of the 21 cases where LWOP was a condition of permission, the individuals were seeking permission to campaign full-time as candidates for full-time elected municipal office. Participation in these activities on a full-time basis, or over a sustained period of time, would increase the external visibility of the employee regardless of their occupational group or level. Consequently, the PSC imposed LWOP to address the conflict between the role of an employee as a politically impartial public servant and that of an individual seeking elected office or being elected full-time.

4.46 The two other municipal requests conditional on LWOP related to being a candidate for a part-time elected office. In these cases, the nature of the employees’ duties, performing front‑line peace officer functions, led the PSC to conclude that, if the employees were elected, the political impartiality of the public service would be compromised if not mitigated by LWOP.

4.47 Employees with peace officer duties have the power to enforce laws by seizing goods or detaining and arresting people. Given the nature of these duties, the PSC remains concerned about the risks, real or perceived, to the ability of these employees to perform their duties in a politically impartial manner while being a candidate or an elected municipal official.

4.48 In 2010-2011, a total of 49 of the 72 requests granted permission at the municipal level were completed using the streamlined approach outlined in the PSC’s 2009-2010 Annual Report. The approach is based on an analysis of municipal candidacy requests received since the coming into force of the PSEA in 2005 and consultations with organizations subject to Part 7 of the Act, particularly those with employees who had previously submitted requests for permission.

4.49 By applying a risk-based assessment and modified administrative requirements, the streamlined approach has resulted in more timely decisions for municipal candidacy requests while safeguarding the political impartiality of the public service. However, challenges remain for all candidacy requests, such as obtaining complete documentation in a timely manner and confirming the actual duties of an employee when generic work descriptions are submitted. In 2011-2012, the PSC will continue to address such issues and, where possible, identify further opportunities to gain efficiencies in analyzing all candidacy requests.

4.50 Federal, provincial and territorial elections – For federal, provincial and territorial elections, a public servant must request and obtain from the PSC permission to seek nomination before or during the election period and to be a candidate before the election period. This is in addition to obtaining LWOP to be a candidate during the election period. 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.

4.51 Spring 2011 federal election – The campaign for Canada’s 41st election began on March 26, 2011. This was the second federal election in which candidacy requests for permission and LWOP during the election period were reviewed and granted under the current political activities regime.

4.52 Following the October 2008 federal election, the PSC began to receive candidacy requests in March 2009 for the 2011 federal election and continued receiving these requests until after the drop of the writ. The PSC rendered 10 candidacy decisions during the election period. Complete documentation related to these cases was not made available to the PSC until after the election was launched, and, in four cases, the requests were received after the campaign started. Table 14 provides a summary of the decisions rendered for the federal election related to permission and LWOP during the election period.

Table 14: 2011 Canadian federal election (May 2, 2011)
Review period Number of employees1
Granted permission4 Not granted
permission
Who withdrew
request prior to
PSC review
Total
2008-2009 0 0 1 1
2009-2010 5 0 2 7
2010-2011 7 0 1 8
2011-2012 3 1 0 4
Total 152 1 4 203

Source: Public Service Commission Internal Tracking System

1 Some employees submitted more than one request for permission for more than one electoral district or for multiples periods of leave of absence without pay before the election period.

2 Eleven employees registered as candidates for the election.

3 Employees began submitting candidacy requests for the 2011 federal election in March 2009 following the October 2008 federal election and continued submitting requests until after the drop of the writ.

4 Granted permission and leave of absence without pay during the election period.

4.53 A total of 20 employees requested permission from the PSC to seek nomination as, or to be, a candidate and to obtain LWOP during the federal election period. Only 11 employees who received PSC permission and LWOP registered as candidates for the election. There were various reasons why employees who were granted permission and LWOP subsequently did not register as candidates, including declining the PSC’s conditions of permission, deciding not to seek nomination and/or be a candidate and being unsuccessful in winning their party’s nomination. One employee was elected and ceased to be employed pursuant to the PSEA.

4.54 For some employees, the PSC did not have sufficient time, given that the election period was underway, to fully explore with their respective organizations any operational work arrangements that could be implemented to ensure their continued ability to perform their duties in a politically impartial manner. In these situations, the PSC made permission conditional on the employees being on LWOP for one year, or until the PSC had a chance to review and analyze duties to which the employees would return if they were not elected or if they withdrew as a candidate.

4.55 One public servant did not request the PSC’s permission prior to seeking nomination as, or becoming, a candidate in the federal election. This resulted in an allegation of improper political activity being referred for investigation. The employee did subsequently submit a request and was granted permission and LWOP by the PSC during the election period.

4.56 Finally, one employee was not granted permission for the federal election: the PSC rendered its decision after the end of the 2010-2011 review period. The Commission was not satisfied that being a candidate would not impair, or be perceived by others as impairing, the employee’s ability to perform their duties in a politically impartial manner given the employee’s functions as a front-line peace officer and the partisan nature of a federal election. In this case, the employee’s organization could not guarantee functions other than those of a front-line peace officer for a cooling-off period of one year following the election if the employee withdrew as a candidate or was not elected and returned to work.

4.57 Streamlining federal, provincial and territorial candidacy requests – In 2009-2010, the PSC committed to reviewing its approach to considering federal, provincial and territorial candidacy requests. The review has initially resulted in administrative changes to the request forms, which will be implemented in 2011-2012.

Non-candidacy political activities

4.58 In accordance with Part 7 of the PSEA, employees considering “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” (see paragraphs (a) and (b) in the definition of political activity in subsection 111(1)) are responsible for examining their own specific circumstances to assess and make reasonable decisions about whether their participation in a given activity would impair, or could be perceived by others as impairing, their ability to perform their duties in a politically impartial manner.

4.59 Each activity should be assessed in light of a combination of the nature of the activity, the employee’s specific situation and factors such as the nature of the individual’s duties and the level and visibility of their position. Examples of non-candidacy political activities include speaking at a political meeting, fundraising for a political party, working for a political candidate and using social media or displaying political material to support or oppose a political party or candidate.

4.60 To assist employees in making an informed decision about whether to engage in a particular activity, the PSC launched the “Political Activity Self-Assessment Tool: Assessing Your Specific Circumstances” in November 2005. A revised version, which responded to user comments and recommendations, has been available since November 2008.

4.61 The self-assessment tool is not the only mechanism for making a decision about whether to engage in a particular activity. The PSC encourages employees to discuss their specific circumstances with their manager, their organization’s DPAR or human resources advisors or the PSC. There is also a guidance document, frequently asked questions and other information available on the PSC’s Web site to support employees in their decision-making.

4.62 In 2011-2012, the PSC is committed to reviewing the questions in its self-assessment tool to address recent concerns from users and bargaining agents that it unduly discourages public servants from participating in political activities. The tool was intended to be, and remains, a guide for employees. It is incumbent on each employee to exercise judgement and make an informed decision about whether engaging in a particular activity would impair, or be perceived by others as impairing, their ability to perform their duties in a politically impartial manner. Stakeholders will be consulted on the revised self-assessment tool.

4.63 In a related matter, in its 2009-2010 Annual Report, the PSC committed to exploring options for providing more precision to the meaning of “political activity” as defined in the PSEA and assessing the desirability and feasibility of establishing additional politically restricted classes of employees. In 2010-2011, work in this area focused on examining approaches used in other jurisdictions to provide greater clarity to employees about participating in political activities, including the use of politically restricted classes.

4.64 Other jurisdictions, including several provinces, have established through legislation different classes of employees for the purposes of participation in political activities. For example, in the Public Service of Ontario Act (2006), public servants are separated into three classes: most public servants; specially restricted public servants; and public servants in ministers’ offices. The legislation provides greater detail on the permitted and prohibited political activities in which employees in each of these groups can participate, based on the role, level and visibility of the positions held by the employees in the group.

4.65 The PSEA currently specifies the permitted political activities of deputy heads, which are limited to voting in a federal, provincial, territorial or municipal election. The development of additional politically restricted classes of public servants would be one way to provide greater clarity to employees about their rights and responsibilities with regard to engaging in political activities. In 2011-2012, the PSC will consider this issue further and explore the possibility of establishing, through regulation, new politically restricted classes of employees based on the role, level and visibility of their positions. Any such approach must carefully balance the individual rights of employees to participate in political activities and the public interest in imposing reasonable limitations on those rights in the name of a non-partisan public service.

Exhibit 1: Politically restricted classes of public servants in Canada’s provinces and territories

Canada’s provinces and territories all have rules in place with regard to the political activities of public servants. In most cases, the rules are enshrined in legislation. Most jurisdictions differentiate between the political rights of specific groups of employees based on the role, level and visibility of the positions held by the employees in the group. Stricter rules apply for certain classes of employees who are referred to as “politically restricted.”

In most jurisdictions, politically restricted employees include deputy heads and other senior executive positions, such as assistant deputy ministers and the Secretary to the Cabinet. In some provinces, the scope is broader. For example, in Prince Edward Island, restrictions are imposed on the political activities of any employee who has regular access to, reports directly to or gives policy advice and information to a deputy head or minister. In New Brunswick, politically restricted employees include those providing policy or legal advice to ministers and deputy heads, as well as those from central agencies who participate in decision-making in relation to, or otherwise actively contribute to, the formulation of policies for the provincial government.

In terms of prohibited political activities, most provinces and territories do not allow politically restricted employees to seek nomination as, or to be, candidates in a provincial or federal election. Other prohibited activities range from holding office in a political party to speaking or writing on behalf of a candidate or political party in any election or by-election. Politically restricted employees are generally allowed to vote, to be members of a party, to attend political meetings and to contribute money to a political party or candidate.

Awareness of rights and legal obligations

4.66 To encourage adherence with the political activities provisions of the PSEA, public servants must have an understanding of their rights and legal obligations with respect to engaging in political activities and, in the case of candidacy activity, of the role of the PSC in granting permission to seek nomination as, or be, a candidate. Communicating the necessary information to employees is particularly challenging when they do not have access to electronic messages, or when they are seasonal employees.

4.67 Both the PSC and organizations subject to Part 7 of the PSEA continued to make concerted efforts in 2010-2011 to inform employees of their rights and obligations, especially those organizations with a large regional presence and remote locations. This included updating the PSC’s “Political Activities and You” brochure, as well as providing deputy heads with an information communiqué for employees regarding political activities. Given the number of fixed-date municipal elections in 2010-2011, the PSC targeted its communication outreach efforts in locations where elections were being held. It contributed information regarding a federal public servant’s legal obligations related to political activities to both municipal and association publications and Web sites. Additionally, the PSC reached out to the National Managers’ Community by sharing information through the community’s Web site and at its annual conference.

4.68 The PSC continued to remind organizations of the importance of their ongoing role in keeping their employees informed about the political activities regime, particularly those in regional offices or located in remote locations who may not have access to a computer as part of their work environment. The PSC also actively supports the DPARs in each organization subject to Part 7 of the PSEA, in fulfilling their responsibilities regarding political activities.

4.69 Surveys of Staffing – Candidates – The PSC’s two most recent Surveys of Staffing – Candidates (SOS-C), the 2009 SOS-C and the 2010 SOS-C, also collected data about public servants’ awareness of their rights and legal responsibilities with regard to political activities, the extent to which their organizations kept them informed of these rights and what resources they consulted during the reference periods. The surveys targeted federal organizations that fall under the PSEA for staffing purposes and that had at least 350 employees on the last day of the reference periods. For the political activities portion of the surveys, the reference periods were “in the previous two years” for the 2009 SOS-C and July 1, 2009 to June 30, 2010 for the 2010 SOS-C. The 6 separate employers to which Part 7 of the PSEA applies, and which have over 47 000 employees, were not covered by the surveys.

4.70 The surveys found that employee awareness has progressively increased over time. A total of 63% of employees indicated being aware of their rights and responsibilities to a moderate or great extent in the 2010 survey, up from 57% in the 2009 survey. However, 37% of those responding to the 2010 SOS-C indicated that they were aware of their rights and responsibilities with regards to political activities to a limited extent or not at all; 43% did so in the 2009 SOS-C.

4.71 On-line and printed materials provided by the PSC are the resources most frequently consulted by employees when seeking information about their rights and responsibilities regarding political activities. Furthermore, the latest data from the 2010 SOS-C indicates that nearly 58% of employees were informed about their rights and responsibilities by their respective organizations with respect to political activities to a moderate or great extent, up from 53% in the 2009 SOS-C.

4.72 Together, these findings suggest that a relatively large proportion of employees remain ill‑informed about their rights and legal responsibilities with regard to political activities. This underscores the ongoing need for both the PSC and organizations to further improve the effectiveness of communication and outreach activities in this area.

4.73 The most recent survey indicated that, during the reference period, 5% of respondents engaged in at least one form of political activity other than voting or candidacy, such as displaying or distributing partisan material or fundraising for a political party. This is the same as found in the 2009 SOS-C, which asked about participation in political activity during the previous two years.

Investigations into political activities of public servants

4.74 The PSC also ensures adherence with Part 7 of the PSEA through investigations.

4.75 The PSC has exclusive authority to carry out investigations of allegations of improper political activity. Anyone may bring forward to the PSC an allegation of improper political activity by a federal public servant. If the PSC determines that any allegation of improper political activity is founded, it may take any corrective action that it considers appropriate, up to and including the dismissal of the employee. In the case of an allegation that a deputy head has engaged in political activities other than voting, only a person who is or was a candidate in an election may make an allegation. If the PSC concludes that the allegation is substantiated, it will report to the Governor in Council, who may dismiss the deputy head.

4.76 In 2010-2011, the PSC received 10 new requests to investigate allegations related to improper political activities. With 3 allegations carried over from previous fiscal years, the Commission completed 12 cases during the fiscal year. Three of these were completed through full investigation, and one was determined to be founded, given that the employee failed to obtain permission and LWOP from the PSC prior to seeking nomination as, and being, a candidate. One case remained pending at the end of the fiscal year (see Table 15).

Table 15: Public Service Commission investigations into allegations of improper political activities
   
Number of active cases carried over from previous years 3
Number of requests received in 2010-2011 10
Total number of active cases in 2010-2011 13
Number of cases completed in 2010-2011 12
Number of cases closed at intake1 8
Number of cases discontinued after referral to investigation 1
Number of investigations unfounded 2
Number of investigations founded 1
Number of active cases remaining as of March 31, 2011 1

Source: Public Service Commission Investigations Management Information System

1 Cases closed for reasons that include no jurisdiction (6), no possibility of corrective action (1) and a discontinuance as the individual retired (1).

4.77 As reported in its 2009-2010 Annual Report, the PSC has shifted its approach to addressing allegations of improper political activity relating to municipal candidacy. Fewer cases are now being referred for investigation, thereby allowing the Commission to ensure that its resources are used in the most efficient and effective way possible and are better aligned with the level of risk to the non-partisanship of the public service arising from political activity by public servants.

The relationship between the public service and the political spheres

4.78 The appropriate working relationship between the public service and the political spheres is fundamental to a professional, merit-based and non-partisan public service. It is also highly complex and dynamic, yet fundamental to effective accountability in Canada’s system of government. As a result, the PSC has placed special emphasis over the past two years on enhancing its understanding of the relationship between the public service and the political spheres, as well as its impacts, particularly the way in which the PSC carries out its responsibilities under the PSEA to safeguard the non-partisanship of the public service.

4.79 Further to one of the commitments in last year’s Annual Report, in 2010-2011 the PSC continued to broaden its dialogue on non-partisanship. The PSC met with interested Parliamentarians from both Houses to discuss issues such as new and emerging risks to the non-partisanship of the public service, the establishment of guidance outlining standards of behaviour and the existing governance framework for handling allegations of political influence and related matters, such as conflict of interest. These meetings and other discussions with Parliamentarians over the course of the year were instrumental to the development of the PSC’s recommendations in its Special Report to Parliament on enhancing the approach for safeguarding the non-partisanship of the public service. They also reinforced the ongoing need for the PSC, public servants at all levels and Parliamentarians to be alert to signs of pressure on the non-partisanship of the public service.

4.80 In 2010-2011, the PSC also sought to increase its understanding of the views of Canadians on key issues with regard to a non-partisan public service. The PSC commissioned a study of existing survey and other research on the perceptions of Canadians related to ethics, accountability and the role of the public service. The study found that only about half of Canadians (56%) believe that they have a good understanding of the difference between the roles of people who work in the federal public service and federal politicians, and that one quarter (24%) are not confident in their knowledge of the difference. Given the central function that perception plays in the non-partisanship of the public service, these findings underscore the importance of ensuring that the boundaries of the relationship between the public service and the political spheres are not just clearly articulated, but also effectively communicated to, and understood by, all Canadians.

4.81 In last year’s Annual Report, the PSC concluded that some of the most significant risks to the non-partisanship of the public service stem from tension between the public service and political spheres with regard to appropriate roles and responsibilities. If roles and responsibilities are not clearly defined, or if there is a lack of understanding about these roles and how interactions should be managed, then the risk to the non-partisanship of the public service is heightened.

4.82 Over the past year, the PSC examined a number of mechanisms and approaches that could help clarify the relationship between the political and public service spheres. Other jurisdictions have adopted a variety of tools, such as codes of conduct, to help clarify this relationship. Academic programs for current and possible future ministerial staff are also now offered in Canada and a number of other countries and address such issues as governance and interaction with the public service. The public service will continue to examine these and other tools in the year ahead.

4.83 In May 2011, the Privy Council Office issued a new version of Accountable Government: A Guide for Ministers and Ministers of State. This document provides improved guidance on the roles and responsibilities of ministerial staff. While its primary audience is ministers and their staffs and it is not widely disseminated among public servants, the guide does provide some information on the role of public servants in relation to the political sphere. However, there remains a need for additional guidance.

4.84 For instance, PSC oversight activities in recent years, as well as expert research, show that public servants working in communications or involved in consultation activities often face particular challenges in this regard, as do officials in regional offices who tend to have more direct contact with their minister and ministerial staff. In these cases, ensuring that public servants have access to concrete and meaningful guidance on expected behaviours is even more important.

4.85 In 2011-2012, the PSC will contribute to developing further guidance for public servants on their roles, obligations and behaviours in a non-partisan public service and engage key stakeholders, including employees, deputy heads and central agencies, in this work. The PSC will explore opportunities to collaborate with the Canada School of Public Service, the Office of the Chief Human Resources Officer and other organizations to integrate this guidance into employee training, and will also reflect it in its communications. Together, these measures will help address the need to ensure a deeper understanding of the importance of a nonpartisan public service and a greater awareness of the individual responsibilities that contribute to the protection of this core value.

Endnotes

12. See Canada. Public Service Commission of Canada. Merit and non-partisanship under the Public Service Employment Act (2003). Ottawa, 2011. [Return]

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