PACC Committee Report

The Public Service Commission of Canada was established in 1908 (as the Civil Service Commission) to safeguard the “merit principle” in the federal public service — the principle that appointments to the public service must be free of political and bureaucratic patronage and that those employed in it should be hired on the basis of professional ability. In order to deliver this mandate, the Commission is authorized to “appoint or provide for the appointment of qualified persons to or from within the Public Service,” making it responsible for recruiting and hiring.

The importance of the Commission’s role is reflected in its status as an agency that is independent of government and accountable to the Parliament of Canada. This status and the mandate of the Commission are given statutory authority under the Public Service Employment Act (the Act). Its three commissioners are appointed by the Governor in Council for ten-year terms and can only be removed from office on address of the Senate and the House of Commons. These factors are intended to guarantee the autonomy of the Commission as it pursues its work.

To fulfill its mandate, the Commission planned to spend $130.5 million during fiscal year 2003-2004 and employ 1,433 staff ⁴.

In order to give departments and agencies the ability to recruit and hire employees most suited to their needs, the Public Service Commission is empowered by its legislation to delegate some of its powers. Under section 6(1) of the Public Service Employment Act, the Commission can “authorize a deputy head to exercise and perform, in such a manner and subject to such terms and conditions as the Commission directs, any of [its] powers, functions, and duties…”

The authority to delegate responsibilities is accompanied by additional powers that allow the Commission to maintain ultimate responsibility for staffing. The Commission is authorized to revoke appointments that it does not consider appropriate (Section 6(2)) and to withdraw a delegated authority under section 6(4) which reads “The Commission many, as it sees fit, revise, or rescind and reinstate the authority granted by it pursuant to this section.” To enable the Commission to use these powers fully, the Act requires deputy ministers and departmental employees to “provide the Commission with such facilities, assistance and information and with such access to their respective offices as the Commission may require for the performance of its duties.” (Section 7) Section 7.1 of the Act authorizes the Commission to “conduct investigations and audits on any matter within its jurisdiction.”

In October 2001, the Office of the Privacy Commissioner signed a Staffing Delegation and Accountability Agreement with the Public Service Commission, as per section 6(1) of the Public Service Employment Act. Prior to this, the President of the Public Service Commission had met with the then-Privacy Commissioner in August 2001 to begin discussions regarding delegation of staffing authority.

Before the August meeting took place, Mr. Serson was informed by his staff of some analytical work done by the Evaluation and Performance Studies Division of the Commission’s Information Management and Review Directorate. According to a profile report prepared by a Commission study team, this analytical work

Was initiated following numerous complaints from the ‘outgoing’ Director of HR [Human Resources] at IPC [Offices of the Information and Privacy Commissioner (on a confidential basis) to various officers at the PSC ⁵.

The report indicated that “most” of these complaints centred on the then-Privacy Commissioner’s lack of understanding of the “importance of respecting the staffing values, particularly non-partisanship ⁶. The PSC’s response to these complaints was to launch a thematic review of competency and fairness in hiring and recruitment at eight departments and agencies, including the Office of the Privacy Commissioner ⁷. Thematic reviews are not as rigorous or intense as audits and focus on trends and patterns rather than individual cases.

In October 2001, PSC conducted an on-site review at the OPC during which time

A number of issues surfaced which cast considerable doubt on the application of the merit principle and the appropriate exercise of sub-delegated staffing authority ⁸.

Following this assessment, the report prepared by the study team was released internally within the PSC on 21 February 2002. Among other things, the team found:

• A lack of training in values-based staffing to sensitize managers on the importance of the staffing values, particularly transparency (open communications with employees and applicants about resourcing decisions and practices) and fairness (decisions are made objectively, free from political or bureaucratic patronage, practices reflect the just treatment of employees and applicants);
  
  
• Perceptions that managers base their staffing decisions on patronage, expediency and corporate image, at all levels, especially in the communications function;
  
  
• Examples of the inappropriate use of delegated authorities;
  
  
• An example where a conditional offer was made to an employee who did not meet the language requirements prior to appointment to a senior level position; the language requirements were subsequently lowered to match the employee’s capabilities; and
  
  
• Situations where it appeared that the requirements of a position seemed to be “tailored” to match those of the successful candidate, e.g. requiring a degree or not.

The team also reported that the offices of the Information and Privacy Commissioners “chose not to participate in the Employee Survey which was conducted in all other organizations that participated” in the thematic review.

The study team concluded that its findings, along with the complaints that had been made and the departure of two Human Resources directors “all point to risk factors that should be mitigated through some form of PSC intervention.” “In this way,” the team added, “the PSC can be seen as effectively playing its oversight role and aiding the organizations in facing current and future HR challenges ⁹.

The PSC did not provide the Office of the Privacy Commissioner with a copy of the profile report. Instead, in March 2002, the President of the Public Service Commission sent a letter to Mr. Radwanski thanking him for his participation in the thematic review. The letter explained the nature of the review, and the role of the PSC in overseeing staffing in the Public Service. Mr. Serson then provided a list of “suggestions” — seven steps that the Office of the Privacy Commissioner “should” take — and concludes by indicating that Mr. Serson expected that the issues raised by the review would be addressed in the OPC’s forthcoming departmental staffing report. The letter did not list the problems brought to light by the study team. Nor did it mention possible consequences of a failure to implement the seven “suggestions,” including the possible revision or removal of the delegated staffing authority, or revocation of appointments, as permitted under the Public Service Employment Act.

In July 2002, a Public Service Commission follow-up team interviewed the OPC’s executive director and its director of Human Resources — and no one else. The team found that the OPC had made significant progress.

In November 2002, the Office of the Privacy Commissioner submitted its departmental staffing report. The Public Service Commission found it unsatisfactory. On 16 June 2003 — approximately six months after receiving the report, the PSC responded in a letter outlining its concerns but not mentioning — again — the consequences if the OPC did not improve its staffing regime. In July 2003 — after the former Privacy Commissioner had resigned — the PSC revoked some of the Commissioner’s authority to staff positions.

On 29 September 2003, in response to a recommendation made by the Standing Committee on Government Operations and Estimates, the Public Service Commission released the results of its audit of the Office of the Privacy Commissioner. The audit found that there were “serious deficiencies in the management and operations of staffing and recruitment in the OPC ¹⁰. The Office of the Privacy Commissioner responded positively to all of the PSC’s 12 recommendations. Although the Public Service Commission conducted the audit at the request of the Standing Committee on Government Operations, it made public its audit report without having presented it to the Committee or its chair beforehand. The Auditor General submitted her report to the Speaker of the House the following day, in accordance with established procedures.