Public Accounts Committee on Nov. 30th, 2010

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Do I have any time left?

[The Vice-Chair, Conservative, Daryl Kramp]

You have three minutes.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Have you ever thought about disclosing something?

[Daphne Meredith]

No, I haven't. As a personal question, no.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Now, if a legal process is under way concerning a public servant suspected of being in conflict of interest, is it true that the government forces the plaintiff to abandon any lawsuits before his case is heard? Is the complaint receivable if the government has begun a lawsuit? If both occur at the same time, what happens?

[The Vice-Chair, Conservative, Daryl Kramp]

Madame Faille, I'm not sure if the question is in order. It's a hypothetical question. Could you perhaps clarify that, Madame Faille?

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

I will clarify my question.

You're telling us that the law protects and encourages public servants to make disclosures. However, the complaint filed with the Public Service Integrity Office by a public servant cannot be heard as long as there is a court process underway. I have a letter from the commissioner to whom the question had been put.

I asked this to find out whether the new code provides for some flexibility, another regulation or a mechanism to hear disclosures when there is a legal process under way.

[The Vice-Chair, Conservative, Daryl Kramp]

That's a fair question.

[Daphne Meredith]

I don't know or haven't considered the situation you have presented there, so I'm not able to answer the question on what would happen if there were a legal proceeding under way, if somebody had made a complaint.

[The Vice-Chair, Conservative, Daryl Kramp]

Thank you, Ms. Meredith.

You still have another minute left, Madame Faille.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

I'm somewhat surprised that you've never seen such a situation, because you took part in a meeting where there were discussions about this. Perhaps I can refresh your memory by saying December 2006 and January 2007.

I'll give you an opportunity to revise your answer. You don't have to confirm it, but you were present when the topic of the rights of a person under the charter was discussed.

[Michelle d'Auray]

Mr. Chair, on this particular issue—

[The Vice-Chair, Conservative, Daryl Kramp]

Could we possibly have a quick response, Madame d'Auray, on this point?

[Michelle d'Auray]

The code that we are developing as well as the policy on conflict of interest do not change the law. The commissioner takes direction from the law. The code simply provides a framework for certain practices, but it does not replace the law.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

There's still a deficiency here. If a legal process is under way the law can be taken into account.

[Michelle d'Auray]

Yes, but there is a process to review the act that could be triggered by Parliament starting in 2012.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

There have been delays.

[Michelle d'Auray]

What is important is finding out what the legislation allows. The code does not change or amend the legislation.

[The Vice-Chair, Conservative, Daryl Kramp]

Thank you, Madame d'Auray.

Madame Faille, if you wish to pursue that issue in another round of questioning, that would be fine, but now we'll go to Mr. Allen, please.

[Malcolm Allen, NDP, Welland, ON]

Thank you, Mr. Chair, and thank you to everyone.

The Auditor General mentioned in her report as well as in her opening statement about different areas that she found lacking. One of them was training when it comes to folks you're working with in the public sector. I have two pieces I'd like you to address about training. One of them is what I'll term—for a lack of better word—the “full-time general population” that's in the public service, and there is one other section. There are two subsets to that: folks we bring in on a temporary full-time basis, or contract, if you will; and in the subset of that are the consultants we bring in from time to time.

Really, we have three levels of employees, if you will, that clearly should be governed by ethical standards and by conflict of interest because they are working on behalf of the Government of Canada and of course Canadians.

Could you address each of those? Because clearly, in the report—in section 4.8 and section 4.9—we're talking about audits done in 2007, where indeed the Auditor General found contractors and consultants were empowered to set up contracts and terms of reference for contracts that eventually awarded the contracts to themselves or to the companies they were principals in, or less than principals in.

When I was in municipal government I used to abide by a conflict of interest code as well, and anyone who didn't understand that that's a direct conflict of interest is really eating the wrong mushroom, so to speak, because at the end of the day, if you don't know you have a pecuniary interest in a company, and you're working for the government, and you award your company the contract or set up the terms of reference such that the contract will be won by that company.... That's not long ago. We're talking three years ago when the audit was done; it's not 25 years ago. This is relatively new.

So could you address those three groups of employees, with a sense of how you intend to train them? It's all wonderful to say that full-time employees go to school, but the reality of going to school and actually working in the real world is not totally the one and the same.

[Daphne Meredith]

Thank you for the question.

The values and ethics code applies to federal employees, and that includes indeterminate employees, term employees, and casual employees. All of them are subject to the code. Contractors or consultants hired under contract are subject to the Treasury Board contracting policy, which has a provision on conflict of interest and therefore puts an obligation on those contracting with the government, before signing a contract, to require any consultant or other person that will be working directly for the government to sign a declaration stating that no pecuniary interest in the business or any third party exists that would affect objectivity in carrying out the contract.

They're not subject to the values and ethics code per se, which is for employees, but there are provisions in the contracting policy for their conflicts.

[The Vice-Chair, Conservative, Daryl Kramp]

Do you have another question, Mr. Allen?

[Malcolm Allen, NDP, Welland, ON]

I understand what you're saying about adapting a group. Here's my fear of that training, which I witness in the real world when it comes to places where I work. The reality is that you set up a training matrix for those who work full-time or on a regular basis, and that you intend to have for the next ten years. Then you look at the next subset, which are your temporary employees, who are going to be there for a year, and say “Maybe I can fit them in, but if it's the last month of the contract, why would I train them? I don't think I'm getting them back. If some other department gets them, let that budget go there.”

When it comes to contractors, you clearly said that you don't train them at all. You get them to sign a declaration. I guess that begs the question: Did the folks the Auditor General was talking about in the 2007 report sign a declaration? If they did, when it was found that they had actually breached that declaration, what happened? Did you fire them? They only have a contract anyway.

At the end of the day, what kind of leverage do you have over a contractor who is on a short-term contract of a year or two, who you find out at month 19 has breached the code, and you say “See you later, you're out of here”? Do you punish the company that they actually helped to set up a contract for by saying “You can't have the contract because the employee was gone in three or four months anyway“? The punishment doesn't really fit the crime, in my mind.

[The Vice-Chair, Conservative, Daryl Kramp]

A response, Madame d'Auray, please.

[Michelle d'Auray]

I think there are two aspects to this. One of them is training, which is a component of what we provide our employees. I'd simply make the point: consultants and contractors are not employees of the Government of Canada.

The training we provide is on the basic elements of the code and the responsibilities, but there is an added component, which is the ongoing discussion, as I mentioned earlier, that deputy heads have through their management, through their employees, about what it means to deal with these issues on an ongoing basis.

Training gives you the core framework, but really, the value is in the ongoing discussion and engagement of employees, because training will not cover every single situation. You have to actually have a discussion, create an openness for those issues to arise. Not everything can be prescribed, and not everything can be thought of.

I was trying to give you an explanation that what is a conflict of interest in one department, given the business line, is very different from the actual conflict or perceived conflict. There are some general principles and values.

With regard to contracting, the onus is on the contractor to make that declaration. We have to make sure to the extent that we can, but we don't know the full business of every independent contractor or business. The recourse we have is basically to make sure they cannot benefit or profit.

I've had situations, for example, where someone in fact was a contractor, then found out afterwards that the person had applied for a grant or contribution, and we wrote the company to say you cannot put this person responsible for the application and the relationship, because the individual is in fact in a position of conflict. Is the company in a conflict? Do you bar the company from applying for a grant or contribution? No, because there is a legitimate business value in them applying for the opportunity to benefit from an investment.