Government Operations Committee on March 22nd, 2011

[The Vice-Chair, Conservative, Chris Warkentin]

I call this meeting to order. This is meeting 55 of the Standing Committee on Government Operations and Estimates.

Today we have the privilege and pleasure to have Madam Barrados, the president of the Public Service Commission of Canada. We'd like to welcome her and give her an opportunity to bring forward her report, as well as make an opening statement to the committee.

The floor is yours, Madam Barrados.

[Maria Barrados, President, Public Service Commission of Canada]

Thank you.

Good morning. I am pleased to be here with Donald Lemaire, Senior Vice-President, Policy Branch, and Gaston Arsenault, Vice-President, Legal Affairs Branch, to discuss our special report on Merit and Non-Partisanship under the Public Service Employment Act (2003), which we tabled in Parliament earlier today. This report reflects the views of the commission as it approaches the end of its mandate. We hope it will also provide useful input into Parliament's five-year statutory review required by the act.

The Public Service Employment Act (PSEA) reaffirmed the mandate of the Public Service Commission of Canada (PSC) as a guardian of merit and non-partisanship in the federal public service, first enshrined in federal statute over one hundred years ago. With the passage of the November 2003 act, the commission's role is clear. We have put in place a highly delegated staffing system, with appropriate oversight, guidance and support measures, as well as regular reports to this committee.

As we noted in our 2009-10 annual report to Parliament, the essential elements of the act are now in place. Significant progress has been made. Five years after the full coming into force of the PSEA, it is too early to draw final, definitive conclusions about its implementation. However, we believe the essential structure of the act is sound and will stand the test of time.

Our report focuses on three key issues that, in our opinion, need attention, and we offer some recommendations for addressing them. Number one, we need to improve the effectiveness of the staffing system. Number two, we need to enhance the approach for safeguarding the non-partisanship of the public service. And number three, we need to strengthen the governance and operation of the commission.

An effective staffing system is the backbone of a modern, well-run professional public service. There are, however, substantial opportunities to improve the efficiency and effectiveness of the staffing system. Our report describes four of those.

First, our experience over the past five years has confirmed the ongoing need for some centralized services to assist deputy heads and managers in assuming their roles under the act. These services, which include our electronic recruitment system as well as several national recruitment programs, can foster greater efficiencies and improvements in the staffing system. A delegated system needs to be balanced with centralized support functions.

Second, we need more proactive, integrated planning to better manage the entire workforce--not only the permanent workforce, but also the contingent workforce. The use of temporary employees, casuals, contractors, and temporary help workers should be part of the planning.

Third, there are difficulties in the recourse system that need to be addressed. The statutory requirement for double notification of appointments has proven to be administratively burdensome for large processes. We've also made recommendations to address a gap in the system where deputy heads are directly involved in an internal appointment process. Under the Public Service Employment Act, PSEA, the commission currently cannot investigate these processes.

Fourth, continued effort is required to improve data analysis and measurement.

I would like to turn now to the issue of non-partisanship of the federal public service. The PSC's mandate to independently safeguard this core value is clearly laid out in the preamble of the PSEA and part 7 of the act, which sets out specific obligations regarding political activities by public servants. There are always tensions between the non-partisanship of a public service and the need for a public service to respond effectively and loyally to the direction of elected officials. Scholars have pointed to the pressures to politicize bureaucracies. While these pressures are not as prevalent in Canada, there are ongoing questions. We have identified gaps that need to be addressed with respect to processes involving Governor in Council appointments, political activities of public servants, and relations between the public service and the political sphere. I'd like to briefly elaborate.

In our professional, non-partisan public service, it is established that appointments must be independent of ministers, merit-based, non-partisan, and independently overseen. The Privy Council Office has processes in place with respect to Governor in Council appointments; however, there is no independent assurance that the appointments to positions of leadership are merit-based and not politically influenced. We recommend that further steps be taken to ensure that external appointments--that is, those from outside the public service--of deputy heads, associate deputy heads, and members of separate agencies and boards to the core public service are merit-based, non-partisan, and subject to independent oversight. This could be done by an organization such as the public appointments commission, which was provided for in the 2006 Federal Accountability Act. Alternatively, it could be added to the responsibilities of the Public Service Commission of Canada.

We identified a need for increased awareness by organizations and individuals about non-partisanship as set out in the preamble and part 7 of the PSEA. Work needs to continue on providing greater clarity to public servants through policy or regulation. We also recommend a statutory change that would allow the PSC to investigate any complaint of improper political activity on the part of a deputy head.

This brings me to the relationship between the public service and the political sphere, particularly ministerial staff. There is a need for improved guidance to political staffers on their relationships with the public service. Accordingly, we are recommending that a code of conduct for ministerial staff be put in place to provide clear guidance on the relationship between ministerial staff and public servants.

Progress has been made in managing the movement of former ministerial staff into the public service following the December 2006 amendments to the PSEA.

I would like to turn now to the issue of strengthening the governance and operation of the Public Service Commission of Canada. Over the past five years, the commission has successfully reoriented itself to play a leadership role in the implementation of the PSEA. We have made changes in how the PSC operates within the statutory framework, and we have recommended additional measures to improve the capacity of the PSC to fulfill its mandate.

The commission itself has gone from full-time commissioners to part-time members. The statute did not go far enough in modernizing the governance and operation of the commission. We recommend that the PSEA confirm the current operation and division of duties between the president and part-time commissioners.

We further recommend a series of legislative amendments to increase the capacity of the commission. They include providing commissioners in office with a role in the appointment of other commissioners, using a fixed rate of pay for setting the president's salary, and allowing the PSC to table its reports directly to Parliament.

Our legislative proposals to remove barriers to our operations include providing authority to contract for goods and services, allowing some of our services to be provided to other jurisdictions--for instance, language testing to provinces--and providing protection to our auditors and investigators as well as our audit reports and documents.

Mr. Chair, for more than a hundred years, the PSC has protected merit and non-partisanship in the public service. We can be proud of the public service we have today. Our observations and recommendations are intended to help ensure the act's sustainability, so that Canadians will continue to have the professional, merit-based, non-partisan public service they need and deserve.

In closing, we would like to extend our gratitude to parliamentarians, and in particular to members of this committee, for your ongoing interest in the issues we have raised. We would like to thank deputy heads for their engagement and advice, and most of all, I would like to thank the staff of the Public Service Commission of Canada for their dedication and support in doing the important work of the commission.

Thank you. I'm pleased to answer any questions you may have.

[The Vice-Chair, Conservative, Chris Warkentin]

Thank you, Madam President.

Ms. Coady, you will take the first round for eight minutes.

[Siobhan Coady, Liberal, St. John's South—Mount Pearl, NL]

Thank you very much. I certainly appreciate being here today and all the good work that you've done over the years. I appreciate your taking the time to come to see us today.

I noted that you requested to appear before committee as you tabled your report. I just want to read the title of the report: “Merit and non-partisanship under the Public Service Employment Act (2003)”. This is a special report to Parliament.

Obviously you saw a few things that gave you pause for thought and gave you cause for concern, especially around non-partisanship, the political staff, and the public servants. We know, for example, that in one case last week we had the RCMP called in on an issue of interference under the Access to Information Act, and I'm going to get to that.

Have you seen, and can you give us examples of, how political staff might have interfered with public servants? Since you're looking at non-partisanship under the act and you're doing a special report, you were obviously concerned. Could you elaborate on why you were concerned and why this caused you to do this report?

[Maria Barrados]

Thank you for the question. We did the report because this commission is coming to the end of its seven-year mandate, and at the same time we have a statutory review of the Public Service Employment Act, so we thought it was important that this commission put forward its views on the totality of the act.

The act has two parts. It has a staffing part, but it also has the obligation to protect non-partisanship. A lot of our focus has been on the staffing and a lot of the conversations I've had with this committee have been about the staffing portions, but we felt it was important to raise the issues of non-partisanship.

The approach we have taken is an approach based on principle. We have looked at our experience, and I'll raise the specific instance that we looked at. We looked at the investigations we have, the complaints we get, the principles behind the act, and what we have developed over time.

The principles in the legislation are that appointments to the public service—and I'm talking about the core public service—should be merit-based, non-partisan, and independently overseen. The comments I'm making about senior appointments relate to the fact that these are the leaders of the public service. Our argument is that those same principles should apply to the leadership in the public service.

Your question was about specific examples in terms of interference by ministerial staff. We had a particular case that we discussed in one of our annual reports, and we've had a number of instances in which issues have been raised in relation to communications. The case was from the Department of Justice, where there had been an instruction to post something on the web; it was corrected in turn, because it was a fairly political statement that was on the Department of Justice website. When we did the investigation on that—and we follow a quasi-judicial process in doing these investigations—it was clear that the public servant didn't do anything that was partisan in the sense of a partisan activity, but it was also clear to us that there was a real lack of understanding of the two areas we're responsible for.

At what point is it appropriate for a political staffer to instruct a public servant, and at what point should the public servant say that this is not appropriate? Hence, we come to the conclusion that there should be a code of conduct, and that the code of conduct should articulate what those roles are. Everybody would have a better understanding.

[Siobhan Coady, Liberal, St. John's South—Mount Pearl, NL]

Thank you for that full discussion. I appreciate it.

I have two questions arising out of it. Yesterday there was a report by the Information Commissioner that touched on some of these key points. She mentioned the interference, in some ways, of some of the political staff with the public service staff. She wanted improved powers to go out there to do better investigations and bring charges, if need be. On a lot of what you're talking about, there is some cohesiveness between the two reports.

You talked about independent assurance that appointments to positions of leadership are merit-based and not politically influenced. We've been studying the integrity commissioner, and one of the things that arose out of our discussions was the fact that the chair of the selection committee is the Treasury Board president, the Honourable Stockwell Day. I questioned whether that was the most appropriate position for someone of his stature to hold, and whether it could cause some conflict because of the role of the integrity commissioner.

Would you comment on that? What would be your guidance in this regard? The person who answered the question also pointed out that the Treasury Board president was also the chair of the selection committee for the Auditor General, for example. Do you have concerns about that at all?

[Maria Barrados]

Other countries--and I'm looking to Australia and the United Kingdom--have either a public appointments commission, a merit commission, or a public service commission. The U.K. has now put their public appointments commission into their civil service commission, making it a public service commission, but they all have members from those organizations chair the selection committees.

The principle has to be that members of Parliament are confident that it is a fair selection process, and the reason you go for some of these independent organizations, such as our commission or a public appointments commission, is to get that kind of assurance.

I don't really know how the full appointment processes work in these other areas. I think it will be up to the committees that will be hearing from those nominations and reviewing them to feel comfortable with how the selection committees are struck.

[Siobhan Coady, Liberal, St. John's South—Mount Pearl, NL]

Thank you.

I want to go on to the Governor in Council appointments. You raised concerns about them. As you know, this government did strike a commission that hasn't been quite active, although it's costing us $1 million a year.

Have you witnessed any examples of non-merit-based appointments in this process, or are you asking for a revamp because there are concerns in this area?

[Maria Barrados]

My mandate applies to the assistant deputy minister level and below. The mandate of the Public Service Commission does not apply to those leadership positions.

I can't really give you an informed opinion on any particular appointment. I just know, when I read the in media and look at the committee discussions, that a lot of questions are posed. I think that an independent organization similar to the ones I have suggested would be in a position to provide that assurance to members of Parliament.

[Siobhan Coady, Liberal, St. John's South—Mount Pearl, NL]

You talk about a code of conduct. It has some merit, but do you think it goes far enough? Do we need to go beyond that and make it mandatory? How do you see a code of conduct being implemented, and what oversight needs to be given to that code of conduct?

[Maria Barrados]

I think we start with a code of conduct, and the code of conduct for ministerial staff has to be in the hands of the political side. I don't think public servants should be doing that.

There could be good discussion as to who would then be the surveyor of that code. You have an Ethics Commissioner in place, and it certainly is not something that the bureaucracy could do, the political staffers. That would be inappropriate. The bureaucracy has to worry about providing more information and support to public servants in terms of that relationship.

[The Vice-Chair, Conservative, Chris Warkentin]

Thank you, Ms. Coady.

Madame Bourgeois, you have eight minutes.

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

Thank you, Mr. Chair.

Good morning. Mrs. Barrados, gentlemen, thank you for being here.

Mrs. Barrados, you may have to repeat yourself, but I want to make sure I fully understand what you said about appointments. On page 3 of your opening statement, you said and I quote:

We have identified gaps that need to be addressed with respect to processes involving Governor-in-Council appointments, political activities of public servants, and relations between the public service and the political sphere.

Further on, you said:

The Privy Council Office has processes in place with respect to GIC appointments [but you have no] assurance that the appointments [...] are merit-based [...].

Two things. You identified gaps, and, according to you, the Privy Council Office has a process in place.

Could you elaborate on the gaps you identified? Could you tell me what the process in place at the Privy Council Office is?

I would like to make another comment, and you can feel free to respond. It is no great secret that there are flaws in the appointment process at the Privy Council Office. There clearly seem to be some flaws. Why are you telling us about it today? Are you naive enough to think that the Privy Council Office's appointment process has no flaws?

[Maria Barrados]

We took advantage of the opportunity to contribute to the committee's work and to assess the current act to discuss the two components of the act: staffing and non-partisanship.

We found that the Privy Council Office had appointment processes in place, but we did not assess them. What we can see is that—

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

Did you have access to those processes? Were you shown how those appointment processes worked?

[Maria Barrados]

They were just as accessible to us as they are to everyone else. We did not do an audit. We did not do an in-depth analysis, because that is not really part of our mandate. I received information from the Privy Council Office on the advertisement process and the procedure they follow, but I did not receive any assurance. Nor do I have any more information on how exactly it works.

We feel that the same principles should apply not just to core members of the public service, but also to senior managers. In our view, all appointments should be merit-based and non-partisan. And assurance is needed to confirm that that is currently the case. So that is why we recommended that an independent organization or commission be able to provide that assurance.

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

Who was that recommendation for? The minister? Who was it for?

[Maria Barrados]

It is in our report to Parliament. The government is in the process of assessing the act, as required. The five-year statutory review will give Parliament an opportunity to discuss and debate the current act. We feel that input is a key part of the discussion.

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

You said you made the recommendation to Parliament. You are also making it to the committee, among others. That means that we, the committee members, should convey that recommendation. Did you put out any feelers to see if ministers or the Privy Council Office agreed with the recommendation?

[Maria Barrados]

Yes. I have discussions with ministers for every report. I did speak with the Privy Council.

They do not fully agree with us, as far as this recommendation goes. I should make one thing very clear. The Governor-in-Council makes approximately 3,000 appointments. But this pertains to only 400 core public service positions.

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

So it does not affect the other 2,600.

The Privy Council Office is free to appoint individuals at its own discretion, without respecting any conditions, legislation or guidelines. That is what you are telling me. Approximately 2,600 people can be appointed without any oversight.

[Maria Barrados]

That is an area the committee may wish to explore.

The PSC is required to examine the core public service. Our comments pertain to that group. Once we made that clear, our position was better received.

We can debate the appointments of deputy ministers and deputy heads, but I do not see any great risk if those people come from within the public service.

As it says in the report, this has more to do with those who come from outside the public service.

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

If memory serves, the last time you appeared before the committee, in October 2010, we discussed agencies that hired temporary staff to support public servants.

In the statement you made today, you said the House of Commons had an electronic recruitment system that apparently worked very well. You examined it yourself.

You said that if we used that electronic recruitment system, it would result in greater efficiencies, on one hand. On the other, you said we needed more proactive, integrated planning to reduce the need for temporary help agencies. You said so in your second point.

You give some suggestions. Could you give me a few examples?

[The Vice-Chair, Conservative, Chris Warkentin]

Madame Bourgeois, you've run out of time, but I'd like to give some time for an answer.

[Maria Barrados]

The report talks about how important it is for managers in the public service to plan effectively, not only in terms of the permanent workforce, but also in terms of contractors and temporary help agencies. Planners must have a good idea of the proportions and the budgetary allocations. The tendency is to plan solely for the permanent part of the workforce.

Furthermore, it is clear to me that we can make significant improvements and enhance efficiencies by using electronic systems. We are doing it now. We have made progress in this area. I have the support of deputy ministers. And the committee's support has also helped with that.