Bill C–520, An Act supporting non-partisan agents of Parliament

Opening Statement to the Standing Committee on Access to Information, Privacy and Ethics

Bill C–520, An Act supporting non-partisan agents of Parliament

25 February 2014

Michael Ferguson, CPA, CA
FCA (New Brunswick)
Auditor General of Canada

Mr. Chair, thank you for this opportunity to present my perspectives on Bill C-520. At the outset, I would like to assure you that my employees and I are committed to carrying out our duties in a fair, independent, impartial, and non-partisan manner. I recently signed a letter along with several other agents of Parliament that emphasized this point.

The letter also makes several observations of a technical nature regarding the interaction of the provisions of this Bill with the current regime that governs political activities of public servants. The letter provides a description of aspects of the Bill on which we would appreciate some clarification.

Section 6 of the Bill requires an agent of Parliament who intends to occupy a politically partisan position while still holding his or her position as an agent of Parliament to make a written declaration of intent as soon as possible, before occupying the political position. Currently, under section 117 of the Public Service Employment Act (the PSEA), I am not permitted to engage in any political activity other than voting in an election. The situation described in section 6 could never occur, and I would not like people to get the impression by reading the Bill that it could.

Other aspects of the Bill may produce unintended consequences. Under the current legislation, I appoint employees to my Office in accordance with the Public Service Employment Act (the PSEA). Employees are hired based on the merit principle. Subsection 7(1) of the Bill requires an applicant for employment to provide, as soon as possible in the hiring process, a declaration as to whether or not they have occupied a politically partisan position in the past 10 years. Consideration of prior politically partisan positions would not be permitted to influence the current selection process. Under the PSEA, if an individual had declared prior politically partisan positions, and for reasons of merit was unsuccessful in obtaining a position, that individual could challenge the decision not to hire on the basis that his or her declaration influenced the hiring process. Moreover, the publication requirement of this personal information could discourage individuals from seeking employment with our Office.

Section 9 of the Bill states that I may examine allegations made by a member of Parliament or a senator that an employee has carried out their duties and responsibilities in a partisan manner. If an examination of such allegations is carried out, a report must be sent for tabling in both Houses. The proposed examination power would benefit from clarification as to what constitutes partisan conduct and the threshold of evidence required to request an examination. Under the PSEA the Public Service Commission investigates allegations of political activity on the part of public servants. Political activity is defined very broadly in that Act, and in my view, it could include partisan conduct. In addition, there is no confidentiality mechanism to protect the reputation of the employee whose conduct was examined and found to be appropriate and non-partisan. It may be worthwhile to consider whether the investigation provisions of the PSEA are a more effective method for independent oversight. Given the apparent overlap with the PSEA, a witness from the Public Service Commission would be of assistance in the committee’s deliberations.

There is a third aspect of this Bill, which I would recommend to the Committee for further study, and that is its impact on the privacy of individual employees. I have mentioned some possible consequences in connection with hiring and investigations. I would now like to touch on other possible impacts.

Upon coming into force, the Bill requires written declarations from all employees in our Office as to whether or not they occupied a politically partisan position within the 10 years prior to joining the Office, and a declaration from those who may have occupied such a position that they have been carrying out their employment duties in a non-partisan manner. The fact that some employees would be required to make a declaration could have adverse consequences. The public disclosure of this past activity also causes the individual’s current place of work to be known. Furthermore, over the past 10 years, the employee may have changed political allegiance. Factors such as these may give an employee incentive to withhold information about past political activity rather than to disclose it. For these reasons, employees may be reluctant to make a declaration.

The Bill applies to all employees, no matter what duties they carry out. The Committee may wish to consider whether the objectives of the Bill could still be met by restricting its application to those senior managers and employees with authority, influence, and supervision over the work of the Office.

In closing, I would like to say a few words about the processes and declarations that are currently required of the employees in our Office to ensure that they comply with professional audit standards, our code of values and ethics, and current legislation.

Each year, every employee completes a conflict of interest declaration, acknowledging, among other things, the obligation to act in a non-partisan, independent, and impartial manner. At the start of every audit, every individual who participates on the audit must complete a comprehensive declaration of their independence. Any cases that give rise to a real or perceived threat to independence are reviewed by senior managers and our Office’s specialist for values and ethics.

Mr. Chair, I hope that these comments will be of assistance to the Committee as it undertakes its review of Bill C-520. I would be happy to answer any questions you may have.