Public Sector
September 8, 2014

The Responsible Public Servant revisited

In 1990, the Institute of Public Administration of Canada published The Responsible Public Servant, a book that focused on the ethical dilemmas facing the average public servant – not just deputy ministers or city managers, but the people providing services to the public, providing policy analysis, corporate services and the like. A second edition has been released. The following article by the book’s authors highlights key changes in the public sector ethical landscape that feature prominently in their rewrite of this best-selling volume.

 

Public servants seem more reluctant to accept personal responsibility for the outcomes of government actions to which they contribute.

In 1990, we noted a simmering academic debate about this issue but gave it short shrift. In the new edition we devote the entire first chapter to what in our view has become an increasingly difficult issue for many public servants. In workshops, classrooms and publicly documented cases we have noted the increasing tendency to shift responsibility and blame upward to the “ultimate decision makers” even though a potentially harmful action or omission could not have occurred without the contributions of individual public servants as analysts, evaluators, service delivery agents and communicators. We often hear the excuse that “I am obliged to follow orders,” or “I am just one of many team members involved.”

This suspension of personal responsibility allows public servants to become involved in some highly questionable activities: helping with the export of asbestos; dismantling environmental regulations; designing legislation that they know won’t survive a court challenge, etc. Ironically, this reluctance to accept personal responsibility appears to be growing in a period in which Canadian governments are embracing the obligation of whistle blowing and even defining the nature of wrongdoings that government employees should report.

Political neutrality is in trouble.

A related development is a sea change in support for the traditional concept of political neutrality that has upset the balance between the values of loyalty – on the one hand – and neutrality, professionalism and independence in most Westminster jurisdictions. Public service has become increasingly politicized, mostly by the penetration of what used to be administrative activities by political staff. Public servants are now widely viewed as “part of the team.”

What do we see now that was far less common in 1990?

• Tailoring of policy analysis: the writing of policy briefs ‘to order’;
• Doctoring and suppression of data which would undermine the perceived effectiveness of a policy initiative or program;
• Contracting out of data collection and legal advice to firms ‘friendly’ to the government;
• Removal from policy or implementation teams of participants deemed unfriendly by political masters;
• Politicization of the communications function; and
• The gagging of technical and scientific staff.

Ironically, on the other side of the political neutrality equation is use of the Charter of Rights in the courts to expand the political rights of public servants. There is almost no political activity that is now unacceptable as long as it is not demonstrably damaging to the performance of one’s duties and done away from the workplace.

The meaning of conflict of interest is changing.

Traditionally, conflict of interest has centred on personal gain, especially financial gain. Now, however, there is much more focus on public servants having interests that might interfere with the objective performance of their duties, raising questions about the public’s trust in the fairness and impartiality of their decision making. There is more concern about the negative effects of apparent and potential conflicts of interest and about public servants who use their public office for partisan gain or engage in personal behaviour in tension with their official position.

Some variations of conflict of interest (e.g., moonlighting) have become more permissible whereas others (e.g., post-employment) have become more tightly regulated. In addition, the definition of ‘personal’ has widened to include business associates and family members, accompanied by concern that conflict of interest rules may encroach on individual privacy.

We celebrate openness, but continue to practice secrecy.

In the tug of war between secrecy and transparency, secrecy is winning. This is quite different from the 1990’s situation when, with access to information legislation having been passed, it looked like transparency was on the rise and would create new openness obligations for public servants.

Now public servants get contradictory messages. On the one hand, driven by security concerns after 9/11, laws assuring secrecy have expanded, criminalizing leakage of sensitive information and even its receipt by journalists, academics and wikileaks-style web masters. Similarly, some public service codes of conduct have strengthened the secrecy message while others have discarded positive references to openness or transparency. Public servants’ internet and e-mail use is increasingly being monitored.

On the other hand, a positive development on the transparency horizon is the increasing passage of whistleblower protection legislation. But the focus in Canada is on protecting internal disclosure, not facilitating public disclosure. In some jurisdictions, public servants are warned that they are “making a complex judgment call” if they go public and it must only be done in extremis. Also, despite the spate of legislation, governments have not yet demonstrated their capacity to stop retaliation against whistleblowers.

Overall, there is slim encouragement to public servants to become more open with government information. The weight of law, policy and practice is still on the side of secrecy.

Efforts to create protections for personal privacy aren’t keeping up with the opportunities to violate it.

The duty to protect the informational privacy of citizens is very much in flux. The impact of concerns about security and public health and safety; the radical shifts in surveillance capacity and data storage, matching and sharing; and wider cultural shifts with respect to the meaning and significance of personal privacy are likely to significantly transform the obligations of public servants to protect the personal privacy of citizens and employees.

Increasingly, the provisions of privacy legislation are seen as inadequate in the face of the opportunities available to governments to adopt new surveillance and data gathering technologies, mine and match big public and private data banks, develop more comprehensive identity management systems, and share data with other governments. And at the interface between privacy and confidentiality, governments are struggling to come to grips with employees’ increasing use of blogs and other social media tools to make substantive and sometimes negative observations about their employers, workplaces and clients.

We have lost sight of what we actually mean by personal privacy. Is it about non-interference or how information about you is used? What is the importance of privacy relative to other values? Is it a right or merely a culturally bound claim? We don’t understand the privacy expectations of those affected by new collection and management information technologies. Thus, we place little emphasis on privacy protection in public service value statements, codes of conduct and ethical training programs.

Accountability has become more institutionalized, but the individual public servant’s duty of accountability is far from clear.

In recent years the perceived growth in the power and discretion of public servants has heightened public concern about their accountability. Politicians and the media increasingly play to this concern by ‘outing’ previously anonymous public servants and blaming them individually for things that have gone wrong. The activities of public servants are now much more closely monitored by internal auditors, treasury boards, public service commissions and auditors-general and public servants are increasingly obliged to explain their behaviour to courts, tribunals, and a widening circle of guardian agencies (e.g., privacy commissioners).

With the increased focus placed on service quality, cross-ministry and intergovernmental service integration, contracting out, public-private partnerships, and stakeholder and citizen engagement, many public servants have raised questions about the limits of individual accountability in circumstances in which responsibility is shared with others both inside and outside the public sector. Paradoxically, the development of new public management ideas and new policy, service delivery and regulatory networks has created for many public servants a strong sense of personal accountability to colleagues, employees, clients, ‘customers’, stakeholder groups and service partners – an accountability which the latter players increasingly demand as an entitlement.

The concept of accountability is rarely featured in codes of conduct with the result that public servants are left with too little clear direction about who they should be accountable to and for what.

Ethics management regimes are only doing half the job.

The final chapter of The Responsible Public Servant examines the means by which the ethical behaviour of public servants can be fostered. While ethics rules, values statements and oversight agencies are an essential part of any ethics regime, under-resourced government departments and agencies are not paying enough attention to ethics leadership, training and the building of strong ethical cultures.

The Responsible Public Servant is available in print and as an ebook from the Institute of Public Administration of Canada (www.ipac.ca) and online book sellers.

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The Government of Canada was the nation’s largest employer with 274,370...