Letter to DM: Concerning Final Level Authorities

27 May 2015

 

Mr. John Forster
Deputy Minister of National Defence
National Defence Headquarters
Major-General George R. Pearkes Building
13th Floor, North Tower
101 Colonel By Drive
Ottawa, Ontario K1A 0K2

 

Dear Mr. Forster,

Re.: Grievance Process under the PSLRA

After more than a year in the position, I wish to enlist your assistance in concluding the outstanding governance issues necessary to carry out the mandate entrusted to as DND/CF Ombudsman. 

Final level in the grievance process under the Public Service Labour Relations Act (PSLRA)

As you are aware, the Ombudsman was previously delegated final level authority to address grievances internal to the office. When the delegations were being renewed upon my appointment, this delegation was removed following concerns, raised in a draft of the Auditor General’s Spring 2015 Report, that the small size of the organization allowed for possible conflicts of interest, particularly in cases where the matter grieved is a decision of the Ombudsman.

I appreciate the circumstances that prompted your predecessor’s decision, and am in complete agreement that grievances in which the Ombudsman is personally named should not be heard and decided by the Ombudsman.  However, the effect of removing final level authority to hear grievances from the Ombudsman means that labour relation matters internal to the Office of the Ombudsman would default to the Director General Workplace Management responsible for all of the DND.

This potentially creates a serious conflict of interest situation in that the organization mandated to investigate complaints brought against the department, i.e. the office of the Ombudsman, would itself be subject to review by that same department.   This governance structure compromises the independence and neutrality of this office and effectively undermines my leadership in the day to day management of staff.

I therefore propose a solution that respects the legislative delegation scheme for which the Deputy Minister is responsible, allows the Ombudsman to manage the organization for which he is responsible, and ensures that conflict of interest is not unintentionally built into the system. I propose that final level authority under the PSLRA to hear grievances brought by staff of the Office of the Ombudsman be delegated to the position of Ombudsman with the proviso that any grievance in which the Ombudsman is personally named be heard by the Director General Workplace Management.

Investigations under Public Servants Disclosure Protection Act (PSDPA)

Another area for discussion is the operation of the PSDPA. ADM(RS) is mandated to act as the Internal Disclosure Office for DND civilian public servants and is designated to receive disclosures of wrongdoing under the PSDPA. It is my position that any allegation of wrongdoing on the part of the Ombudsman or his staff should not be investigated by CRS because to do so undermines the independence of the office, compromises the reporting lines and direct accountability to the Minister, and could create a conflict of interest by entrusting two organizations within the defence portfolio oversight of each other. This would compromise the independence of any investigation as well as the credibility of both organizations. 

I propose that we conclude a Memorandum of Understanding to the effect that any disclosure of wrongdoing by an employee working in the Office of the Ombudsman be referred directly to the Office of the Integrity Commissioner. This maintains the rights of public servants under the provisions of the PSDPA.

Since I have assumed responsibility for this office, I have taken concrete steps to align our administrative practices with those of the department. We have concluded a Service Level Agreement with ADM (HR-Civ) for integration of human resource planning, programs and services, invited the Department’s Expenditure Management Review Team to audit our financial practices, concluded a Service Level Agreement with ADM (Fin)/CFO, and committed to work closely with DND to implement the recommendations in the Auditor General’s Spring 2015 Report. I expect that the recent collaboration between our organizations will continue and am confident that we can conclude the outstanding matters without further delay.

I look forward to finalizing our discussion when we meet in June and giving direction to our respective officers to prepare the necessary instruments.

Sincerely,

 

Gary Walbourne
Ombudsman

 

Cc. The Honourable Jason Kenney, P.C., M.P.

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