Wednesday, August 27, 2008

PSC blasts Sask. Party gov’t over Walker firing; Deputy Premier Ken Krawetz oblivious, StarPhoenix & Leader-Post let Premier Brad Wall off the hook

“We have conducted this transition…professionally and with respect to the taxpayers for whom we work.”
– Premier Brad Wall, Saskatchewan Legislature, Apr. 1, 2008

“[C]hanges to the senior levels of the civil service…should be based on merit, not patronage or partisan politics.”
Saskatchewan Party Leader Brad Wall, Leader-Post, Aug. 30, 2007
The first thing that came to mind while reading the Public Service Commissioners ruling in the Allan Walker wrongful dismissal case was, are the Saskatchewan Party government now going to try and fire some or all of the commissioners?

The Public Service Commissioners are appointed by the Lieutenant Governor in Council and are responsible to effectively carry out the provisions of The Public Service Act. At this juncture it’s hard to imagine that they enjoy the right-wing government’s confidence or satisfy deputy premier Ken Krawetz’s criteria for employment, which is “tow the party line” and “follow the objectives and philosophy of the Saskatchewan Party and Premier Wall.” [Civil Servants Fired By New Saskatchewan Government (, Jan. 25, 2008)]

The second thing that comes to mind is how completely oblivious and unrepentant Krawetz seems to be. The man shows absolutely no sign of being able to comprehend how dangerous and destructive his party’s blind ideology have become. He seems to believe that what he and Premier Brad Wall did was OK. Krawetz argued it did nothing differently than past governments and should have the right to fire employees without cause if they are deemed philosophically incompatible.

“I think that has to be there to ensure government can make changes,” Krawetz said. [Walker placed on ‘re-employment’ list (Leader-Post, Aug. 22, 2008)]

Thank goodness the commissioners don’t see it that way.

Another disturbing aspect of the story is that the StarPhoenix and Leader-Post have let Premier Brad Wall off the hook. Wall was part of the transition team that led to Walker’s firing along with approximately 70 other government workers. While Krawetz chaired the team it was Wall who, by his own admission, led the process. It’s interesting to note that at no time has Wall issued a press release condemning Krawetz’s comments. That should tell you something.

The commissioner’s 19-page decision contains a wealth of information not reported in the media.

The hearing into Walker’s case was held June 24 and 25, 2008, in the Cossack Room at the Ramada Hotel in Regina. The members of the commission hearing the case were: Ray Purdie, Chair of the Appeal, Lynn Archdekin and Roberta Burns.

Leader-Post political columnist Murray Mandryk seemed to be the only person covering the story producing three articles:

Commission hears ex-employee’s case (Leader-Post, June 26, 2008)
Krawetz testifies, hearing concludes (Leader-Post, June 27, 2008)
An issue that can’t easily be dismissed (Leader-Post, July 2, 2008)

As background the commissioners noted in their report that “Allan Walker was a long service member of the public service of Saskatchewan (34 years), commencing his employment in September 1973 and progressing through the classified public service on the basis of merit to his final position as Executive Director/Assistant Deputy Minister Occupational Health and Safety Division, Ministry of AEEL, as shown in exhibit A1 16(a). On May 13, 2007 he was granted a definite leave of absence for a one-year fellowship at the Saskatchewan Institute of Public Policy (SIPP). It was during this leave that his employment was terminated by Deputy Minister Wynne Young on January 24, 2008 pursuant to section 28 of the PSA (see exhibit A1 1).”

At the hearing, the commission received documentary and verbal evidence.

On June 24 justice ministry lawyer Ross Macnab called deputy minister Young to testify. Her employment history was stated as 23 years in the public service, which included seven years as Chair of the Public Service Commission.

She confirmed that Walker was on secondment to SIPP and “stated that in the new organization he would have reported to the Associate Deputy Minister of the Ministry of AEEL.” That person is Mike Carr.

According to the cabinet secretariat Carr was appointed [without competition] by an order in council dated Mar. 6, 2008. It was effective Mar. 24, 2008. His salary is $155,000 per annum.

Carr is the former vice-president and director of personnel for IPSCO Saskatchewan Inc. (now Evraz Inc. NA). He was co-chair of the Saskatchewan Chamber of Commerce human resources committee and a member of the Saskatchewan Labour Relations Board representing employers. He does not appear to have any previous experience working in government.

The Moose Jaw Times Herald once described Carr as “an advocate of the hard line” in the business community. [Proposed indexing of minimum wage is betrayal, provincial chamber votes (Moose Jaw Times Herald, May 12, 2007)]

Saskatchewan Party financial statements filed with Elections Saskatchewan appear to show that Carr has contributed $1,200 to the party since 2003.

Young told the hearing that Glennis Bihun, who was initially acting in Walker’s position during his leave of absence, was now permanently appointed to that position.

Walker later testified that to his knowledge Ms. Bihun “was appointed to his position in AEEL without competition as he saw no advertisement for it (that would normally be required for an appointment in the classified service).”

Young indicated she had received a phone call from Doug Emsley of the new government transition team indicating the names of individuals in which the government did not have confidence. Walker’s name was not on the list. “As Mr. Walker was a senior staff member too, she asked about his status and Mr. Emsley indicated Mr. Walker did not have the confidence of government either but was not on the list at that time. Ms. Young told Mr. Emsley that she had concerns about the timing with regard to all the dismissals in the ministry and the need to proceed with building the new management team. So Mr. Emsley added Mr. Walker to the list.”

Young said “it is only the Deputy Minister who can terminate the employment of individuals holding positions in the classified service. However, she stated that those on the list were very senior employees whose work required a great deal of contact with politicians and executive government, so she felt she could not proceed with the changes required in her management team in the new ministry with staff in which the government had no confidence. She then made her decision to terminate the employment of all the names of individuals given to her by Mr. Emsley.”

Young went on to say that “she considered the possibility of transfer for Mr. Walker, but ruled it out as, in her mind, any other senior position would also require the confidence of the government.”

Not mentioned in the media is the fact that Young discussed Walker’s case with someone other than Emsley.

During cross examination by Walker’s lawyer, Ron Gates, the deputy minister said “she met with Mr. Garnet Garven, Deputy Minister to the Premier, to discuss the implications of terminating the employment of an individual on secondment and it was agreed between them that termination of employment also ended the secondment.”

In his closing submission justice lawyer Macnab noted that Young’s “short conversation” with Garven happened after she spoke with Emsley.

Garven had been subpoenaed but not called to testify.

Still under cross examination Young stated “she understood the purposes of the PSA [Public Services Act] but considered that the government’s agenda could not go ahead effectively with individuals who did not have the government’s confidence.”

So in Young’s mind it would appear that the Saskatchewan Party’s agenda and its implementation take precedence over the Act.

Young “confirmed that the termination of Mr. Walker had nothing to do with his performance; and that in doing so, she did not review his personnel file nor interview him prior to his termination, nor did she engage in a “Planning for Success” performance review process due to the fact Mr. Walker was on secondment for the entire time she was DM of AEEL. Neither did she offer Mr. Walker the chance to respond to the decision to terminate his employment.”

The hearing heard that Young “had being doing a review of the management make-up of the ministry going forward and it was in this context that she received the call from Mr. Emsley and decided to terminate the employees named who lacked the confidence of the government. In her mind, without government confidence, they could not be effective in the new organization of the combined ministry.”

“She did not know or inquire as to the reasons the government did not have confidence in Mr. Walker,” the ruling states.

“She confirmed, as a former Chair of the PSC, she still feels bound by the Oath of Office of a Public Service Commissioner and agrees with it and the merit system.”

If that is the case then why did Young participate in an exercise that clearly smacked of political interference, one that the commissioners viewed as wrong?

At least two individuals in her ministry, Carr and Bihun, were appointed to positions without competition. At any point did Young protest this?

“In our opinion the termination of Mr. Walker’s employment fails the test of fair and just human resource management practices as envisaged for the classified service in the PSA and constitutes a fundamental violation of the principle of merit in appointments in that division,” the commissioners said in their decision.

“The public interest is best served by establishing and maintaining a classified service based on the “merit principle”. That is to say appointments to and promotions within the classified division of the service are to be made on a competitive basis, open to the public, free from any political interference or direction and based on demonstrable competence for the position being filled.”

In his concluding reply submission justice lawyer Macnab said “Ms. Young did her due diligence and considered the options available to her and acted, in her opinion, in the interest of the public service.”

The commissioners wouldn’t have any of that nonsense.

“There was no evidence offered as to why the government lacked confidence in or could not trust Mr. Walker nor was any opportunity provided for him to demonstrate loyalty and effective implementation of new government policies and programs,” the ruling states.

“Having carefully reviewed the evidence, both verbal and documentary, we find that the decision to terminate Mr. Walker’s employment was without sufficient cause. No evidence was offered as to why the government, as employer, would lack confidence in Mr. Walker and therefore, in our view his dismissal was arbitrary and was not in the interest of the public service.”

The commissioners noted that “Mr. Macnab and Ms. Young asserted that the government, as employer, has an unfettered right to terminate the employment of individuals in the classified division of the public service if it is deemed by the Deputy Minister to be in the interest of the public service. No reasons need be provided as long as proper notice in lieu and severance is provided.”

The commissioners disagreed with this interpretation.

“In consideration of the application of the PSA, there are two seemingly contradictory sections, 28(1) and 30(5). On the one hand section 28 provides discretion to the Deputy Minister to dismiss an employee from the classified service if deemed to be in the interest of the public service. On the other hand, section 30(5) provides the Commissioners with the authority to reinstate a dismissed employee to his/her former position if it is deemed appropriate to do so. Clearly, section 28 is not an unfettered and unlimited authority and we, as Commissioners, must always consider possible reinstatement as a remedy under section 30(5) when there has been a dismissal.”

Wynne Young was Chair of the Public Service Commission for seven years. She worked with the three commissioners hearing Walker’s case. How could she not know these things?

The commissioners continued to blast away at Young’s story.

“While specific dismissals may be thought to be in the short-term interests of a particular government, this cannot be in the broader long-term public service interest. Unlike Deputy Minister Young, the Commissioners do not hesitate to conclude that arbitrary dismissals of the kind in this case have long-term negative impacts on the service and are, therefore, neither in the specific interest of the public service nor in the public interest generally.

“We also find that the timing argument of the dismissal, in this instance, was weak. In our opinion, and in recognition of Mr. Walker’s record of service, it would have been appropriate and certainly more gracious for Deputy Minister Young to delay any consideration of Mr. Walker’s status at least until he had completed his secondment in May, 2008. A short delay of three months in his dismissal would not have had significant impact on her proceeding with plans for the new management structure. Moreover, upon returning to the ministry, Mr. Walker should have been given the opportunity to prove himself to the DM and then the new government would have had the opportunity to reconsider its confidence in him.”

The testimony later given by deputy premier Ken Krawetz would show that the transition process put in place by the new Saskatchewan Party government would not allow for this to happen. It placed the deputy minister in a no win situation where it appears she was essentially forced to sell out her beliefs and put politics ahead of the public interest.

By all accounts the testimony given by Rob Norris, the Minister of AEEL, was short and unspectacular.

Norris testified that he had no involvement in the Walker dismissal and did not know him. He had no opinion as to Mr. Walker’s suitability for the position. He acknowledged that he saw a list of names but it was not in his possession. He had no conversations with Mr. Emsley about the names on the list. He said he did not have the authority to dismiss employees in the classified service and had no opinion of the performance of Mr. Walker and whether he could work effectively with him. He would leave to others to determine if re-instatement of Mr. Walker was appropriate. He couldn’t say so himself.

For someone that was in charge of a ministry Norris seemed strangely detached from what was going on around him during the transition. It was as if he would rather avoid becoming involved in any way. It’s reminiscent of the bumbling Sgt. Schultz from the 60s television series Hogan’s Heroes. “I see NOTHING! I know NOTHING!” Such a strategy conveniently offered Norris deniability, but it also put him at odds with Krawetz’s testimony on the role ministers had during the transition.

It should be noted that page six of AEEL’s 2007-08 Annual Report outlines Norris’s mandate as the Minister Responsible for the Public Service Commission. Part of his job includes “Ensuring promotion in the public service is based on merit, not patronage.” He has failed to deliver this.

Deputy Premier Ken Krawetz testified on June 25.

Krawetz was the chair of the transition team of the new government. He told the commissioners he did not know Walker or his specific position in the Ministry of AEEL.

Krawetz claimed he “became aware of Mr. Walker only when he received the subpoena to testify at this hearing.”

This is difficult to accept given that Walker had appeared before Krawetz at committee meetings.

One such meeting was the Standing Committee on the Economy on May 11, 2005, when Krawetz substituted for Brenda Bakken-Lackey for consideration of the Estimates of the Department of Labour. Krawetz singled out Walker’s department for being the only one that showed an anticipated decline in salary.

Another meeting was the Oct. 22, 2002, Standing Committee on Public Accounts when Krawetz, as the chairperson, asked Walker questions about the number of high-risk workplaces in Saskatchewan. Walker had been introduced as executive director of occupational health and safety.

Krawetz testified that he “did not know if the government had no confidence in Mr. Walker. He said that would be left to the Minister and senior officials of the ministry in which he worked.”

He indicated that “in the process, the Minister of the ministry concerned would have had input and the DM of that ministry would have been tasked with a human resources review.”

Krawetz “reiterated he did not know Mr. Walker and therefore had no reason to object to his reinstatement nor did he know of anyone with whom Mr. Walker could not work effectively. He would have to rely on the Minister and DM to make that assessment.”

This is strange because the minister in charge of AEEL, Rob Norris, told commissioners the day before that he had nothing to do with Walker’s case and had no conversations with Emsley about the names on the list. Whether this was by design or not only Norris can answer. Perhaps Krawetz should ask him.

The deputy premier told the hearing “he expected that, at the ministry, there would have been a process of analysis of human resources based on the criteria provided by the transition team. He expected that the DM would provide a series of relevant criteria to assess individuals.”

He acknowledged “that the Deputy Ministers were responsible for human resource evaluations and for doing due diligence in this regard.”

With his testimony Krawetz essentially left Young to twist in the wind. There had been no due diligence to speak of and Young had testified the day before that she did not evaluate Walker.

Krawetz provided the hearing with one key piece of information that no one seemed to follow-up on, which was “the criteria provided by the transition team” that was used to assess individuals. What were those criteria and who specifically was involved in drafting them? Furthermore, were deputy ministers directed to follow it?

In the Legislature on Mar. 18, 2008, and May 6, 2008, NDP Leader Lorne Calvert asked Premier Wall to explain the criteria, but Wall refused to give a direct answer.

As transition team chair Krawetz said he “determined that it was necessary to have “our people” in particular positions that can deliver goals and objectives in keeping with the philosophy of the Government and the Premier.”

This comment more than any other seems to be the one that has caused the most outrage. The commissioners took a very dim of it stating they “do not agree that this is an appropriate criteria to be applied to the classified division of the public service. If it were allowed to stand as a policy, then anyone may be dismissed for similar reasons. To arbitrarily end the careers of competent leaders without cause based on political direction sends a message to the remaining and prospective employees that a public service career is at best a matter of who you know more that what you know or what you are capable of accomplishing.”

Another key piece of information Krawetz told the hearing is that Emsley was a contracted member of the transition team “with special responsibilities for assessment of human resources. Mr. Emsley had authority from the transition team to provide direction to the ministries in this area.”

During cross examination by justice lawyer Macnab, Krawetz confirmed that Emsley “had the authority to advise ministries of the lack of the new government’s confidence in certain individuals.”

Having the authority to provide direction implies that the ministries were expected to follow it – that there was no choice. This would certainly explain why deputy minister Young felt compelled to act the way she did even if it meant compromising her understanding of “the purposes” of the Public Services Act or betray her belief that as the former chair of the public service commission she still felt “bound by the Oath of Office of a Public Service Commissioner and agrees with it and the merit system.”

Only she could fire classified workers. Having a temporary hired gun from the private sector like Emsley come in and give direction gave politicians the deniability, but it left deputy ministers holding the bag.

According to Mr. Macnab’s closing submission Young took the government’s “lack of confidence” in Walker as told to her by Emsley “as a fact on which she had to act.” In other words, she really had no option other to fire him or otherwise she too would likely not enjoy the confidence of the government.

Macnab said that Young “felt that Mr. Walker was unsuitable to return to his position and could not function effectively in an area in which the government had a particular focus.”

What particular focus? Krawetz had told commissioners that “there were no changes planned for Occupational Health and Safety legislation.” Was this false?

One of Krawetz’s most absurd statements was that he “did not impose any processes on the Deputy Ministers in regard to the employee terminations.”

Krawetz may not have personally imposed a process, but the transition team as a collective certainly did. This came in the form of the criteria it gave to ministries that was in turn used to evaluate individuals. It also came in the form of the incredible authority given to Emsley to provide “direction” to ministries in personnel matters.

Lastly, Krawetz “explained that the transition team was comprised of two elected officials: Premier Brad Wall and himself, plus some volunteers and contracted members of the private sector.”

“The role of the transition team was to evaluate structures, determine how to govern and provide advice to Premier Wall on all aspects of the transition.”

By his own admission in the Legislature on Mar. 18, 2008, Wall said he led the transition process. It was this team that provided the criteria to ministries that was used to assess individuals. It was this team that gave Emsley his enormous powers.

Emsley’s title, according to a Nov. 9, 2007, Saskatchewan Party news release, was Chief of Transition and Special Advisor to the Premier. What is truly mystifying is how someone as central to Walker’s case as Emsley was not subpoenaed and called to testify.

Before the last provincial election, in an Aug. 30, 2007, letter to the Leader-Post, Saskatchewan Party Leader Brad Wall said “Maintaining a professional and nonpartisan public service is in the best interest of all Saskatchewan people.”

“All governments, whether new or old, make changes to the senior levels of the civil service as a normal course of activity…These decisions should be based on merit, not patronage or partisan politics.” [How SaskParty views civil service (Leader-Post, Aug. 30, 2007)]

With the firings of the 70 civil servants on Jan. 24, 2007, Wall betrayed not only himself, but the people of Saskatchewan.

In the Legislature on Mar. 18, 2008, under intense questioning by opposition NDP MLA Pat Atkinson regarding appointments to senior positions of the public service, Premier Wall admitted that “Of the new appointments to date, none have gone to a competition process. That may well be the case in the future, Mr. Chairman.” With this statement Wall showed that his word is meaningless and that he can’t be trusted.

Immediately following the January purge, Leader-Post political columnist Murray Mandryk nailed Wall personally for the dismissals saying he’d “gone over the line” and that it’s up to him as the premier “to stop partisanship in the civil service, not make it worse.” But this time around his name isn’t being mentioned. The focus has been on Krawetz. Premier Brad Wall is the leader of party. It’s him that should ultimately be held responsible for his party’s actions.


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