Tuesday, November 30, 2010

Wall government refusing to disclose ‘witch hunt’ report and Zorn-Mitchell emails; whistleblower protection law deeply flawed

Government Services briefing note

Eight months after firing a provincial corrections employee for not following proper procedures, the Wall government is still under an information lockdown on the details.

At issue is the case of former Regina Correctional Centre inmate Brock Wiebe, who was serving time for sexual assault and assault with a weapon when he was mistakenly released 71 days early.

The matter first surfaced during question period at the legislature on October 29, 2009, when NDP Corrections, Public Safety, and Policing critic Kevin Yates asked Corrections Minister Yogi Huyghebaert if he would confirm that a dangerous sex offender was unlawfully at large from the correctional system in Saskatchewan. Huyghebaert denied knowing anything.

“I have no knowledge of that at this point in time. If the member would like to pass some information over to me, I will definitely look into it,” he said.

But when Yates presented details about Wiebe’s case the minister suddenly changed his story:

Mr. Yates: — “Mr. Speaker, if the minister was doing his job, he would know that Brock Wiebe, a dangerous sexual offender, has been unlawfully at large from the Regina Correctional Centre since July 30 at 5:23 p.m. — three months ago. He was serving time for sexual assault, assault with a weapon, and obstruct of a police officer among other charges. Why has the news media not been informed? Why have the people of Saskatchewan not been informed that this dangerous offender from Swift Current, Saskatchewan is at large?”

The Speaker: — “I recognize the Minister Responsible for Corrections and Public Safety.”

Hon. Mr. Huyghebaert: — “Thank you, Mr. Speaker. Now that the member opposite has given me some information that I can work with, I can tell him that I am aware of the particular case, that the member was accidentally released on probation. He was released 71 days early. Mr. Wiebe followed all of the conditions of his probation. He is now living in Calgary. We have an address of Mr. Wiebe. We have contacted the police services in Calgary to apprehend.

“One of the reasons that the decision was made not to put it public is — there’s a number of reasons, Mr. Speaker — one of the reasons that we decided and I decided not to make a public announcement of this is because we were under the impression, with the police services, that it might drive Mr. Wiebe underground.”

Huyghebaert’s claim was considered “specious” because Wiebe turned himself in shortly after the news was made public. [Live by promise of civil conduct (StarPhoenix, January 29, 2010)]

On November 2, 2009, Huyghebaert informed the legislature that one government corrections employee had been placed on “administrative leave” and that “a full investigation” would be conducted.

However, according to a one-page Government Services briefing note, dated January 29, 2010, it was three weeks before Corrections, Public Safety, and Policing formally requested outside help.

“On November 23, 2009, Carol Fiedelleck, Executive Director of Adult Corrections requested Risk Management Services at the Ministry of Government Services to investigate the unauthorized release of confidential information to determine who was responsible for the breach,” the document states.

The case had stopped being about Wiebe’s inadvertent release and became about the Wall government launching a vicious witch hunt to find the whistleblower and punish them severely. It didn’t seem to matter if the right person was found just as long as someone paid the price to send a message to civil servants.

On January 28, 2010, the StarPhoenix reported that Yates was grilled by government officials on January 26. Yates said in an interview with reporter James Wood that “hard-core interrogation tactics” were used.

He said he only agreed to speak to Glynn Mitchell and Hal Zorn (a former Regina police officer) of the protective services branch of the Ministry of Government Services to tell them the person they had suspended was not the source of the leak.

“It was like an intense criminal interrogation. They were twisting things around, putting things in your mouth,” Yates said.

“The type of tactics they used, and I know they used this with a number of civil servants as well, I believe are inappropriate. They’re draconian.”

Yates said the investigators insisted they had “ironclad evidence” against the employee, who has now been off the job for 90 days. But he said the government is punishing the wrong person in a “witch hunt” while trying to send a message to civil servants and MLAs.

“During the interrogations they’re saying, if the individual gets fired it’s my fault and I’m responsible for bringing an issue to the public that shouldn’t be brought forward. Now, is that not intended to make me think about how I would deal with these issues in the future? Not raise a safety issue that was brought to me?

“As a member of the legislature my job is to raise concerns and hold the government accountable for what their policies are. If people are afraid to bring us information that they believe needs to be made public . . . or I’m afraid to bring it forward, then yes, it’s an infringement on that responsibility.”

In the article, Wood also noted that ‘Zorn unsuccessfully approached journalists in the legislature press gallery to ask them for a corrections document provided by the NDP, although the government already had its own copy.’ [Yates says questioning over leak ‘inappropriate, draconian’ (StarPhoenix, January 28, 2010)]

On March 25, 2010, Al Hilton, the deputy minister of corrections, public safety, and policing, told the media that, after a months-long investigation, a provincial corrections employee had been fired for violating several policies of government and legislative responsibilities.

Hilton declined to elaborate on the evidence against the employee because it’s a personnel issue and could affect future arbitration hearings if the employee chooses to fight the dismissal, said the StarPhoenix.

The employee, whose name has not been made public, had been on administrative leave since November. The employee is a “long-serving public servant,” said Hilton.

Yates maintained the Wall government targeted the wrong person.

In an interview with reporter Jeremy Warren, Yates said that the information came from an anonymous source – a person that is not the man who was fired by the government.

“This is very much a political hit,” said Yates.

“This is a political attempt to intimidate the civil service. What’s lost in all this is that the government didn’t follow its own policies when they stood in the house and said they’d let the public know when an offender was at large. This is a real travesty and astounding the government would act in this manner . . . the whole, entire situation.”

Yates learned during the investigation the fired employee first accessed the inmate release information on Oct. 29, but Yates received the information on Oct. 26.

“This is clearly a witch hunt,” said Yates, adding he can’t explain how the government fired the wrong guy.

“I don't know if it makes a difference,” he said. “They were going to get somebody.”

Hilton could not confirm Yates’ dates, citing privacy laws, but said the government did a thorough investigation and did not make the termination decision without solid evidence. [Corrections worker fired over prisoner release leak (StarPhoenix, March 26, 2010)]

Since March 2010, the Wall government has denied five requests made under the province’s freedom of information legislation for records related to the case.

The Ministry of Government Services turned down three access requests for copies of emails and memorandums since January 1, 2010, between risk management director Glynn Mitchell and protective services manager Hal Zorn. The requests were denied on March 4, April 26, and October 28, 2010.

The Ministry of Corrections, Public Safety and Policing denied two requests for copies of the report prepared by Government Services. Those requests were refused on April 26 and October 30, 2010.

In each instance, both ministries violated the Act by not applying section 8, which is mandatory and requires government institutions to give access to as much of the record as can reasonably be severed without disclosing the information to which the applicant is refused access.

The ministries cite section 15 pertaining to law enforcement and investigations as the main reason for refusing access. But only Government Services referred to section 15(1)(c), a discretionary exemption that permits a government institution to refuse access which could “interfere with a lawful investigation or disclose information with respect to a lawful investigation.”

The Saskatchewan Information and Privacy Commissioner has addressed this particular exemption in several reports.

The office defines “lawful investigation” as an investigation that is authorized or required and permitted by law. However, a government institution cannot invoke section 15(1)(c) of the Act unless there is an active and ongoing investigation. [Gary Dickson, Access to Information - Statutory Alternatives (Canadian Bar Association (Saskatchewan) Mid-Winter Meeting, February 2, 2007)]

The access officers at both ministries recently confirmed by email that the investigation is no longer ongoing. Government Services added, “that there is an associated ongoing legal proceeding.” However, they are not able to provide further detail.

This could mean that the person fired by the Wall government earlier this year has filed an arbitration hearing to fight the dismissal.

On November 9, 2010, the Wall government introduced a Bill to protect whistleblowers in the public service.

The new Public Interest Disclosure Act sets the framework for reporting wrongdoing. It also establishes a Public Interest Disclosure Commissioner as an independent Officer of the Legislature, said a provincial government news release.

The Minister responsible for the Public Service Commission, June Draude, said the Act will protect employees from reprisal if they report wrongdoing by government institutions.

The legislation will cover:

▪ Acts or omissions that are contrary to law, public health, safety, welfare and/or protection of the environment;

▪ Gross mismanagement of public funds or assets; and

▪ Knowingly counseling someone to commit a wrongdoing.

“It will apply to employees in all ministries and include the Crown Investment Corporation and Treasury Board Crowns,” Draude said.

This is in line with the definition of government institutions as found in The Freedom of Information and Protection of Privacy Act, which includes ministries and Crown corporations. Details of which Crowns and other entities will be covered will be prescribed by Regulation, after the Bill is enacted, the release said.

According to the StarPhoenix, Draude said there would also be a designated person within each ministry to whom whistleblowers could take complaints without fear of reprisal.

The public interest disclosure commissioner will look into allegations and make a recommendation to the appropriate minister, Draude said.

“Every year we will report the number of incidents, and from which ministry they came from, and it’s just an open and accountable process.”

There won’t be a large budget requirement, she said, noting there are three other provinces with similar offices and they sometimes field just a few complaints a year.

The government is considering having the commissioner role as part of the existing office of the ombudsman, she added. [Independent whistleblower officer proposed (StarPhoenix, November 10, 2010)]

Unfortunately, the proposed law has a number of serious flaws.

The commissioner will not have the power to compel the province to do anything. The best that he or she can do is conduct an investigation, prepare a report offering an opinion and reasons for that opinion; and any recommendations they consider appropriate respecting the disclosure and the wrongdoing. [Sec. 21(1)]

Saskatchewan’s information and privacy commissioner is saddled with the same problem.

On September 22, 2010, information commissioner Gary Dickson issued a lengthy report dealing with a case between a private citizen and the City of Saskatoon involving records from 2004 concerning the city’s south downtown redevelopment project (now known as River Landing).

The commissioner’s report recommended the city release several emails to the applicant, but the city refused and walked away. [Complaints backlog prompts criticism of privacy watchdog (StarPhoenix, October 8, 2010)]

Because the recommendations are non-binding there was nothing the commissioner could do. This could easily happen to the new public interest disclosure commissioner.

We already know how the Wall government feels about some non-binding recommendations.

In March 2010, the United Nations International Labour Organization (ILO) issued a ruling in favour of complaints filed by the National Union of Public and General Employees (NUPGE), on behalf of the Saskatchewan Government and General Employees’ Union (SGEU/NUPGE), and the Saskatchewan Federation of Labour, on behalf of more than a dozen other unions in the province, alleging that the Public Service Essential Services Act and changes to the Trade Union Act impede workers from exercising their fundamental right to freedom of association by making it more difficult for workers to join unions, engage in free collective bargaining and exercise their right to strike.

The ILO made six non-binding recommendations for appropriate action by the provincial government. However, former Advanced Education, Employment and Labour (AEEL) Minister Rob Norris brought shame to Saskatchewan by insulting the ILO and dismissing the report.

The Wall government recently submitted its formal response to the ILO’s Committee of Experts respecting the Committee on the Freedom of Association recommendations arguing it has done nothing wrong.

The new whistleblower law is deeply flawed because it also borrows the freedom of information legislation’s definition of ‘government institution.’ This means it will not cover the Legislative Assembly Service or offices of members of the Assembly or members of the Executive Council. [FOIPP, Sec. 2(2)]

So if a whistleblower was to come forward with evidence of wrongdoing by the premier, a cabinet minister or MLA they’re out of luck because they’re exempt.

While the law does cover acts or omissions that are contrary to law, public health, safety, welfare and/or protection of the environment, they must pose “a substantial and specific danger” in order to be considered. In cases that allege mismanagement of funds, it must be “gross” in nature. The proposed Act fails to define these terms.

Another serious problem is that the proposed law adopts section 16(1) of the province’s freedom of information legislation protecting cabinet documents from being disclosed. [Sec. 13(1)]

So if a public servant had knowledge of a wrongdoing that involved the premier or a minister but the only proof was within a cabinet document there’s nothing the whistleblower could do. In such a case, the new law may also provide protection to the government official that prepared the cabinet document in question because its disclosure is not permitted.

Section 7(1) of the new law seems to give government institutions the power to refuse to receive and deal with disclosures by public servants if the permanent head (usually the deputy minister, president or other official in charge of the government institution who is directly responsible to a member of the Executive Council) determines that it is not practical to do so given the size of the government institution for which the permanent head is responsible. However, before making such a determination the permanent head must consult with the commissioner.

Unfortunately, the section does not say whether the commissioner has the authority to reject or overturn such a determination.

Section 16(1) establishes the parameters where, in the commissioner’s opinion, an investigation is not required. Two reasons that can be used are: “(d) the disclosure relates to a matter that results from a balanced and informed decision-making process on a public policy or operational issue,” and “(g) the circumstances of the case do not warrant investigation.”

The new commissioner may or may not ever invoke these clauses, but you can be damn sure that a government institution fighting off a charge of wrongdoing will. Any or every case could result in a war of interpretations.

In the end, a government institution could simply turn around and use any of the reasons listed in section 16 against the commissioner if it doesn’t agree with his or her findings or recommendations.

The Wall government’s whistleblower protection legislation needs to go back to the drawing board for an overhaul.




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