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Alberta’s Whistleblower Trap

There’s plenty wrong with Alberta’s Public Interest Disclosure (Whistleblower Protection) Act (PIDA) as drafted that would give a whistleblower pause for concern. But at least you can read the Act and see what these are.

It is quite a different matter when the office of Public Interest Commissioner (PIC)[1] denies whistleblower protection by adding requirements that are simply not written in the Act. These added requirements – and the unpredictability that there may yet be further requirements in future complaints – set a trap for unsuspecting whistleblowers who are denied protection against employer reprisal.

Like other Canadian jurisdictions, whistleblower legislation is supposed to protect public servants from employer reprisals for making a disclosure of wrongdoing in their workplace. There bolded terms are defined in the Act and each must be satisfied for whistleblower protection to kick in.

As you read the Commissioner’s interpretations of these terms below, bear in mind the position of the whistleblower. This is a person who usually has only partial information about what is going on. She likely will not be witness to the suitcase of money changing hands, but rather finds something amiss in the documenting of a transaction that is not adequately accounted for by those responsible. She may be right or she may be wrong. Either way, she should be protected against reprisal from her employer.

For these reasons, the Act requires only that the employee “reasonably believes” wrongdoing has occurred – though this plays no role in the interpretations of wrongdoing that follow.

One category of wrongdoing is when someone breaks the law. In one case, however, a “technical” violation of the law, subsequently rectified, was not eligible for whistleblower protection.[2]

The broadest category of a wrongdoing is “gross mismanagement,” which includes an “act or omission that is deliberate and shows a reckless or willful disregard to the proper management of” public money, delivery of public services and certain systemic abuses of employees. This should be mean that wrongdoing is found where one who engages in an act or omission with a reckless disregard for proper management practices.

In one investigation, the Commissioner found that formal preparation and approval of a budget for the transfer of funds between two public sectors organizations was both improper and poorly documented.[3] On its face, this seems to meet the definition of “gross mismanagement.” But the Commissioner veers off into an irrelevant issue, stating that “no attempts were made to transfer funds in a non-transparent manner” and therefore there was no gross mismanagement. In other words, an intent to be non-transparent on the part of the wrongdoer must also be shown.

In another case,[4] blowing the whistle on perceived political interference in a procurement process was not eligible for protection. While the procurement process was “poor” in that case, the Commissioner found that it did not meet the level of “gross mismanagement.”[5] It is not clear why a “poor” process did not reveal at least a “reckless…disregard to the proper management” of public money.

Under the terms of the Act, a disclosure is to be made in writing and contain the following information if known: a description of the wrongdoing, names of the individual(s) involved, the date of the wrongdoing, and whether proper procedures were followed.[6] In one reprisal investigation, the Commissioner added the requirement that a written complaint to an authorized person (here the deputy minister) must also either reference the PIDA or explicitly identify that it is a disclosure under the Act:

“…the email sent to the deputy minister did not constitute a disclosure of wrongdoing. The email did not make any reference to PIDA or suggest that the email ought to be considered a disclosure under the Act. Therefore, the deputy minister could not have formed an intent to reprise against the employee for making a disclosure.”[7]

In yet another case, an employee refused to follow improper workplace instructions unless a superior provided written authorization. But since the employee did not refuse to participate in the wrongdoing or contact the designated officer or the PIC as required under the Act (though there is no requirement as to when this must occur) – but rather managed the wrongdoing by challenging his superiors – he was denied protection from reprisal.[8]

These cases portray the Commissioner’s office as being more concerned about absolving wrongdoers of blame (or worse, looking for ways to deny protection) than fulfilling its statutory mandate of protecting whistleblowers. In other words, these interpretations are perversions of the statute’s purpose.

It is not surprising, then, the PIC has found only 3 instances of wrongdoing in over seven years involving 27,000 public service employees.[9]

In a report to be published by the Parkland Institute this fall, I provide a detailed account of the problems with PIDA and the PIC. Short of a serious overhaul, my conclusion is that the legislation should be repealed as it exposes employees to reprisal without a reasonable prospect of protection.

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[1] The Public Interest Commissioner’s Office publishes only very brief summaries of their decisions on its website.

[2] In Allegations Related to a Private School, Case: #PIC-16-02114, a single violation of the Early Childhood Services Regulation was determined not to be a wrongdoing despite that it was a “contravention of…a regulation pursuant to an Act.”

[3] Annual Report 2017-18 at 24.

[4] Allegations related to the Department of Justice and Solicitor General (June 2, 2016) Case: #PIC-14-02130k

[5] Similarly, in Allegations of Wrongdoing Related to Health Services (July 16, 2014), Case: P14-106915 the Commissioner again found poor procurement practices to not be wrongdoing.

[6] Section 13 PIDA.

[7] Annual Report 2017-18 at 20: Allegation of reprisal for having submitted a disclosure of wrongdoing (13Jun2017).

[8] Allegations concerning a department within Health Services (April 4, 2017), Case: #PIC-16-03861

[9] Number of cases of wrongdoing based on manual count of cases reported on website. Public service employee number: https://www.alberta.ca/how-government-works.aspx

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