The Auditor General observed that the PSC “failed to respond decisively” and concluded that the “lack of visible action” when the Commission was first alerted to problems at the OPC

Sent a signal to managers, employees, and the union that the Public Service Commission would not actively support any attempts to clean up the staffing abuses at the Office of the Privacy Commissioner. (Paragraph 52)

In response to these findings, Mr. Serson asserted that he and the Commission did act, but admitted that in retrospect the Commission, and he personally, “did not act decisively enough.” Based on its review of the evidence, the Committee supports this conclusion fully.

The Public Service Commission agreed to take the action that the Auditor General recommended and the President of the Commission did not contest her audit findings. Mr. Serson tabled an action plan listing the steps that the PSC will take in response to the findings of its audit. This is the proper approach, but the plan needs to be improved. The Committee therefore recommends:

RECOMMENDATION 1

That the Public Service Commission revise its action plan to respond to the findings of the staffing audit of the Office of the Privacy Commissioner by adding target implementation and completion dates for all of the measures that it proposes and submit the revised plan to the Standing Committee on Public Accounts no later than 31 July 2004.

Commenting on the role of her office vis-à-vis small departments and agencies, Mrs. Fraser acknowledged that insufficient audit attention had been paid them, in part because of the low level of risk associated with these entities. Following the experience with the Office of the Privacy Commission, however, the Auditor General has decided to set up an audit team that will focus specific attention on smaller departments and agencies. This commendable action should be replicated at the Public Service Commission. The Committee therefore recommends:

RECOMMENDATION 2

That the Public Service Commission revise its action plan by indicating how it intends to address the need to focus more attention on staffing activities in smaller departments and agencies.

The problems revealed by the Auditor General and the PSC’s own audit are of such gravity that progress in resolving them must be regularly monitored and reported to Parliament. The Committee accordingly recommends:

RECOMMENDATION 3

That the Public Service Commission monitor progress made in the implementation of all measures in its action plan, assess the outcomes achieved, record any adjustments, and include all findings in its annual performance report beginning with the report for the period ending 31 March 2004.

The second part of the action plan, which addresses the broader measures that the PSC will take, is insufficient in that it proposes to

Review its intelligence-gathering and intervention policies and systems, including the capacity to conduct audits and investigations, and to withdraw delegation.

The Commission already has policies and systems, and the capacity to conduct audits and investigations. It already has the authority to withdraw delegation, as clearly stated in the Act. The problem, as the Auditor General has stated is that the Commission did not act decisively and did not use the authorities available to it “to either prevent abuse and wrongdoings or deal with them when they occurred.” (Paragraph 5) No more review and analysis should be necessary. The Committee recommends:

RECOMMENDATION 4

That the Public Service Commission make those with whom it has signed Staffing Delegation and Accountability Agreements aware, in writing, that failure to satisfy the terms and conditions included in the Agreements may lead to revision or withdrawal of staffing authority.

RECOMMENDATION 5

That henceforth, all Staffing Delegation and Accountability Agreements include references to the steps that will be taken should terms and conditions contained in them be breached.

RECOMMENDATION 6

That when the Public Service Commission is made aware of possible contravention of delegated staffing authority or abuse of staffing procedures, it immediately suspend such authority until such time as an audit has been conducted and the results assessed.

Mr. Serson’s admission that the Commission had not acted sooner and more decisively was appropriate. His explanation for this lack of decisive action was not. He testified:

• The Commission was following the principles of modern comptrollership, which emphasize learning instead of what Mr. Serson, called “shame and blame.”
  
  
• The Commission has an unsatisfactory relationship with Parliament. Parliament has shown no interest in the work of the Commission.

These may be valid observations, but their relevance to this case is opaque. Modern comptrollership involves making the connection between financial and non-financial information and impressing upon all those who work in the Public Service that each individual has a stewardship responsibility for the prudent use of resources. Contrary to what Mr. Serson was implying, it is not about using soft measures to cope with unpleasant and difficult situations.

It is without doubt that the Commission could have, and ought to have a better relationship with Parliament. The Commission is not alone in this; parliamentarians and non-elected office holders alike desire strengthened relations between Parliament and all government bodies. But, the quality of the Commission’s relationship with Parliament provides no explanation whatsoever for the Commission’s failure to use all of the powers at its disposal decisively — powers given the Commission by Parliament in the form of legislation.

Mr. Serson complained that during his four years as President, Parliament had never scrutinized the Commission’s Estimates. Members of the House of Commons have been concerned that Estimates were not receiving sufficient attention and said so quite clearly in a report tabled in the House of Commons in 1998 ¹¹. Recommendations contained in that report led to the creation of the House of Commons Standing Committee on Government Operations and Estimates approximately one year ago. Under Standing Order 108(3)(c)(vi), that Committee is authorized to undertake

The review of and report on reports of the Privacy Commissioner, the Information Commissioner, the Public Service Commission and the Ethics Counsellor with respect to his or her responsibilities under the Lobbyists Registration Act, which shall be severally deemed permanently referred to the Committee immediately after they are laid upon the Table. (Emphasis added.)

It was as a result of the use of this authority that the Government Operations and Estimates Committee began the process that led to the exposure of the situation that existed at the Office of the Privacy Commissioner. The Public Service Commission has the forum in Parliament that Mr. Serson complained it lacks.

Mr. Serson’s third explanation — that Parliament did not give the Commission enough money — is entirely without merit. Faced with reported abuse of staffing authority at the OPC, the Commission elected — not to conduct an audit as its legislation allows — but to conduct a thematic review instead. And rather than concentrating resources and attention on the Office of the Privacy Commissioner, it spread the review over eight departments and agencies and dispatched its review teams to locations across the country. This was a questionable use of resources in light of the circumstances, and points not to insufficient resources but a lack of proper judgement.

In the end, the Commission was obliged to conduct a full audit at the request of the Government Operations and Estimates Committee. Considerable resources might have been saved — both at the Commission and at the OPC, where unwarranted expenditures could have been brought to a halt sooner — and abuses endured by OPC staff ended had an audit been done earlier. It is regrettable that, under Mr. Serson’s leadership, this did not occur.

It is notable, that in fiscal year 2001-2002, 56 out of the 56 executives working at the Public Service Commission received performance bonuses totalling $428,795. Mr. Serson defended this decision by pointing to the uncertainty surrounding the future of the Commission in light of proposed legislative changes. Staff at the Commission, he indicated, was unsure as to whether or not they would still have jobs in a year’s time; performance bonuses were being used to cope with the problem of retaining them.

The Committee makes the following observations in response. The first is that those most likely to be affected by changes to the Commission are employees below the rank of executive and thus not eligible to receive performance bonuses. Secondly, executive-level employees generally enjoy greater job mobility and thus have less to be concerned about in terms of finding new positions than those at a lower level of classification. The final observation is the most pertinent one. Performance bonuses are intended to reward exceptional performance and should only be given to those who have satisfied a number of specific criteria. Use of these bonuses for other purposes and without reference to stated criteria constitutes an unacceptable abuse. This is doubly so in light of an assertion that the organization dispensing bonuses lacks the resources it needs to fulfill crucial elements of its mandate.

Lastly, Mr. Serson indicated that “The Commission believed, [he] believed, [he] was dealing with a normal, that is a responsible deputy head who would act when problems were identified to him.” Proper oversight and audit mechanisms are neutral when it comes to dealing with variable personalities. These mechanisms — which were available to the Public Service Commission — would have worked regardless of who was Privacy Commissioner, if only they had been used.