Disclosure of Wrong Doing Directive Employees / appointees of public bodies (i.e., agencies)

1. Effective date

December 1, 2015

2. Original date

August 20, 2007

3. Last revised date

June 1, 2011

4. Purpose

The Public Service of Ontario Act, 2006 (PSOA) includes provisions for the disclosure and investigation of alleged wrongdoing. These provisions strengthen the ethical framework governing the public service. Other elements of the ethical framework include political activity rules and a conflict of interest regime.

The rules for the disclosure of wrongdoing allow allegations of wrongdoing to be raised and addressed, and provide protection from reprisal for public servants, including those who disclose alleged wrongdoing and those who are involved in an investigation.

To support the disclosure of wrongdoing framework, each organization in the public service has an ethics executive. One of the duties of ethics executives is to receive, assess and investigate disclosures of alleged wrongdoing in their organizations. For employees in public bodies, the ethics executive is the person prescribed through Regulation 147/10. If there is no person prescribed, then the Chair is the ethics executive. For appointees in public bodies, the Chair is the ethics executive. The ethics executive for Chairs of public bodies is the Conflict of Interest Commissioner.

Employees and appointees also have the option to disclose directly to the Integrity Commissioner (IC) in circumstances set out in section 116 of the PSOA. The role of the IC, an officer of the legislative assembly, is provided through legislation with the power and authority to investigate and publicly report on allegations of wrongdoing.

This directive, created under the authority of s. 115(2) of the PSOA, supports the disclosure of wrongdoing framework by:

• establishing the disclosure process;
• ensuring a high level of integrity throughout the process; and
• promoting accountability of senior management in public bodies.

5. Application and scope

This Management Board of Cabinet directive applies to:

• current public servants working in public bodies, and
• former public servants who worked in public bodies, (collectively referred to in this directive as public servants).

The term public servant includes employees and appointees of public bodies (see Regulation 146/10 for a listing of public bodies and Regulation 147/10 for a listing of ethics executives).

The directive covers the procedures for disclosing to the ethics executive. It also sets out the responsibilities, rights and obligations for public servants involved in an investigation.

Public servants who work within a ministry or minister’s office are covered under a Public Service Commission directive.

6. Principles

1. A framework that encourages and supports ethical behaviour in all public servants as they carry out their responsibilities is a necessary element of a modern, public service
2. Processes and accountability mechanisms that are clear, aligned and well understood are essential components of an integrated, horizontal organization.
3. The disclosure of wrongdoing framework reflects the Ontario Public Service organizational values and is guided by the following:
   • trust - acting honourably and honestly
   • fairness - dealing in an open, impartial and non-discriminatory manner
   • excellence - working to provide the highest quality services
   • responsiveness - responding in a timely fashion, monitoring and measuring to make sure our goals are met
   • diversity - welcoming and respecting divergent points of view
   • creativity - listening, learning, and being open to new ideas
   • collaboration - building consensus with colleagues and partners
   • efficiency - prudent and effective use of public resources entrusted to us
4. Prudent use of public resources must be ensured and therefore procedures to address the disclosure of alleged wrongdoing should not attempt to duplicate or replace existing specialized investigative expertise.
5. Privileges that are already well recognized in law should continue to be respected, including solicitor-client privilege and Cabinet privilege.
6. Confidentiality is a key attribute of an effective disclosure framework and must be respected whenever possible.

The above principles are in addition to and in support of all public servants' obligation to comply with relevant laws, regulations and other OPS directives.

7. Mandatory requirements

The following sections set out the mandatory requirements for the disclosure of alleged wrongdoing by topic.

7.1 Wrongdoing that can be disclosed

The PSOA sets out the types of wrongdoing that may be disclosed, summarized as follows:

• a contravention of an Act (federal or provincial) or regulation,
• acts or omissions that create a grave danger to life, health or safety of persons, or to the environment,
• gross mismanagement (e.g., gross waste of money, abuse of authority, abuse of public assets),
• directing or counselling a person to commit a wrongdoing listed above.

Note that the PSOA does not include definitions of the grounds for disclosure. This allows ethics executives to exercise their judgement on a case-by-case basis.

The allegation of wrongdoing is limited to activity by a current or former public servant, minister or parliamentary assistant. In the case of a former public servant, minister or parliamentary assistant, the alleged wrongdoing must have occurred while he/she was a public servant or was in office.

Public servants who have questions about making a disclosure can contact the Office of the Integrity Commissioner for advice. The office can provide confidential advice and is not compelled to act on any information unless it is an official disclosure.

Public servants can also contact appropriate offices dependent on the nature of their issue, for example, the organization’s finance branch for information about expenditures. Note that management is obligated to act on information that is provided to them should they consider it to be of a serious nature, whether or not the public servant considers it to be a disclosure under this directive. Even in the absence of a formal disclosure, management still has an obligation to protect the identity of the employee, and must still be guided by the spirit of this directive.

7.2 Making a disclosure

Public servants can disclose alleged wrongdoing to their ethics executive.

Public servants also have the option to disclose directly to the IC (see Appendix B) if the public servant

• believes that it would not be appropriate to disclose internally, or
• has already disclosed internally and has concerns that the matter has not been appropriately dealt with.

It is important to note that there must be enough information so that an assessment of the disclosure can determine the best course of action. If a disclosure does not have enough information, the public servant making the disclosure (the discloser) may be contacted.

The PSOA also sets out three types of information that cannot be divulged, either in a disclosure or in any process addressing the disclosure. These exceptions are well recognized in law:

• information that is subject to solicitor-client privilege;
• information that would reveal the substance of the deliberations of Cabinet (Cabinet privilege); or
• anything that is prepared by or for counsel for a ministry or public body for use in giving legal advice or in regards to litigation.

7.3 Receiving disclosures

Ethics executives are responsible for assessing every disclosure to determine whether there is enough information to address the issue, and if so, whether the allegation should be addressed through this process or in a different forum. However, if the disclosure was filed anonymously, and there is insufficient information, if there is no possible source for information, the matter cannot proceed.

Ethics executives will determine that a disclosure will not proceed in the following seven circumstances:

1. the subject matter of the disclosure would more appropriately be dealt with through another process, or is already being dealt with through another process; for example, there is already a complaint filed with the Human Rights Tribunal of Ontario, or being dealt with by a law enforcement body,
2. the subject matter of the disclosure relates solely to a public policy decision; the disclosure of wrongdoing provisions are not designed to be an avenue for addressing disagreement with a policy decision,
3. the subject matter of the disclosure relates to an adjudicative decision; the disclosure of wrongdoing provisions are not intended to question or consider court or tribunal decisions as these are already subject to judicial review processes,
4. the subject matter of the disclosure is a matter that could be dealt with under Part V of the Police Services Act (OPP internal review mechanism),
5. the subject matter of the disclosure relates to prosecutorial discretion; for example, a plea bargain,
6. the disclosure is frivolous, vexatious, made in bad faith, or unimportant, or
7. there has been a substantial delay between the subject matter of the disclosure and the disclosure itself, so that proceeding would serve no useful purpose.

The ethics executive could also refuse to deal with a disclosure if:

• the disclosure is related to an employment or labour relations matter that could be dealt with through a dispute resolution mechanism, including a grievance procedure - it is not the intention to duplicate or replace the procedures already in place to address labour relations, or
• there is another valid reason for not pursuing the matter.

If a public servant discloses alleged wrongdoing to a manager, the manager is obligated to refer the disclosure to the ethics executive. The ethics executive is the only person who can make decisions regarding disclosures. The manager must seek timely direction from the ethics executive so the issue can be addressed.

If an ethics executive receives a disclosure, the ethics executive may refer the disclosure to their ethics executive.

Should the ethics executive determine that the subject matter of the disclosure does not fall within the disclosure framework, he/she, if appropriate, has the discretion to address the matter under other applicable policies. This reflects the ethical framework and supports a positive workplace culture by responding to issues identified by public servants. The determination would be made on a case-by-case basis; for example, a situation might better be addressed under a corporate policy dealing with workplace discrimination and harassment.

7.4 Addressing disclosures

While addressing and resolving disclosures, ethics executives, and any others involved in conducting and administering the process, must ensure that the process is

• fair,
• timely, and
• as confidential as appropriate.

Confidentiality will be maintained and the identities of people involved in disclosures of alleged wrongdoing, including those who make disclosures, witnesses and those alleged to be responsible for wrongdoing will be protected except in those situations where the interests of fairness require that a person’s identity be provided to one or more persons.

During the process of addressing disclosures, public servants can choose any person to support them (e.g., bargaining agent, co-worker, friend, etc.).

Public servants who are identified in a disclosure as being involved and/or responsible for alleged wrongdoing will be informed of the allegations and given the opportunity to respond to them.

As the ethics executive proceeds with addressing a disclosure of alleged wrongdoing, public servants are obligated to comply with the ethics executive’s direction. Public servants must not obstruct any investigation or process, and they must not destroy, falsify or conceal material or information.

A public servant who knowingly makes a false or misleading statement or destroys, alters, conceals or falsifies a document, knowing that it is likely to be relevant to an investigation or proceeding, is guilty of an offence and liable, upon conviction, to a fine.

During an investigation, the ethics executive cannot require certain types of information including:

• Information that is certified by the Deputy Attorney General as being information that could jeopardize a criminal proceeding, or that could breach Cabinet privilege
• Information that is certified by the Commissioner of the Ontario Provincial Police as being information that could compromise an investigation into a criminal matter, or
• Information that is subject to solicitor-client privilege, or is prepared by a lawyer in connection to litigation.

Ethics executives can consult with advisors available to them dependent on the nature of the issue, including legal services, human resources and others. (These groups can also assist the ethics executive in assessing disclosures - see section 8). In appropriate circumstances (e.g., to ensure consistency, if the matter is complex), advisors can contact the Treasury Board Secretariat (TBS) Legal Services Branch.

If the allegation of wrongdoing will be investigated, the ethics executive is accountable for the process, including ensuring that the matter is dealt with in a timely manner. Others within the public body may be involved in addressing disclosures; the ethics executive is responsible for providing advice and guidance during the process.

7.5 Reporting to the discloser/alleged wrongdoer

The ethics executive is responsible for informing the discloser how the disclosure was dealt with:

• not accepted,
• accepted but not investigated, or
• investigation concluded.

Where the disclosure was accepted, the ethics executive is also responsible for informing the alleged wrongdoer how the disclosure was dealt with.

The ethics executive may also provide such information on the investigation and findings as he/she considers appropriate in the circumstances.

Disclosers who are not satisfied that the matter was dealt with appropriately based on an ethics executive’s report, can take the matter to the IC (see appendix B).

7.6 Protection for public servants involved in investigations: anti-reprisal provisions

The PSOA prohibits any person from taking any action that adversely affects the employment/appointment including working conditions of a public servant because the public servant has made a disclosure of alleged wrongdoing internally or to the IC. Other public servants, including those involved in an investigation of alleged wrongdoing (e.g., witnesses), are also protected against reprisal.

Reprisal includes, but is not limited to, ending or threatening to end employment or appointment, discipline, threat of discipline or penalty, and coercion or intimidation.

Employees of public bodies who believe they have been the subject of a reprisal have the right to have the matter dealt with through the Ontario Labour Relations Board, or:

• through binding arbitration under a collective agreement (for example, collective agreements could provide for arbitration before the Grievance Settlement Board);
• through the Public Service Grievance Board for employees appointed by the Public Service Commission under Part III of the Act (i.e. employees of Commission public bodies) who are not covered by a collective agreement; or
• under the Police Services Act if a person is subject to a rule or code of discipline under the Act.

If a Board or arbitrator finds that reprisal took place, it may make an order that includes a remedy for damages incurred as a result of the reprisal, for example compensating for loss of remuneration. Any public servant found responsible for the reprisal is subject to disciplinary measures, including suspension or dismissal.

In addition, a person responsible for a reprisal is guilty of an offence, and where a board has made such a finding, may be prosecuted and liable, upon conviction, for a fine.

7.7 Documentation

The ethics executive for each public body must keep well-documented records of disclosures of alleged wrongdoing and the results of each disclosure. The following data should be available each quarter:

• number of disclosures,
• number of disclosures per ground,
• number of files open,
• outcome of disclosures (no wrongdoing found, referral to another forum, corrective action taken).

Disclosure process

Public servants can submit a disclosure of wrongdoing either internally to their ethics executive (or to their manager who will refer it to the ethics executive) or to the Integrity Commissioner.

For public servants that submit their disclosure internally, the ethics executive will assess the disclosure to determine whether or not to proceed with an investigation or to refer it to another forum or ethics executive for resolution. If the ethics executive decides to proceed with an investigation, the ethics executive may find that no wrongdoing occurred, that wrongdoing occurred and that corrective action is required, or that another forum (e.g., the GSB) would be more appropriate for dealing with the matter. Upon concluding the investigation, the ethics executive will report back to the discloser. If the discloser is unsatisfied at any point during the process, they can submit a disclosure of wrongdoing with the Integrity Commissioner.

For public servants that submit their disclosure with the Integrity Commissioner, the Commissioner will assess the disclosure and decide whether or not to accept the disclosure. If it is accepted, the Commissioner will refer the disclosure to the appropriate ethics executive. The ethics executive will either investigate the disclosure or refer it back to the Integrity Commissioner.

If the ethics executive conducts an investigation, the ethics executive will submit a report to the Commissioner upon completion of the investigation. Upon reviewing the report, the Commissioner will either accept the report’s findings, refer the matter to another forum for resolution or launch his/her own investigation into the matter.

If the ethics executive refers the matter back to the Integrity Commissioner, the Commissioner will launch an investigation. The Commissioner may find that no wrongdoing has occurred, that wrongdoing has occurred (and recommends action to correct the wrongdoing to the appropriate ethics executive), or may refer the matter to another forum (e.g., the GSB) for resolution. Regardless of the path for the disclosure, the Commissioner will report back to the discloser.

8.0 Responsibilities

All responsibilities in the Human Resource Management Directive and the Human Resource Management Delegation of Authority Directive apply to this directive. Additional responsibilities that are specific to this directive are set out below.

Employees and appointees

• 8.1. Refrain from activities that could constitute reprisal.

Managers

• 8.2. Refer any disclosures of alleged wrongdoing to the ethics executive.
• 8.3. Seek timely direction from the ethics executive.

Human Resource Heads (Director, Ministry Strategic Business Unit)

• 8.4. Provide support to the ethics executive as required for assessing and addressing disclosures of alleged wrongdoing.

Legal services heads

• 8.5. Provide support to the ethics executive as required for assessing and addressing disclosures of alleged wrongdoing.
• 8.6. Consult with TBS legal services as appropriate.

Ethics executives

• 8.7. Provide leadership in creating and maintaining workplaces that support the ethical framework, including modelling the framework.
• 8.8. Put in place processes to support the disclosure framework.
• 8.9. Ensure that all employees and appointees are informed annually of the procedures for disclosing alleged wrongdoing and the protections from reprisals.
• 8.10. Provide information to the minister responsible as requested.
• 8.11. Promote ethical conduct by public servants.
• 8.12. Ensure questions about disclosure of alleged wrongdoing rights and processes are addressed.
• 8.13. Receive and assess disclosures of alleged wrongdoing, and refer issues to another forum if appropriate.
• 8.14. Provide timely direction to managers who have referred disclosures of alleged wrongdoing.
• 8.15. Ensure investigations are conducted.
• 8.16. Ensure the process is fair and is as informal and expeditious as possible.
• 8.17. Ensure confidentiality of the people involved in disclosures of alleged wrongdoing except where the interests of fairness require otherwise.
• 8.18. Report to disclosers and alleged wrongdoers.
• 8.19. Report on the outcome of investigations as appropriate.
• 8.20. Refer matters to the Integrity Commissioner, where appropriate.

Treasury Board Secretariat (TBS)

• 8.21. Review the Disclosure of Wrongdoing Directive.
• 8.22. Develop education tools to promote awareness of the disclosure of wrongdoing rules and procedures.

For more information about the disclosure of wrongdoing framework, refer to:

• Part VI of the PSOA
• employees and appointees of Commission public bodies - see the PSOA page on MyOPS > Business Services > Directives, Acts and Policies > Public Service of Ontario Act
• see the Office of the Integrity Commissioner website

Appendix A - Disclosure of wrongdoing directive revisions

Appendix B - Disclosure to the Integrity Commissioner

Public servants have the option to disclose directly to the Integrity Commissioner (IC) if:

• they believe that it would not be appropriate to disclose internally within their public body, or
• if they have already disclosed internally and believe that the matter has not been appropriately dealt with.

The IC will assess each disclosure. If the IC accepts the disclosure, he/she will refer the issue to the ethics executive that he/she believes is in the best position to investigate the disclosure.

Ethics executives may refer matters back to the IC, if it is their opinion that it is not appropriate for them to address.

Where the IC has referred a matter respecting the Ontario Provincial Police to the deputy minister of the Ministry of Community Safety and Correctional Services, the deputy minister may delegate any of his or her powers, duties and functions associated with the referral to the Commissioner of the Ontario Provincial Police.

If the ethics executive believes that it is appropriate for him/her to address the matter, then the ethics executive will undertake the investigation and submit a report to the IC. The report will include a summary of the issue, the investigation and the outcome. On receipt of the report, the IC may request further information, make recommendations, or require a further report on the implementation of the recommendations.

If the IC is dissatisfied with the report from the ethics executive, has not received a report in a timely manner, or the ethics executive has referred the matter back to the IC, then the IC may investigate the disclosure.

However, if the IC is of the opinion that the matter could more appropriately be dealt with by a law enforcement body or another body in accordance with a statutory procedure (e.g., the Auditor General), the IC may refer the matter to that other body. The other body is then accountable for addressing the issue and notifying the IC of the outcome.

In any circumstance, the IC will inform the discloser how the disclosure was dealt with:

• not accepted,
• accepted but not investigated, or
• investigation concluded.

The IC may also provide such information on the investigation and findings as he/she considers appropriate in the circumstances.