I have an uneasy relationship with politics. Some people are uneasy because they think all of politics is about sleaze — legalized lying to the voters in order to gain office. Others are uneasy with things like representation by population (or not), special interest groups, the need for compromise, the mudslinging, the promises, the need for more compromises, and the almighty need to sometimes do things that are unpopular but still the “right thing to do” to stop the majority from exploiting the minority. Those aren’t my issues. I’m uneasy because of my job. I’m a civil servant.
Note that I said civil servant, which in and of itself is a clue to my unrest. I didn’t say, public servant, which is the popular term these days. That is used ubiquitously for both bureaucrats and elected officials, which is partly why I don’t use it. I am not elected. I am hired to do a job, or to be precise, appointed under the power of legislation that delegates authority to make appointments to the Deputy Heads of organizations who then in turn delegate to underlings for regular staff appointments, overseen by the Public Service Commission to make sure processes are fair, transparent, etc, not to ensure the “right” person or even the “best” person got the job but that they were qualified.
Yet as a civil servant, I am regularly bombarded with info about my roles and rights when it comes to politics.
Over the course of the most recent federal election, there were lots of articles, emails and Facebook posts about the rights and duties of civil servants both normally and particular to an election period. Many of them tilted at windmills — “how dare they attempt to infringe my RIGHTS this way?”. Some of them even with the corollary threat, “I’ll sue!”. My reaction, for the most part, is a rather tame, “Good luck with that.” As someone who cares more about how governments work (public administration) than how they are elected (politics) or the direction they take (public policy), I am frequently intrigued by just how badly the articles are written, researched, presented, and even, outright wrong both in their facts as well as the nature of the law.
Generally speaking, the simplest way to understand it is to use the analogy of the Charter of Rights and Freedoms. I don’t mean to use it as a weapon or shield in an actual instance, but rather to understand the challenges a civil servant faces as the same ones that courts try to use in understanding Charter cases.
First and foremost, courts access whether (a) a person has a specific right and (b) if it has been violated (technically “infringed”, but let’s not quibble here).
Secondly, they go to Section 1 of the Charter to see if the limit i.e. the violation was a “reasonable limit”, “prescribed by law”, and that could be “demonstrably justified in a free and democratic society”.
People who watch American TV shows think our Charter is like the US Bill of Rights — if you violate one tenet, that’s the end of the analysis, your rights are absolute. The Charter, however, wasn’t drafted that way — some see it as a strength, others weakness, but the drafters recognized that a simple technical violation (maybe a street address was misspelled on a warrant, written as Parke Street instead of Park Street) shouldn’t invalidate a search. Or, like the classic argument that freedom of speech itself is not absolute in that you falsely can’t yell “Fire” in a crowded theatre for fear of creating a stampede, many rights come with certain limits. Obviously, some rights like not being incarcerated without a trial are higher threshold than whether a cop had a right to stop you to administer a breathalyzer at a road-side stop. It’s a balancing act between individual rights and the State’s role.
For civil servants, there are some limits on what we can do in the political process. The easiest way to understand our duty is, as the Charter cases treat it, as a balancing act between two competing interests:
- The need for an impartial public service that avoids partisanship or even the appearance of such; and,
- A citizen’s right to freedom of expression or speech.
Our duty and obligations as employees of the state vs. our rights as a citizen of the state.
Much of the debate ignores the first and treats the second as absolute. Yet, as with the constraint not to yell “fire”, other constraints have come along — freedom of speech doesn’t authorize hate speech, slander, etc. Most rights are far from absolute. They can be constrained, and in much the same way as a Charter right — subject to reasonable limits, prescribed by law, and that can be justifiably demonstrated.
Let’s first talk about “prescribed”. For an employee of any private or public company or organization, there are certain duties that come with you agreeing to work for them, a certain degree of loyalty that isn’t particularly onerous. Usually, this comes down to you not saying things like “Don’t buy our products, our quality is crap” and damaging a company’s reputation while getting a cheque from them. You don’t get to work for Nissan in their sales area and tell everyone to buy Toyota instead. Not only would you be a lousy salesperson for Nissan, but you’d also be violating your duty to your employee. You also probably don’t get to sell Nissan by the day and post negative reviews about your company, bosses, other employees, etc. on Facebook by night. (There are exceptions for whistleblowing, but again, let’s not quibble right now.) The person who pays the piper may not own your soul, but they do usually get to call the basic tune. This “law” isn’t written down, but most courts have upheld it in just about every case where someone got fired for being an idiot about their private employer.
As a civil servant, I face three additional layers. First, it is the government. Beyond the fact that I accept a paycheque that is funded by the taxpayer, and that taxpayer expects me to do my job regardless if it is a Liberal, Conservative, NDP, Green Party, or Communist Party in power and regardless of who I personally support, the reality is that the state has a higher standard of responsibility working in the name of the public than in a company selling the latest digital widget to the public. Normally, the easiest way to adapt is to think of my role as, “Be professional, not personal”. Alternatively, I can think of myself as the public’s proxy, which means I do what they collectively would want me to do, not simply what my personal views say should be done. Another way to think of it is I don’t get to use my position to push my personal agenda, that’s not what I was hired to do.
This “extra” layer is intangible, and lots of people crap on it daily. Oh, it’s just a bunch of bureaucrats. They only serve themselves, blah blah blah. If that’s what you think, you should probably stop reading now as you’re not going to understand anything else either. The government has a higher standard applied to it than the private sector in most governance areas, and that is by design. It is also frequently why people cite the private sector as lacking in some areas because they don’t share the same “responsibilities”. In government, those higher duties and responsibilities extend to the employees too.
The second layer is not just a variation on the above — I took an oath when I joined the public service. An actual oath. Like an oath of office for elected officials, but not quite so haughty. In the Canadian public service, you are supposed to take this oath when you are first hired. I had two choices — I could take an affirmation oath to the Government of Canada or a “larger” oath to the Queen and Commonwealth too. Back in ’93 when I took the oath, I went bigger. Maybe I’m just old school that way but the affirmation oath seemed too simplistic, too watered down, at least to me. It’s part of my DNA, my reason to want to work for the government. The same reason why I say civil servant and not a public servant. The higher calling that seems so laughable to some. And just as you swear an oath in a court to tell the truth, the oath I took was designed to serve as a reminder that I was taking on that higher level of responsibility, and assuming certain duties such as upholding the principles of good public service, democratic governance, impartiality, etc. I don’t get to later decide, “Oh, well, the oath didn’t really mean anything.” It did…and it does.
The third layer is my letter of offer. In the public service, you don’t get hired by Joe Manager with a simple handshake, a smile and, “Great, start tomorrow.” You get an actual formal appointment letter that says “Here is your job title, classification, initial rate of pay, address for work, unit of work, etc.” AND something else fairly significant — a clause that says by accepting the position, I agree to be bound by the Government of Canada’s and my Department’s Code of Values and Ethics. And I have to sign it. Like a contract. Because it is.
So what do we have? Taxpayers who pay your salary and expect you to be impartial. An oath to your government. And a contract signed when you are hired. With an attached Code or two about some obligations that you have as an employee.
All three of those raise the standard of behaviour from John Q. Public to Jane Civil Servant, and with it, the imposition of certain limitations on what you can and cannot do as an employee of the Government of Canada. Lawyers, doctors, lots of professions have similar codes that go with their joining the regulated profession. For civil servants, one of those limitations affects freedom of speech by stressing that you owe a duty of loyalty to support your employer, even if you don’t like who the boss or ruling party is, and that is more than just not saying something bad if you work at Walmart or Nissan.
What really messes up the discussion though is people completely misunderstand the difference between “allowable behaviour” and “defensible behaviour”. The courts have looked at the issue, as have the governments, and certain behaviours are clearly permitted while others are violations but defensible ones. The burden of proof can shift from the “employer to prove” to the “employee to defend”.
For example, it used to be that running for office was not allowed while you were a civil servant. It was assumed to be obvious signs of partiality — you could hardly claim to be “impartial” while running as a Conservative party candidate yet serving a Liberal party in power. It seemed like a bit of a no-brainer to say “No, you would have to stop being a civil servant while you do it.” Then someone came along (named Osborne and a few others) who said, “Wait a minute…I have a legitimate defence. The right to participate in an election is a fundamental right, and if I’m not abusing that right, I should be able to exercise it.” The court agreed, and the rules were changed — it went from being not allowed, to be defensible, to being allowed. It doesn’t mean running might not violate your code, but mere candidacy or having a sign on your lawn doesn’t rise to the level of shifting the burden. It isn’t automatically out, it has to be reviewed on a case-by-case basis.
This was particularly important in the recent campaign. Lots of articles were written saying “Harper was clamping down” on electoral participation, but honestly, most of them were crap. Their “evidence” was that departments who had codes in place to say “be careful what you do” (I’ll elaborate further below) sent out reminders to their employees to say, “Don’t forget there is a code, you are bound by it, there are penalties, be careful that you don’t find yourself accidentally offside because you didn’t know what was allowed or not.”
But guess what? Under the labour laws, the employer (i.e. the Departments) can be held liable if they DON’T remind the employees. So they met their obligations under both labour laws and collective agreements to remind the employees, “hey don’t forget”, just as they regularly remind people about information security, fire safety routines, etc. Cuz they have to do so. If they don’t, and somebody gets fired, they can get sued — “Hey, you never told me. I didn’t know.” Well, now they do.
Yet article after article and complaint after complaint showed up on Facebook. “They’re trying to muzzle us.” No, they’re trying to make sure you don’t get fired for doing something stupid without knowing the rules. Do you want to blast about the ruling party on Facebook? Do you want to complain about your bosses bad behaviour? Do you want to leak transitional materials to the Press? Go right ahead — but if someone catches you, or more likely someone complains, then you switch from asserting your rights to defending your rights. Do the warnings have a chill effect? Of course, they do. As they should. Because you have at least three layers of extra scrutiny on you as a civil servant that your brother or sister who works at Walmart doesn’t.
But the Government doesn’t hold all the cards to say what is permissible or not. They can tell you things they think will violate the code, but ultimately it will be a tribunal or court to determine if it is true. The Government (as the employer) used to think running for office alone was enough to violate the duty. The courts said, “Nope, not enough.” Why? Because the democratic process of running for office is waaaay too important to have a low threshold for what is reasonable. Getting stopped on the highway for a breathalyzer? Low threshold. Being thrown in jail with no access to a lawyer? Big threshold. Not posting comments on FB that criticize your boss by name? Low threshold. Not running for office which is the cornerstone of democratic ideals in the country? Giant threshold.
This is why, to me at least, I find the cases at the Department of Justice so puzzling as a fellow civil servant. At least two employees applied for leave to run for office and were apparently denied. I understand there are some internal justice code issues where lawyers frequently represent the state and thus have a higher duty to represent without conflict or appearance of a conflict of interest or partiality. I get that. But it’s a pretty fundamental right. One that very few courts have curtailed without a REALLY good argument.
There is a small factor I didn’t mention above — the courts also often look to see if it was the smallest impairment possible of the right. If not, it’s not reasonable. I confess that the Charter analogy breaks down a bit here — duties in codes of ethics do not work exactly like Charter rights, but the Canadian Courts have already ruled on a similar issue and were pretty clear. Don’t get me wrong, I don’t think their Department is off their rocker — there is obviously a special issue for lawyers who represent the state regularly. But if I was at the DoJ, I would have likely thought it should be permissible. If necessary, other options could be considered too — could the person be transferred to another unit? Could they be internally restricted from representing the Crown for a period of two years or something? Something far less onerous than outright denial. As a government employee, I would have expected it to be permissible, yet their Department said no. Maybe that holds, maybe the employees grieve or sue.
Why am I talking about this case? Because it goes to the heart of my unease with the political process. If I was actively involved in legislation or litigation, representing the Crown, I don’t know if a leave of absence would be enough to make me feel like I was truly impartial, both for and against. Could I honestly fight for a seat as if I had no residual duty to the government simply because I was on leave? I have a friend who quit his job with the federal government when he was doing his thesis so that there was no chance in his academic analysis that he would be “holding back”. I think it was both overkill and yet highly appropriate. Eminently respectable and honourable too. For me, I think there would have to be at least some sort of “cooling off” period to feel like my duty was “met”. That I truly was “separated” with only basic residual duty remaining so that I would feel comfortable engaging as a candidate. Others might not feel that way, but I do. I wouldn’t feel comfortable standing for office while still able to return to work for the government if I lost. Certainly not if I was in any position of “representing” the government regularly.
This was much more relevant to me when I used to work in positions where I interacted with political staff regularly. Back then, I wasn’t even comfortable VOTING. Yes, VOTING. An even more fundamental right than standing for office. Sure, yes, I still voted. But it wasn’t completely without pause — was my preference for a different party some sign that I wasn’t being completely professional? I didn’t think so, but how would I know? I certainly didn’t always agree with their directions, but was that “partisan” or me just thinking there was a better public administration option? Fortunately, most of my interactions were not on hot-button policy issues, so I was never fully “battle-tested”. As I said at the beginning, I am not as interested in politics or policy as I am public administration and basic governance, so voting didn’t seem “off-side” to me. Plus I often liked the people I worked with even if I didn’t agree with their views. I also have views about whether civil servants should be able to strike or not, but that’s a kettle of fish for another time.
In terms of other rights outside of running for office, it used to be assumed that you couldn’t criticize the government at all. Even still today, many people working on codes of conduct or social media rules have tried to get close to that in wording — note these are civil servants themselves, some of whom believe it is completely inappropriate to say anything publicly against the government. Ever. To them, it is not “good public service”. Or at least too risky. But the courts have ruled that while you do owe a duty of loyalty to the government as an employee, your right to freedom of speech is still fairly important. Thus, it’s still a balancing act.
One old case involved a senior executive opposing the metric system while actively visible as a public sector employee. Another case involved a doctor with Health Canada contradicting a Ministerial directive on a health matter related to a trade embargo. In both cases, the dismissal was upheld because the court felt they had crossed the line from being simply a member of the public commenting on policy to being active opposition of a policy decision while identified as a civil servant working on related issues.
When you pull the various litigation examples together, and there aren’t that many Canadian federal examples, the resulting test regarding freedom of speech is relatively nuanced:
- Is the civil servant clearly identifiable to the public as a government employee?
- Are they actively opposing/commenting negatively on a public policy of the current government?
- Are they doing so in a public manner (as opposed to say, conversing with other public servants)?
- Is it within their sphere of expertise i.e. is it a policy they could know about or claim some credibility with or appear to be claiming expertise because they perhaps work on it?
- Are they revealing information of an internal nature?
- Is their behaviour such that a reasonable person might perceive bias or partisanship?
Not all of those factors have to be in play, but they are relevant to where the line should be drawn. So, what does that mean in practice? It means if you’re a government employee, and you work for Environment Canada but are talking to a bunch of strangers at your son’s baseball game who don’t know either of those facts, and you complain generically about income tax changes, you’re (probably) not violating your code of ethics or duty of loyalty. On the other hand, if you go to a conference on regulations, tell everyone you work for Revenue Canada, and complain that the new income tax rules are draconian infringements of everyone’s rights, you’re likely violating your duty.
Social media is a bit tricky because it isn’t always clear who is going to see your posts (a and c above)…Facebook is limited to your friends, but they could always share your posts further (a foreseeable risk). So if you do a rant about former Prime Minister Harper before he became former or even after, and how it affects your files, you risk getting close to a danger zone. If you tweeted about it, which is automatically open to the public, farther into the red zone. The more critical, the more risk of violation. If you’re posting on a news site and you’ve linked your social media account that identifies you as a public servant, another risk factor.
Most public servants choose the safe path and don’t share partisan stuff on their accounts — the shortest test is if you feel a little uncomfortable posting it, or you wouldn’t post it if it was about another party, you probably shouldn’t post it. During the election, lots of friends commented privately about how they themselves didn’t or couldn’t or wouldn’t post certain things, and were surprised when others who were known to be civil servants did post them. Not everyone sees the line in the same place.
Social media guidelines and the emails sent to all employees before the election often remind people that saying something on social media doesn’t automatically make it “private amongst friends” nor make it fair game to say anything. It also cautions people about identifying themselves as a public servant or commenting on files they work on — basically telling them not to do things that would likely violate the tests the courts have set up in dealing with these issues. Unfortunately, the reality is a lot of people still think the test is simply “is it true” (a libel or slander defence) and “am I being unprofessional” (a labour law defence), but lots of people could meet those two elements and yet still wind up in hot water. You could be 100% right, totally professional in your demeanour and presentation, and yet if you are thinking of contradicting your Ministry’s position, bells should go off pretty fast.
Which isn’t to say there aren’t defences when you do wind up in hot water. Certainly, you probably wouldn’t get in trouble for sharing articles written by the mainstream press — the articles themselves are constitutionally protected — as long as you’re not providing extra partisan/snarky commentary with it. A non-governmental friend from my university days, quite well-respected in his field, shared lots of posts on his feed about the current government’s position regarding the environment. Some I agreed with, some I didn’t — but none of them could I share or comment upon. They were way too partisan for me to even consider.
However, editorial cartoons are probably safe…ironically, since it is satire in and of itself, it can’t be taken as a legitimate position for someone. Thus many civil servants posted a cartoon today of Harper and Mulcair looking like they were in a bad hockey game where they got beat up, along with the line, “Imagine how bad it would have been if he had been ready”, (referencing the ads of the Conservative Party in the election that now-Prime Minister-elect Trudeau was “just not ready”). It is likely funnier to Liberal supporters than anyone else, but it’s obvious satire and likely okay.
Beyond those areas though, there are three clear exceptions where you have a good legitimate defence, even if the initial finding is that you violated your “duty of loyalty”.
A. The first is a very generic factual defence. This appears at first blush to be the same basic principle as in a libel or slander case, i.e. if you can prove it was factual, you’re okay, but it isn’t the same — you have to prove that you only provided truly objective and publicly available facts AND that you had no malice or illicit agenda in doing so. If so, you might be okay. It depends a LOT on intent (which goes to the question of professionalism I mentioned above with the same defence). If instead, you leaked internal info that should have remained internal, this defence may not be enough for you, it usually had to be public info that all you did was share. Facts are not partisan but could depend on how you did it.
B. In a more specific case, there are whistleblower cases where the person claims they were revealing the info to protect others. If so, it is interesting to note that whistleblower laws are often misunderstood — they don’t usually say that you didn’t violate your duty/contract/oath, it says that you DID violate it, but that you are protected from reprisal for doing so, and generally, if and only if you could prove a clear and present risk to someone’s life/health or evidence of ongoing criminal behaviour AND there were no other avenues open to you. The Canadian government has a whistleblower ombudsman…hard to say you had to leak things publicly, ever, if you didn’t go through them first.
C. Labour relations. This is a bit of a tricky one. It basically says, “Okay, I violated my duty, and freedom of speech wasn’t enough to save me, so I need another pillar of protected behaviour.” One of those pillars is organizing labour i.e. you’re doing it as part of union-like behaviour, like organizing fellow employees around an issue at work. It might be bad if you complain to the public about your work life, but it might be okay if you’re primarily communicating with people who work with you about the work conditions and trying to get them to mobilize to fix them.
How do *I* deal with the rules considering I’m active on Facebook, Twitter, and I have a really wordy blog? It’s actually quite easy and most of you can discern my approach from above.
First and foremost, I almost never criticize a specific political party. I’m not of the mind that one cannot do it ever, but it doesn’t feel appropriate to me. Equally, I don’t campaign for one either. Nor could I ever personally stand for office while still “attached”. Fortunately, this one is kind of easy for me since I’m not very partisan to begin with and rarely find myself aligned with any party exclusively.
Second, I tend not to criticize a current government policy. I might analyse it, I might explain some interpretations of it, but I don’t attack it. If I do criticize, it is at most of the form “I think it could be broader” or “I think it could take into account additional factors”. Which isn’t to say I don’t think some policies are completely looney-toons — it is just that I fully recognize that winning elections gives you the right to set policy, even ones I don’t happen to agree with…well, at least until the universe appoints me Supreme Dictator for Life, I suppose.
Third, I don’t write about my own files. I work for a department that I don’t name in my social profiles, even though you can find me in online directories fairly easily, and I don’t write about my immediate files or any files that my Department leads. I have views, sure, but any such musings would likely become inappropriate very fast.
So, let’s see…Going back to the “legal test”, I am usually identifiable on my blog as a government employee, BUT not always as a current one and NOT usually for social media profiles or anything in a public forum + don’t oppose active policies + not my files + keeping it externally factual. Overall, that SHOULD lead people to view me as non-partisan in terms of a party, although they might find me highly defensive of public servants and government in general (i.e. if there is a bias, it’s in the government’s favour, not against). Usually if I’m blogging about something, it’s because someone drew a line somewhere that missed a “public administration” perspective, not a “politics” or “public policy” perspective. So, for example, I recently wrote a whole series of blogs reviewing an academic book on Canadian aid policy, all from the perspective of “is there anything here that could help me as a public sector manager?”. I didn’t rate whether the policies or approaches of the government that they were reviewing were normatively right or wrong, but whether the analysis was useful to me as a non-partisan manager.
The interesting thing is that despite that approach, some people think I come close to the line from time to time. Maybe even with my commentary on the DoJ approach above since it puzzles me as to whether or not I would have thought it was a banned activity if I was their employee, but I digress!
A few years ago, I wrote a series of related blogs when DFAIT and CIDA merged that were, surprising to me, actively shared across both departments. They were even discussed by senior executives, a few of whom apparently thought I was nuts to risk writing them. Except, to my mind, I wasn’t anywhere near the line given certain nuances…I never said in any of them if I thought it was a good or bad idea. I never criticized the decision or the implementation. I limited any references to my employment status as thatI used to work at CIDA without specifying I do still work for GoC. And I don’t work on development issues anymore, so I couldn’t be seen as opposing or supporting implementation decisions. I shared my post on FB, but not Twitter. And I didn’t send it to any media outlets as an Op Ed for instance.
And, just for CYA a bit I suppose, I sent a copy to my boss to let him know so that I wasn’t “hiding” it, I’ve had conversations with the Departmental Values and Ethics champion about the lines that I perhaps should not cross (like writing about my own Department’s files), and my ADM’s office has been provided with the URL for my blog in case they want to monitor it (man, I hope for their sake they have coffee first, if someone is stuck reading it). I also limited my writing to internal public administration issues. Analytical, factual, relatively choice-neutral about some of the options that would face those who still worked there.
Something else was at play too which is interesting — the actual result: almost everyone who read it was a public servant. Not all, but almost all. While it was widely shared in both departments, external viewership beyond government was extremely limited. I would probably get more “external” readers if I wrote it on a bathroom wall rather than my blog.
Am I likely to ever get in trouble that way? Probably not, and to be honest, even if I do, it is pretty much in line with the legal tests, pretty far inside the lines, but that doesn’t mean I’m completely comfortable with my approach. I re-read everything I write, I watch for adjectives that are not neutral, that might be too inflammatory. I err on the side of caution. I like to tilt at windmills, but not when it comes to government and my blog. Instead, I’m completely non-partisan, I don’t criticize the government, and I definitely don’t do it on my current files.
Do you know who WILL get in trouble?
People who forget who pays their salary, who forget their oath, who forget their contract, who attack the current government’s policies in areas they themselves work on, who do it publicly and who advertise they are public servants who therefore presumably know what they are talking about. That’s not only a breach of professionalism and a breach of your duty, it’s just plain stupid to think otherwise.