Gomery Report Part 1: Reshaping Public Management?

Peter AucoinDalhousie University

Presentation to Nova Scotia Regional Group, Institute of Public Administration of Canada

Halifax, December 7, 2005

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OUTLINE

1. The Sponsorship Scandal

2. Prospects for change

3. Gomery Part 1: Analysis and Conclusions

4. Reshaping Public Management?

5. Issues for Gomery 2

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The Sponsorship Scandal

• Breaking the rules – deficient management structure and processes (PMO & PWGSC)

• Breaking the law – program managers, advertising agencies, and Liberal Party of Canada (Quebec wing)

• Breaking the bargain – ministers, political staff and public servants (and Crown corporations)

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Prospects for change?

1. Scandal - isolated incident or systemic issue?

• Government response implies that “public sector management” at fault: hence 2004-2005 proposals to “strengthen public sector management”

• New Public Management takes a hit: justifies strengthening internal oversight and internal audit as check on empowered managers

• Program Review (1994-95) excuse: reduced financial management capacity – OCG and comptrollers to the rescue

• Command and Control overkill: “seeking to bury Gomery”?

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Prospects for change?

2. Systemic issues on Gomery agenda for Report 2: Implicitly accepts need to address the “New Public Governance”

Concentration of power under PM Increased number/expanded roles/influence of political staffPersonal/partisan interventions in senior public-service

staffingExpectation of public-service enthusiasm for government

agenda Increased political spin in government communications

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Gomery’s Analysis

“Three main factors…caused or contributed to the problems”:

1. “the unprecedented decision [by the Prime Minister] to direct the Sponsorship Program from the PMO, bypassing the departmental procedures and controls which the DM of PWGSC would normally have been expected to apply and enforce;”

2. “the failure of the DM of PWGSC to provide oversight and administrative safeguards against the misuse of public funds;”

3. “the deliberate lack of transparency on how the Program was initiated, financed and directed.”

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Gomery: Who is responsible?

• PM Chretien

– involved himself in “direction” of program (prerogative of PM) – put PMO (Pelletier) in “charge”, contrary to Clerk’s (Bourgon) advice– PM “personally” responsible for Pelletier’s actions (political staff)

• Pelletier (Chief of Staff, PMO)

– not a public servant - no authority to direct; simply PM’s power!

• Minister Gagliano (GWPSC)

– partisan abuse of ministerial authority: commission and omission– personally responsible for actions of his political staff

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Gomery: Who is responsible?

• Other ministers

– Minister Marleau (GWPSC) not held responsible; not informed – Finance Minister Martin and other Quebec ministers “exonerated”

• DM PWGS (Ran Quail)

– “Abdicated his responsibility” to manage department (“ to control, direct and oversee his officials”)

• “Black hole” in report

– Clerk and PCO mentioned, especially (Bilodeau, Deputy Clerk) in instructing DM and subordinates, but no judgement!

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Reshaping Public Management?

• Liberal Government: executive centred changes taking place

– more executive management (ministers as chief executives) and more central agency controls and oversight

• Conservative government: parliamentary centred proposals

– More central agency financial controls, transparency, and parliamentary and parliamentary agency oversight, audit and control

• House of Commons: votes for UK Accounting Officer regime

– PAC recommends adoption of UK Accounting Officer regime, and House of Commons concurs (Majority opposition vs minority Liberal government: November, 2005)

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Reshaping Public Management?

Gomery 2: Focus – “Government Structure and Organization”

• Constitutional conventions: Ministerial Responsibility and Non-Partisan Public Service

• Executive Relationships: ministers, political staff, public servants (Clerk, Central Agencies, DMs, and departments), Crown corporations

• Parliament and agencies: oversight, review and audit for public accountability

• Transparency: access to government information, whistleblower protection

– Gomery 2 will be technical, theoretical, and dense!!

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Ministerial Responsibility: Sorting out accountability & answerability

Minister has authority “to direct & manage department” and thus is responsible and accountable to Parliament in general

• But: PM staffs DMs; PM can intervene; TB sets rules; PSC staffs

• And, DM has own authority for some matters of administration (from parliamentary statutes directly: FAA and HRMA & delegated authority from TB and PSC directly)

• Therefore, when (1) actions of departmental public servants, including DM, at issue, and (2) minister not involved, minister merely “answers”, in first instance – reports on what happened

• Thereafter, Minister is personally “accountable” for her/his own response because now he/she is involved and/or in the know

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Ministerial Responsibility: Ministers vis-à-vis their Deputy Ministers

Official Doctrine says Minister fully accountable in Parliament for actions of DMs, even when DM acting on own authority!

• Therefore, DM not deemed personally accountable to Parliamentary committees for exercise of her/his own separate authorities:

• DM is said only to appear “on behalf of” minister; • DM only “answers” in support of minister’s accountability

• DMs cannot be accountable to parliamentary committees, says doctrine, because:

• Parliament is “political” institution & DMs are “non-partisan”• Parliament does not have authority to direct or discipline DMs

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Ministerial Responsibility in Practice: Is constitution merely “what happens”?

• Widespread misunderstanding of constitutional convention

Assumption of moral obligation of ministers to commit political hari-kari (admit guilt and resign)

Confusion over responsibility and accountability of former and incumbent ministers

No power of House to require resignation - to fire/impeach minister (only PM can fire)

Duty of Parliament to hold ministers to account: accountability is a two-sided process

“Responsible Government”: doesn’t trump ministerial responsibility

• Ministers name and/or blame departmental officials when convenient

• Deputy ministers “held to account” by parliamentary committees

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Ministerial Responsibility: Clarifying the doctrine: what it should say?

Minister’s general management responsibility & accountability does encompass DM’s own separate authorities as follows:

Minister becomes responsible & accountable for DM actions when Minister learns (or should have learned) of DM’s failures to act properly in respect to these authorities – at this point minister required to respond

However, Minister cannot direct DM on these matters – Minister does not have the authority

But, Minister can & should raise concerns with DM and, if necessary, with Clerk/PM, TB ministers, or PSC – who have authority to act vis-à-vis the DM

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Ministerial Responsibility: Gomery’s position and challenge

Gomery presents & accepts Official Doctrine in Gomery 1

• Nonetheless, Gomery (1) declines to hold Minister Marleau responsible despite doctrine, and (2) he holds DM PWGSC Ran Quail personally responsible and accountable

• Further, Gomery seems to be of two minds about the proposition that there is, and/or should be, a division of responsibilities for policy-making & administration between ministers and non-partisan public-service bureaucrats respectively – hopefully, he’ll sort it out in Gomery 2

• Gomery claims DM Quail responsible for “administration” when he holds him accountable

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Deputy Minister Accountability: Should DMs account publicly?

Official Doctrine says “no”, although it accepts that

– DMs appear before parliamentary committees, esp. PAC, and answer for the performance of their department

– Often more than simply “reporting” or “answering” – MPs sometimes demand a personal account

– DMs are, in fact, held to account by committees & actions judged

– Committees can’t discipline or direct, but judgement has “consequence” for reputation: is a reward or sanction

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Clarifying Conventions: what do we need?

Need to distinguish between

(1) statutory authorities and responsibilities of ministers and DM respectively, and

(2) Minister’s assumed delegation of authority to DM as Minister’s “chief administrative officer”

• Distinction between “policy-making and administration” or “roles” not adequate, or no longer adequate

• Need to reduce opportunities, and incentives, for Ministers to blame DMs (or other public servants) to escape personal responsibility

• Need to accept that DMs should provide a public account of their exercise of their own authorities & responsibilities before parliamentary committees

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Do we need the UK Accounting Officer Regime?

Canadian DMs already have necessary statutory and delegated authority to manage department independent of minister & to say “no” to minister

• minister cannot direct or override DM in these matters

– different than in UK system where Accounting Officer (Permanent Secretary) authority is executive prerogative power that is delegated, not statutory

– DM cannot use “ministerial letter of instruction” to escape personal responsibility and accountability - DM must decide and be accountable

– minister can seek action from TB or PSC that overrides DM on TB and PSC delegations

• Canadian DMs already account before & are held to account by PAC for personal performance in managing their department

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Strengthening Independence of the Non-Partisan Public Service

• DMs should be formally brought into the non-partisan public service to protect the public service from politicization via politicization of DMs in Parliament and by Ministers

• Independent staffing is required condition; by definition, appointments by partisan ministers risks partisan staffing

• Canadian convention is non-partisan, professional staffing of DM cadre through Clerk, assisted by COSO, who advises PM on staffing and where PM traditionally accepts recommendation

• But, New Public Governance – ministers increasingly want a more “politically responsive” public service; the traditional “bargain” has been broken – no one arguing otherwise!

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Independent Staffing of DM Cadre

• Institutionalize the spirit of Canadian convention:

DM Commission (Clerk, COSO, and two external members)

1) DMC recommends appointments to Cabinet 2) Cabinet appoints or not3) if not, Cabinet’s veto disclosed publicly4) DMC makes another recommendation

DMC separate from PSC given Cabinet veto as democratic check (no check on PSC powers to staff)

DMC external members as check on bureaucratic favouritism

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Rein in Political Staff

• In constitutional doctrine, political staff merely “staff” to ministers with no “line” authority to issue orders or direction to department’s public-service bureaucracy, including DM

• In practice, however, political staff increasingly aggressive in seeking to exercise their minister’s authority – blurring of boundaries, stepping over the line - New Public Governance

• “Priority status” for political staff in public service staffing serves no public interest – invites backdoor partisan-politicization; eliminate

• Political staff a permanent feature: another reason for strengthening independence of non-partisan public service

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In Conclusion

• New Public Governance will not subside as pressure on government

greater transparency 7/24 competitive media decline of deference to political authority increased expectations and standards fewer partisans and less tolerance of partisanship

• Canadian non-partisan public service should be

– independent authority for impartial conduct of government business – transparent in its administrative operations – accountable publicly before parliament committees