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Legislation

Current, ex-public servants say Public Service Employment Act ‘unconstitutional’

By Chelsea Nash      

Three say the Public Service Commission made arbitrary decisions about their requests to run for public office.

Andrew Caddell, a public servant currently at Global Affairs, says he was treated unfairly by the Public Service Commission when he ran for the federal Liberals in 2011. The Hill Times photograph by Chelsea Nash
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Andrew Caddell, a public servant at Global Affairs, says the Public Service Commission has a flawed decision-making process when determining if a public servant should be allowed to run for public office.

The Public Service Employment Act, legislation that supports the work of the Public Service Commission, often makes for “arbitrary,” “subjective,” and even “dangerous” decisions, insofar as they are unconstitutional, he says.

The commission is responsible for keeping the public service a merit-based, representative, and non-partisan institution. The commission is a federal institution that is part of the Public Services and Procurement Canada portfolio but reports independently to Parliament.

Public service employees must seek permission from the commission to run for office at any level. If a public servant wants to return to their job should they lose the election, they must agree to the conditions imposed by the commission, which usually includes mitigating the risk of partisanship in some way, perhaps by changing duties, and a leave without pay during the election period. If they win the election, they immediately cease to be an employee of the public service.

Tom Kelly, a spokesperson for the commission, said in an email that “an employee may engage in any political activity so long as it does not impair, or is not perceived as impairing, the employee’s ability to perform his or her duties in a politically impartial manner.”

Mr. Kelly wrote that “since Dec. 31, 2005, the [commission] has rendered a decision on 796 requests from employees interested in seeking nomination and being a candidate in federal, provincial, territorial, and municipal elections. Permission was granted in 786 cases.”

However, Mr. Caddell and two former public servants, Emilie Taman and Claude Provencher, take issue with the fact that they can be barred from running or forced to take an extended leave based on a “perceived” political bias. Both Ms. Taman and Mr. Provencher were denied permission to run for public office by the commission. While they each responded differently, Ms. Taman and Mr. Provencher both left the public service as a result. All three people say their charter right to run for office was curtailed.

Mr. Caddell had what he said was an unexpected one-year leave imposed on him, which he later fought. Ms. Taman’s request to run for the NDP was denied by the commission. She decided to run anyways, and when she didn’t show up for work, was fired. Mr. Provencher’s request to run for the Liberal Party was also denied. He decided not to run, but quit the public service after 27 years as a result.

In each case, the employees said they had the support of their direct manager that they would be able to conduct their work impartially upon return, should they lose the election.

“There is just a cascading arbitrariness about it,” Mr. Caddell told The Hill Times in an interview last week.

Mr. Caddell ran for the Liberal Party of Canada in the 2011 federal election in Montmagny-L’Islet-Kamouraska-Rivière-du-Loup, Que. At the time, he was working for the foreign and trade ministry as a trade commissioner and global practice lead for forestry innovation.

He was initially granted permission by the Public Service Commission to run for office, with the condition that if he lost the election, he would have to take a one-year leave without pay as a “cooling-off period” from his job.

Mr. Caddell said the condition caught him off guard, and was the result of a “one-line hypothesis” made in a memo to the deputy minister about his impending political activity, that stakeholders in the industry might perceive him to be biased.

Mr. Caddell said he never saw the memo in question until after the leave was imposed, which was one of the problems. “There was no transparency,” he said.

The Public Service Commission said the one-year leave was due to its “concerns regarding the perception of a lack of political impartiality on the part of industry representatives.” This was verified by documents from the Public Service Commission to Mr. Caddell that Mr. Caddell provided to The Hill Times.

Mr. Caddell signed the conditions even though they noted the one-year leave without pay because there was not enough time to dispute the conditions before the election was called. If he had not signed the conditions, he would have been able to keep his job, but would not have been able to run in that election. If he did run without accepting the commission’s conditions, he speculates he would have been fired.

It was his impression that the condition was an error that would and could be corrected by the department, or by the Public Service Commission.

He informed the Public Service Commission of the error, but was told they could not deal with it until after the election period.

Despite efforts by his union, the department, and industry stakeholders, the commission did not address the matter until six and a half weeks after the election, which he lost.

Mr. Caddell said that time in “limbo” was very hard for him. “I was depressed, I was angry.” He was facing the loss of his livelihood, he said.

On June 17, 2010, he said he received a letter from the commission stating he was permitted to return to work. He said he was never compensated for the money he lost, which he estimates amounts to some $12,500.

Mr. Kelly said the commission could not release personal information about Mr. Caddell’s case without Mr. Caddell’s permission in the form of a written letter.

Mr. Kelly said each potential candidacy is assessed “on a case-by-case basis” taking into account the “nature of the political activity, [the] nature of the duties of the employee, and [the] level and visibility of their position.”

“If permission [to run for office] is granted, the employee must accept in writing and respect the conditions imposed by the commission,” he said in a statement.

The commission did not respond to further questions about the constitutionality of barring public servants from running, and the alleged arbitrariness of its decisions.

Section 3 of the Charter of Rights and Freedoms says every Canadian citizen has a right to vote in elections of members to the House of Commons and legislative assemblies, “and to be qualified for membership therein.”

‘Precedent-setting’ case

In 2015 when Ms. Taman, a federal prosecutor at the time, was denied permission to run for the NDP in Ottawa-Vanier, she left her job and ran anyways. She was fired for not showing up for work. Backed by her union, she took the case to the Federal Court.

She lost the case at the federal court, but won on appeal.

Ms. Taman said the case was “precedent-setting.” It did not specifically address her own firing, though the decision did acknowledge she was treated unfairly. While the public service did offer her job back, Ms. Taman refused. “I had moved on,” she said.

Mr. Caddell said Ms. Taman’s case “at least shows that there is a flaw in the way the Public Service Commission operates.”

When asked about Mr. Caddell’s imposed one-year leave, Ms. Taman said she “always understood that part of how the commission can accommodate these requests is by imposing a cooling-off period.”

But, she said a year strikes her as a particularly long time. “If they want to impose a year, they should explain why,” she said. “Otherwise it’s arbitrary.”

Ms. Taman says the way the legislation handles political participation by public servants is “unconstitutional,” noting Section 3 and the charter’s fundamental value of freedom of association.

A spokesperson for Public Services Minister Judy Foote (Bonavista-Burin-Trinity, Nfld.) did not respond by deadline to a request for comment on the Public Service Employment Act.

Mr. Provencher was also critical of the constitutionality of the decision made against him. He, too, took the matter to Federal Court, but dropped the case once the election he wanted to run in was called. He did not have enough time to see the court decision out before the election. This was another aspect Mr. Provencher said was problematic: the decision made by the commission would be final even if he won in court, because there just wasn’t enough time to refute the decision before the election.

Like Ms. Taman, Mr. Provencher was working for the Department of Justice as general counsel and a regional director in Quebec. He was trying to run for the Liberal Party in the riding of Vimy, Que. in the 2015 election. Mr. Provencher said he was a senior manager in the department, but did not interact with court matters. He and his direct supervisor decided they could also mitigate the risk of perceived partisanship by changing some of his duties, which he agreed to do.

But, he said his deputy minister disagreed, and so his request was denied.

It’s almost ridiculous what he said,” Mr. Provencher said. “He said if I run for election, he said the public would be aware of me running for election,” which would create a perceived partiality. “That’s the whole point of running in an election,” Mr. Provencher said, laughing.

 The decision made him too uncomfortable to return afterward, he said.

cnash@hilltimes.com

@chels_nash

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