Monday, August 15, 2005

Government flexes political muzzle

Political activists in the federal public service thought they had it made with the Supreme Court's Osborne decision in 1991: the Court held that legal restrictions on the political activity of most federal public employees were unconstitutional.

But we are living in different times now. Federal public service workers have already been slapped upside the head a number of times, with various "modernization," measures. These have included a watering-down of the merit principle, and the weakening of the right to appeal against appointment—just about the only method by which bargaining agents and their members could keep a weather-eye on employer staffing procedures. Then a leaked report appeared a few days ago, appearing to threaten 41,000 jobs.

Now a "guidance document" has been circulated, courtesy of the Public Service Commission (PSC), wagging its finger at employees who want to involve themselves in political activity, and, by so doing, creating a chill that will be felt service-wide. This flows directly from yet another part of the Public Service Modernization Act, Sub-Section 113(1):

An employee may engage in any political activity as long as it does not impair, or is not perceived as impairing [emphasis mine], the employee's ability to perform his or her duties in a politically impartial manner.

The public service must be politically neutral--no one can seriously argue against such a proposition--so that, for example, senior policy-making roles legitimately must be staffed by people who at least appear to be above the fray. But the difficulty here is the vast grey area: more junior public employees who want to work on a campaign, or put a candidate's sign on their lawn. Osborne should have taken care of that, but the government is now taking a giant step backwards.

The PSC has long promoted a public service regime where values rather than rules should prevail. In many cases, as both management and labour would agree, that's at least theoretically a better approach to navigating through problems than fighting things out with exhaustive interpretations of regulations and jurisprudence. The latter is draining and time-consuming for both sides, and often serves no one very well.

In this case, in keeping with its general approach, the PSC “intends to emphasize guidelines in preference to highly detailed regulations.” But this is one issue where there need to be explicit rules of the game. To have managers judging these activities on a "case-by-case" basis, guided by unhelpful generalizations such as "the more visible the activity, the greater the chance that it will create the perception of bias," should strike fear into the heart of any activist public employee with a controlling boss.

A case going to adjudication illustrates the point well. Edith Gendron, an employee with Heritage Canada, was fired by her department after refusing to give up the presidency of a souverainiste association, "Le Québec, Un Pays." Her job has been to administer official languages grants in Atlantic Canada, a decidedly mid-level one. But someone decided that she couldn’t work for Heritage Canada, which promotes Canadian unity, while being a separatist in her off-hours.

My bet is that she'll win this one: any actual conflict of interest here is phantasmal. But it gives a pretty good indication of the discretion afforded to managers in applying their own political litmus tests. Many public employees, keenly interested in politics of all stripes, will hesitate to take risks with their livelihoods, and will absent themselves from political campaigns.

In a country headed by a Prime Minister who has been known to honk about the "democratic deficit," the new discretion apparently being offered to public service straw bosses to discipline politically-active employees is clearly inappropriate. What is needed instead is a clear and unequivocal statement of the rules of the game that everyone can understand, consistent with Osborne and the Charter of Rights. The very last place to allow management discretion is over the political rights of public service employees. After all, they're citizens too.

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