Audit of the Movement of Public Servants between the Federal Public Service and Ministers' Offices

October 2007

A report by the Public Service Commission of Canada

Public Service Commission of Canada
300 Laurier Avenue West
Ottawa, Ontario  K1A 0M7
Canada

Information: 613-992-9562
Facsimile: 613-992-9352

Cat. No. SC3-123/2007
ISBN 978-0-662-69995-8

© Her Majesty the Queen in Right of Canada, represented by the Public Service Commission of Canada, 2007

All of the audit work in this report was conducted in accordance with the legislative mandate and audit policies of the Public Service Commission of Canada.

Table of Contents

• Summary
• Introduction
  • Background
  • Focus of the audit
• Observations
  • Movements between ministers' offices and the public service were not always appropriate
    • Movements to ministers' offices – Facilitated arrangements
    • Returns from ministers' offices
  • Some staffing actions did not comply with PSC policies and staffing values and were not properly documented
    • Compliance issues
    • Compensation issues
  • Adjustments are required in priority administration
  • Profile of movements between the public service and ministers' offices
    • Type of movement
    • Duration of work in a minister's office
    • Most common occupational groups going to work in ministers' offices
• Recommendation and response
• Conclusion
• About the audit
• Glossary of terms under the current Public Service Employment Act
• Glossary of terms under the previous Public Service Employment Act

Summary

1. In 2006, the Public Service Commission (PSC) investigated two cases of public servants on leave from positions to which they had been appointed while performing duties in ministers' offices. The investigation revealed that these appointments were, in fact, to positions existing only on paper. The PSC concluded that the staffing actions were inconsistent with the values that underpin Canada's public service, and that they indicated a potential for abuse of the appointment system.

2. Because of parliamentarians' interest in this area and the need to determine whether the two identified cases were isolated incidents or signs of a broader pattern, the PSC undertook this audit. The objective of the audit was to determine the extent of movement of public servants between the public service and ministers' offices. In addition, we wanted to determine whether appointments of public servants returning from ministers' offices met the staffing requirements of the Public Service Employment Act (PSEA), the Public Service Employment Regulations (PSER), PSC policies and other applicable legislation. Lastly, we wanted to assess the risk to political impartiality.

3. During the period from April 1990 to September 2006, we identified a total of 157 persons who had been public servants before working as ministers' staff and who returned to the federal public service. We excluded 99 lower-risk staffing actions from our audit. We therefore examined the movement of 58 public servants between the federal public service and ministers' offices.

4. Our audit revealed 24 unsatisfactory staffing actions for the movement of 20 public servants. These staffing actions consisted of 14 arrangements to facilitate public servants going to or remaining in ministers' offices and one inappropriate deployment to return to the public service. In addition, we identified nine staffing actions that did not comply with PSC policies and staffing values. The staffing actions were spread among 15 organizations and covered the period from 1990 to 2006.

5. Our audit identified a need to establish Treasury Board (TB) policy and clarify PSC guidance for the movement of public servants to and from ministers' offices. Furthermore, the Treasury Board Secretariat (TBS) needs to improve its monitoring of this movement. The TBS and the PSC need to ensure that the policy and associated guidance is integrated and communicated to deputy heads in a coherent manner.

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Introduction

Background

6. Each minister in the Government of Canada has a budget allocated by Treasury Board (TB) for hiring exempt staff. These individuals are hired by the minister under the Public Service Employment Act (PSEA) and are not subject to the procedures for appointment to the public service. The terms and conditions of employment for exempt staff are outlined in the TB Policies and Guidelines for Ministers' Offices. The TB Leave Without Pay Policy permits public service employees to take unpaid absence from work for personal or other reasons, including employment as exempt staff in the office of a minister or Member of Parliament, while maintaining the continuity of their employment.

7. In 2006, the Public Service Commission (PSC) received two requests to determine whether a priority entitlement for appointment — that is, a right to be appointed ahead of all other persons — existed for two staff members of ministers' offices. The requests noted that the two persons were public servants on leave from positions to which they had been appointed while performing their duties in the ministers' offices. A PSC investigation revealed that these were appointments to positions existing only on paper. The "phantom positions" had been created especially for these employees; the employees never performed the duties involved and never intended to perform them. Instead, they had immediately left the positions on leave without pay to assume duties within the ministers' exempt staff.

8. The Commission concluded that the departments concerned had misused the appointment process, violating the terms and conditions of their delegated staffing authority. Their actions were inconsistent with the values that underpin staffing in Canada's public service and they indicated the potential for abuse of the appointment system. Appointments to and within the public service should be based on merit, and made fairly and transparently. They should be, and should appear to be, free from political influence.

9. In its 2005–2006 Annual Report, the PSC called for appropriate controls and oversight to be put in place, preferably by legislative amendment. Furthermore, the PSC discussed the need to monitor and control this kind of personnel movement with the Public Service Human Resources Management Agency of Canada (PSHRMAC) (now known as the Canada Public Service Agency) and the Treasury Board Secretariat (TBS). The TBS noted the following:

• With the removal of priority for ministers' staff and the continuing needs of ministers, additional measures may make it difficult for them to staff their offices with suitable persons.
• In 2005, TBS and PSHRMAC launched a Policy Suite Renewal Initiative. This will seek to clarify authorities and responsibilities in the provisions governing leave without pay for public servants who accept employment as exempt staff.

10. The Federal Accountability Act, which received royal assent on December 12, 2006, amended some of the legislation applying to exempt staff:

• By codifying the provision of the Conflict of Interest and Post-Employment Code for Public Office Holders into a Conflict of Interest Act, which imposes stronger limits on activities that exempt staff can pursue after they leave the minister's office.
• By banning lobbying activities for five years after leaving office with amendement to the Lobbyists Registration Act for designated public office holders, including exempt staff (not currently in force).
• By eliminating the priority right to appointment to public service positions for ministerial exempt staff from the PSEA when they cease to be employed in a minister's office.

11. Because of parliamentarians' interest in this area and the need to determine whether the two identified cases were isolated incidents or signs of a broader pattern, the PSC undertook an audit of the movement of public servants between ministers' offices and the public service from April 1990 to September 2006.

12. The PSC has delegated most of its staffing authorities to deputy heads through signed delegation agreements. Delegation allows an organization to manage its own staffing and recruitment needs in the most efficient and effective manner. It also allows the organization to streamline staffing processes according to its particular needs: managers can initiate and approve actions within their own areas of responsibility, in accordance with sub-delegated authorities. Deputy heads are accountable for adhering to the conditions of their signed delegation agreement.

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Focus of the audit

13. The audit objectives were to determine the extent of movement of public servants between the federal public service and ministers' offices, and whether the staffing requirements of the Public Service Employment Act, Public Service Employment Regulations (PSER), PSC policies and other applicable legislation were met for appointments of public servants returning from ministers' offices. Another objective was to assess the risk to political impartiality.

14. The audit focused on persons who had been public servants before joining a minister's office and who returned to the federal public service during the period from April 1990 to September 2006. The audit was limited to staffing actions made to and within the public service in organizations subject to the PSEA. Ministers' staff who joined the public service for the first time were not included in the scope of this audit, neither were public servants possibly on assignment or secondment as departmental staff to ministers' offices.

15. We identified a total of 157 persons who had been public servants before working as a minister's staff and who returned to the public service during the audit period (see Table 1 below). The audit examined public service staffing actions with an elevated risk to political impartiality. We excluded a number of lower-risk staffing actions from our consideration, including most cases of public servants who returned to the same group and level within a 12 month period. This left 58 public servants that we examined, involving movements in 24 organizations (see the list of organizations in About the audit, Table 2). The 58 public servants included four individuals who returned to the public service between 1990 and 1995, 11 who returned between 1996 and 2000, and 43 who returned between 2001 and 2006.

Source: Audit, Evaluation and Studies Branch, Public Service Commission of Canada

16. For more details, see About the audit at the end of this report.

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Observations

Movements between ministers' offices and the public service were not always appropriate

17. We expected staffing actions used for the movement of public servants between the public service and ministers' offices to comply with applicable legislation, policies and staffing values. We also expected public servants to take leave without pay from their public service positions before working as exempt staff in a minister's office, and to return to the public service to the same position or to a different position through a priority appointment or an appointment process. The Public Service Commission (PSC) expects to see advertised appointment processes (or competitive processes under the previous Public Service Employment Act) as the standard practice. Although non-advertised appointment processes may be chosen when appropriate, PSC policy requires a rigorous demonstration of how the choice of a non-advertised process respects the values. Furthermore, we expected that when a staffing action was undertaken, there would be a reasonable expectation that the person would occupy the position and perform the associated duties.

18. The Treasury Board (TB) Leave Without Pay Policy permits public service employees to take unpaid absences from work for personal or other reasons, including employment as exempt staff in the office of a minister or Member of Parliament. The observations of this audit relating to the TB Leave Without Pay Policy are limited to its use in respect of the movement of staff between the public service and ministers' offices.

19. In accordance with the TB Leave Without Pay Policy, departments must inform employees of the implications of leave without pay on the continuity of their employment after the leave period ends. Deputy heads approving leave without pay for a public servant to work as exempt staff can backfill that person's position on an indeterminate basis at any time once leave has been approved for a period of more than one year. If the employee's position is filled indeterminately, subsection 41(1) of the Public Service Employment Act (PSEA) provides that a priority for appointment be given to the employee on leave of absence or the person who replaced that employee. According to the PSC Guide on Priority Administration, the manager must decide which of the two employees, the one returning from leave or the one hired as a leave replacement, will be retained and which will have the Leave of Absence priority entitlement.

20. The Minister's Staff priority, repealed on December 12, 2006, also provided a priority entitlement to a person who had been an employee of the public service immediately before becoming employed in a minister's office. Under the previous PSEA, persons with a Minister's Staff priority were entitled to be appointed without competition to any position in the public service for which they were qualified, with priority over all other persons except for surplus employees being placed within their own department and employees entitled to a Leave of Absence priority.

21. We examined the movement of 58 public servants between the federal public service and ministers' offices. Our audit revealed 24 unsatisfactory staffing actions for the movement of 20 public servants. The staffing actions consisted of 14 arrangements making it possible for public servants to join or remain in ministers' offices ("facilitated arrangements"), one inappropriate deployment for an individual returning to the public service and nine staffing actions that did not comply with PSC policies and staffing values. The staffing actions involving inappropriate movements were spread among 12 organizations¹ and covered the period from 1990 to 2006.

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Movements to ministers' offices - Facilitated arrangements

22. We observed 14 staffing actions involving 12 individuals who were moved to a public service position which was identified or created with no reasonable expectation that the person would occupy the position and perform the associated duties, working instead in the minister's office (See Exhibit 1). In each case, the employee was moved to a different position using a Special Assignment Pay Plan (SAPP), priority appointment or deployment.

Source: Audit, Evaluation and Studies Branch, Public Service Commission of Canada

23. In 12 of the 14 facilitated arrangements, the result of the staffing action was that the public servant was moved to the department of the minister in whose office that person worked as exempt staff. Five of these employees returned to assume the responsibilities of the facilitated position once employment in the minister's office terminated.

24. The creation or identification of a facilitated position gives the appearance of providing a soft landing for the employee on leaving the minister's office; that is, when the employee is ready to return, the facilitated position will be empty and the employee will not have to use a Leave of Absence priority or an appointment process to reintegrate into the public service.

25. Furthermore, of the 14 movements to facilitated positions, 11 actions involved public servants who left these positions for more than 12 months to work in a minister's office. These 11 cases involved six employees who had left their substantive positions for 12 to 24 months, two who had left their positions for 24 to 36 months, and three who had left their positions for 36 to 48 months. This demonstrates that there was not a reasonable expectation for the public servants to occupy their substantive positions or perform the associated duties at the time of their appointment or deployment.

26. Of the 14 facilitated arrangements, four involved the use of SAPP appointments. This is inconsistent with TB policy. In our opinion, the use of a SAPP to facilitate movement to a minister's office is not in accordance with the examples contained in the TB policy on SAPPs, all of which indicate that the SAPP is to be used for the actual performance of specific duties.

27. One facilitated position involved the use of a priority appointment to a position in the minister's department. The employee did not perform the duties of this position upon appointment. Instead, the employee immediately left the position to resume working in the minister's office, as the employee had been doing before the priority appointment. This ensured that the position would be waiting for the employee upon return to the public service at a later date.

28. The nine remaining facilitated positions involved deployments. In one case, the public servant's home department was also the minister's department. In the other eight cases, the staffing action resulted in the public servant moving to the minister's department. For example, an employee was deployed to a position in another department and began working on the same day in the office of the minister of that department. After two months, the minister became responsible for a new department, the employee was deployed to a position in the minister's new department and again started working for the minister on the same day. This second deployment was made retroactive by approximately 12 months.

29. Exhibit 2 describes three cases in which organizations used a deployment, SAPP or priority appointment to facilitate the movement of a public servant to a minister's office.

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Returns from ministers' offices

30. For the 58 public servants returning to the public service from ministers' offices, we reviewed 59 returns; one public servant moved twice. We found one case of inappropriate movement: the individual was deployed to a new public service position after leaving the minister's office when the person's substantive position had previously been backfilled on an indeterminate basis. In this instance, the deployment was not appropriate. In our view, an employee on leave of absence no longer substantively holds his or her position once he or she is replaced as a result of an indeterminate appointment or deployment of another person.

31. Both the TB policy that governs leave without pay, as it relates to ministers' exempt staff, and PSC guidelines as they relate to the movement to and from ministers' offices, are unclear at times. This is an area that will need to be clarified by TBS and PSC.

32. From the documentation available, we cannot conclude on the existence of political impartiality. Neither can we conclude on ministerial influence as our file review did not find any direct correspondence from ministers' offices suggesting the exercise of ministerial influence. However, this type of inappropriate movement is inconsistent with the values of transparency and non-partisanship, and could place political impartiality at risk. There is a lack of transparency with the action and it is undertaken for specific public servants. In our view, this pattern of movement to and from ministers' offices revealed that some public servants were given the opportunity of having a facilitated position, while others were not.

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Some staffing actions did not comply with PSC policies and staffing values and were not properly documented

33. We expected staffing actions for the movement of public servants between the public service and ministers' offices to be free from political influence and to comply with the previous or current Public Service Employment Act, other applicable legislation and policies, and the staffing values. We also expected staffing decisions to be supported by sufficient and appropriate documentation.

34. We examined 59 staffing actions for public servants returning to the public service; these were conducted under the previous and current PSEA for 58 public servants. We could not review 21 of these staffing actions because information was no longer available² (see Exhibit 3).

35. Included in the 21 staffing actions were six under the previous PSEA involving appointments without competition (apart from appointments of persons with priority entitlement), for returns to the public service. Four of the six staffing actions involved a promotion of more than one level. Since all six staffing files were no longer available, we could not conduct a review of these processes. The PSC expects to see advertised appointment processes (or competitive processes under the previous PSEA) as the standard practice. Although non-advertised appointment processes may be used when appropriate, PSC policy requires a rigorous demonstration of how the choice of a non-advertised process respects the values. Except for priority appointments, the use of a non-advertised (or without competition under the previous PSEA) process for an individual returning to the public service from a minister's office lacks transparency. It also involves an elevated risk of compromising public service impartiality in appearance as well as reality.

36. Of the remaining actions, 28 complied with the applicable legislation, policies and values. Nine staffing actions, all under the previous PSEA, did not comply with the applicable staffing policies and/or values. These nine actions involved six organizations³ and were conducted between 2003 and 2005.

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Compliance issues

37. Six of nine non-compliant staffing actions involved appointments of persons with priority entitlement. The staffing files had no documentation of the organization's assessment and/or the assessment tools used. The Public Service Commission Policy Manual sets out the Commission's position on staffing matters under the previous PSEA. The Manual states that the PSC searches its inventory and refers priority persons for a position to be staffed. The manager carries out an assessment of the persons referred to determine whether they are qualified for appointment. The Manual also requires that assessment information (e.g. methods used, written responses or notes, ratings and selection board report) be kept.

38. Organizations must ensure that any person with a priority entitlement is assessed against the essential qualifications for a position and that the assessment is thoroughly documented. This requirement applies even if there is only one person being considered for a position. The person chosen must be shown to meet the essential qualifications and the appointment must be shown to be in accordance with the applicable policies and staffing values.

39. The three remaining non-compliant staffing actions involved two deployments and an open competition. The file for one of the deployments did not have timely "notice of deployment," as required by the Treasury Board Deployment Policy (now rescinded). The other deployment file lacked proof that the person met the language profile of the position, and also lacked information on security, qualification standards and "notice of deployment." The open competition staffing file had no documentation of the signed eligibility list or the Signed Statement of Persons Present at Boards form. The applications of the people screened out of the open competition had been destroyed in accordance with the documentation retention period.⁴ Without these applications, we were unable to determine whether all applicants had been treated fairly. Section 18 of the previous PSEA required that an appointment to a position by competition be made from an eligibility list. Chapter 8 of the PSC Policy Manual for the previous PSEA required that the documentation be kept.

40. Appropriate documentation needs to be maintained to ensure that staffing and staffing-related decisions are fully documented during all stages of the selection process. Staffing files need to provide a fair and reliable representation of staffing activities, as well as evidence that the staffing values were respected.

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Compensation issues

41. Among the 24 unsatisfactory staffing actions identified, we observed seven instances where no rationale was documented on the file for specifying pay above the minimum applicable pay scale in the letter of offer. Without this documentation, it is not possible to determine whether the actions met requirements of the TB policy on Pay Above the Minimum on Appointment from Outside the Public Service. There should be sufficient evidence to ensure that the justification leading to the decision to pay above the minimum is understood and complies with policy requirements.

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Adjustments are required in priority administration

42. The previous as well as the current PSEA and the Public Service Employment Regulations (PSER) provide an entitlement, for limited periods, for certain persons who meet specific conditions, to be appointed in priority over others. If more than one priority person is available and qualified for appointment, the order in which they are to be appointed is specified:

• Persons with a statutory priority are appointed ahead of all others in the following order: surplus employees in their own department, employees on leave of absence, ministers' staff who ceased to be employed in a minister's office⁵ and laid-off employees.
• Persons with a regulatory priority are appointed after persons with a statutory priority, but in no other relative order.

The PSC remains responsible for administering priority entitlements to ensure that the rights of priority persons are respected, and that hiring organizations assess these public servants fairly and transparently.

43. We expected organizations to respect the goals and values of priority entitlements by searching for, assessing and appointing priority persons. We also expected the PSC to administer the provisions of the PSEA dealing with priority entitlements.

44. As mentioned earlier, for six of nine non-compliant staffing actions involving appointment of a person with a priority entitlement, the staffing files had no documentation of the organization's assessment and/or the assessment tools used. From discussions with the PSC Priority Administration section, we found that the priority administration system does not search the priority inventory for other priorities of the same or higher ranking when receiving requests from departments to appoint a priority person. The PSC is committed to addressing this issue to ensure that priority entitlements of higher or similar ranking are respected, and that entitlements are exercised fairly and transparently.

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Profile of movements between the public service and ministers' offices

Type of movement

45. We reviewed characteristics of movements between the public service and ministers' offices. Exhibit 4 summarizes the type of movement observed for the return of 58 public servants to the public service: one of these returned twice, for a total of 59 movements.

• Forty public servants returned to their substantive position, an equivalent group and level, or one level higher.
• In 19 cases public servants returned to a position more than one level above their substantive position. Fifteen of these were priority appointments or open competitions. The remaining four were without-competition processes. We were unable to review these processes since the staffing files had been destroyed within the documentation retention period. For the 15 staffing files reviewed, we found that the movements relating to the 15 actions did not appear unreasonable given the types of staffing actions used for the return to the public service and the experience gained over the term of working in a minister's office.

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Duration of work in a minister's office

46. Exhibit 5 shows the total time spent working in a minister's office by public servants during the audit period. In 10 cases, individuals worked in ministers' offices before becoming public servants, this time has been reflected in the data. For 27 of the 58 public servants, the cumulative time spent working as minister's staff was less than 24 months. The majority of these public servants returned to the public service and did not subsequently leave for additional work in a minister's office. The Leave Without Pay Policy does not specify a maximum period of leave for employees to work in a minister's office. The granting of leaves of absence is a managerial responsibility undertaken in accordance with the relevant terms and conditions of employment policies and collective agreements, and the Terms and Conditions of Employment Regulations for Employees Classified in the Executive Group (now replaced by Policy on the Management of Executives). Public servants who work in a minister's office for longer periods present a real or perceived risk to political impartiality when returning to the public service.

47. The staffing actions for the returns were spread across 24 organizations. The Department of Industry, the Department of Foreign Affairs and International Trade, the Department of Canadian Heritage and the Privy Council Office accounted for 27 of the 59 staffing actions for individuals returning to the public service.

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Most common occupational groups going to work in ministers' offices

48. Exhibit 6 shows the distribution of occupational groups for the 59 staffing actions included in the audit, for the 58 public servants, before their work term in a minister's office. The Information Service (IS) group was the largest accounting for approximately 32% of all public servants chosen to work in a minister's office. The second-largest group was the Administrative Services (AS) classification at approximately 14%. In third place was the Economics and Social Science Services (ES) group at approximately 12%. The remaining public servants belonged to eight other groups.

Source: Audit, Evaluation and Studies Branch, Public Service Commission of Canada

49. Approximately 44% of the public servants included in the audit came from the IS or ES classification groups. These groups are often responsible for aspects of communications or policy advice within an organization. Because of the nature and profile of their duties, public servants in these types of positions or in higher-level positions who work in a minister's office may present a greater risk (real or perceived) to political impartiality when returning to their home departments.

50. The Treasury Board Leave Without Pay Policy allows leave to be granted only if the deputy head is satisfied that the public servant's subsequent re-employment in the department will not be prejudiced. Departments must inform employees of the importance of exercising caution in their actions while on leave in terms of political partisanship, conflict of interest and criticism of government policy, since such actions may jeopardize either their status as public servants while on leave or their return to the public service on termination of the leave. The Treasury Board Secretariat has indicated that it does not currently monitor the application of their Leave Without Pay Policy as it relates to employees on leave to work as ministers' staff.

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Recommendation and response

Treasury Board Secretariat (TBS) response to recommendation: The Treasury Board Secretariat (TBS) is committed to the principle of neutrality of the public service and the need to ensure that Treasury Board policies reflect this principle. TBS is in the process of reviewing all of its policies in the context of the Policy Suite Renewal Initiative and will take this audit and its recommendation into account in its review of the TB policy on Leave Without Pay.

51. In consultation with the TBS, the Public Service Commission is committed to modifying its guidance on the administration of priorities to clarify to deputy heads how leave of absence priorities for public servants returning from ministers' offices are to be managed.

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Conclusion

52. The observations of this audit relating to the Treasury Board (TB) Leave Without Pay Policy were limited to its use in respect of the movement of staff between the public service and ministers' offices. The audit identified inappropriate patterns of movement between ministers' offices and the public service. In 14 staffing actions, positions were identified or created to facilitate the movement of public servants to ministers' offices. Using a facilitated position gives the appearance of intending to provide the employee with a soft landing since the public servant will not have to use a priority appointment to reintegrate into the public service. These types of action create the appearance of lack of political impartiality, and are not in accordance with the values of transparency and non-partisanship.

53. Nine staffing actions did not comply with the Public Service Commission (PSC) policies and staffing values. In addition, staffing file documentation was not sufficiently complete. Some staffing files for individuals returning to the public service using a priority appointment did not contain an assessment of the public servant — as is required even when there is only one person for a position. The assessment is a key document necessary to ensure that the appointment is based on merit. Deputy heads are accountable for ensuring that staffing actions are carried out in accordance with the instruments of delegation.

54. The audit identified areas for improvement in the administration of priority entitlements. The PSC commits to making these improvements. Moreover, in accordance with PSC audit practice, the 24 unsatisfactory staffing actions identified will be referred to the PSC Investigations Branch. The Branch will consider only staffing actions that meet the criteria for investigation, which include the following: the matter falls within the Commission's jurisdiction; a possibility exists for implementing corrective action; and there is no recourse available through other avenues.

55. Our audit identified a need to establish TB policy and clarify PSC guidance for the movement of public servants to and from ministers' offices. Furthermore, the Treasury Board Secretariat (TBS) needs to monitor movements so that they are undertaken in a transparent manner and uphold the principle of political impartiality. The TBS and the PSC should ensure that policy governing the movement of public servants between the public service and ministers' offices and associated guidance is integrated and communicated to deputy heads in a coherent manner.

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About the audit

A non-partisan public service

Non-partisanship is one of the cornerstone values that govern appointments to and within the federal public service. Maintaining the reality and appearance of impartiality is of crucial importance. Ensuring the political neutrality of the public service is a core element of the Public Service Commission (PSC) mandate. Staffing decisions are meant to be non-partisan and free from personal favouritism.

Objectives

The objectives of the audit were to determine:

• the extent of movement of public servants between the public service and ministers' offices; and
• whether the staffing requirements of the Public Service Employment Act (PSEA), the Public Service Employment Regulations, PSC policies and other applicable legislation are met for appointments of public servants returning from ministers' offices.

The audit also assessed the risk to political impartiality.

Scope and Approach

The audit focused on persons who had been public servants immediately before working in ministers' offices and who returned to the federal public service during the period from April 1990 to September 2006. The audit included an examination of staffing actions made to and within the public service in organizations subject to the PSEA. Not included in the scope of this audit were exempt staff who had not been public servants before starting to work in a minister's office and who therefore were entering the public service for the first time on leaving the minister' staff. Taking into account the circumstances of the two cases previously investigated by the Commission, the PSC limited its examination to public servants only for this audit.

We used the PSC's Job-Based Analytical Information System (JAIS), an oversight tool employed in analyzing government-wide trends. With it, we identified 157 persons who had been public servants before being employed as ministers' staff and who returned to the federal public service during the audit period. JAIS draws data from pay transactions and therefore would not capture the movement of public servants on assignment or secondment. These types of actions do not involve a new pay transaction since employees continue to be paid from their substantive position.

The audit focused on staffing actions in the public service involving an elevated risk to political impartiality. We excluded a number of lower-risk staffing actions from our consideration, including most cases of public servants who returned to the same group and level within a 12-month period. In our view, public servants returning to their substantive position or same group and level within a 12-month period, as well as appointments made after a break of more than 24 months from the public service, presented less risk to political impartiality because of the shorter period spent by these persons as exempt staff⁷ or their prolonged absence from the public service after working in the exempt position. In our opinion, staffing actions for certain administrative support, clerical and secretarial groups also involved less risk to political impartiality, given the nature of the duties and the level of responsibility associated with these positions.

Accordingly, we excluded the following staffing actions from our determination of
the number of records to be included in the scope of this audit:

Source: Audit, Evaluation and Studies Branch, Public Service Commission of Canada

Of the 58 cases of public servants subject to audit, one involved two different instances of returns to the public service; therefore 59 staffing actions were examined in total. The staffing actions spanned 24 organizations (see Table 2), five of which no longer exist or have been amalgamated into other organizations. Of the 58 individuals, four returned to the public service between 1990 and 1995, 11 between 1996 and 2000, and 43 between 2001 and 2006. Audit activities included the review and analysis of staffing files, pay records and other key documentation. Until December 30, 2005, staffing information could be destroyed after a period of two years from the last administrative use, in accordance with Chapter 8 of the PSC Staffing Manual. Effective January 1, 2006, the Appointment Delegation and Accountability Instrument requires this information to be retained for five years. Given the time period covered by the audit, we found the data sometimes to be limited or unavailable. For example, in 21 instances the staffing file was no longer available since it was destroyed in accordance with the documentation retention period.

Source: Audit, Evaluation and Studies Branch of the Public Service Commission of Canada

Criteria

The audit criteria were designed to assess the risk to a non-partisan public service. The criteria take into account the extent of movement of public servants between the public service and ministers' offices, and the relevant legislative and policy requirements for public servants returning from ministers' offices. We expected to find the following:

• mechanisms used for public servants returning from ministers' offices are appropriate, free from political influence and in accordance with relevant legislation
• appointment activities for public servants returning from ministers' offices comply with the PSEA, other applicable legislation and policies, and staffing values
• appointment decisions for public servants returning from ministers' offices are supported by sufficient and appropriate documentation

Audit team

Vice-President, Audit, Evaluation and Studies Branch:
Mary Clennett

Director General, Government Wide Audit and Evaluation:
Terry Hunt

Director, Audit:
Karen Crawford Byron

Audit Managers:
Catherine Gendron
Kathy Norrie

Auditors:
Lucie Amyotte
Martin Gangur
Mélanie Lebrun
Claudia Pilon

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Glossary of terms under the current Public Service Employment Act (PSEA)

Access
A staffing value that ensures that persons from across the country have a reasonable opportunity, in their official language of choice, to apply and to be considered for public service employment.

Active monitoring
An ongoing process of gathering and analyzing information.

Advertised appointment process
When persons in the area of selection are informed of and can apply to an appointment opportunity.

Appointment
An action taken under the PSEA to hire someone.

Appointment policy
Under the PSEA, the PSC can establish policies on making and revoking appointments and taking corrective action. This is comprised of a number of policies on specific subjects that correspond to key decision points in appointment processes and should be read in conjunction with the Public Service Employment Regulations (PSER).

Appointment values
Fairness, access, transparency and non-partisanship.

Assessment methods
Methods such as interviews, written tests, reference checks and simulations used to evaluate candidates against specific job qualifications.

Deployment
The movement of a person from one position to another in accordance with Part 3 of the PSEA. A deployment cannot be a promotion, cannot change the tenure of employment and cuts ties to the employee's former position.

Executive Group
Consists of five levels up to and including most assistant deputy ministers (EX-1 to EX-5).

Fairness
A staffing value that ensures that decisions are made objectively and free from political influence or personal favouritism, that policies and practices reflect the just treatment of persons, and that persons have the right to be assessed their official language of choice.

Incumbent
A person currently occupying a position as the result of an appointment or a deployment to that position.

Indeterminate (permanent) employment
Part-time or full-time employment, including seasonal, of no fixed duration.

Inventory
A listing of applicants in a selection process that could be used to staff identical or similar positions with one specific organization or with a number of different organizations. This tool provides managers with more efficient access to applicants. When an organization wants to use the inventory, a search of the applicants meeting its criteria (e.g. education or experience) is conducted. The individuals meeting these criteria are then assessed further.

Investigation
An inquiry into an alleged violation of the Public Service Employment Act or the Public Service Employment Regulations.

Non-advertised appointment process
An appointment process that does not meet the criteria for an advertised appointment process.

Non-partisanship
The characteristic of political impartiality. Refers to the capacity and willingness of the public service to serve governments appointed through democratic means, regardless of political affiliation.

Personal favouritism
Involves an inappropriate action or behaviour by a public servant who, by using knowledge, authority or influence, provides an unfair advantage or preferential treatment to a current employee or a candidate for employment in the public service for personal gain and contrary to the good of the organization.

Political influence
Interference in the appointment process. It could include, but is not limited to, interference by a minister's or a member of parliament's office.

Priority
The right to be appointed to vacant positions ahead of all others. There are three types of statutory priorities under the PSEA (surplus employees appointed within their own department, leave of absence, and lay-off, in that order) and six regulatory priorities under the PSER (surplus employees appointed outside their own department; Governor General's exempt staff; employees who become disabled; Canadian Forces and Royal Canadian Mounted Police who are released for medical reasons; relocation of spouse or common law partner and reinstatement, in no particular order).

Priority person
A person who has an entitlement under the PSEA or PSER, for a limited period, to be appointed ahead of all others to vacant positions in the public service. The person must meet the essential qualifications of the positiion.

Promotion
An appointment to a higher level position.

Selection
The stage at which a manager chooses the person to be hired.

Special Assignment Pay Plan (SAPP)
Departments may assign a specified number of employees, for a period of up to three years, to duties and responsibilities which have not been classified, or have been classified at a lower level than the level to which the employee is appointed.

Staffing actions/activities
Include appointments to and from within the public service, deployments, assignments and secondments.

Staffing file
Contains documentation used to support, confirm or explain the staffing practices and the reasons for the appointment decisions that are made throughout a staffing process.

Substantive position
The position in which an employee is the incumbent.

Transparency
Information about strategies, decisions, policies and practices is communicated in an open and timely manner.

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Glossary of terms under the previous Public Service Employment Act

Appointment without competition (without competition appointment)
An appointment based on individual or relative merit that is made without holding a competition.

Closed competition
A competition open only to persons employed in the public service.

Eligibility list
A list of qualified candidates in order of merit created as a result of a competition.

Notice of deployment
The means used to inform employees being deployed and employees of the work unit to which a deployment is being made about the deployment and their right to bring a complaint.

Open competition
A competition open to the public, including persons employed in the public service.

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Foot Notes

1 Public Health Agency of Canada, Department of the Environment, Department of Industry, Department of Veterans Affairs, Department of Finance, Department of Justice, Department of Citizenship and Immigration, Department of Transport, Privy Council Office, Department of Canadian Heritage, Department of Health and Department of the Solicitor General. Return to Footnote 1

2 Until December 30, 2005, staffing information could be destroyed after a period of two years from the last administrative use. Under the current PSEA this period is now five years. Return to Footnote 2

3 Department of Human Resources and Skills Development, Department of Industry, Department of Foreign Affairs and International Trade, Department of Citizenship and Immigration, Department of Canadian Heritage and Department of Human Resources Development. Return to Footnote 3

4 Until December 30, 2005, staffing information could be destroyed after a period of two years from the last administrative use. Under the current PSEA this period is now five years. Return to Footnote 4

5 The Federal Accountability Act repealed the Minister's Staff priority effective December 12, 2006. Employees returning to the public service from ministers' offices may still be entitled to a Leave of Absence priority when their position is backfilled on an indeterminate basis. Return to Footnote 5

6 Where the home department was also the minister's department, the movement was captured as a return to the home department. For four of the six "promotion more than one level" cases, the home department and minister's department were the same. Return to Footnote 6

7 The Treasury Board Leave Without Pay Policy indicates that a deputy head approving leave without pay for a public servant to work as exempt staff can backfill that person's position on an indeterminate basis at any time once leave has been approved for a period of more than one year. Accordingly, we excluded the following staffing actions from our determination of the number of records to be included in the scope of this audit: Return to Footnote 7