The committee met at 8:02 a.m.

[B. D’Eith in the chair.]

B. D’Eith (Chair): We have here today the Office of the Ombudsperson, supplementary funding requests.

If I could turn it over to Jay Chalke, the Ombudsperson, please take it away.

Supplementary Funding Requests

OFFICE OF THE OMBUDSPERSON

J. Chalke: Great. Thank you, Chair.

Good morning. Thank you for taking a bit of time in what I’m sure is a very busy week for all of you this week. I requested this morning’s meeting to present my office in your supplementary budget request, the details of which are in the materials before you.

On April 25, the Attorney General introduced for first reading Bill 28, the Public Interest Disclosure Act. On May 17, the bill completed its legislative journey, receiving royal assent — a significant development since I was in front of you just two weeks ago.

The Public Interest Disclosure Act — or its acronym, which I’ll use this morning to save a bit of time, PIDA — provides, for the first time in British Columbia, a comprehensive legislative scheme for the disclosure by public servants of allegations of wrongdoing and protections from re­pri­sal for doing so. It makes it safe for individuals to come forward when they see something seriously amiss in their organization. By doing so, it enhances the key public sector values of transparency, accountability and, above all, integrity.

The act accomplishes these goals by setting out specific pathways for both internal and external methods for public employees to report serious wrongdoing. Stay on the path, and the public servant making the disclosure is protected. But it is not anything goes. The act has specific procedural requirements. Go off the path, and the public servant is not protected for disclosing information, the release of which would otherwise constitute a breach of their employment obligations.

The act allows a public servant to decide whether to disclose an allegation of wrongdoing internally or externally. The act provides that internal disclosure within a public employee’s own organization will be to a supervisor or a designated officer. External disclosure will be to an oversight body, and the legislation assigns that function to my office.

In both these situations, an investigation may follow. Furthermore, in extraordinary circumstances urgently affecting public health or safety, direct public disclosure of a matter that has not been investigated will be permitted. That direct public disclosure may be by my office or, subject to certain limitations, by the public servants themselves.

[8:05 a.m.]

There are many competing and nuanced policy objectives that the new law attempts to balance. Suffice it to say that excellence in how PIDA is administered both inside government and in my office will support the credibility of the new law and, therefore, its success.

Experience in other jurisdictions shows that a public interest disclosure law will only be seen as credible by public servants and by the public if the law is implemented in a manner that reflects strong support for speaking up when something appears wrong in their organization. Absent that strong and repeated message of support for the law and its values, the fear that public servants have of reprisal, both formal or informal, will not be overcome.

A recent report released by Canada’s public sector integrity commissioner, who is the commissioner for wrongdoing disclosure within the federal government, embodied this challenge right in the title of their report. It was called Whistleblowing and the Fear of Reprisal.

The new law assigns specific tasks to the Ombudsperson: providing advice to persons considering whether to make a disclosure of wrongdoing; the central task of investigating disclosures of alleged wrongdoing that are made to the ombudsperson; investigating allegations of reprisal for making a disclosure or participating in an investigation of a disclosure; and a range of reports, private and public, that must be made.

The law will come into force by regulation. Government has indicated that it intends to implement this legislation across much, if not all, of the broader public sector but will do so in phases. That is an approach which I support because, as I’ve already indicated, much of the success of a public interest disclosure law is dependent on careful, principled implementation with proactive, sustained communication to public servants.

Excellence in implementation will be facilitated by breaking implementation into manageable chunks. But even with this step-by-step approach, the first chunks are big, and the first phase will set a tone for subsequent ones. Government has advised us that it intends to bring PIDA into force for all government ministries, the Officers of the Legislature and over 20 other public bodies early in 2019-20. In round terms, that would represent about 30,000 public servants. We’ve been advised that the other phases will follow, with a view to having implementation complete by the time of the five-year review to be conducted by a special committee of the Legislature, as set out in the act.

The good side of the timing of phase 1 is that the operating funding to carry out the functions under the act will not be required until 2019-20 and will be the subject of my budget presentation for that fiscal year, in November. The challenging side of the timing is that it leaves us little time, even starting right now, to accomplish the great many tasks to get ready for that operation. It is funding to carry out those many implementation tasks that I am seeking today.

So what do we need funding to do? Well, most of the requested funding is for a five-person implementation team, largely starting September 1. This will mean we have a team of individuals allocated to delivering our key implementation steps set out in the rationale section of the budget request at pages 4 and 5.

It is a tremendously challenging to-do list and will require disciplined focus on the part of my staff to get it all done. It’s noteworthy that it’s not all internally directed work, as you will see from the budget request. A number of the implementation activities involve other organizations, including strategic and operational-level liaison with government; education of public servants; protocol development with law enforcement bodies; liaison with a vast array of other investigatory bodies, including statutory decision–makers; and provision of information to unions, employee associations and private practice lawyers, to name a few. In addition to the internal preparations within the Office of the Ombudsman, our implementation team will have to accomplish this interagency and other external work as well.

I don’t intend to go through the list of implementation activities in detail, because I think the need to carry out these tasks is self-evident. Rather, I would think the time this morning is better spent addressing questions, if you require further information about any of them.

Together with my team, who I neglected to introduce at the beginning — Dave Van Swieten, who is familiar to all of you, the executive director of corporate shared services, and David Paradiso, the Deputy Ombudsperson — I’d be happy to take your questions this morning.

B. D’Eith (Chair): Thank you very much. I know this is going to be a big task for you.

[8:10 a.m.]

I just wanted to take an opportunity, before we get into questions, to thank the Ombudsperson and both David and Dave for the tour they gave us of your facilities and the shared facilities. It was very important, I think, to the committee to see how you operate and to get a perspective on the costs associated with that. That was a really wonderful tour. We really appreciate that.

Just before we get to questions, I just have one question. Having done that tour, the five new people — where are you going to put them?

J. Chalke: We’re in discussions with our landlord about some space available elsewhere in the building.

B. D’Eith (Chair): Okay. Questions?

T. Redies: Thanks, Jay, for the presentation. I think you said five people and $744,000. That’s an average of about $150,000 each. Can you talk to me about how those costs are distributed? Are they all salaries? Are there additional amounts going to outside services? That seems pretty high for five people.

J. Chalke: It would be, if it was all salaries. I agree. If you look at table 1 in the materials, you’ll see the breakdown in respect of the costing. Salaries are $307,000, plus benefits. The operating costs — you’ll see professional services, $143,000; $58,000 for information systems; and office and business expenses, $16,000. Then the other big one would be building occupancy costs, just rent. That’s what takes us to $744,000.

M. Dean: Thanks for the presentation and the work that’s going to be needed in implementing this.

I’m interested because you said one figure that you do have is that it is going to initially roll out to about 30,000 public servants. Do you have an idea, from other jurisdictions, about how much per capita you could anticipate that that would cost in setup and also in ongoing operational costs?

J. Chalke: The implementation work — the work that we’re doing this year — is fairly volume-neutral, if I can put it that way. Most of the things we have to do, have to be done whether one gets X or ten X allegations a year. They’re just the sorts of things that we have to do.

Where your question is, I think, really salient, and is going to be one that we’re going to be working on over the next few months, is: how much work does that translate into once the act comes into force? So that costing — or that workload, caseload estimate work — is one of the features that we identify and that we’re going to be working on over the next little while. That will involve looking at other jurisdictions and their volumes on a per-capita or per-public-servant basis.

I think everyone’s experience, when looking at other jurisdictions for just about anything, though, is it’s not quite plug-and-play. You can’t quite pick up a jurisdiction and move it over. There are lots of things that make each jurisdiction unique. So it’s certainly really valuable input to get from other jurisdictions. That’s the kind of work I’m going to do over the next few months. As I said, whether we need X staff or three X staff, that will really be a function of volume.

When I’m back in November, I suspect you’ll be wanting information about that, and that’s when we’ll be back with that. But the work this year is pretty much neutral to those questions of volume.

J. Brar: Just to build on the same question, this is the first time we are doing it in 40 years of the history of your office. There is no history in this office. Do we have any other jurisdictions doing this in the country, or is there no one?

J. Chalke: Every other province in Canada has an active public interest disclosure law, and a number of them have cross-appointed an existing officer of the Legislature to do that work. In a number of those jurisdictions, that officer is also the Ombudsperson. I do have colleagues across the country who are already carrying out a function under both the Ombudsperson Act and under the Public Interest Disclosure Act. So yes, it does exist in a number of other places in Canada.

J. Brar: If I understand the work, it comes to you only after somebody kind of goes to the seniors and kind of blows the whistle and subsequently faces any disciplinary action. So that person makes a complaint to you. Is that what’s going to happen?

J. Chalke: The legislation operates on a choice model.

[8:15 a.m.]

Someone who sees something amiss, who may be some­one who, as you say, has been disciplined, but may not be…. It could just be someone who observes something amiss in their organization. They have a choice about where to take that concern.

Research conducted by the federal government shows that most people would prefer to make that allegation within their own organization. They want their employer to fix their problem that they’ve identified. They hope, aspirationally, that they work for an employer who does that.

The legislation provides that as an option for people. Certainly, what I’ve heard from my colleagues in Canada is that implementation by the employer is also critically important. It’s not all about the oversight body. It’s also critically important that employers take this on in a way that demonstrates a commitment to the values in the act. But people have a choice. The act gives them that alternative.

It’s not an appeal model where they have to go first through their em­ployer and then come to us. Rather, employees have a choice where to take a concern. The act then allows both the public body, the employer, and our office to transfer an allegation to where we think it might more appropriately be dealt with by the public body itself. It allows us to transfer and also for the public body, if they think this is probably something that should be handled externally to our organization, to transfer it to our office.

I mean, that’s really a policy question, not really some­thing that we have control over. But the legislation allows for this choice model and then transfer as between the employer and our office.

J. Brar: Are you going to hire all five people together, or will it be incremental hiring?

J. Chalke: It’s a bit staged, but for costing purposes, it averages around September 1. That’s really just our implementation group. That’s just now until the end of this year to do the tasks that we’ve identified on pages 4, 5 and 6 of the budget request, which really are the getting ready so that when the legislation comes into force in 2019-20, we’ve got the infrastructure built to do our job.

We’ll be back in November to talk about what this looks like in terms of actual operating costs.

R. Leonard: Thanks for the presentation. It’s becoming much more clear to me just how it’s going to roll out. But I do have a question. One of the things you talked about is that there’s a choice between going straight to the superiors and going through you. No. 8 on your list is template reporting. Is there going to be a formal process under this act that you can then review if somebody does go to an employer? I mean, I could go to my employer complaining about something now without the law in place. But is this putting in an extra layer of reporting…

J. Chalke: Absolutely.

R. Leonard: …that you would be in charge of?

J. Chalke: There are reporting obligations on public bodies covered by the act for people who make internal disclosures, and there are a number of reporting obligations on us where people make an external disclosure and we investigate or where we’re of the view that public bodies haven’t implemented recommendations that we have made with respect to previous investigations.

R. Leonard: I guess the question is: does your office have oversight over the choice to go internally?

J. Chalke: Not directly. If someone is unsatisfied with an internal investigation, it’s certainly open to them to make an allegation to us as well.

R. Leonard: I’m looking at the budget implications. If employees tend to go through the internal route, you will have less involvement.

J. Chalke: One of the interesting…. I think there’s a temptation, to be frank, that effective oversight means that we’re doing a bunch of investigations, right? What we really should be hoping for is to have a successful public interest disclosure law — full stop.

[8:20 a.m.]

That might mean that people have confidence in the organizations they’re working in, that they can make those allegations internally, that those allegations will be properly investigated and that action will be taken if merited. That may well mean that people don’t necessarily elect to make those allegations to us. That’s entirely possible. The experience in other jurisdictions shows that it takes a lot of proactive work by everybody involved to reinforce the importance and the values of a public interest disclosure law.

I think it’s important for us to implement our responsibilities in a way that enhances confidence but also makes sure that what we’re also including, part and parcel of what we’re doing, is that broader perspective on what public interest disclosure is trying to do and our part in it but also the bigger picture. Once this legislation rolls out to more than one employer, but it’s hundreds of employers, there’ll be some who are more committed than others to that internal process, so I suspect we’ll see a variation among public bodies. That would not be surprising to me.

B. D’Eith (Chair): I have a question for you just in terms of the number of FTEs. You have five full-time employees. As you said, every other province has…. Is it based on other provincial experiences? How did you get to the five FTEs?

J. Chalke: We talked to some of our colleagues in other provinces about what it was they had to do. Everybody comes from probably a different starting point in terms of their own resource capacity. This seemed to be a pretty common kind of list of things to do. Then we applied our assessment as to what that would take in terms of having to, you know, carry out the things we have to do.

Our law is a little bit different than other jurisdictions. We also had to look at that and figure out, when we look at the number, for example, of interagency protocols that I believe would be a good idea to conclude before the act comes into force so that we have an understanding, say, with law enforcement about…. When somebody makes an allegation of wrongdoing that is also a crime, what happens in terms of that handoff in terms of our investigation to them? What evidence is accessible or not accessible? When do we resume our investigation if we’re going to await the results of theirs? That’s fairly straightforward if, in fact, a prosecution occurs. It’s less straightforward if a prosecution doesn’t occur.

B. D’Eith (Chair): Okay, thank you. That makes a lot of sense.

Just in terms of the actual salaries, too, right now you’re looking at about $60,000 per FTE for eight months. I’m assuming that the salary range for these FTEs is probably $80,000 to $90,000. Is that correct, for moving forward?

J. Chalke: That would be in the range, plus benefits. Yes, I think that would be about right.

B. D’Eith (Chair): Okay. I just wanted to clarify. We’re actually only talking about eight months because they’re starting in September, right?

J. Chalke: On average, they’re starting September 1. If you can think of it this way, it’s 36 months of worker time, so that’s three FTEs but spread over five people.

B. D’Eith (Chair): Any other questions?

Seeing none, I wanted to thank you for your presentation. You’re obviously taking on a very big task with this new legislation, so I appreciate all the work that you’re doing.

We’ll maybe take a three-minute break to allow the Ombudsperson to leave, and then we’ll get on with the other matters.

The committee recessed from 8:23 a.m. to 8:26 a.m.

[B. D’Eith in the chair.]

Deliberations

B. D’Eith (Chair): What we’re going to do here…. I just want to mention that we have received Elections B.C.’s…. We’re going to talk about the Office of the Ombudsperson supplementary funding in camera, but we’re also going to go in camera in regards to a proposal from Elections B.C., a supplementary funding request. They will not be appearing in person for that particular one.

Also, there’s the appointment of an auditor to audit the Auditor General that we’re going to be looking at, and the Budget 2019 consultation plan.

I’d like to have a motion to move in camera.

The committee continued in camera from 8:27 a.m. to 9:35 a.m.

[B. D’Eith in the chair.]

B. D’Eith (Chair): I’d like to bring this Select Standing Committee on Finance and Government Services back to order. We have some motions. The first motion we have is in regards to supplementary funding, and that would be Ronna-Rae. If you would like to make those motions, please.

Votes on Supplementary Funding

ELECTIONS B.C.,
OFFICE OF THE OMBUDSPERSON

R. Leonard: I’d like to move:

[That the committee recommends that Elections BC be granted access to supplementary funding up to $73,000 for operating expenditures in 2018/19 for legislated election expense re­im­bursement for the Kelowna West by-election held on February 14, 2018; and that the Office of the Ombudsperson be granted access to supplementary funding up to $744,000 for operating expenditures and $75,000 in capital expenditures in 2018/19 for implementation of new statutory responsibilities pursuant to the Public Interest Dis­clo­sure Act.]

B. D’Eith (Chair): You’ve heard the motion. Any discussion?

Motion approved.

B. D’Eith (Chair): You have the next one, Ronna-Rae.

R. Leonard: I’d like to move:

[That the Chair advise the Minister of Finance, as Chair of Treasury Board, of the recommendations adopted earlier today and that the Committee’s recommendations be formally recorded and included in its report on its annual review of statutory office budgets in 2018.]

B. D’Eith (Chair): You’ve heard the motion. Any discussion?

Motion approved.

B. D’Eith (Chair): Now we have a motion in regards to the audit of the Auditor General. That’s Stephanie Cadieux.

Vote on Appointment of Audit Firm
for Office of the Auditor General

S. Cadieux: I would move: “That pursuant to Section 23(2) of the Auditor General Act, the Select Standing Committee on Finance and Government Services appoint BDO Canada, LLP, as the independent auditor of the financial statements of the Auditor General of British Columbia for the fiscal year ending March 31, 2019, and for each of the fiscal years to be completed during the term of the 41st Parliament.”

B. D’Eith (Chair): You’ve heard the motion. Any discussion?

Motion approved.

B. D’Eith (Chair): Are there any other matters? No.

Well, motion to adjourn.

Motion approved.

The committee adjourned at 9:37 a.m.