These comments were sent to the Gomery Commission and other authorities

Comments by Henry McCandless

1. The executive government chose a commissioner not equipped to grasp how accountability and management control processes should work in large complex organizations.

Yet these are the two issues central to prevention of occurrences such as the HRDC and sponsorship disgraces. Judging from the previous Treasury Board President’s October 2005 public statements, it is likely that the TB, PCO and PMO have never understood these issues. If they had, the HRDC disgrace might not have happened, and the learning from that should have prevented the sponsorship disgrace. Both were predictable.

Commissioner Gomery hasn’t helped to fix the underlying syndrome. His report is a collection of piecemeal findings and recommendations from a law profession perspective that do not propose concrete steps needed to correct the underlying causes that he lumps together as a “culture.” He did not show how the basic underlying determinants of observed government performance — the motivation and ability of ministers and senior civil servants — need to be dealt with to produce reasonable management control. As to external constraints, nothing happened that was beyond the management control of the executive government.

Management control simply means engaging the processes that cause to happen that which should and cause not to happen that which shouldn’t.

During his inquiry, Gomery realized that he had to add the issue of accountability, which would predictably be omitted in an inquiry mandate set by an accountable executive government. The Auditor General’s report on sponsorship did not deal with the needed public accounting by the executive government for the quality of its management control processes.

Gomery’s legalistic view notwithstanding, ministers ARE ultimately responsible for the quality of management control by civil servants. Someone above civil servants has to ensure their diligence, and it is not the Governor General.

The terms of reference wording: “questions raised…indirectly (from the AG’s report)” allowed Gomery to assess the executive government’s management control systems for preventing sponsorship-related actions, the risk of which should have been predictable. The problem was that Gomery didn’t know enough to make his Commission capable of this assessment.

(Being lawyers and judges, Commissioners Gomery, Krever (for the 1980s lethally-contaminated blood inquiry) and Patrick (for the provincial Westray mine inquiry) were all unfamiliar with management control and accountability, yet these two factors were central to all three cases.)

2. Gomery let down MPs and Canadians on accountability.

Gomery states: “There is a remarkable lack of uniformity in the abstract definitions of responsibility, answerability and accountability offered by the Government, by career officials and by academics….Clear and simple definitions are needed.”

But in taking on the subject of accountability in his report, Gomery failed to follow the logic sequence of forming his own view of public accountability that would be useful to MPs and citizens; stating how accountability applies to the executive government; and then, specifically, stating how it applies to the types of conduct areas he dealt with. He gave one definition, but only as an example:

“Accountability is the requirement to explain and accept responsibility for carrying out an assigned mandate in light of agreed expectations.”

This is verbatim the Ed Broadbent definition from the report of a commission Broadbent jointly headed a few years ago. The Broadbent definition, not rigorous and likely acceptable to him because he was a politician, suggests that accountability is in effect responsibility. That wrong view, if allowed to persist, can be expected to confuse MPs and citizens and therefore cause them to accept whatever definition that the government or an inquiry commission, advised by academics, sets out.

In simple logic, having to explain one’s responsibility and accept it is an entirely different concept from having the obligation to publicly report how well the responsibilities are being carried out.

Here are the central benefits of accountability. Having to report publicly and having the reporting validated does two things: it produces needed information that MPs and citizens wouldn’t otherwise get, and it installs an important self-regulating influence on the conduct of accountable officials.

Gomery’s report failed to give an independent and credible operating definition of executive government accountability into which MPs can fit specific conduct issues. He therefore passed the buck to (someone) to give MPs a sound definition of accountability that can guide them in holding to account.

Yet Gomery had an authoritative definition available to him. He received my book on public accountability in October 2004, which gave the authoritative definition from the 1970s. In response to his 2005 call for input from the public, I sent him in September 2005 a briefing on accountability that included the following paragraphs:

“I base the critical distinction between responsibility and accountability on the 1975 authoritative Report of the Independent Review Committee on the Mandate of the Auditor General of Canada. That committee was chaired by J.R.M. Wilson, FCA, who had just retired as senior partner of Clarkson Gordon….. The Wilson Committee defined accountability as the obligation to answer for a responsibility conferred, which is to report.”

“The Wilson committee’s definition of accountability for government has not been refuted by academics or government officials, and anyone who publicly proposes a different or more lax meaning has the obligation to justify it in public.”

It is not rocket science to conclude that responsibility is the obligation to act; that public accountability is the obligation to explain publicly the discharge of responsibilities; and that the Wilson definition is solid.

By accountability, the Wilson Committee did not mean officials simply replying to Public Accounts Committee interrogation, as Gomery sees it. Since judges in their work view things retrospectively, so does Gomery. But he is just plain wrong to assert that “accountability is retrospective” (Introduction p.6). For example, for intended government policy and intended performance standards, the needed public explanation is before the fact.

And by accountability the Wilson Committee certainly did not mean people’s actions in conduct and control, as the Prime Minister’s intended accountability Bill would have it. The Wilson Committee meant the obligation of government to publicly REPORT on the discharge of its responsibilities. The Prime Minister’s intended “accountability” Bill ignores accountability, focussing as it probably will on rules of conduct.

All I have done is simply expand on the Wilson definition to produce the following more universal definition used in my letter to Gomery:

“Public accountability means the obligation of authorities to explain publicly, fully and fairly, before and after the fact, how they are carrying out responsibilities that affect the public in important ways.”

In Gomery’s Introduction remarks on getting “the heads of the Government’s administrative apparatus” (whatever that means) to pay more attention to “probity and efficiency in financial administration” and to “accept responsibility ” (for management), he states, “They must know that they will be held accountable for any deficiency in their stewardship of the public purse.”

Apart from wrongly ignoring the responsibility of ministers to install DMs and ADMs who will perform diligently, Gomery’s statement is correct. He then goes on to state:

“Clear assignment of responsibility, coupled with effective and public accountability, should lead to changes in the administrative culture. If Ministers, Deputy Ministers, senior officials and heads of agencies and Crown Corporations are aware that they will be held accountable in a public way, and if the role of Parliament in enforcing such accountability is strengthened, a change in the administrative culture should, in time, result, leading in the long run to a diminished need for central controls and regulations.”

This comes close if the target date for achieving change is 2050, but Gomery views accountability simply as officials responding to interrogation from House committees. Thus far, any adept minister or deputy minister can handle that. Gomery did not grasp the central point that DMs’ regular public accountability reporting to the House for diligence, with the most important being audited by the AG, induces the important self-regulating influence on conduct and diligence.

For example, ministers and DMs thus far haven’t had to report to the House evidence of whether they are actually protecting whistleblowers, and Gomery failed to recommend that they do. The lack of that public accounting obligation is fatal to whistleblower protection.

The responsibilities of DMs go beyond compliance with statutes that Gomery argues is the limit of their duty. Statutes deal only with bits and pieces of management control. Gomery did not address the issue of DMs formally accounting for their commonsense management control responsibilities, with the Auditor General publicly attesting to the fairness and completeness of the reporting.

3. The sponsorship disgrace was not an “aberration,” as Judge Gomery labelled it.

Gomery calls the “mishandling” (an inexcusable euphemism) of the sponsorship public money an “aberration.” Negligence in creating and maintaining a management control system is never an “aberration” any more than was the killing and life-truncation of the thousands of victims of lethally contaminated blood in the 1980s and the killing of 26 Westray miners in the 1990s. Though not a matter of safety, nor was the earlier HRDC spending disgrace an aberration. It was management control negligence by both ministers and DMs. The money illegally wasted in the sponsorship program was also public money, deployed through cheques written by senior civil servants having signing authority who failed in their management control duty for its use and did not stand firm to the responsible minister(s) to the point of resigning.

By calling it an aberration, Gomery takes the heat off the duty of the executive government for government-wide day-to-day management control. The new President of the Treasury Board has the chance of overcoming decades of impotence by that agency by laying out for caucus review unassailable management control measures that would allow the caucus to cease being embarrassed. (In the late 1970s, Treasury Board President Robert Andras told Auditor General James Macdonell, “Our caucus is tired of being embarrassed.” Nothing changed.)

As another example of Gomery’s ignorance, he states (Ch.4, p.53) that ministers “are ultimately accountable to the people of Canada through general elections.” This is not true. The current purpose of election campaigns is to twang voters’ nerve ends close enough to the election date to cause them to vote in a particular way. This tactic has nothing to do with regular public, full and fair accounting to the House by the incumbent government for the discharge of its responsibilities.

4. Gomery failed to recommend basic performance standards for the Public Accounts Committee that he criticized.

Funding is not the key issue. The leaders of the respective caucuses must enforce nonpartisanship if they wish to say that their members hold to account fairly, and must stop the childish shouting. As well, PAC members must be trained by people who know how to hold effectively to account — which means exacting the information the MPs need, at the time they need it, and validating the reporting for its fairness and completeness.

An example is a late 1970s nifty question put by an ex-CEO PAC member to a new DM, that could as well be asked of a minister: “What would you say are your most important management problems, and what are you doing about them?” Few PAC members would know to ask such a question or deal with the possible range of responses, but they must.

The PAC can also be expected to propose performance and accountability reporting standards for itself, to be approved by the respective caucuses. Is a PAC to have or four years’ learning experience, or one year’s experience four times?

5. Gomery failed to use private sector senior managers to teach him how effective management control systems work and what can cause their ineffectiveness or even their collapse.

None of his eight Advisory Committee members could be said to have expertise in management control in management units of large complex organizations. Collectively they seem to have been more at home in policy and academic aspects of “administration.” In fact, in his Introduction, Gomery described them as having “broad experience in public policy.”

And none of the directors of the 17 research studies would hold themselves out as authorities in management processes. Gomery described the work of these people as being on “issues identified (by the Advisory Committee) in the Commission’s mandate.” An examination of causes in failures of motivation, ability and accountability in large complex organizations was glaringly missing — a fact likely not even noticed by anyone in Ottawa or in the university public administration and political science faculties.

The same problem existed with the 42 people comprising the Roundtable participants across the country.

Also missing was apparent interest and offers to help by organizations such as the Conference Board who should know knowledgeable senior managers who could help with the management control issue in government but who likely were not asked.

In all, among 67 formal Commision advisors, there were no rigorous private sector senior managers and no managerial academics of the superstar stature of Dr. Henry Mintzberg of McGill.

6. The roles of the Clerk and Treasury Board

I have argued in print that the Clerk of the Privy Council, so long as he or she heads the civil service, should be held accountable for the quality of management control delivered by federal civil servants.

But I have since been persuaded by a former senior provincial DM, coincidentally in line with Gomery, that the most senior civil servant assisting the Ministry with policy formulation (the Clerk) should confine himself/herself to that task. The person responsible for the quality of management control in the civil servant ranks (i.e. responsible for civil servants causing to happen that which should and causing not to happen that which shouldn’t) should not be the same person as the policy advisor. The ability, motivation and background required for each role is different.

The person overseeing management control would also report direct to the Prime Minister. But he or she would report as well as to the President of the Treasury Board — IF that minister is finally given the clout for government-wide management control standards and compliance with them. That office retreated from giving enforceable directives nearly two decades ago, when the word “control” became unfashionable because of senior civil servants’ misuse of its meaning as “command control.” By 2000 the Treasury Board had allowed its role to collapse to “catalyst for management change and good governance” (Gomery p.121). It retreated to urging and exhortation only. Most MPs don’t know this.

And it took only a decade for senior mandarins to disembowel the Office of the Comptroller General created in 1978. This was because the Office was not protected by legislation installed at its creation. As things stand, the Comptroller General cannot “ensure” anything — and neither can the Treasury Board President.

7. It won’t do to have MPs fail in their attempt to usefully attribute decisions and responsibilities as between ministers and DMs.

MPs must not be thwarted by what the 1970s-80s Conservative PAC member Ron Huntington called the “crossover” ambiguity. Having DMs account for their statutory duties is obvious, for a start, so for the government to say that DMs “do not have direct accountability to Parliament” is nonsense. Having DMs also publicly account for their commonsense responsibilities is a logical obligation.

And for the former Treasury Board President to say that processes for accountability to Parliament are inherently political showed his ignorance, since the obligation to account is nonpartisan.

It is an obvious principle of public accountability that an authority whose intentions and conduct affect the public in important ways should publicly explain its intentions, performance standards, outcomes and learning.

Therefore the range of authority of a DM in carrying out policy clearly qualifies him or her as a publicly accountable authority.

The “crossover” can be clarified by a special-purpose MP task group with input from DMs and ministers, and from input on their respective public accounting obligations that flow from agreement on who is responsible for what. We can start with the proposition that ministers are responsible and accountable for intervention for fairness in society, in terms of whose needs are to be honoured, and DMs are responsible and accountable for probity, economy, efficiency and effectiveness in carrying out fairness policy at home and abroad. Each account for compliance with the law.

But ministers are also responsible for having senior civil servants in place who do what citizens have a right to see them do.

DMs are further accountable for telling ministers what their ministers’ statutory responsibilities are, which they didn’t in safety protection such as the blood and Westray disgraces, and how ministers should publicly account for those responsibilities. Then we know who the DMs serve.

8. Gomery sees no need for DMs to resign if a DM in conscience resolutely opposes a resolute intention of a minister.

To say that having to choose to resign over an intractable disagreement is not “fair or acceptable” and to say, short of an intention to break the law, that it is the deputy’s “duty to follow the clear instructions of the Minister” conveys to a citizen that Gomery is helping to foster the practice we now have of “situational ethics.” Gomery doesn’t mention honour, perhaps because he is seeing less and less of it.

Gomery mentions the Prime Minister but doesn’t discuss the need for a formal protected DM avenue to the Prime Minister as the person ultimately responsible on behalf of Canadians for assessing a minister’s intent that the DM sees as leading to harm.

Gomery probably would not even know the extent to which the operating principles and practice of a Gordon Robertson have deteriorated in successive periods of the federal government. Officials are increasingly selected or promoted without training and socialization in ethical principles as a criterion, and who are allowed increasingly to put their own advancement and future job hunting ahead of the public interest. The syndrome is exemplified by the definition of success in the federal government being pleasing one’s superiors ahead of serving the public interest.

9. The role of the Auditor General

I will hold off for now on the role of the Auditor General, as did Gomery in effect. But in his ignorance he made an egregiously wrong statement in saying that the Auditor General “is only one link in the chain of accountability,” and that the PAC supports the AG.

The AG serves the PAC and the House in general. He or she serves the accountability relationship between the executive government and the House, but stands outside it.

One of the AG’s two main jobs is to say to the House, in matters of departmental performance, “This is what’s going on. Is it what you had in mind?” The other, in matters of accountability, is to recommend to the House the standard of public accounting for the executive government’s responsibilities that citizens are entitled to see met. The better the government’s public accounting, the less horror stories the AG has to delve into — and the lesser the need for access to information requests)

Gomery’s astonishing assertion (Ch.5 p.107) that “the solution (is to) persuade the managers to focus on good management” is at about a grade 12 level of perception. He doesn’t propose what will bring about that state, durably, beyond simply making officials respond to Public Accounts Committee interrogation.

In short, the Gomery report

• exhibits a lack of understanding of public accountability and what it would achieve if we had it in place, and of basic management control processes that need to be in place and accounted for to the House
• fails to recognize the accepted proposition from the behavioural sciences that no major change in an organization can be expected to happen unless some powerful person or unit is hurting badly enough, and until successful pilot processes outnumber pilot failures
• fails to offer specific means of causing a significant durable change in “culture” through the classic process of “unfreeze” —> change —> “refreeze,” again well founded in the behavioural sciences

Rather than tweak the existing structure of administration in government, Gomery needed to start with a clean piece of paper, set out the commonsense policy and management control responsibilities and who has them; set out the basic performance standards and public accountability reporting obligations for these people that Citizens are entitled to see met; and set out the Auditor General’s commonsense duty for attesting to the fairness and completeness of the accountability reporting given, such that public accountability standards produce the important self-regulating influence for both ministers and senior civil servants.

The new Treasury Board has a choice: it can simply baby-sit or make something happen for the public good. But this can’t happen without full and fair public accounting by all senior federal officials on how they are carrying out their responsibilities that affect citizens in important ways. In each area of executive government policy and operating performance, the needed performance standards — meaning those that citizens are entitled to see met — must be reasonable standards set by groups of citizen stakeholders and MPs, not those accountable.

Lastly, to do a good job of scrutiny, MPs need training in holding fairly to account. It is a tradition that MPs work pretty well only from the Auditor General’s “horror stories,” as in the sponsorship case, but their work has to go beyond that through division of labour because the AG’s work is only a sampling process.