Feds Should Table Legal Advice on Ouimet’s $500,000 Gag Order, Say Grits

By Jessica Bruno-THE HILL TIMES-March 21, 2011.

The gag order on former public sector integrity commissioner Christiane Ouimet’s $500,000 exit deal with the government is the most concerning part of the arrangement, says prominent lawyer Paul Champ.

“If this was a private sector settlement then that would make sense, but we’re dealing with a significant public office, with an officer who was vested with important responsibilities in terms of ethics and conduct within government, and to have a confidentiality clause like that restraining both the government and Ms. Ouimet from speaking about issues dealing with her office, I think that should be of some concern,” he said.

Mr. Champ has represented federal employees in a number of cases against the federal government, including the recent action of veterans’ advocate Shawn Bruyea, who reached a settlement with the government after it was found that federal bureaucrats distributed his personal and medical information in an attempt to discredit him.

The rest of the departure agreement, which was co-signed by Ms. Ouimet and Clerk of the Privy Council Wayne Wouters just days before she suddenly retired Oct. 18, while uncommon, is not surprising given the circumstances, said Mr. Champ.

It gives Ms. Ouimet $534,000 in lost wages, pension, benefits and severance.

“It is definitely not common, but on the other hand, I think it has to be remembered that she was an order-in-council appointment, so she holds a special position that it would have been difficult to have her removed if she had not done so voluntarily,” said Mr. Champ.

Two weeks ago, Prime Minister Stephen Harper (Calgary Centre, Alta) said the departure agreement was the “cheapest and fastest” way to get rid of Ms. Ouimet, who was an independent officer of Parliament, and who was approved and appointed by Parliament.

“We sought legal advice, we followed the legal advice, and the terms of her agreement followed the advice that we received based on her years of service to the public service,” Conservative MP Andrew Saxton (North Vancouver, B.C.) the parliamentary secretary to Treasury Board President Stockwell Day (Okanagan-Coquihalla, B.C.) told The Hill Times in a recent interview.

Liberal MP Navdeep Bains (Mississauga-Brampton South, Ont.) said the government should table the legal advice in Parliament.

“If they did receive legal advice and legal opinion then table that, because Madame Ouimet, in her office, reports and is accountable to Parliament, so we want to be involved in these decisions. Why does the Prime Minister get to decide and not the House of Commons?” he said to reporters March 15.

In a report released on Dec. 9, two months after Ms. Ouimet’s departure, Auditor General Sheila Fraser found that Ms. Ouimet communicated with PSIC employees disrespectfully “yelling, swearing, and also berating” them.

It also found that of the 228 cases of wrongdoing or reprisals in the civil service that were brought to the office of the integrity commissioner since Ms. Ouimet’s arrival in 2007, only seven were investigated, and none were concluded to be founded. The AG’s report also found that many of the cases brought before the integrity office were closed with little or no investigation.

Ms. Ouimet’s departure agreement was likely the simplest way to get rid of the commissioner, Mr. Champ agreed.

If the government had simply fired Ms. Ouimet, even if it was for cause, they would risk being sued for wrongful dismissal, said Mr. Champ. He compared the situation to the former head of VIA Rail, Jean Pelletier.

Mr. Pelletier was fired in 2004 after making disparaging comments about former Olympian Myriam Bédard. Like Ms. Ouimet, he was appointed to the position by an order-in-council. He later sued the federal government for wrongful dismissal.

“The federal government got their head kicked in litigation-wise … because of the nature of his appointment. They simply removed him from office, and [he] litigated and won a considerable amount of money,” said Mr. Champ.

At the time of Ms. Ouimet’s resignation, the AG’s report had not been published, but even if it had been, Mr. Champ said that the government would have needed more information before moving to have her dismissed by Parliament.

“The difficulty is that right now we’ve just got the auditor general’s report and the auditor general is not infallible,” he said.

Finally speaking at the House Public Accounts Committee on March 10, after ignoring calls and avoiding a summons, Ms. Ouimet made it clear that she fundamentally disagreed with the AG’s report.

“The report of the auditor general contains no details, no analysis, and in fact has not included the testimony of key people. I fundamentally disagree with the contents of this report,” she said.

The chair of the Public Accounts Committee, Liberal MP Joe Volpe (Eglinton-Lawrence, Ont.), said the committee is working on getting both Ms. Fraser and Ms. Ouimet to appear on March 24 to lay out their version of events side-by-side. If they can’t appear then, it will be at the soonest meeting possible, he added.

Allan Cutler, founder of Canadians for Accountability, said he has heard too much from whistleblowers about Ms. Ouimet’s conduct to give her version of events any credibility.

“I don’t even need the testimony of [Auditor General] Sheila Fraser to know what happened, because I’ve heard it from too many whistleblowers who tried to deal with her office,” he said.

When Ms. Ouimet appeared at committee, she singled out Normand Desjardins, the integrity office’s chief investigator when she first started, as one of a “small number” of “discontent” employees who tried to undermine her work.

Mr. Desjardins was the first person to blow the whistle on Ms. Ouimet on Nov. 28, 2008. While on a sick leave, he decided to disclose Ms. Ouimet’s behaviour towards her staff to the AG’s Office. Two subsequent complaints were made by other individuals in the office.

When reached for comment last week, Mr. Desjardins said it was clear that he was not simply a discontented employee looking to strike out at his boss.

“If you go back to this report, Madame Fraser mentions in paragraph six that her team actually interviewed during the audit ’34 current and former PSIC employees,’ as well as senior government officials. Not only me. [Ms. Ouimet] is directing her attack to me because she probably knows I am the first whistleblower in the Fraser Report,” he said.

Mr. Cutler said the high rate of employee turnover in the integrity office indicates there were more staffing issues than a few malcontents.

“Did she not have 18 out of 22 people leave in one year? That is not a few malcontents, and how do you say you have very loyal people if your very loyal people number four, including you?” he said.

Mr. Desjardins said the entire office “worked very hard” to set up the newly-minted Office of the Public Sector Integrity Commissioner in anticipation of Ms. Ouimet’s arrival in 2007.

“I worked the whole summer interviewing around 40 people to get a team of investigators ready in preparation for her arrival, and we set up procedures, operation procedures and briefing books to have the office at a very, very, high level for the arrival of the new commissioner,” he said.

On his doctor’s advice, and after taking several months of sick leave in the fall of 2008, Mr. Desjardins retired in February 2009.

“I’ve got 28 years of service in the military and retired as a senior officer, and I never saw anybody in my work environment as a public servant or in the military being even close to her inappropriate conduct,” he said.

Prior to joining the public service in 1998, Mr. Desjardins was a combat arms officer. He served in NATO and UN missions.

Because he was not a career public servant, when he left the integrity office four years before retirement age, he forfeited one-fifth of his pension.

“I’m not the only one, there’s at least five people who have lost money, time in the service, and their pensions have been affected, there’s at least five that I know in this group, and the government doesn’t do anything [about it],” he said.

When Ms. Ouimet spoke at committee, she said she had “no choice” but to resign, and that the government “shocked” her by offering up a “non-negotiable” departure agreement seemingly out of the blue.

Mr. Cutler said her status as an agent of parliament means that Ms. Ouimet did have a choice: “she obviously had the option to say no. It’s not a ‘non-negotiable option.” He also finds it odd that according to Ms. Ouimet, the Privy Council’s lawyer contacted her lawyer directly about the agreement, with no prior discussion.

“There is something missing in the information flow: she said they contacted her lawyer to make the offer. Her lawyer had been involved in something else…earlier, but they would have had to contact her to say, ‘Can we talk to your lawyer?’ I don’t see how they could go to her lawyer without her knowing, and without her having given permission for him to represent her,” he noted.

The opposition parties have said that the news Ms. Ouimet had resigned and not retired as the integrity officer had originally stated last fall is an indication that her departure agreement was a “golden handshake” meant to reward her for silencing whistleblowers.

“Yes and no,” said Mr. Champ.

“She voluntarily left, at the end of the day if the government wants to go ahead and pay someone to go I guess they can always do that. If there is ever a suggestion or a hint that they paid Ms. Ouimet to go based on what she was going to do on a particular case, I think that is very troubling,” he said.

He added the deal was a way of leveraging the fact that she did not have to resign to her advantage.

“She didn’t have to resign, that’s her consideration in the deal. In exchange for her agreeing to resign, which makes it easy for them, they would pay her,” he explained.

Mr. Cutler, who along with 30 accountability groups are calling for the severance package to be audited, said he would like to see the $534,000 the government signed to Ms. Ouimet returned, though he is not optimistic that Parliamentarians have the means or the will to make it happen.

The Hill Times