by Kathryn May. Originally published on Policy Options
March 16, 2022
OTTAWA – Social media is a part of life that is increasingly treacherous for Canada’s public servants, who may need better guidance to navigate their public and private lives online.
The blurring of that line was on display during the so-called freedom convoy protest that paralyzed downtown Ottawa. Some public servants took to social media to oppose or support the protest, sometimes with funds. Other public servants criticized colleagues who backed the protest as well as government mishandling of the nearly month-long blockade.
The storm of often anonymous allegations of misbehaviour on social media underlined an absence of transparency in the government agencies responsible for the ethical behaviour of bureaucrats. Neither the Treasury Board Secretariat nor the Office of Public Sector Integrity Commission were willing or able to say if any investigation or other action has been taken against any public servant.
On Reddit, members of public servant forums questioned the loyalty of federal workers who donated money to a convoy with an underlying mission to overthrow the government. Public servants on Twitter chided anyone who may have used government email to send a donation; accused them of ethical breaches. One suggested any of them with secret security clearances or higher should face a loyalty interview from CSIS, the Canadian Security Intelligence Service.
Some demanded they be investigated or have security clearances revoked. Others called for dismissal. One senior bureaucrat told Policy Options public servants should be dismissed if they funded anything to do with removing the elected government to which they pledged loyalty.
Meanwhile, eyebrows were raised when Artur Wilczynski, an assistant deputy minister for diversity and inclusion at the Communications Security Establishment, tweeted a stinging criticism of Ottawa police’s handling of the protest. As a rule, senior bureaucrats, especially from such a top-secret department, keep such opinions to themselves. The CSE called Wilczynski’s criticism a personal opinion, noting it would be inappropriate for the CSE to comment on matters that don’t fall within its mandate.
It’s unclear whether any public servants are being investigated or disciplined for an ethical breach – or an illegal act.
Public servants typically have a lot of latitude to engage in political activities before risking an ethical breach. That changed when the Emergencies Act was invoked, making a peaceful protest an illegal occupation.
Three deep-seated drivers of the convoy, and what we can do about them
The Treasury Board Secretariat, the public service’s employer, knows some public servants supported the protesters, a spokesperson said. But it is unaware of whether any were warned or disciplined by their departments for any public support online or offline.
“We do not collect information about complaints or disciplinary actions against employees,” the Treasury Board said in an email.
Social media users suggested at least a dozen public servants went to the Office of Public Sector Integrity Commission to report the possibility that a handful of bureaucrats were on a leaked list of convoy donors that was exposed when a hackers took down the crowdsourcing website GiveSendGo. The commission investigates wrongdoings that could pose serious threats to the integrity of the public service.
Commissioner Joe Friday refused to say whether he has received or is investigating any complaints. His office sees a spike in inquiries and disclosures when hot-button public issues dominate the news, he said.
Social media is here to stay. But how public servants use social media to balance their duty of loyalty to government with their right to free speech and engage in political activity seems to be an open question.
Public servants have rules for behavior at work and during off-hours, though the line between on and off the clock has increasingly blurred after two years of working at home. The rules come from the Public Service Employment Act, the Values and Ethics Code and the codes of conduct for each department.
But some argue there’s a grey zone now that partisan politics and political activities have moved online.
Jared Wesley, an associate professor of political science at the University of Alberta, said governments have not done a good job updating their ethics protocols, standards of practice and codes of conduct to manage social media. They amount to deputy ministers offering a rule-of-thumb “if your boss wouldn’t like, don’t post it,” he said.
Carleton University’s Amanda Clarke and employment lawyer Benjamin Piper examined the gap in guidance in a paper, A Legal Framework to Govern Online Political Expression by Public Servants. Clarke, a digital and public management expert and associate professor, said this uncertainty about the rules cuts two ways.
“What we can learn from this incident is that there is already a grey area and it’s dangerous for public servants who are not equipped with sufficient guidance,” said Clarke.
“There are two outcomes. One: they over-censor and unnecessarily give up their rights to political participation …. The second is they go to the other extreme and abandon their obligation to be neutral, which can put them into dangerous positions, personally and professionally and, at the larger democratic level, undermine the public service’s credibility.”
In fact, public servants believe impartiality is important, a recent survey shows, and 97 per cent steer clear of political activities beyond voting. Eighty-nine per cent believe expressing views on social media can affect their impartiality or the perception of their impartiality. But it found only about 70 per cent of managers felt capable of providing guidance to workers on engaging in such activities.
Clarke argues the modernization of public service must address how public servants reconcile their online lives with their professional duties.
“You can’t expect public servants not to have online political lives. This is where politics unfolds today. So, anybody who is trying to say that is the solution is missing the reality of how we how we engage in politics today.”
More than 40 years ago, the Supreme Court’s landmark Fraser ruling confirmed public servants’ political rights – with some restrictions. They depend on factors such as one’s rank or level of influence in the public service; the visibility of the political activity; the relationship between the subject matter and the public servant’s work and whether they can be identified as public servants.
David Zussman, who long held the Jarislowsky Chair in Public Management at the University of Ottawa, said the rules should be the same whether a public servant pens an op-ed, a letter to the editor or a tweet.
“Public servants should be able to make personal decisions about who they support, but the overriding consideration is keeping the public service neutral and apolitical.”
Shortcomings of existing rules, however, were revealed in the 2015 election, when an environment scientist, Tony Turner, was suspended for writing and performing a protest song called “Harperman” that went viral on YouTube.
His union, the Professional Institute of the Public Service of Canada, argued he had violated no restrictions: he wasn’t an executive, his job was tracking migratory birds, he wrote the song on his own time, used no government resources and there was nothing in the video or on his website to indicate he was a public servant. He hadn’t produced the video or posted it to YouTube.
About the same time, a Justice Department memo surfaced, warning: “you are a public servant 24/7,” anything posted is public and there is no privacy on the Internet. Unions feared public servants could be prevented from using social media, a basic part of life.
Twitter, Facebook, LinkedIn and YouTube have complicated the rules for public servants posting an opinion, signing an online petition or making a crowdsourced donation, Clarke and Piper argue.
Social media can amplify opinions in public debate and indiscriminate liking, sharing, or re-posting can ramp up visibility more than expected. Assessments of whether a public servant crossed the line have to consider whether they used privacy settings, pseudonyms or identified as public servants.
So-called “Freedom Convoy” is a symptom of a deeply unequal society
Clarke and Piper question whether public servants who never mention their jobs should be punished if they are outed as government employees in a data breach – like those who donated to the convoy protest. What about a friend taking a screenshot of a private email you sent criticizing government, sending it others or posting it online?
The Internet makes it easy to identify people, Piper said. Public servants who avoid disclosing their employer on their personal social media accounts can be identified using Google, LinkedIn or the government’s own employee directory.
So back to the convoy protest. Before the emergency order, would public servants have unwittingly crossed the line by supporting the protest or donating money to it?
The protest opposed vaccines and pandemic restrictions, though the blockade also became home to a mix of grievances. Many supporters signed a memorandum of understanding by one of the organizing groups calling for the Governor-General and Senate to form a new government with the protestors.
“It’s hard for me to see how a private donation by someone who has a job that has nothing to do with vaccine mandates or the trucker protest could attract discipline. That would be a really aggressive application of discipline by the government,” said Piper.
But Wesley argues that the convoy was known from the start as a seditionist organization and anyone who gave money to the original GoFundMe account should have seen the attached MOU. It was later withdrawn.
“Most public servants sign an oath to the Queen and should have recognized that signing or donating money to that movement was an abrogation of your oath,” he said. “I think a re-examination of who they are, who they work for and implications of donating to a cause that would have upended Canada’s system of constitutional monarchy is definitely worth a conversation with that individual.”
Perhaps part of the problem is the traditional bargain of loyalty and impartiality between politicians and public servants is coming unglued.
The duty of loyalty is shifting. The stability and job security that once attracted new recruits for lifelong careers in government aren’t important for many young workers, who like remote work and expect to work for many employers.
A recent study found half of the politicians surveyed don’t really want an impartial public service. Brendan Boyd, assistant professor at MacEwan University, suggests they prefer a bureaucracy that enthusiastically defends its policies rather than simply implements and explains them. However, 85 per cent of the politicians say that outside of work hours, public servants should be impartial.
“There will be further test cases, and how we define a duty of loyalty is going to either be confirmed or adapted or changed,” said Friday.
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“But public servants are still allowed to communicate, hold or express views as a means of expression. And the pace at which the views, thoughts and opinions are expressed is so phenomenal that I think it fundamentally changes the playing field.”
This article was produced with support from the Accenture Fellowship on the Future of the Public Service. Read Kathryn May’s previous articles on the future of the public service.
This article first appeared on Policy Options and is republished here under a Creative Commons license.
