Monday, January 20, 2014

The Harper government's lifetime MuzzleMate!

Good Day Readers:

This is really quite incredible. So what are political staffers supposed to do should they become aware of inappropriate conduct - perhaps bordering on criminality - report it to someone higher in the hierarchy and hope it doesn't get quietly and conveniently swept under the carpet?
Does the proposed confidentiality agreement not aid and abet the cover up of inappropriate behaviour? So what's left to ethical staffers? The proverbial unmarked brown manilla envelope with no return address - be sure to wear gloves and don't lick the stamp so a DNA trail isn't left behind. BTW, who were the "geniuses" who conceived such a flawed document? The little boys in short pants and girls in short skirts of the Prime Minister's Office?

It's also worth noting that the highly secretive House of Commons Board of Internal Economy, along with its Senate counterpart, are exempt from Access to Information legislation. Its members are:

John Duncan - Conservative
Judy Foote - Liberal
Rob Merrifield - Conservative
Andrew Sheer - Conservative
Philip Toone - New Democratic Party
Nycole Turmel - New Democratic Party
Peter van Loan - Conservative

Notice the Harper government has a majority. Surprise!

Sincerely,
Clare L. Pieuk
Political staffers' gag order 'unenforceable, ' says legal experts

By Laura Ryckewaert
Monday, January 20, 2014
A life-long confidentiality agreement that all political staff working for MPs on the Hill and in riding offices across the country are being asked to sign is a “highly unusual” and an “appallingly poor contract” that would be “unenforceable” in a court of law, says University of Ottawa law professor Amir Attaran.

“It’s an appallingly poor contract. Let me be quite blunt about this—this is the sort of nightmarishly done contract that is the bread and butter of first-year law student exams, it’s that bad. It’s really poorly done,” said Prof. Attaran in an interview with The Hill Times.
“A contract is only as good as it is enforceable. If a contract isn’t enforceable, what use is it? And I cannot imagine in my wildest dreams that if this made it to court the court would enforce, for example, a post-employment obligation to check with the employer for any other work for the rest of one’s life. There’s no way, I mean that’s fanciful.”

At a March 4, 2013, in-camera meeting of the House of Commons Board of Internal Economy (BOIE), the seven-member all-party Board approved changes to “modernize” employment policies. Since then, a new “conflict of interest, loyalty and confidentiality agreement” has been included as a mandatory part of the employment forms staff are required to fill out, sign and submit to the House administration in order to change employment status.

Employment forms are filed with House administration when someone is hired, promoted or given a raise and are also signed by the Member of Parliament. Previously, confidentiality agreements existed on an ad hoc basis for each MP’s office.

All MP staff are being asked to sign the agreement, including staff working for party officers (like the House Leader or Whip), as well as, those working in the party research bureaus and ridings offices. Ministerial staffers are not required to sign the agreement as they are considered public office holders and are, therefore, subject to different provisions (like the Conflict of Interest Act, for example).

The BOIE, chaired by House Speaker Andrew Scheer (Regina-Qu’Appelle, Saskatchewan), acts as the governing body of the House of Commons, and is responsible for approving House budgets and the policies and bylaws that govern their use of office budgets. Each recognized party in the House of Commons (those with at least 12 sitting MPs) has a representative on the Board, which reflects party standings in the Chamber. Independent MPs turn to the Speaker as their point of contact.

Despite being introduced and put into action last spring, word of the new lifetime gag order for Hill staff didn’t reach media until last month, after a disgruntled staffer using the pseudonym Nanker Phelge sent out a copy of the agreement. In response to emailed questions, Nanker Phelge told The Hill Times that he or she and others have foregone salary raise in order to refuse signing the document.

The agreement, which survives “termination of employment,” states that staff “will avoid any activity” that may reflect unfavourably on an MP or the House of Commons. If the agreement is breached, it states that in addition to “any other legal or administrative recourse available to my employer or the House of Commons” any termination pay will be returned.

It’s unclear just where the text of the agreement came from, but it’s been in use since at least 2011 as a template confidentiality agreement available for use by MPs on Parliament’s internal web service, IntraParl.
NDP staffers Union Head Anthony Salloum, a Lobby Officer to NDP Whip Nycole Turmel (Hull-Aylmer, Quebec), said he wasn’t aware of the new confidentiality agreement until last fall, when a scheduled raise for hundreds of NDP staffers kicked in. Suddenly, emails started pouring in as hundreds of NDP staffers were faced with having to sign the agreement, said Mr. Salloum.

Mr. Salloum said he’s heard from “several dozens” staffers who have foregone a raise in order to refuse signing the document, but also said he knows that the majority of the roughly 675 NDP staffers on the Hill have signed the agreement. The NDP has about 500 staff members divided between the Hill and constituency offices of NDP MPs, as well as, approximately 125 to 175 staffers in the OLO (which is a combination of the NDP Research Bureau and Leader’s office staff).

“For many of us now, we’re just a little anxious, we’re waiting to see how this unfolds,” said Mr. Salloum.

Page 2 of 3

In the case of a current employee, the penalty for breaching the agreement seems clear-cut: they would be fired. But current employees would likely be fired for loose lips even without such an agreement in place, and the consequences of this broadly-worded gag order for former employees isn’t so clear.

Professor Attaran said with no end date—something he called “highly unusual”—he doesn’t think there’s “a court in the country” that would enforce the agreement, and he questioned how a court would even remedy a situation where an employee in breach of it was taken to court.

“What precisely would they lose by a breach of confidence? How could they demonstrate the pecuniary, quantifiable monetary damages? If they simply say, you embarrassed us, I don’t really see that attracting damages,” said Professor Attaran.

But more importantly, Professor Attaran said he can’t imagine the House of Commons ever taking an employee to court for breach of the contract “between now and the end of the universe.”

“It has been the consistent position of the Speaker of the House of Commons that employment matters within the Commons are for the Commons to deal with, and not the courts,” said Professor Attaran.

He pointed to a 2005 Supreme Court of Canada decision involving dismissed staffer Satnam Vaid, who had sought to take a discrimination and harassment complaint against the House Speaker to the Canadian Human Rights Tribunal. The Supreme Court ruling affirmed the Speaker’s claim that management of employees was a Parliamentary privilege.

“The Speaker, obviously acting for the Commons, wanted to establish that outside tribunals, or courts for that matter, do not have jurisdiction over employment-related matters. Would they destroy this position by suing somebody for breaching a confidentiality clause? Because if they went outside to a court to sue that person, guess what, the fiction that they’re not subject to the court would die right there,” said Professor Attaran.

Professor Attaran said the last paragraph of the agreement—where it states an employee will pay back termination pay in the event of a breach, in addition to “any other legal or administrative recourse”—constitutes a penalty clause and said he thinks the courts, therefore, wouldn’t enforce it.

Professor Attaran has been an outspoken critic of the Conservative government. In November, Professor Attaran launched two complaints of professional misconduct against lawyers Benjamin Perrin, former PMO Legal Affairs Adviser, and Janice Payne, lawyer to Independent Senator Mike Duffy, over their alleged involvement in negotiating the alleged Wright-Duffy deal, in which now former PMO Chief of Staff Nigel Wright cut Senator Duffy a $90,000 cheque to repay ineligible expenses.

Western University labour law professor Michael Lynk said recent legal precedent, such as a case involving former Globe and Mail journalist Jan Wong, has established that courts will uphold penalty clauses in some cases, but regardless, he said the confidentiality agreement has “got real constitutional and legal problems.”

“I have not seen in my, I suppose, history as a labour lawyer and a law professor such an extensively worded confidential provision as this,” said Professor Lynk.

Professor Lynk said as the agreement has come about through “government actors, i.e. the Commons Board of Internal Economy,” it would come under the provisions of the Charter of Rights and Freedoms, applying to section 2(b) expression rights.

“The courts give a very broad meaning to expression rights in Canadian society,” said Professor Lynk.

“I think virtually any judge reading this would see this as overly broad and too restrictive on employees,” he said.

But Professor Lynk said even if it wouldn’t be enforced, with this agreement in existence a former staffer who signed it and who, for example, decided to publish a memoir about their time on the Hill, could be taken to court by the House of Commons and would have to go through and pay for the necessary litigation process to find it unenforceable.

“Anybody would have to worry about having to fight through litigation to be able to show that, so sure, that would be a worry for anybody that’s forced to sign this,” said Professor Lynk.

Following media reports on the staff gag order last December, BOIE spokesperson Conservative Whip John Duncan (Vancouver Island North, British Columbia) made the media rounds and said the BOIE would review the agreement when Parliament returns (it resumes sitting on January 27).

The NDP union executive sought a legal opinion on the agreement, and Mr. Salloum said as a result it’s drafted a list of proposed changes to the agreement, affecting all but the first section of the gag order (which recognizes the “unique nature” of employment on the Hill). Mr. Salloum declined to share these proposed changes as he had not yet discussed them with the union membership.

Page 3 of 3

“We have proposed in many cases quite substantive changes to articles,” said Mr. Salloum.

Mr. Salloum said he’s forwarded these proposals to Ms. Turmel, who is a member and designated spokesperson of the BOIE, and other NDP House officers, including NDP Leader Thomas Mulcair’s (Outremont, Quebec) Chief of Staff, Raoul Gébert. Mr. Salloum said the union is still discussing the question of enforceability with its lawyer.

Mr. Salloum said he’s not opposed to some sort of confidentiality agreement, but the vagueness of this agreement is concerning, and with it, he said the House is trying to assert itself as a direct employer by allowing the House to fire or penalize an employee for breaching the contract. Mr. Salloum said he’d like to see an MP challenge the agreement in a question of privilege to the Speaker when the House returns.

While the House administration holds the paperwork and cuts the cheques, the Member of Parliament is considered to be the employer of their Hill and riding staff, and is responsible for hiring, firing, promoting or giving raises to staff at their own discretion.

“When the Board meets and decides on a new version of it, we’re going to be looking to that new agreement to see whether it addresses these very legitimate concerns,” said Mr. Salloum.

 But what does this all mean for the hundreds of Hill staff who have already signed the vaguely worded and sweeping lifelong confidentiality agreement?

“I think if the Board of Internal Economy decided to change the wording of the confidentiality provision to make it narrower and less restrictive to people, that would apply to everybody. Even though you signed it today, if they wind up changing it, they would probably make sure the new, more limited confidentiality provision applied to everybody and the old one would disappear,” said Professor Lynk.

lryckewaert@hilltimes.com

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