A review released today into the 2012 B.C. health ministry firings found the government made errors in its investigation, including not giving employees sufficient chance to respond to allegations that had been made against them.
The review for the Public Service Agency by employment lawyer Marcia McNeil made a dozen findings, one of which noted that the investigators did not conduct the investigation with open minds.
NDP Opposition leader John Horgan said the review failed to answer key questions, including who decided to fire the employees and why. The task handed to McNeil by the Public Service Agency was designed to be a "whitewash" of the government's wrongdoings, he said.
"It is a gong show in terms of accountability," Horgan said.
McNeil was upfront about the report's limits. "This report is not intended to, and does not, answer questions regarding the specific allegations against the employees," she wrote. "Nor does it answer any lingering questions regarding whether any decision made about the employees was legally or factually sound. This report focuses exclusively on the process leading to the decision making."
In September 2012, then health minister Margaret MacDiarmid announced an investigation into government contracts, potential conflicts of interest and data management. The situation was very serious and the RCMP had been asked to investigate, she said.
The government's investigation led to at least seven employees being fired and a freeze on drug research contracts. It generated five lawsuits for wrongful dismissal and defamation, as well as a union grievance on behalf of three of the employees. One committed suicide following his firing.
The Tyee has followed the story throughout, and today published an interactive feature explaining the chronology of the firings and those involved.
Roderick MacIsaac was a University of Victoria co-op PhD student who was fired while designing a way to assess a program Premier Christy Clark introduced to pay for prescription drugs and other treatments to help people quit smoking. MacIssaac committed suicide a few months after his firing.
While the grievance process for the three union employees ended without any of them returning to work, three of the lawsuits from non-union employees were settled out of court. Two of the plaintiffs, Bob Hart and Malcolm Maclure, returned to work for the ministry. A third, Ron Mattson, said he received a settlement but decided to retire rather than return to the government.
Premier Clark and Health Minister Terry Lake have apologized to MacIsaac's family and said that at least some of the firings were heavy handed and overreactions. In early October, the government announced a review to "get to the bottom" of what happened.
The terms of reference for the review, written by the outgoing head of the Public Service Agency, Lynda Tarras, were narrow. The Tyee has reported that the agency was heavily involved in the firings and that its new head, Elaine McKnight, was an associate deputy minister in health who in 2012 supervised the people who conducted the early stages of the investigation that led to the firings.
The Public Service Agency hired McNeil to look at what happened from when the ministry received a complaint in May 2012 up until when the termination decisions were made and executed. She was to look at the human resources processes and the steps taken to investigate the allegations.
But McNeil was explicitly told not to examine "Ministry of Health policies and practices related to research, contracting and data-management at the time of the allegations were made and any changes that have been made to those policies and practices in response to the allegations."
Nor was she tasked to look at the decisions that settled the lawsuits or grievances. And she was not given the power to compel people to give interviews or evidence.
In a prepared statement, Finance Minister Mike de Jong said, "While I am still reviewing the report in detail, it is deeply troubling to learn that Ms. McNeil found there was lack of due process and lack of understanding of existing procedures that compromised the investigation."
He said the Public Service Agency would "take immediate steps" to address the issues that McNeil's report raised.
The government did not post McNeil's report on the Internet, saying the Freedom of Information and Protection of Privacy Act barred it from doing so. Current health deputy minister Stephen Brown did, however, email the report to ministry employees.
"I recognize this, without question, has been a very challenging time for government, our organization and staff," he wrote in the internal email. "I want to express my sincere appreciation for your patience and continued public service commitment as we have managed through this very difficult time."
A dozen findings
Following is the full list of McNeil's findings:
1. I find that the Ministry should have begun its formal review of employee misconduct at the same time as, but separately from the Ministry review.
2. I find that the inclusion of the Ministry Review Team members on the Investigation Team did not meet best practices in that the Investigation was not conducted with a suitably open mind.
3. I find that the nature of the Investigation warranted consideration of the use of an external investigator with significant experience in complex investigations.
4. I find that the initial internal disclosure of the name of at least one of the suspended employees, and the later public statements regarding the suspensions and dismissals of Ministry employees, did not meet best practices. The internal disclosure naming a suspended employee should not have occurred. Employees should know that their privacy will be respected, even if it is determined that misconduct has occurred.
5. I find that suspending the employees without pay pending investigation in this case negatively impacted the quality of responses of both the suspended employees and their co-workers. I find that if the affected employees had not been suspended without pay, the Investigation Team would have received more open responses from employees.
6. I find that the Investigation Team had adequate resources to review and understand the complex web of issues which generated its creation.
7. I find that the number of interviewers participating in the employee interviews was detrimental to conducting an effective interview.
8. I find that the Ministry should have been aware that the Ministry Review might point to some level of employee misconduct. Had the Ministry began its formal review of the employee misconduct in concert with the Ministry Review, it is more likely that the issue of employee representation would have been addressed in accordance with the PSA's practice.
9. I find that the interviews did not always give an adequate opportunity for employees to provide a full and fair response.
10. I find that interviewees did not have an adequate opportunity to review documents and respond to questions arising from them.
11. I find that the employees were told that they would have an opportunity to respond to the Investigation Report and any recommendations regarding their employment, such an opportunity should have been provided before a final decision regarding discipline was made.
12. I find that the decision-maker in this case would have benefitted from receipt of a written analysis of the case (in the form of supporting advice, investigation report or briefing note) before making any decision. Had any of these documents been generated, some of the flaws I have found in the Investigation may have been identified before the final decisions regarding employee dismissals were made.
The government's announcement that the report was available said it had accepted all of McNeil's findings.
NDP leader John Horgan, however, said the scope of the review and the limits on McNeil were too narrow to get the answers that MacIsaac's family wanted. The firings affected people's lives deeply and compromised the ability to do pharmaceutical research in the public interest, he said.
"Ms. McNeil didn't get senior officials to do anything other than point at other people," Horgan said. "What we don't know are [answers to] the two critical questions: who and why."
He quoted from page 32 of her report: "Two of the most difficult questions I considered during my review were who effectively made the dismissal decisions, and what factors were considered. These questions remain unanswered."
Nobody had taken responsibility, McNeil wrote. "Those most likely to have made the effective recommendation all pointed to someone else."
NDP MLA for Vancouver-Kingsway Adrian Dix said McNeil's report does show there was an abuse of process. "[But] it intentionally covers up who was responsible," he said. It is unclear whether some senior officials, such as Clark's deputy John Dyble, were interviewed, he said.
Nor does it answer questions about how the firings may have been connected to the interests of the pharmaceutical industry, he said. "It doesn't go anywhere towards answering those questions. Ms. McNeil wasn't tasked with finding the answers to those questions."
A Dec. 19 letter written to the government by lawyer John Adams on behalf of Graham Whitmarsh, who was deputy minister of health at the time of the firings, took issue with a footnote on page 33 of the report that said at no time was legal advice sought on the terminations.
"Mr. Whitmarsh's understanding at the time was that legal advice had been sought and was being provided with respect to whether there was just cause for the dismissal of the employees in question, as a necessary and related component of the review and the drafting of the letters," it said.
"If the Attorney General's office was making a distinction at the time between its involvement in the review and drafting of the dismissal letters and the giving of legal advice on whether there was in fact just cause to dismiss the employees, he was not made aware of that distinction."
In an email, Whitmarsh said the government had agreed to send out the letter with the report, which he'd been given a chance to review before its release, but understood they'd failed to do so.
In response to today's report, health policy researcher Alan Cassels said in an email: "I find the report doesn't follow best practices in the area of finding out what the hell happened, why those employees were grudge-fired, and why one of them is now irredeemably dead."