The Pierre Poilievre “vanity video” story is starting to get more interesting. There was an excellent piece in the Ottawa Citizen today that raises exactly the right issue. I think one could reasonably argue that the civil servants who agreed to produce this video, along with those who authorized the expenditure, acted in violation of their ethical responsibilities as public servants. They should probably have refused to do it.

Key quote from Donald Savoie:

If you are an EX-1 or above you should know the importance of the value-and-ethics code and when you see a red flag like this a few months before a general election, live by it. You should be asking if this is appropriate. Values and ethics code covers everybody, not just the clerk.

Those who shot the video, along with the minister, conspired to spend public funds in order to advance an obviously partisan political purpose. This is not to say that they violated any laws. Writing a set of laws that would prohibit this sort of thing would be extremely difficult. It’s to say that they acted unethically, in violation of the traditional understanding of public service neutrality. Even the written code (the Values and Ethics Code for the Public Sector) states rather prominently in its opening “statement of values” that “a non-partisan public sector is essential to our democratic system.” Now of course this is traditionally interpreted as preventing public servants from engaging in partisan activities contrary to the government of the day. But it applies equally well to activities undertaken in support of the government of the day. And of course, whether they do it on their own time or during work hours is irrelevant.

This raises all sorts of interesting issues. First, I do not want to minimize the enormous burdens that the federal public service is currently labouring under. One gets the suspicion that, deep down, the Harper government does not really believe in civil service neutrality, but that it views the public service as essentially an extension of the Liberal party. In any case, the government’s general worldview is so intensely partisan that it regards any resistance that it encounters to its interests as a partisan attack. Harper has even seen disguised Liberal party plots in constitutional court decisions. Instead of seeing the judiciary, the legislative and the executive as three different branches of the state each with its own distinct responsibilities and obligations, they see “the court party,” the Conservative party, and PSAC. So I don’t want to suggest that it would have been easy to stand up to Poilievre, or that those who did would not have suffered retaliation. (On the other hand, no one ever said that acting ethically had to be consistent with advancing one’s career.)

Second, this episode illustrates once again the inadequacy of the traditional formula – “fearless advice, loyal implementation” – used in the public service for thinking about the amount of “push-back” that public servants can engage in. The idea that you should speak your piece, but that once the minister has made up his/her mind, then you do what you’re told, is simply too weak. There are many cases – the sponsorship scandal revealed a few – in which you actually shouldn’t do what you are told. Now again, I don’t want to be glib about this. Even the weak formula is too strong for the current federal government, which has a history of punishing public servants merely for speaking their minds internally. So even “fearless advice” has become difficult in the current environment, since the government has been unwilling to uphold its side of the implicit bargain that makes this possible. So it would take a genuinely fearless public servant to refuse a minister’s order. Most of those seem to have already quit or been fired.

The one thing that this episode makes really clear is that the public service needs more guidance in thinking about its professional-ethical responsibilities. This is something that I’ve been working on, but like all academic projects, it’s slow going. For those who are interested, an early sketch of my basic argument is available here. The big question is what the basis of the authority of the public servant could be, in pushing back against a democratically elected politician. Figuring out where the courts get their authority is hard enough, figuring it out for public administration is even harder. At the moment, I’m trying to work out an elaboration of the implications of a robust conception of the rule of law (such as one finds in the work of T. R. S. Allen) for the practice of public administration.

One thing that has become clear, however, is that whichever party takes over when the Conservatives are finished will have to do an enormous amount of institutional rebuilding, in order to undo some of the damage that they have done to our institutions of governance. Maybe doing a “Giving Voice to Values” session for the public service should be part of the plan.