January 18,

1995 PUBLIC

ACCOUNTS COMMITTEE

Pursuant to Standing Order 87, Donald Whelan, M.H.A.

(Harbour Main) substitutes for John Crane, M.H.A. (Harbour Grace).

The Committee met at 9:45 a.m. in the House of

Assembly.

MR. CHAIRMAN (Windsor): Order, please!

Ladies and gentlemen, we will call the meeting to

order. I apologize for being late; Mr. Efford has had me once again, as I was

caught on slippery highways, so it took me a little longer than I thought to get

in this morning.

First of all, let me introduce the members of the

committee. My name is Neil Windsor, MHA for Mount Pearl and the Chairman. On my

right is Mr. Melvin Penny, the MHA for Lewisporte and the Vice-Chairman; to my

immediate left is Mr. Alvin Hewlett, the MHA for Green Bay; Mr. Oliver Langdon,

the MHA for Fortune - Hermitage; Mr. Don Whalen, the MHA for Harbour Main who is

filling in this morning for Mr. John Crane, who is attending the funeral of his

niece. It was an unfortunate accident, the young girl was killed on a snowmobile

I understand in Labrador, she was his niece so he is not here today as he is

attending that funeral. Mr. Doug Oldford, the MHA for Trinity North and Mr. Glen

Tobin, the MHA for Burin - Placentia West. At the table, of course, is Miss

Elizabeth Murphy, who is the Clerk and Mr. Mark Noseworthy, who is the research

assistant.

I welcome the Auditor General here this morning and

ask her if she would introduce the people who are with her here today.

MS. MARSHALL: To my immediate left is Mr. Bill

Drover, Audit Principal with the office and Mr. Wayne Loveys, who is Audit

Manager with our office.

MR. CHAIRMAN: Thank you very much.

As witnesses, I see Mr. Olivero, Chairman of the

Public Service Commission; perhaps Mr. Olivero, you would like to introduce the

people who are with you.

MR. OLIVERO: Thank you, Mr. Chairman.

On my right is Commissioner Sheila Devine; head of

Recruitment and Selection, Director George Fiander, head of Personnel Services,

Director Jim Byrne.

MR. CHAIRMAN: Thank you very much.

The first order of business, if we could have the

minutes of November 23, 1994 adopted. Would somebody care to move adoption?

So moved, seconded?

WITNESS: (Inaudible).

MR. CHAIRMAN: Are there any errors or omissions

to these minutes?

On motion, Minutes adopted as circulated.

MR. CHAIRMAN: For the benefit of the witnesses

who are here, probably for the first time, hopefully for the last time from your

point of view I am sure, this is an extension of the House of Assembly, it is a

Committee of the House, it is constituted in accordance with the rules of the

House, we follow the rules of the House, you will be sworn in momentarily as

witnesses so your evidence is given under oath. We are neither judge nor jury,

we are here simply to take evidence and to report to the House of Assembly with

whatever we see. Hopefully, we will get some constructive criticism from the

Auditor General and some suggestions from members of the Committee and questions

from the Committee. We will, in fact, find ways and means of improving the

subject matters that are before us today but we are not here to judge, I make

that very clear.

We operate under the rules of the House but a

little less formally so if you see members removing their jackets or something

of that nature, that is fine; if you wish to leave to go to a washroom or to get

a coffee or something, although there will be a coffee break at mid-morning, you

are welcome to do that. We normally give everybody an opportunity to put

questions. Questions would normally be addressed to the Chairman or to the head

of your delegation but you are entirely free to ask somebody else obviously to

respond for you and so forth.

Anyway, we welcome you here this morning. Issues

that we are dealing with are matters relating to the Public Service Commission;

there are some very interesting matters here and we will get into those in a

moment, and as I normally do, first of all, let me say that there is no news

media present of which I am aware, at least not with television cameras,

normally I would give them an opportunity, if they wished, to take some silent

footage so if there is anybody around who wants to do that we can arrange it. I

ask you to speak into the microphones and identify yourselves if I fail to do so

when I recognize you, for the benefit of Hansard. All of this is transcribed.

They know our raspy voices from speaking so often in the House of Assembly but

the people in Hansard would not be as familiar with the witnesses so it makes it

much easier for them to accurately transcribe if people are identified. It is

normally my responsibility but I fail quite frequently to do that, particularly

when we get in back and forth discussions. If I do not identify you please

identify yourself before you speak for that purpose. Speak clearly into the

microphones, and that goes as well for all members of the Committee so that we

do have an audible transmission to Hansard.

Those are all the things I normally need to say to

witnesses. I now ask if the Auditor General would care to make an opening

statement by way of introduction of this topic.

Ms Marshall.

AUDITOR GENERAL (Ms. Marshall): Mr. Chairman, I

do not have an opening statement per se but perhaps I can just make a few

comments. The Public Service Commission as everybody knows is a very small

organization but it has a big impact on the public service because its

jurisdiction relates to about 7000 permanent positions, so it is quite

significant. We reviewed the processes, the procedures, and the mandate of the

commission when we conducted our audit and the results of the audit are outlined

in the audit report which went to the House of Assembly.

There are two areas of concern that I just wanted

to mention at the beginning.

Section 15 of the Public Service Commission Act

outlines the duties of the Public Service Commission and the results of our

audit indicated there were some areas where the commission wasn't fulfilling its

mandate or was not as aggressive as what we thought they should be in fulfilling

its mandate. The other area of concern was the conflict that we identified

between the Public Service Commission Act and also the collective agreements

that are now being entered into between government and the unions.

The Public Service Commission supports the merit

principle and the collective agreements that are being signed now give some

weight to seniority, so actually the collective agreements are conflicting with

the Public Service Commission Act.

MR. CHAIRMAN: Thank you, Ms Marshall.

I am sure Mr. Olivero will have some different

views on some of those things that we go into. Would you care to make an opening

statement, Mr. Olivero?

MR. OLIVERO: Mr. Chairman, I do not have an

opening statement prepared, except that I do want to say, thank you, for the

opportunity to make some presentations here today, and to also mention I had a

part to play in the original development of the legislation we are looking at

and in setting up the Public Service Commission in the early 70s so I am

familiar with the intent.

I have to excuse myself, and I am sure you will

agree, that I really do not have too much to say inasmuch as I have only been

back three months. I am not trying to excuse myself from anything that may be

put our way, but I am quite happy to take responsibility for the things under my

jurisdiction. If I cannot answer all the questions I will be drawing upon my

senior staff.

MR. CHAIRMAN: Thank you, Mr. Olivero. We have

no problem with that. As I indicated earlier you are entirely free to refer

questions, and if in fact there are questions that require detailed answers, to

take notice and provide the Committee with those details later on, so do not

think you are on the firing line. You may think you are at times but you are

not.

Before we proceed any further I ask the clerk to

swear in the witnesses before we get into formal questioning.

SWEARING OF WITNESSES

Wayne Loveys

Robert Olivero

Sheila Devine

George Fiander

James Byrne

MR. CHAIRMAN: Perhaps we will start off a little

differently this morning. I will ask the vice-chair, Mr. Penney, if he would

like to start opening questions.

MR. PENNEY: Thank you, Mr. Chairman. I presume all

witnesses have the same documentation with them that we've been given. I would

ask Mr. Olivero if he would be so kind as to turn to page 5. I refer him to the

Commission's report that mentions: the Commission concurs with the need for a

comprehensive, planned approach to delivery of human resource programs. It says:

consequently the Commission has initiated the following. The Commission

initiated a comprehensive review of all recruitment and selection policies, and

a review has been ongoing since that time. It is scheduled to be completed by

March 31 1994.

My question is pretty simple. Has this been done? Are

we on target with that?

MR. OLIVERO: I think, Mr. Vice-Chair, standing to

be corrected, we are okay for the first three items. The fourth is not fully

developed to the best of my knowledge from the briefings I've received. Of

course we will continue for some time to do the last one.

MR. PENNEY: When you say the fourth one, you are

talking about -

MR. OLIVERO: The information systems.

MR. PENNEY: Yes, okay.

The bottom of the page. Where it is suggested

undertaking a full review of its role, function and legal authorities,

particularly in relation to the human resource function of the departments and

agencies. Has this been completed?

MR. OLIVERO: No, it has been initiated.

MR. PENNEY: At what stage are we?

MR. OLIVERO: At this particular stage in the game,

subject to some advice from my colleagues, we are looking at the whole range of

human resource functions. We are considering the roles performed in each area by

the Treasury Board Secretariat and the powers of the Treasury Board, and those

in relationship to ourselves, particularly with a view to the appropriate

allocation of the function and removal of duplication.

MR. PENNEY: Okay, again I would ask you to turn to

page 7. The Auditor General has had no hesitation in suggesting that there has

been some conflict between the public service collective agreements and the Act.

I refer you to page 7, subsection (b): when the Commission ranks candidates they

are listed in order of merit on the Selection Referral Certificate. The

conclusion is, based on this document, a deputy minister or chief executive

officer cannot determine whether the candidates can be evaluated as being

"relatively equal."

If you would now turn to page 41, which is the legal

opinion, on the top of the page, the very first paragraph, halfway down through

it, it says: second rank and third rank candidates can only be considered, it

seems to me, where the first or second ranked candidate, as the case may be,

declines the appointment. Merely being one of three recommended candidates does

not make the second or third candidate "relatively equal" for the first choice.

I believe this, in fact, is the conflict that is being referred to and I would

ask you, please to elaborate and give us some idea of what your feeling is on

this. If your assessment is different from that of the Auditor General, would

you please say so.

MR. OLIVERO: Mr. Vice-Chair, I have given some

considerable thought to this question since it was raised on my return. It was

not something which was originally in the purview of the Commission. I have

personal views, which I will express in part and of course I will also give you

the official position of the Commission as developed by the commissioners.

In the first instance the requirement for the

Commission is to ensure that the merit principle is applied. That means that the

best qualified and suitable person for the post is selected and appointed. Given

that circumstance the various processes of the Commission lead us to that

decision and recommendation to the department where the deputy head has the

opportunity to make the final selection from amongst one or more candidates.

What I understand has happened is that within the

collective bargaining process - I am sure simply for reasons of the traditional

demands of unions for seniority to have paramountcy - that seniority has been

pressed upon government to be considered as a paramount consideration in

selection and appointment. Now that is done under the collective bargaining

process of the Province, between the Treasury Board, its staff and the

representatives of the various unions.

The Public Service Commission has no part to play in

that process. Decisions have to be made within that process to give this

particular aspect of a personnel transaction greater or lesser weight, and that

being then applied to the Commission to implement does not mean that the

Commission must do it. The Commission has its own power and its own requirements

under the act.

I'm saying at this point personally, in my first

assessment, and I've expressed this to the Commission, I agree completely with

the view of the Auditor General that the legislation takes precedence. It is

generally presented also, in the opinion which has been given there, and again

I'm speaking personally, that legislation in effect can't be made through

collective bargaining processes. Not being a lawyer, but nonetheless having had

well over thirty years' experience in a variety of jurisdictions, it seems to me

quite clear that legislation has precedence over agreements of a contractual

nature, and that should this go to a challenge of the courts, as has been

mentioned by the legal opinion, that this view will prevail.

Putting that aside, that being my personal assessment

of the situation, the Commission's view is that in having to deal with the

practical circumstance, particularly with the fact that this has been decided

upon by government through its executive as employer, through Treasury Board,

the considerations of the deputy minister, the deputy head of a department to

whom we make the recommendation, has to take that into account. It is a

requirement that has been placed upon the deputy head by the executive of

government. In so doing you run into a contradiction and perhaps in some cases a

conflict where the assessment or - I'm choosing my words carefully, because you

can't measure it - but really it is a measurement of the individual, as compared

to the others who may have been proposed, is very similar.

For that reason - I will let the commissioners speak

for themselves through Sheila Devine - there has been some accommodation of the

requirement established by the collective bargaining agreement on the part of

the Public Service Commission. Sheila?

MS. DEVINE: I would agree entirely that obviously

the Public Service Commission act would supersede any clause in the collective

agreement. Therefore when faced with the issue about potential conflict between

that clause in the collective agreement and the legislation, we looked at the

particular wording of the clause which relates to relative equality and the

impact that would have on merit.

The Commission process is not affected at all by the

collective bargaining process of any agreements. It is in accordance with merit

and so that is maintained. The Commission however doesn't have the power of

appointment. As Mr. Olivero has said, that prerogative rests with the deputy

ministers. It is written into the legislation the Commission does not have the

latitude to recommend just the best qualified. It is required to recommend all

qualified candidates up to three for positions so there is no discretion there,

deputies do have the power to select. That being the case and looking at the

clause of the collective agreement which says, where the candidates are

"relatively equal" the deputy is required to look at, and to apply seniority.

We looked at that particular clause. We looked at,

obviously, the legal agreement we were given. We looked at past practice of the

Commission which had been to recognize the prerogative of deputies to make a

final selection from amongst the three, and as well set other legal opinions and

views with respect to the issue, and certainly there were varied legal opinions

around us. I guess my basic answer would be that obviously, I think, the

paramount intent of the legislation is for all appointments to be made in

accordance with merit, and that would imply that seniority or relative

experience would only be factored in when other considerations have been made.

MR. CHAIRMAN: Mr. Penney.

MR. PENNEY: Thank you, very much.

Mr. Chairman, just one final question and I direct it

to Ms Marshall. Having heard the replies to my question from Chairman Olivero

and Commissioner Devine I would ask the Auditor General if she would comment?

MS. MARSHALL: Well, basically the Commission

agreed with the comments I made and we went one step further then, the

Commission acknowledged what we had said and agreed with it and we went on to

the departments. What we found was that the departments get the listing of

candidates in order of merit, one, two, three, and they are required to consider

seniority, where the people being recommended are considered relatively equal

and there is no definition for relatively equal, so basically all the deputy

minister was getting was a piece of paper with three names on it and they had to

decide whether anybody there was relatively equal. What we found was that

deputies were picking somebody other than number one without adequate

information and as you go from department to department each department was

doing it differently. Really, there is no longer one recruitment process in the

public service. You are getting a variety as you move from department to

department.

MR. PENNEY: You are saying the deputy ministers

were picking candidates other than number one. In your opinion and having done

your assessment, based on what criteria were they making selections?

MS. MARSHALL: It was based on seniority. Some of

them were making it based on seniority. They were not consistent. Some of the

deputies, when they got the three candidates, whoever was senior would get the

job.

MR. PENNEY: There was no consistency between

departments. Is that what you are saying?

MS. MARSHALL: That is what I am saying, and I

think the Public Service Commission may have had some experience in that area

and may wish to make a comment on that also.

MR. PENNEY: I recognize that Ms Devine has

indicated that she would like to reply.

MR. CHAIRMAN: Ms Devine.

MS. DEVINE: I wanted, I guess, to elaborate. Ms.

Marshall is absolutely correct, at the point the report was done the Commission

was in fact providing three names in accordance with merit, so deputies

basically were given three names with the intent from the Commission's point of

view that the number one candidate would be selected. As a result of this audit

process and the Commission's own policy review, we did institute a process of

providing deputy ministers with a

summary of information related to the

qualifications, and, I guess, an elaboration of the ranking by the Commission.

That has since been provided to deputy ministers with

the intent of obviously giving deputies information as to why number one was

selected as the most qualified candidate, and certainly of the Commission's

belief that number one was the most meritorious and that was given with the

specific intent of ensuring that deputies, if they were required through

collective agreements to look at seniority, that they were doing that knowing

the qualifications, knowing the outcome of the Commission process and so on, and

certainly we have found that with that information, deputies certainly are able

to look at the qualifications, look at the Commission process, and from our

view, should determine that number one is indeed the qualified candidate.

If we feel candidates are relatively equal, we will

indicate that on the information that we provide and certainly, there is no

definition of relatively equal, it doesn't happen often but there are certainly

occasions where the candidates are quite close in terms of ability and we will

indicate that to a deputy.

MR. PENNEY: In the twelve or fourteen months since

I have been a member of this Committee, this is the first time that I have

detected that what we have here or at least what we can make out of this, is a

debate between the witnesses and the Auditor General, and I see that the Auditor

General has indicated, or at least that is my

interpretation of it, that she

would like to comment on what you just said.

MR. CHAIRMAN: Ms. Marshall.

MS. MARSHALL: Since we have conducted the audit,

the Public Service Commission now, in addition to providing the three most

meritorious candidates, is providing additional information so the deputy

minister can determine whether the candidates are relatively equal. The concern

that I have is that even though this additional information is being provided, I

still don't think that there is a standard recruitment process in government. My

feelings are that, departments are still doing it differently, depending on the

department that is doing the recruiting.

MR. CHAIRMAN: Ms. Devine.

MS. DEVINE: Certainly I would agree, and I

understand that there will be some discussions with Treasury Board Secretariat

with respect to the process in departments, we are doing a secondary evaluation.

I would agree that there is inconsistency with how that clause in the collective

agreement is applied, and certainly we would share the concerns of the Auditor

General with respect to that impact. I am not disagreeing, you know with that

comment. I would indicate though that the instances where the number one ranked

candidate is not recommended, that statistic is still very small and certainly

from the Commission's point of view that is still a concern, but the number of

occasions when the number one candidate is not appointed for reasons other than

number one declined, for example, are still very small. We monitor them. What we

will do is - on every occasion when a deputy doesn't appoint the first

recommended candidate and where the reason isn't provided to the Commission, we

will go back to the deputy and ask for the rationale for that appointment.

MR. PENNEY: When you say the number is very small,

what percentage are we talking about? Give me some idea. Are we talking about

less than half, are we talking about 10 per cent, 1 per cent?

MR. FIANDER: Over 90 per cent.

MR. CHAIRMAN: Ninety per cent?

MR. FIANDER: In over 90 per cent of the cases the

number one candidate is selected.

MR. PENNEY: Okay, so it is less than 10 per cent

of the time that procedure isn't followed. Thank you very much. Thank you, Mr.

Chairman, that is all for now.

MR. CHAIRMAN: Before I move on to others I just

want to follow on with this line of questioning here. Isn't it a requirement

that if the deputy selects other than a number one ranked candidate that they

require Cabinet approval of that?

MR. FIANDER: That is not in the Public Service

Commission act. There was some rule made years ago by the former government that

if the candidate other than number one was selected there had to be reasons

given. But I don't think that is a requirement of the Public Service Commission

act.

MR. CHAIRMAN: Are you saying that is not followed

today? Because that certainly was the case when I was in Cabinet, that is why

(inaudible).

MR. FIANDER: Yes, but it isn't followed today.

MR. CHAIRMAN: We could always select either one of

the three, but that had to be referred to Cabinet for approval. The deputy

didn't have the right to do that.

MR. FIANDER: No.

MR. CHAIRMAN: So that's not being followed today?

MR. FIANDER: No, it's not.

MR. CHAIRMAN: I see. That leaves it open then to

any kind of justification, I suppose. The deputy can choose whoever he or she

may wish to choose. I think Ms. Devine you just told us that you get the

rationale in every case, they come back and justify it to the Commission?

MS. DEVINE: Normally on the form that is submitted

to the deputy, the deputy comes back, indicates who is appointed, and will

normally indicate if it is other than number one. For example, number one may

have declined, may have taken another position or whatever.

MR. CHAIRMAN: Fine.

MS. DEVINE: If that reason is not provided then

the vice-chair of the Commission will make a contact with the deputy minister to

determine the reason. You are absolutely correct, it may not be seniority. It

may be for reasons other than seniority.

MR. CHAIRMAN: What sorts of reasons might you see?

MS. DEVINE: It could be a judgement by the deputy

minister -

MR. CHAIRMAN: Exactly.

MS. DEVINE: - that in his or her view there were

compelling organizational reasons as to why (inaudible) selected.

MR. CHAIRMAN: Isn't that clearly circumventing the

act, the purpose for which we have a Public Service Commission, which is to get

an impartial professional assessment of the candidates and select the most

qualified candidate? If we then, after having gone through that process with a

Public Service Commission and professional people who are trained in assessing

these matters, if we then allow a deputy who doesn't have the same

qualifications to choose without good rationale.... Now, I've always defended

the right - sometimes a person may be most qualified, but if that deputy feels

that person won't fit in to this department because of personality conflicts or

something else, I think that is almost impossible for the Commission to quantify

in its report. I don't have a problem with a deputy saying this is a great

person but this is the ex-wife of my assistant deputy and this is not going to

work. Then that to me would be reasonable justification. Unfortunate for that

person, and perhaps the human rights might have something to say about that, but

there is a rationale for that type of thing. Maybe I did not choose a good

example but would you care to respond to that, Ms. Devine?

MS. DEVINE: The act certainly provides for

deputies to select from the recommendation of the Commission and the Commission

recommendation is made one, two, three, most meritorious and so on. For some

reason that power of selection is in our legislation for deputies to select,

presumably under the general mandate of selecting the most meritorious.

Certainly I'm familiar that in the previous government there was an

understanding, I think maybe a written directive to deputies, that if they did

select other than number one, the most meritorious, there had to be Cabinet

approval. At the current time there is no such requirement, that I am aware of

but the commission itself - because of its concern with respect to commission

process and merit - does initiate the contact with the deputy to ascertain the

reasons and to determine - certainly if in our view merit is being tarnished or

ignored in this process, to have some discussion with the deputy of the impact

of that on our process and on the legislation.

MR. CHAIRMAN: Mr. Olivero.

MR. OLIVERO: Mr. Chairman, I think I can answer

your question as to the original intent of the process being one of

recommendation rather than one of direction. That was part of the checks and

balances which were provided at the time of the legislation being drafted, to

ensure that the deputy head was not put into a position where they had the

responsibility for the conduct of their operations but had no authority to make

selection of their own senior staff, that was particularly the reason.

So a small amount of flexibility was provided to

ensure that first of all, the process was based on the merit principle, that

there was equality in the delivery of it but that then at the final stage, as

you said, matters related to their particular organizational requirements,

individual chemistry, as relationships between a deputy and the senior staff and

factors related to that, would be applied by the deputy rather than by the

Commission. So we were not in that role of an executive public service

commission which has, or at that time, had been the experience in a number of

jurisdictions and had not worked because the deputies were not able to manage

their own affairs effectively and simply blamed the Commission, where those

jurisdictions had a Commission, because they provided the staff and mandated

they accept them.

MR. CHAIRMAN: Yes, I was going to ask Ms. Marshall

actually, if she wanted to respond to that. Obviously you will respond by way of

interpreting the legislation only, not by judging the legislation or anything

else, so it is probably unfair to ask you that. Do you want to respond?

MS. MARSHALL: No, I was not with the public

service when the original legislation was enacted but I have worked with the

legislation since 1979 and this was sort of a break in the

interpretation of the

legislation.

MR. CHAIRMAN: Well, let me ask you this, Mr.

Olivero and Ms. Devine or whomever would like to respond, and I am getting into

areas that are difficult perhaps for you to answer, but I ask for fair judgement

on it. I believe there is a rationale for deputies to have some flexibility in

choosing their personnel for all the right reasons that you outlined so well;

but how does a deputy make that decision when the deputy does not have available

the points score, if you had a system of point score?

I don't know what system you use but say it is based

on 100 per cent, if you had three candidates, one scored 97 per cent and the

other two scored in the 60s, but you have listed your top three as you are

required to do, although if there are not three qualified candidates you

obviously don't have to; if you had three candidates that you feel are qualified

to fill it, but the number one person is head and shoulders above the rest, but

the deputy does not have that information, or did you just tell me that they can

have it? Would you clarify that for me again?

MS. MARSHALL: The Commission had had a practise of

simply sending the names. What we determined at that point was that it would be

very useful and beneficial for deputies and in fact made sense for deputy

ministers to have information with respect to the candidates they were about to

appoint, and that would include the specific scoring of the candidates, it would

include comments by the selection board, and if indeed, for example, the

selection board felt that the number one candidate was very much more qualified

in terms of the position, then that would be indicated on the documentation. So

they would get all the information on a confidential basis, including the

Commission's rationale and strong recommendations with respect to the

appointment process, and as I indicated, we felt that if there was relatively

little difference in terms of the candidates, that could be recognized on the

documentation as well.

MR. CHAIRMAN: So that has happened only since the

Auditor General has made this report?

MS. MARSHALL: Yes. Previously, the commission had

only provided the top three names.

MR. CHAIRMAN: Prior to that, if a deputy requested

that information, would it have been made available?

MS.MARSHALL: Yes, it would have been available.

MR. CHAIRMAN: It would have been. I thought it

would have been because it seems to me, I recall having on one or two occasions

asked for more information; tell me about these people, sort of thing. We had a

particularly sensitive appointment to make and I think I recall having seen some

detail, so it was available on request.

MS. MARSHALL: It was available on request but

certainly, it is very useful obviously for a deputy to have that information up

front, just by way of information, hopefully it won't impact on the actual

change in the appointment process.

MR. CHAIRMAN: Yes, so it is very clear that there

is no consistency at the moment. Mr. Fiander.

MR. FIANDER: There is a complete package now that

goes out with every recommendation detailing the people qualified, their scores

and the rationale used by the selection board in reaching decisions. So all of

that information is provided through to the chief executive officer.

MR. CHAIRMAN: Thank you very much. Let's try to

move on to - Mr. Langdon would you like to - Mr. Penney?

MR. PENNEY: Mr. Chairman, before Mr. Langdon asks

his question, it has been indicated to me by our recording technician that he is

having some problem with the volume from Ms. Marshall. So we request that you

speak into the microphone, lean forward into the microphone.

MR. CHAIRMAN: I might say I am having trouble

hearing. I don't have 100 per cent hearing and Jack cannot provide me with a -

can you - yes, would you get that from Jack upstairs for me please, a sound

system. That is what I was looking for. Mr. Baker has one that he wanders around

the House of Assembly with. I think that is a great benefit. So Jack will send

me down one that will help me tremendously but again, to all the witnesses and

members of the committee, please speak clearly into the microphones. Thank you.

Mr. Langdon.

MR. LANGDON: A couple of questions to follow up

primarily on the same line of questioning that we have had so far. When an

applicant submits his application to the Public Service Commission for a

position within government, how many people review the criteria that he has

presented? Is there a board, one, two, three? How do you come up with one, two,

three? Is it one person that does it? Is it two? Is it three? How do you arrive

at the meritorious person one, two and three?

MR. CHAIRMAN: Mr. Fiander.

MR. FIANDER: How do you mean? When an applicant

makes an application for a specific advertised competition?

MR. LANGDON: Yes, right.

MR. FIANDER: Well there is a board set up to first

of all screen the applicants against proper determining job criteria. Then there

is a process of screening, then of interviewing and of recommending the most

qualified people. So there is usually a board of two people, a representative

from the department, usually the supervisor of the position, and a

representative from the Public Service Commission.

MR. LANGDON: Okay, so for a person to arrive at

number one, number two or number three it has been recommended by at least three

people? Is that what you are saying?

MR. FIANDER: I'm sorry, I cannot hear you too

well.

MR. LANGDON: The person who would rate a number

one position of merit for, say the director of school curriculum within the

Department of Education, then three people would have made a selection that this

number one person, Mr. Fiander, would be most qualified?

MR. FIANDER: No, it is usually two. There are two

people on a board; a representative from the department, usually the supervisor

of the position being filled and a representative from the Public Service

Commission.

MR. LANGDON: Okay, after knowing that procedure

then, you are telling me, from going back to probably the '70s, '80s or even

into the '90s, the last two decades, that a person who was selected number one,

when his name was submitted to a particular department of government, there was

no criteria submitted to him only recently? There was just a name being gave and

no criteria as to why this person became number one?

MR. FIANDER: There were usually three names

submitted, up to three names.

MR. LANGDON: I understand that. You said that

earlier.

MR. FIANDER: But if the deputy minister wanted

additional information on that particular applicant, the number one applicant,

it was available upon request to the Public Service Commission. Also bear in

mind the fact that there was a representative of the deputy minister as part of

the selection process from the beginning to the end in the department, so that

person, like I said before, represented the department throughout the selection

process and had all the information available then.

MR. CHAIRMAN: Mr. Langdon.

MR. LANGDON: It appears to me that in the process,

and what I gathered from it first, and that is why I ask the question, that the

senior person within the department like the deputy, had no input whatsoever in

the selection up to the time that the person had been selected? Is that right?

MR. FIANDER: No, that is not so. The person in the

department, the departmental representative was involved in the selection

process all the way along, through the screening, through the interviewing, to

the final determination of the suitability of applicants.

MR. LANGDON: So he was one of the people that made

number one, two, and three?

MR. FIANDER: He was part of the process. He was

part of the board that determined the ranking of the candidates.

MR. LANGDON: So, therefore then, in a number of

instances, in a few number of instances, the deputy minister could have gone

against his own selection, being part of the committee, part of the process, and

selected somebody other than what two people of which he was a part recommended

to be number one?

MR. FIANDER: Conceivably, if I am hearing you

right, the deputy had a choice amongst three people to make the final

appointment. I think there is a certain prerogative built into the legislation

for that managerial discretion that Mr. Olivero referred to a minute ago.

MR. LANGDON: I was glad in a sense to hear that

one of your people said that 90 per cent of the time the number one person

recommended was the person selected, because if that were not the case, and if

it was in a large number of instances, I can see the Public Service becoming in

union terms a closed shop. If there was no opportunity for a person of merit to

be selected over seniority then in a number of instances, and I am glad that

there is a minority of cases, you would not necessarily have the best person to

fill the senior positions and that would worry me.

MR. FIANDER: But each person qualified is

recommended and only people on the recommended list, be it one, two, or three,

are qualified for appointment to the position. If people are not qualified, if

they do not meet the qualification requirements of the position, they are not

recommended.

MR. LANGDON: I know that, but there could very

well be, relatively speaking - that term relative has all kinds of connotations,

relatively equal. The third person might have scored thirty,

whereas number one

might have scored ninety-five, and if the third person was the person selected,

then what happens to the merits and qualifications of person number one? That's

my point.

MR. FIANDER: Well, there is a monitoring that Ms.

Devine just referred to that goes on continually, and when the number one is not

appointed there is a follow-up done with the department and they are requested

to provide the rationale as to why they didn't make a proper decision and select

number one.

MR. LANGDON: Okay. I think the question has been

asked before but I just wanted to, within my own mind - so you see then some

conflict between the way collective bargaining is being done between government

and its employees and the role of the Public Service Commission? Because really,

in a sense, the collective agreement is binding so to speak and has precedence

over the Public Service Commission. Ms. Devine?

MS. DEVINE: It certainly has been applied to the

actions of deputy ministers in how they make a selection. It has not infringed

on the commission process. Certainly when the recommendation leaves the

commission, the commission process has been followed and there it has been

maintained. The concern is, once it goes to the deputy for appointment, the

impact of other factors including seniority, but there could be other factors as

well that could impact on the appointment.

If I could just make a comment as well, for the

information of the members: Treasury Board Secretariat some time ago did appeal

to the courts with respect to some issues related to the application of the

collective agreement. There are currently, I understand, a couple of cases that

would go before the Supreme Court that would address the issue of the impact of

the collective bargaining, that clause of the collective agreement, on the

legislation. So the issue is likely to be addressed in the courts anyway and

possibly Treasury Board Secretariat, through collective bargaining, might want

to comment on that.

MR. CHAIRMAN: Mr. Olivero, you wanted to comment

here?

MR. OLIVERO: Mr. Chairman, thank you.

I just wanted to answer the member's question by

saying, yes.

MR. LANGDON: I will pass now and come back -

MR. CHAIRMAN: Before you leave that, Mr. Langdon,

there are a couple of things I just wanted to mention.

You mentioned, Ms. Devine - or I think Mr. Fiander -

the monitoring process of these exemptions. Are you satisfied that through that

monitoring process good decisions are being made in all cases?

MS. DEVINE: Some impact because clearly it is an

indication that the commission is concerned that its recommendations made

according to merit be maintained. I am certainly not fully satisfied with the

impact, because clearly when the commission makes a recommendation of the most

meritorious candidate, having gone through a lengthy expensive process of

selection, to have that process duplicated at the departmental level with the

potential for, certainly, a less than meritorious person appointed through that

process, yes, we have concerns.

MR. CHAIRMAN: So you have told us that something

less than 10 per cent of the appointments are confirmed or are overturned, or

other than number one is chosen. What percentage of that 10 per cent do you feel

may be justified because of these other factors that we've talked about? Which

are rational or which are, I guess, legitimate? Conversely, what percentage

would you think might be into the classification, where a person who was clearly

superior on the basis of merit was not given the appointment, and that the

rationale or the justification, in your view, did not warrant that decision?

MS. DEVINE: I guess in terms of giving statistics

it is very difficult to do that, but certainly there have been instances where

the commission has been concerned with respect to that process. I guess, for

clarification: when the clause in the collective agreement, for example, was

first implemented it had very little impact on the appointment process. What we

have seen is an erosion of the practice of looking more to seniority rather that

to merit and that is of concern. If deputies, for example, were to look at

commission information and make a determination that given the commission

recommendation it is very logical to recommend number one, that is fine.

Certainly we have seen increased pressure, possibly,

on deputy ministers to appoint according to seniority, increased arbitrations

related to the issue that are requiring deputies who have appointed number one

to go back and appoint the second candidate. So it is becoming increasingly

difficult for deputies to make an appointment in accordance with merit.

As I say, there are currently, I think, at least two

cases outstanding in the courts where deputies made selections of number one in

accordance with the commission or recommendation that was challenged through

arbitration and deputies were told basically to appoint the second or third

qualified candidate.

MR. CHAIRMAN: Challenged by arbitration by the

number two candidate one assumes, who felt that they were more qualified than

the number one?

MS. DEVINE: Yes.

MR. CHAIRMAN: And they were able to show to the

court that the decision and the recommendation of the commission was not -

MS. DEVINE: Arbitrations. There have been

increasing numbers of arbitrations, and successful arbitrations, based on

seniority.

MR. CHAIRMAN: So who is on this arbitration board?

MS. DEVINE: These would be individuals appointed

through the collective bargaining process.

MR. CHAIRMAN: I am sorry, it is not quite clear.

The arbitration board obviously is not part of the Public Service Commission.

There is an independent board of arbitration dealing with these appointments?

MS. DEVINE: Yes.

WITNESS: Established under the provisions of the

collective agreement. An employer representative and an employee representative

MR. CHAIRMAN: I see.

WITNESS: - who would arbitrate those kinds of

cases.

MR. CHAIRMAN: So obviously either the number one

candidate or number two candidate. If the number one candidate was not selected,

he or she could apply for arbitration, could grieve -

AN HON. MEMBER: Could appeal and go to

arbitration.

MR. CHAIRMAN: So the collective bargaining process

takes it out of the hands of the commission and the deputy again. Interesting!

One more quick one, then I will pass it back to you.

MR. LANGDON: Yes, that was my point and I am glad

Neil answered the question for me. I shouldn't have even said a word, but that's

my point. So the deputy minister and you people are on the same wave length, but

what is happening is, because of the contract, the way it is written and so on,

both of you are in a bind, so to speak.

MR. CHAIRMAN: To some degree, I would think. I

will let the commission answer it. Obviously there are cases when the deputy is

overruled by the arbitration process, but there are other cases where the deputy

overrules the commission, and should have the right to do that to some degree.

What I am trying to establish here is: Is this now being abused? I'm getting a

message here that this has increased tremendously over the past number of years.

I'm not tying it to change of government, at least not for the moment, maybe

later on I might. But over the years, since the legislation was passed, we've

now become more comfortable with going outside of the meritorial process and

using this discretionary power of deputy ministers.

Mr. Langdon says he's glad to see it's a minority

amount. Ten per cent seems to me to be a very high percentage overturned. It

would seem to me that 90 per cent of the appointments made are really quite

routine. When a Clerk I is a Clerk I, and this is judged to be the best Clerk I

of the 500 who have applied for that position, they would be quite routine. But

when you have 10 per cent overturned at the deputy minister level that seems to

me to be a very high percentage.

MR. LANGDON: Is it 10 per cent of the deputy

minister or 10 per cent of the collective agreement and the deputy minister?

MR. CHAIRMAN: Ten per cent of all appointments

being made, I understood.

MR. LANGDON: Yes, but you are looking at two

different things here, as I see it. I would be concerned if the deputy minister

overturned 10 per cent of it, but is the 10 per cent because of the collective

agreement and the deputy combined? How much is each one?

MR. CHAIRMAN: Thank you, Mr. Langdon. Ms. Devine,

would you like to try to answer that for us?

MS. DEVINE: I would say that recently most cases

we've seen where deputies have selected - just about all cases - where deputies

have selected other than number one, it has been because of the collective

agreement. Certainly, just to follow up on your comment, at the deputy level

there is strong commitment to merit. Deputies want the best qualified people to

work in their departments. I mean, it's to their advantage, it makes sense, it

prevents problems, and they don't want to be having ongoing discussions and

battles with the Commission.

Deputies, however, are clearly directly impacted by

the collective agreement and aren't anxious, I would say, to make a selection of

number one if they know it is going to be challenged in arbitration and it will

be overturned. Number three will be appointed -

MR. CHAIRMAN: Based on seniority it is challenged?

MS. DEVINE: Based on seniority, yes.

MR. CHAIRMAN: Okay.

MS. DEVINE: That has happened. I don't have the

statistics on the arbitrations but certainly in the past year or two there have

been a number. Deputies who have the number one recommended candidate, have

lost.

MR. CHAIRMAN: Interesting. Mr. Olivero.

MR. OLIVERO: Mr. Chairman, amongst the most

significant or major complaints that have been made to me by the deputy

ministers since my return has been this particular subject, in which they feel

that their hands are tied by the collective agreement. In those cases where

there is some commonality between the candidates and seniority raises its head

in that context, they feel bound by the collective agreement and have to proceed

in that manner. This is something they don't want to do.

Secondly, I think, as Ms. Devine has mentioned, the

arbitration cases which have been taken to the courts haven't yet had their

decisions brought down. The closest one in fact is not one of ours, it is one

with Human Rights, in which the collective agreement has prevailed over the

human rights legislation. That is going now to the Supreme Court after being

received at the higher court, a decision in our favour. I still really think

that the courts will find in our favour on this, that the collective agreements

will not prevail over the legislation.

MR. CHAIRMAN: Thank you, Mr. Olivero.

Ms. Marshall, obviously we have a bit of conflict here

between the act and the collective agreements, and this is what you have pointed

out. That legal opinion, I think, confirms the position that you have taken

here. The Commission seems to agree with that, that there is a conflict which is

creating problems for both the Commission and the deputies. As I understand it

now then, most of the decisions by the deputies are as a result of the

collective agreement, not because they decided that they wanted other than the

number one candidate. That is what you are telling us. Thank you very much.

Mr. Langdon, were you finished your line of

questioning?

MR. LANGDON: (Inaudible).

MR. CHAIRMAN: It being almost 10:45 a.m. I'm told

that coffee was available at 10:30 a.m. I know we started late, but we will

either take a coffee break now or have cold coffee, so perhaps we will break for

about ten minutes and try to stick to that. Since we were late starting we

should try to get back very shortly.

AN HON. MEMBER: (Inaudible).

MR. CHAIRMAN: It's in the Government Common Room

outside. We've been invited to the palaces of power, inside, this morning. These

are facilities that we've allowed them to use temporarily.

Recess

MR. CHAIRMAN: If we're all set, I will call the

meeting back to order.

First to move on to some questioning. Mr. Hewlett,

would you like to continue? You were finished, Mr. Langdon, I am assuming?

MR. LANGDON: Yes.

MR. CHAIRMAN: Mr. Hewlett.

MR. HEWLETT: Yes, thank you, Mr. Chairman.

Just a couple of points on the subject we were dealing

with before the break. There is a lot of talk about seniority and the way it

impacts on the selection process and so on. Am I to assume - and I guess I will

put this to the commission - am I to assume that the positions that we have been

talking about in general, that get filled, are these positions being filled by

internal competitions? If seniority, either directly or through an arbitration

action, is having an impact on the final selection, does that mean that we are

dealing with positions being filled internally by members of the civil service

who are already members of the union or part of a collective agreement?

MR. CHAIRMAN: Mr. Olivero.

MR. OLIVERO: Mr. Chairman, yes to the member's

question, except of course for those persons who have been separated from the

service who carry rights which would give them an opportunity to be re-employed

based upon seniority.

MR. HEWLETT: Let's do a hypothetical situation.

Suppose we have a position in the public service that comes open, for whatever I

suppose, and let's say it is posted internally and there are no takers. It goes

externally, a number of people apply and the commission does the screening and

interview process and comes up with individuals one, two and three, all of whom

are, for want of another word, civilians. Then am I to presume that the notion

of seniority, vis--vis unionism and so on, would not impact upon the

commission's recommendations in that regard?

MR. CHAIRMAN: Mr. Fiander.

MR. FIANDER: You're referring to a public

competition?

MR. HEWLETT: Yes.

MR. FIANDER: There will be no implications there

from the seniority rank.

MR. HEWLETT: So in that particular case, if we

have candidates one, two and three recommended by the commission - in the days

when I was in another incarnation and a political servant of the former

administration, I think there was a rule of thumb that I certainly became

familiar with, that the deputy minister of the department was required to

appoint number one unless he could provide some sort of valid reasoning why

number one shouldn't get the job. Is that the way it would be under those

circumstances, the way it would have been?

MR. FIANDER: That's the way it used to be, but not

any longer.

MR. HEWLETT: Okay; not any longer.

Supposing in that situation where there is no previous

union connection, therefore the seniority principle and the associated

arbitration doesn't apply, the deputy minister picks number two because number

two happens to be his cousin-in-law, or number two, upon the whispering of the

minister's executive assistant, is politically correct, and the deputy minister

so appoints number two, would that then initiate an inquiry from the Public

Service Commission, number two having been appointed?

MR. CHAIRMAN: Mr. Olivero? No? Who wishes to

answer?

MR. FIANDER: Could you just give us one moment,

Mr. Chairman?

MR. CHAIRMAN: Certainly.

Mr. Fiander.

MR. FIANDER: Yes, that is right. There is a deputy

minister prerogative, as we mentioned before, to select either one, two or

three, but if there is something that comes about as a result of a complaint

from one of the applicants not appointed, to point to what you just mentioned,

about nepotism or any number of reasons, then the commission can investigate

that and has the power under the legislation to convene and call a hearing.

There was one a few years ago if you recall, when there was an allegation made

and there was a hearing convened, witnesses were called and investigated.

MR. HEWLETT: Okay, thank you.

What I am getting at, I suppose, is the concept of

sanctions applying to the situation. Assuming the Deputy Minister appoints

number two for personal, political, or whatever reasons, and assuming number one

and number three make a formal complaint and there is an investigation, apart

from embarrassment and political considerations, etc., are there are sanctions

that can be applied against the Deputy Minister, the department or whatever, as

a result of such an investigation?

MR. FIANDER: I am not aware of any.

MS. DEVINE: If I could just comment?

MR. CHAIRMAN: Ms. Devine.

MS. DEVINE: Certainly, the commission is required

to report to the minister on any violations of the act and certainly if the

commissions feels there has been an infringement on commission process then that

will be reported to the minister.

WITNESS: Has that (inaudible)

MS. DEVINE: No, it has occurred.

There is also a

section in the act that relates to

attempts to influence the commission and within that provision there is a fine

that can be applied, a very small fine, but certainly the force of law could be

applied.

MR. HEWLETT: I guess the notion of sanction does

click with the notion of a fine. How would that be brought about? Would that be

at the discretion of the minister responsible for the Public Service Commission

or would some legal and/or court work have to occur to impose such a sanction?

MS. DEVINE: Certainly, the commission itself has

the power, and not only the power but the responsibility, to investigate any

perceived violations of its legislation. If they are found the commission is

required to report to the minister. I would need to refer, I guess, to the

legislation specifically to see what would happen. My understanding is that the

minister would then take action with respect to any potential court action or

any other action that would be taken. The commission's responsibility is to

report to the minister.

MR. LANGDON: Let me play the devil's advocate with

just one more concept. Supposing the executive assistant who whispers in the

deputy minister's ears, the executive assistant to the minister responsible for

the Public Service Commission, where does that leave you with regard to

reporting interference to the minister responsible for the Public Service

Commission?

MS. DEVINE: I would assume we would go to the

minister's supervisor. Certainly we would have an obligation to report.

MR. HEWLETT: Okay.

MS. DEVINE: It certainly wouldn't stop there. We

would consult with the Department of Justice or with an independent legal

advisor and ensure that the reporting is done. We are obligated to report a

violation.

MR. HEWLETT: That is it for me right now, Mr.

Chairman. Thank you.

MR. CHAIRMAN: Mr. Olivero, do you want to comment

on that?

MR. OLIVERO: I've had an opportunity to have a

quick look at our enabling legislation. As the commissioner mentioned, there is

a specific provision for the consideration of influence being applied to the

Commission, and also in terms of powers for the Commission to conduct

investigations.

On the former, even though there are small punishments

applied, if we take it to court under

summary conviction the act says presently

that a fine not exceeding $500 can be applied, and in default of payment

imprisonment for a term not exceeding thirty days. We are under the process

right now of reconsidering those levels of punishment.

On the other aspect of course, we can be empowered to

become an investigating body under The Public Enquiries Act, with all the powers

that that provides. The initiation of that is an interesting question. I've not

really ever thought of that. In the past I only recall two instances in which

the threat of the application of these powers brought things into order. On one

other occasion I recall that we couldn't get documents and again the threat of

subpoena, which is provided under these powers, was brought into play and we

didn't have to go to the contempt stage.

It is an interesting question that you've raised. The

commissioner has answered by saying that we would proceed through the minister.

As Chairman and Chief Executive Officer it is my understanding that I would have

the power to bring that to the attention of the prosecuting authorities.

MR. CHAIRMAN: So you are saying then that you

could go directly to the Director of Public Prosecutions?

MR. OLIVERO: Right.

MR. CHAIRMAN: Thank you. Mr. Whelan, would like to

carry on from there?

MR. WHELAN: Thank you, Mr. Chairman.

Getting away from the hints of whispers and one thing

and another for a while, I am beginning to feel like I am back in the days of

Catherine the Great in Russia, in the court of Catherine the Great, where there

were all kinds of secret scenarios of overthrows and coup d'tat and one thing

and another. So we will get away from that just for a short while anyway.

The Auditor General expressed some concern - I'm

referring to page four in the notes that I have here. On page four you have a

list of items which fall under your mandate, I believe. She expressed some

concern that some of these things weren't being chased, I suppose you could say,

aggressively enough. One of the things that stands out there I noticed is the

educational aspect of your mandate. I believe in response, you mentioned

something about the fact that the training of employees of the civil service was

been looked into with a view to becoming more pro-active, I believe is the word.

Could you elaborate to some extent on what exactly is

happening now with regard to training of personnel within the civil service, how

extensive a program that is, in what areas it is being carried out and just

generally elaborate on it?

MS. DEVINE: I think you have been provided with a

copy of the Strategic Business Plan developed through the Staff Development and

Training Division. Certainly, that highlights some of the areas for development

within the training area. The Public Service Commission has a long history of

providing core generic courses for public servants and there is a course

calendar, a number of ongoing courses that are offered not only in St. John's

but throughout the Province.

As part of the strategic plan, however, the division

with the Commission focused very much on trying to be more pro-active, more

current, in terms of meeting training needs and so on. Given the resources of

the Commission, the limited resources in terms of staffing, the emphasis has

really been placed on several key areas, one being trying to recruit and train

departmental people to offer Commission courses and go back in their departments

and assist the Commission in terms of its training function.

The director level management in the public service

has been targeted as a key group for accelerated kinds of training that will be

offered, and that is in the process of being developed. As well, the Commission

has endeavoured to focus on new and emerging needs such as public consultation,

some of the key management issues in terms of its curriculum. I think, as well,

what you have is a copy of the progress report that has been provided with

respect to movement in that area.

One direction that trend has taken as well is trying

to assist departments in terms of strategic planning, and has been very active;

for example, with the Auditor General's department and with other departments in

terms of assisting departments in terms of how they plan for the future. That

has been taken on as part of the training initiative. Bear in mind again that

within the training component you have a director and you have four people who

provide the training for several thousand public servants. Certainly it's an

important area and it's highlighted.

MR. CHAIRMAN: Mr. Whelan.

MR. WHELAN: As well, I was wondering if you could

probably comment on item (

g) there. They say you provide staff evaluation

advisory services. What role do you play in this particular area?

MS. DEVINE: The Commission some time ago was given

responsibility to implement a performance evaluation program within the public

service. That process - I'm not sure of the dates, but certainly it was several

years ago - was implemented, or was attempted to be implemented, within

departments, and basically that program operated for two or three years. In a

recent review conducted by the Commission what we determined is, in fact, that

that program is not ongoing in departments, it has lapsed. There are very few

departments which have good performance evaluation services.

Based on the study that was done last summer the

Commission, in accordance with this section, will be required to develop, in

conjunction with departments and with Treasury Board Secretariat, a good

performance management and evaluation system. We certainly agree that that is an

area of responsibility for the Commission and it is not an area that we've been

active in within the past number of years.

MR. CHAIRMAN: Mr. Olivero.

MR. OLIVERO: If I could add, for the member's

information, some past experience. First of all, we had attempted in the early

days to put in at the top level a senior executive evaluation program. With all

the best intentions in the world and with the best advice we could get, we

didn't succeed at the Commission to do that, so we didn't proceed to go to lower

levels.

Subsequently, as you've heard, attempts have been made

to comply with that particular provision, and these haven't succeeded. I think

it's fair to say, therefore, that it's one of the most difficult things to do in

the public sector environment, to conduct personal evaluations which are

effective and which provide an incentive and don't demoralize the staff, but at

the same time give information for providing incentives and other benefits to

the employees. It's something that is very, very hard to do.

MR. CHAIRMAN: Mr. Oldford, (inaudible).

MR. OLDFORD: Yes, thank you, Mr. Chairman. I have

a question on the process for internal applicants or for internal competitions.

The Auditor General states that in three of the ten files that she checked there

were three people who really didn't qualify to be considered in an internal

competition. I'm wondering if the Commission could tell us why people are

considered for internal competitions if they don't meet the requirements. I

understand that you have to be either a civil servant, somebody who has been

laid-off from the civil service or away from the civil service. I think you

retain a right to apply internally for a period of up to, I think it is two

years. Then being a former civil servant - that sort of interests me that you go

outside of those guidelines and I wonder why, in those cases, you did that?

MR. CHAIRMAN: Ms. Devine.

MS. DEVINE: Again, I would need to review the

files to see the specific circumstances where it appears that public applicants

were granted access to internal competitions. Certainly, the legislation

requires us to go internal as the method of operating before we go public, and

access to internal competitions is governed by the act and by the regulations

which do permit, for example, people on a callback status to be granted

admission to internal competitions.

Certainly what I would say is, if there were instances

where people who did not have that status, they were not indeed internal and

they did get into competitions, then there were flaws, there were errors in the

system. If that affected the outcome of the competition then it would indeed

nullify the competition.

If, for example, we found that the number one

recommended candidate did not have eligibility to be in that competition, then,

yes, it would nullify the competition, it would not be valid. Certainly that is

our finding in any of these instances. That is what we would do in those three

or any others that we would happen upon. The instances of that happening should

- it should never happen but if it does happen then it's a flaw in the system.

MR. OLDFORD: So there have been measures taken, I

assume, to correct that?

MS. DEVINE: Certainly, there is emphasis. Part of

the screening process for recruitment and selection is a determination by the

selection board that the people who have applied are indeed eligible to apply.

That is one of the criteria that is and has to be applied as part of the

process.

MR. CHAIRMAN: Before you leave that, Mr. Oldford,

if I might just interrupt. I don't know if this is a normal sample. You know

this is only an sample of ten out of thousands of applications. Three out of ten

is 30 per cent. That is a pretty high percentage, where the Auditor General has

indicated that there was something in error there. Is that indicative - did you

just happen to hit on three that were a problem or did normal statistical rules

apply? This sounds to me like a very serious problem here, that a lot of people

are applying externally who are not qualified to do so. Ms. Devine, would you

like to respond to that or Ms. Marshall?

MS. MARSHALL: Mr. Loveys can give you some details

on the sample.

MR. CHAIRMAN: Mr. who?

MS. MARSHALL: Mr. Loveys can give details.

MR. CHAIRMAN: Mr. Loveys, please.

MR. LOVEYS: Mr. Chairman, we reviewed a log that

was maintained on the Public Service Commission in the recruitment and selection

division. There were 331 up to February of 1993 which is when our review

commenced, 331 applications for requests for a job competition. Of those, there

were 213 competitions that actually commenced and went through the whole

process. So we evaluated the whole rationale for it and came up with the sample

of ten out of 213 which is around 5 per cent, and randomly selected those ten.

MR. CHAIRMAN: And out of those ten you had 30 per

cent -

MR. LOVEYS: Basically.

MR. CHAIRMAN: - that had a problem. So if that is

a good random sample we can assume out of 230 there were twenty-three problems.

No, there are sixty-nine problems.

Ms. Devine, would you like to respond to that?

MS. DEVINE: Certainly all of the areas of the

Auditor General's report, including comments such as that, have caused us to

continue our policy review process reinforcing the need to screen, not only in

terms of the qualifications but in terms of people with eligibility to be in the

competition. One of the things we do, as well, is the director of recruitment

and selection or the assistant director are now required to audit all

competition files to ensure that - not to second guess the judgement of the

selection board but precisely for those reasons, to look at issues related to:

were the candidates eligible; were the criteria suitable; all of the factors

relating to the competition. That process has been in place now for a number of

months.

MR. CHAIRMAN: I raise this because this seems to

me to be very important. This particular criteria is very difficult to break

into the public service; in fact, it is almost a closed shop. With so many

public servants being laid off, there is normally an ample supply of people of

fill any positions that are available. It is very difficult to get in, so if we

get people who are being given interviews who are being put into the process

from outside, it seems to be incredibly unfair to the people out there.

You are confident now that this has been dealt with by

this new process?

MS. MARSHALL: Certainly we have put reasonable

mechanisms in place to ensure that this does not happen. I guess nobody can give

an absolute guarantee that there will never be a mistake, but certainly there is

the reinforcement through policy, and as well there is the additional audit that

we do ourselves for this kind of criteria.

MR. CHAIRMAN: While we are on this, before I go

back to Mr. Oldford, let me ask you a totally unfair question. Does this

particular provision provide you with any concern that there might be more

capable candidates outside the public service who can fill that position, but

who are not even being given an opportunity to apply because there are qualified

- maybe not as qualified and not as capable, but qualified - candidates from

within the public service who are given this preference? Is that a major concern

for the commission?

MS. MARSHALL: I very much agree with the mandate

of the legislation, which is to recognize that the people who are internal

candidates be given additional opportunity for promotion and so on. I guess for

any of us, when you look around, I am sure there are 1,000 people who could do

my job better were it to go to public competition, or many others. I think the

legislation confers that benefit to people within the system, and I think that

is advantageous.

There is provision, I would say, within the

legislation, for us to go public where, in the public interest, it is good to

bring in new people, or the requirements are just those that cannot be met

within the public service.

MR. CHAIRMAN: Thank you.

I would like to point out that, as members of the

committee, there are many people who can do our job, but we go to open public

competition every four years.

MS. MARSHALL: That is true.

MR. CHAIRMAN: Mr. Olivero, you wanted to add

something before I go back to Mr. Oldford?

MR. OLIVERO: Mr. Chairman, I would like to

reinforce that position. I have never seen any pressing need to go outside the

ranks of the public service for the quality or level of candidates generally

required, and it has been seldom the case that that has been needed. To the best

of my recollection, and reinforced in our most recent briefings, it has only

occurred for very specialized types of posts. We have a very good public

service.

MR. CHAIRMAN: Thank you. Mr. Oldford, I apologize

for interrupting you.

MR. OLDFORD: Just a couple of other points. The

Auditor General also found that in some cases academic references weren't

checked in files, and also that in 1993-1994 there were forty-eight interviews

waived. If you combine the practice of not checking academic references with not

conducting interviews, I wonder if we get a true picture of who the most

suitable candidate is. I wonder if you could comment on those two points for us.

MR. OLIVERO: I will answer the member's first

question and perhaps pass it to my colleagues for the second part. The checking

not only of references but also credentials was a matter of very particular

concern to me when I first arrived, particularly because of the complaints which

had been presented to me by ministers and others that these processes were not

being properly applied. So I made special efforts to have them improved, not

only just to tighten up but also to polish the process so that we not only check

now all references but we also check credentials for all persons claiming

credentials from outside the Province, and that we also verify the professional

qualifications wherever necessary for persons within the Province. We've

tightened up on that considerably.

MR. CHAIRMAN: Mr. Fiander.

MR. FIANDER: With regard to the second part of

your question about the waiving of competitions, there could be a variety of

reasons to waive competitions. Sometimes for specialized positions in remote

areas of the Province there may be only one application, and if it is judged

that this person meets the qualification requirements of the position, and good

references are conducted, then there would be no need to travel a person say

from Labrador City to St. John's for an interview, if there is only one

applicant. There are cases that do arise like that where you waive the

competition or waive the interview.

MR. OLDFORD: The reason for my question is

obviously I've been a former civil servant who had quite a difficult time trying

to break into the civil service back in the 1980s and I would just like to

review the process. Thank you very much.

MR. CHAIRMAN: Thank you, Mr. Oldford.

Another former civil servant, Mr. Tobin.

MR. TOBIN: I won't share with you what I said to

him but I told him how he got into the civil service.

Mr. Chairman, when you are, I guess, the last person

to ask questions in the first round most of the areas have been covered. I would

just like to deal somewhat with an issue that was raised earlier and that is the

process of hiring within the Public Service Commission, the numbers of people

who are referred and the various positions that are advertised. Does the Public

Service Commission have any input into jobs that are filled other than to -

temporary positions? Those temporary positions that are filled within various

departments, does the Public Service Commission have any input into that?

MR. FIANDER: Only when requested by the department

to do so. Temporary contractual employment is outside the ambit of the Public

Service Commission act.

MR. TOBIN: The people who are temporary: if they

are brought in through the Public Service Commission on a temporary basis,

outside the realms of the public service, what period do they have serve in

their temporary position in order to qualify to apply for a permanent position?

MR. FIANDER: They could be in that temporary

position for one day and they are eligible to compete internally.

MR. TOBIN: So it is a matter of bringing them in.

Would you have any idea how many people would be given

temporary status within the Public Service Commission?

MR. FIANDER: It would only be a guess on my part.

Maybe 10 per cent, 15 per cent. That is just a pure guess.

MR. TOBIN: Ten or fifteen per cent of the total

public service. Would the Auditor General have any idea how many people would be

involved?

MS. MARSHALL: No, we don't (inaudible).

MR. TOBIN: You wouldn't.

MR. FIANDER: Excuse me, if I may.

MR. CHAIRMAN: Mr. Fiander.

MR. FIANDER: Treasury Board would probably be able

to provide those numbers for you.

MR. TOBIN: Why would people be brought in on a

temporary basis as opposed to be given the opportunity to compete within the

Public Service Commission?

MR. FIANDER: There could be a variety of reasons.

If somebody left and you want to fill the position immediately instead of having

to wait six to eight weeks, maybe, to fill it through the Public Service

Commission. You would want to hire somebody temporary if the job is immediate

and there needs to be somebody there to do the job.

MR. TOBIN: Are there any controls to bringing

people in in temporary positions?

MR. FIANDER: Excuse me?

MR. TOBIN: Are there any controls established,

checks and balances?

MR. FIANDER: Not to my knowledge.

MR. TOBIN: So it is only a matter of a temporary

position becoming available and the government, the minister, or whoever, says:

We will fill that temporarily and then that person is brought in to a temporary

position, left there, and then can apply for the job after he has been in it for

a number of months. Would that be right?

MR. FIANDER: On the whole question of temporary,

it would only be conjecture on my part to answer your question, because I'm not

well enough acquainted with what goes on in the departments to give you an

answer.

MR. TOBIN: Yes, okay.

MR. CHAIRMAN: Mr. Olivero.

MR. OLIVERO: In answer to the member's question, I

would think it would be clear to everybody that the use of temporaries as a back

door into the public service would be an unacceptable process to the Commission.

I would like to get that on the record, to say that I don't agree with it.

MR. CHAIRMAN: Could you tell us though how often -

you don't know how often this takes place.

MR. OLIVERO: No. I think you should raise that

with Treasury Board Secretariat and get the details. But if I could just -

MR. CHAIRMAN: We will have that pleasure after

lunch, actually.

MR. OLIVERO: Yes, and I'm happy to see that. Could

I just give you some direction as to where I think we could go in terms of

closing that back door? One of the most obvious ones is to ensure that we don't

have the opportunity for someone to apply for a regular post in the public

service simply on the basis of one day's employment. We should at least move

that up to make them a relatively long term temporary, perhaps eleven months, a

judiciously chosen figure. Anybody who reaches eleven months as a temporary, I

would suggest, should be certified at that point as a qualified person within

the general standards of the public service and the Public Service Commissions'

processes and, if necessary, put through a selection process to make them a long

term temporary, to make them therefore eligible to apply for posts within the

public service; and we will close the gate in that manner.

That would not be a terribly hard thing to do because

what would really happen - and I have seen it in other jurisdictions - is that

as soon as the person starts to approach the eleven-month period they disappear

and they might come back again on the first of the twelfth month period, a month

later. You can close that gate by saying that they can't come back for thirty

days and things of that nature. You start to put a control on what they call

long-term temporaries. I really don't think that we should ignore the fact or

turn a blind eye to the fact that the temporary employment process is being used

as a means to circumvent the controls of the Public Service Commission.

MR. CHAIRMAN: Could I ask, Mr. Tobin, if I might

interrupt: Can you give us any kind of guestimate of how many long-term

temporaries are now in the public service?

MR. OLIVERO: Mr. Chairman, I don't know but I do

know it is a lot.

MR. CHAIRMAN: Could I suggest there are thousands?

MR. OLIVERO: I would take your advice on that.

MR. CHAIRMAN: It is a long-term problem.

Mr. Tobin.

MR. TOBIN: Mr. Chairman, I guess what Mr. Olivero

is saying is that it is a problem. It's a problem for the commission because

what you have are people who are circumventing the whole system. Those who are

in the civil service and in some cases people who were getting laid off there

within the civil service are not having the opportunity to apply for positions

in there because they are temporarily filled by people who are brought in there,

for whatever reasons, by whomever. As he said, it initially has to be addressed

with the Treasury Board people. Has it ever been raised between the Public

Service Commission and the minister responsible?

MS. DEVINE: It has not been raised with the

minister. I've raised it on behalf of the Commission with Treasury Board

Secretariat, particularly in relation to the impact when these people apply in

competitions, having sometimes been in these temporary positions for periods of

time which may be perceived as giving them some advantage over other candidates

in the public service. We've looked at that in terms of impact.

MR. TOBIN: When you talk about long-term, or

people who've served in temporary positions for a long period of time, would you

be talking years? Are there people who are in temporary positions now who've

been there for years, that have not gone into full-time positions, who are still

there in temporary but not full-time in there?

MS. DEVINE: Certainly there would be some

instances. We can only conjecture because we only become aware of that when we

run into it in terms of a competition. Certainly I can recall instances of four

and five years when people have been in temporary positions. Again, my

understanding is there are guidelines in place through Treasury Board

Secretariat limiting the time frame under which temporary people can be hired

and maintained within the public service, but certainly we see instances where

people have been maintained for significant periods of time. In some cases you

can understand the rationale for that. There may be what appears to be good

justification, but certainly we don't know the broad scope.

MR. TOBIN: So there are (inaudible) within Public

Service Commission that are being circumvented to some extent by temporary

positions?

MS. DEVINE: It certainly impacts on the process.

It impacts on particular competitions and it impacts on other public servants

who have come in through interviews and competitions and so on. They are in

competition with people who may have been on the job one day and have come in

through an entirely different route.

MR. CHAIRMAN: I think you will find, Mr. Tobin,

that many of these long-term temporary positions are there because government

policy over the years has been: We will not be creating any more permanent

positions. In order to get the job done and to get the staff that you want you

create temporary positions. Treasury Board will agree to that, but won't agree

to full-time positions.

MS. DEVINE: Yes.

MR. CHAIRMAN: So we have people who are in fact

full-time, who've been in the job for three and four and five years, sometimes

more, but because they are temporary aren't eligible for the same pension and

other benefits that permanent employees have. There is the real problem from

those employees' points of view. We are circumventing all kinds of things. You

wonder why we bothered to make it. Why do we have a Public Service Commission?

If we are going to recommend three names, that can be overruled, and if you

don't want to do that you can have a temporary person and put him in there as

long as you want until that person is so qualified, because they've been doing

the job for ten years, that they will automatically be number one in any

competition. So, we can play all kinds of games with these things if we want to.

This is a very important line of questioning here that

we are getting into. It comes to the very crux of the Commission and it's

mandate and it's legislation, as to whether or not the intent of the legislation

as approved by the House of Assembly is in fact being followed here.

Back home again. Mr. Penney, would you like to take it

from there?

MR. PENNEY: Thank you, Mr. Chairman.

I would like for a few minutes to go back to procedure

again. I direct your attention to page 12. There have already been a few

questions addressed to the Commission by Mr. Oldford and by Chairman Windsor.

The Auditor General selected ten files. We've just

been informed by Mr. Loveys that these ten files were selected at random. I

believe - I'm not certain - ten out of 230?

AN HON. MEMBER: Two hundred and thirteen.

MR. PENNEY: Two hundred and thirteen. There were

ten areas of concern identified and we've just talked about a couple of them,

but let's go through them one at a time. Some of these things raise some

concerns.

The first one mentioned there. "In nine files - that

is 90 per cent of them; that is an unbelievably high percentage - "applications

received after the advertised closing date were accepted." Is this standard

procedure?

MS. DEVINE: If I could comment?

MR. CHAIRMAN: Ms. Devine.

MS. DEVINE: One of the recent policies that has

been developed by the Commission is to reinforce, I guess, and standardize the

policy with respect to closing dates. What had been the practice at the

Commission for some time had been a process whereby applications received after

the closing date would be considered up until the time that screening had

commenced. That is the actual screening of the competitions.

Current policy is a reinforcement of the closing date,

basically stating that the closing date will be applied in all cases. I think a

lot of the latitude with respect to closing dates was a recognition that there

had been a serious problem with departments circulating the advertisements. In

most of these instances there would be complaints from the people applying that

they had not seen the advertisements in a timely fashion, that they had, in

fact, missed the closing date and had requested that their application be

considered late.

MR. PENNEY: So I understand, then, that all

applications are considered up to screening.

MS. DEVINE: The current policy now is, to be

accepted after closing date the selection board has to consider the rationale,

and if screening has not commenced, and if the selection board is convinced that

the rationale is legitimate for including that application, it can be included,

but it is not routinely included.

MR. PENNEY: I notice there that 30 per cent of

them, that is three out of the ten selected, were received in excess of a week

after the closing date. So basically the closing date means nothing.

MS. DEVINE: Certainly in relation to that comment

there was very broad application of that policy, yes; and again I think it was a

recognition of the difficulty in terms of distributing ads and so on. We have

attempted to reinforce that, certainly from the point of view of more remote

communities, and I think particularly of Labrador. There has traditionally been

a problem with these communities receiving the advertisements in a timely

fashion.

MR. PENNEY: Okay, let's go to the second area of

concern. I would first like to ask the Auditor General if she could explain to

me - it says, `calculation errors were detected on three forms'. What kind of

calculation errors?

MS. MARSHALL: The way the interviews are

conducted, as you interview each candidate there is a matrix, and you pick out

certain criteria and you rate them on individual criteria. So someone may get

rated a ten, somebody else may get rated a seven, someone else a five. So you

give them points for each type of criteria. Then, at the end of the interview,

you add them up and see what their score is, so they will have a total score, I

believe, out of 400?

AN HON. MEMBER: Five hundred.

MS. MARSHALL: A total score out of 500. The person

who gets the highest score generally is rated number one.

MR. PENNEY: My concern is that these errors

existed on 30 per cent of the forms. How significant were the errors themselves?

MS. MARSHALL: The errors that we picked up didn't

affect the final rating of the candidates, although, I mean, that is a

possibility.

MR. PENNEY: That is what I've some difficulty

with. Do we do an assessment on a number system? Out of 500, 30 per cent of the

application forms that you've selected have errors in the process, and yet those

errors didn't affect the recommendations. I have some difficulty with that. How

is that possible?

MS. DEVINE: Certainly it is a requirement for

anybody processing a competition to be very careful in terms of adding up the

scores. That will affect the outcome of the competition. Certainly the comments

of the Auditor General are absolutely correct. Those totals are very significant

to the outcome of the competition, because usually people were ranked in

accordance with those scores; so it is very important.

The fact that so many errors were found certainly we

consider significant. There was action taken within the division to ensure that

certainly staffing officers and other people chairing these boards were even

more careful with respect to their calculations. As well, again, as part of the

audit process at the Commission, one of the things that is checked by the

director or by the assistant director is the calculations. I think in practical

terms there is even more checking with respect to the top three candidates,

because these are the recommended candidates, but certainly all the scores are

checked. That is the responsibility of the chair of the selection board.

MR. PENNEY: My concern is the applicant who placed

number four.

MS. DEVINE: Yes.

MR. PENNEY: Not in the top three, but probably

should have been in the top three had it not been for this error. By the process

of extrapolation I would suggest to you that those kinds of calculation errors

exist in sixty-four out of the 213 applications. We are looking at 30 per cent.

Thirty per cent of 213 is sixty-three point nine. Approximately 60 per cent, 65

per cent, of those applications had calculation errors.

Of the ten that were selected, it's noted that none of

these errors affected a recommendation. What would you say the chances were that

the recommendations were affected by those errors in some of the other sixty-odd

forms?

MR. CHAIRMAN: Ms. Devine.

MS. DEVINE: I guess the comment I would make is in

terms of discussing this particular area, one of the things I was advised about

was the particular errors occurred from one staffing officer. Certainly while

there was action taken broadly to correct this situation and ensure that we were

more careful with respect to these numbers, there was particular attention paid

to that particular individual.

MR. CHAIRMAN: Was that person hired through the

Public Service Commission, I wonder?

MS. DEVINE: Yes.

WITNESS: Yes, I think so. Couldn't add.

MS. DEVINE: Not good at math, obviously, so....

MR. PENNEY: Let's continue, because I have some

concern with this.

The next one, of course, "... three files, individuals

were considered for..." - we've addressed that one.

The next one: "...six files, job descriptions were not

evidenced in the competition file." That is 60 per cent of the application

forms?

The next one, 20 per cent of them, "authorities for

the establishment of new positions were not evidenced as being reviewed by

Commission staff."

In 40 per cent, "the Job Analysis Worksheet was not

adequately completed."

"In all files - 100 per cent of them - "the

Competition Checklist form was either not present or was present but not

completed." I don't think it makes much difference whether it is present if it's

not completed. In 100 per cent of them, it just didn't happen.

"In all files, academic references were not evidenced

as being checked."

Would you like to comment on this generally? Because

this certainly seems like an area of concern. Once you comment on those

specifics, could you give me some idea what is being done to address them. What

is being done, or has been done, since the Auditor General's report to address

these concerns?

MS. DEVINE: Certainly the points that were raised

in the Auditor General's report were of concern to us, because they did raise

issues with respect to the accuracy of the information. One of the big issues

for us was in terms of reviewing the process. Well, there were only ten

competitions reviewed and some of those tended to come from one particular

staffing officer. Corrective action was taken there in terms of reinforcing with

that individual how the scoring would be done and so on.

MR. PENNEY: Could I interrupt for one second? Are

you suggesting that the selection was something other than random, the selection

of these ten?

MS. DEVINE: Oh, no, no. It was relatively small I

guess is my comment. We have attempted to address these areas through the

ongoing policy review. In some instances, for example around closing date, a

more formalized consistent policy has been written and applies throughout the

competition process, and that applies, for example, to referencing as well. So a

number of these policy areas have been formalized, have been tightened up and

have been reinforced as a part of that process. Again, that is a lot of the

rationale for the introduction of the post audit through the division to ensure

that with every competition there is a very thorough review and check of the

technicalities of the process to ensure that it is proper and appropriate.

MR. CHAIRMAN: Mr. Olivero.

MR. OLIVERO: Mr. Vice-Chair, let me assure you

that these things occurred before I arrived, in terms of tightening up. I can

also assure you that the materials that I've reviewed since I arrived at the

commission, first of all are far, far more rigorously assessed then were ever

done in my previous incarnation, and the certification now of the recommended

candidates and the audit process that goes with it, I would say, is pretty well

100 per cent. It's a very detailed thorough certification and audit which is

done to the point that you are looking at almost a legal document and package

going forward to the deputy minister, totally different to what we ever did in

the past.

It may well be - I am not saying it is but it may well

be - that the sample that was obtained on the materials also may not have been

representative because you can slant this stuff, not so much by the choice but

by the types of competitions. I wouldn't want to come up against my best

friends, the auditors. Also we are dealing with a very large volume of activity.

Let me just simply conclude by saying that I have

every evidence the assurance that you are being given is so.

MR. CHAIRMAN: Thank you, Mr. Olivero.

MR. PENNEY: I would like to ask the Auditor

General if she would care to comment, or have Mr. Loveys comment, on the

suggestion that maybe the ten selected were not representative.

MS. MARSHALL: We would have no knowledge of the

contents of the individual 213 files, but I am sure Mr. Loveys can elaborate on

how we selected the ten files. So, Wayne, perhaps you could...

MR. LOVEYS: At the outset of the examination we

determined that 5 per cent would be our sample, which was ten out of 213, and

the basis that we used to select individual files was every twentieth

competition on their log. That was our basis, and that did, in fact, select

various staffing officers. There weren't only one or two; there were various

staffing officers and various departments tested.

MR. PENNEY: Would you conclude, then, Ms.

Marshall, that that procedure was such that the sampling would have been

representative?

MS. MARSHALL: I don't think I can give you

assurances that the sampling would have been representative, but I would think

that the problems that were identified in the ten files would also be found in

the other files. I don't think that coincidentally we struck ten bad files.

MR. CHAIRMAN: There is no reason to think that you

did (inaudible).

MS. MARSHALL: Yes.

MR. CHAIRMAN: Mr. Fiander, you wanted to respond?

MR. FIANDER: I am of the view, of the 231

competitions, that ten is not a representative nor an indicative of the whole

package, of the whole 231. That is my own personal view of it.

MR. CHAIRMAN: I know we have polled some of this

Province, just a sample of 300 out of 500,000, that tells us whether or not we

are going to win an election, and we rely on that nineteen times out of twenty,

is it?

MR. PENNEY: Accurate to within 5 per cent,

nineteen times out of twenty, with figures a lot smaller than that.

MR. FIANDER: Well, I am not a statistician but it

is my view, after being in the business for twenty years down there in

recruitment, that ten competitions do not represent.

MR. CHAIRMAN: Wouldn't it be reasonable to think

that those ten are not representative. Ms. Devine?

MS. DEVINE: I guess when we saw the outcome of the

review by the Auditor General we chose not to debate the issue of representation

or whatever. Certainly, even if it is only ten competitions out of that many,

many of the errors that were detected created concerns for us. Certainly the

mathematical calculation has to be correct in every case, closing dates, the

policy has to be adhered to, and so on. Some of the criticisms - I would say the

fact that we hadn't on the file an actual listing of the TVA creating the

position - were not as significant as the issues, say, related to the

calculations. In all of these areas, and even the Checklist, if the Commission

does have a Checklist that is in the file that is supposed to be ticked off

saying: This document is supposed to be there and checked and so on, we would

entirely agree. If it is there it should be completed and finalized and so on.

What we have endeavoured to do is develop policies to

address these issues and reinforce with our staff the need to be very accurate

in terms of all of these issues. We've taken steps to address the issues, some

more so than the others because in some instances the concerns were more serious

than others.

MR. PENNEY: One final question, Mr. Chairman; a

completely different topic. If you would go to page 15, please.

This was mentioned by somebody here earlier this

morning and I'm not certain in what context. The Auditor General has raised a

concern that "...the Commission will waive an interview where the competition

process results in only one qualified applicant." I must be missing something

here. I would ask the Auditor General to explain to me, if we have only one

applicant and that applicant has been considered to be qualified, why do we need

an interview?

MS. MARSHALL: We still need to interview the

person to determine personal suitability. I think the other thing is under

section 11 of the regulations it requires that there be an interview with

appropriate interview questions.

MR. PENNEY: You used the word "suitability." What

is the difference between suitability and qualification? Because we've already

determined that this applicant is qualified.

MS. MARSHALL: Yes, but I still think though if you

are recruiting for a position and hire somebody sight unseen - it would be more

than appropriate to have the person in for an interview, even if that is the

only person applying for the position.

MR. FIANDER: There are cases, as I mentioned

previously, where there is only one qualified applicant applying for a given

job. In cases like that, will you rely heavily on reference checking to

determine the suitability of the applicant? If the person meets the academic

side of the job then we don't see need, in those rare cases, to call people in

for interviews. Indeed, in relation to some auditing positions within the

Auditor General's department, we don't necessarily do interviews, a file comes

forward or an auditor has served on different levels under certain programs and

is recommended without interview.

MR. PENNEY: So you have no quarrel with the

process? You have no quarrel with the (inaudible).

MR. FIANDER: Not in those cases, no.

MR. PENNEY: Could I direct your attention to page

35? If you will notice, there has been a dramatic increase in the figures where

the interview has been waived. In 1993 we had fourteen, in 1994 we had

forty-eight and already this year we have twenty-nine. Could you explain why the

dramatic increase?

MR. FIANDER: I have to find the page first.

MR. PENNEY: Thirty-five.

MR. FIANDER: Thirty-five?

MR. PENNEY: Thirty-five, yes.

MR. FIANDER: No, I can't give you the make-up of

the figures or a breakdown of the numbers of times, Mr. Chairman, but I can get

that information for you.

MR. PENNEY: Ms. Devine?

MS. DEVINE: If I could just comment. It is fairly

unusual for the commission to waive the interview because we tend to use

interviewing as a valid process of personal selection. When it is used it is, as

Mr. Fiander indicates, normally with a long standing public servant through whom

we can obtain lengthy references and so on and who happens to be the only

candidate who appears qualified in terms of qualifications and so on. So it is a

significant decision when the commission decides to waive the interview part of

the process. Certainly we feel that with our responsibility to determine

qualifications, the commission does have prerogative to use interviews but to

use other processes, including people making presentations, providing written

information and so on. I mean, the onus is on us to determine their suitability.

For example, with people whose positions are declared

redundant and who we are attempting to redeploy within the public service,

sometimes we will interview these people. Sometimes, given their work history,

their referencing, and the position to which they are being redeployed, we don't

see the need to put these people through a formal interview process and the

person is placed with the agreement of the deputy and with the Commission.

So, I would suspect that many of these statistics may

be people who in actual fact are moving into those kinds of positions. Certainly

we can get the breakdown for you.

MR. PENNEY: Would the forty-eight who are

identified here be part of the 213 that Mr. Loveys identified a few minutes ago?

Would they be part of the 213, or would they be outside of that?

MS. DEVINE: Yes, if they are considered as part of

the formal competition process they would have been included here.

MR. PENNEY: You mentioned that this was somewhat

rare, but I would suggest to you that forty-eight is 25 per cent.

MR. FIANDER: Mr. Chairman?

MR. CHAIRMAN: Ms. Marshall wanted to make a

comment first, and then I will get to Mr. Fiander.

MS. MARSHALL: I just want to make two comments.

One is, under the Public Service Commission regulations, under

section 11, it

says that the chairperson shall ensure - and they are talking about the

recruitment process - the formulation of appropriate interview questions. The

implication there is that there would be an interview conducted of people who

are being considered for a position.

The other thing that I wanted to clarify. Mr. Fiander

indicated the filling of positions within our office without going through the

interview process. The case he is talking about there is, in our offices people

complete their CA program or CGA program and as they complete various levels of

courses they are promoted to the next level, based on their academic

achievements, provided their work is suitable and acceptable. So it is not quite

the same thing. I wouldn't want to leave the impression that we were filling

positions without interviews.

MR. PENNEY: Yes. This is a promotion as opposed to

somebody applying for a new position.

MS. MARSHALL: That is correct, yes.

MR. CHAIRMAN: Mr. Fiander, you wanted to comment.

MR. FIANDER: Mr. Chairman, (inaudible). There are

no interviews in those particular cases that the Auditor General just referred

to. There is no interview per se.

MR. CHAIRMAN: No.

MS. MARSHALL: No. Because those people are already

employees within the office, yes.

MR. CHAIRMAN: Mr. Penney?

MR. PENNEY: No further questions, Mr. Chairman.

Thank you very much.

MR. CHAIRMAN: Mr. Hewlett, nothing else? Mr.

Langdon.

MR. LANGDON: One question. When was the last time

that the Public Service Commission was audited by the Auditor General? How long

ago? Or is this the first time?

MS. MARSHALL: I don't recall - well, in my

three-year term this is the first time that I've audited. Based on my knowledge

of the Auditor General's office, I don't recall the last time. Mr. Drover, you

might be able to comment.

MR. CHAIRMAN: Mr. Drover.

MR. DROVER: Mr. Chairman, on an annual basis the

financial statements or the cash statements or that part of the public accounts

used to be reviewed. The Auditor General's act, prior to Ms. Marshall's

appointment, was just brought in then, giving the Auditor General the

responsibility to perform additional reviews of many departments. So really the

Auditor General's act only goes back to October of 1991. Really, this is

probably the first time that that type of review has been conducted. Yes, I

would say, there is no question.

MR. CHAIRMAN: Ms. Marshall.

MS. MARSHALL: One more comment, Mr. Chairman.

Sometimes we tend to focus on large expenditure items, and of course the

Commission has a budget of about $3 million, which probably is immaterial

compared to other types of expenditures. But it does have a big impact on the

public service despite the small expenditures involved.

MR. LANGDON: Mr. Fiander wanted to respond to

that.

MR. CHAIRMAN: Mr. Fiander?

MR. LANGDON: I said, do you want to respond? You

had your hand up.

MR. FIANDER: No, I just wanted go back to the

number of competitions were (inaudible) are waived. We also waive competitions.

When we run a competition, say for a Clerk III this week, and next week there is

an identical request comes in, then we don't conduct a competition. We refer to

the results of the previously conducted competition. That could account for some

of the numbers.

MR. CHAIRMAN: Ms. Devine.

MS. DEVINE: That is what appears to make sense. If

we did a competition, found somebody qualified last week for Clerk II, do we

have to interview that person a week later? That is under the standard practice

of the Commission. We wouldn't do the interview again.

MR. PENNEY: If I may, that is if it is a week

apart. But if it is two weeks apart, or one month apart?

MR. FIANDER: Excuse me. It is a reasonable time

period.

MS. DEVINE: Reasonable, yes.

MR. PENNEY: How do you define a reasonable time?

MR. FIANDER: Within six months has been the rule

of thumb that we've used.

MS. DEVINE: Yes.

MR. PENNEY: Six months. Okay.

MR. CHAIRMAN: Thank you.

MR. LANGDON: So basically what I wanted to say, I

guess in conclusion, was because of the added authority being given to the

Auditor General and the act being revised, we were probably able to pick up some

of the things that have happened in the past and will probably make it better

for people who apply to the Public Service Commission in the future. So I guess

that the whole exercise in that it is probably a positive thing.

MR. CHAIRMAN: Mr. Whelan, do you have some

questions?

MR. WHELAN: I just wanted to mention one thing.

If, for example, there is a competition and you have one applicant, does that

one applicant automatically get the job or could it possibly go back to be

advertised again? Because what I am thinking about is this, you have the

opportunity there for possibly some unsavoury characters to get into the system,

possibly some people who are just not - in looking at instances back over the

last ten years whereby people feel that there should be more or maybe better

screening of individuals for certain positions, would this be a loophole whereby

some person or some people may be able to get in? Do they automatically have the

job? Could you clarify that, please?

MR. CHAIRMAN: Mr. Olivero.

MR. OLIVERO: Mr. Chairman, first the individual,

regardless whether there is one or twenty, to get down the eligibility list or

to be recommended in the top three, must qualify. Once they qualify then they

must be screened through the process of credentials and reference checks. I

assume you are here suggesting that because they are not being interviewed that

they would somehow be flawed, but the examples that were given by Mr. Fiander

would indicate that that is not really the case.

So I am not saying that you are not going to get bad

apples, of course you are going to get bad apples. I can give you a very quick

example: In my previous employment in New York City - and this is a fact - you

can buy certified general accountant qualifications for $4,000. You can have

somebody write your examination with your name on it in New York City and

afterwards have your photograph affixed to the certificate to demonstrate that

you are the person to whom that certificate applies, and ship that in to the

Public Service Commission of Newfoundland as a very bona fide qualification. We

would take that and in all good faith give it to Beth and say: Here is a

perfectly qualified candidate to work in your office. You are going to get bad

apples come through the system like that.

MR. WHELAN: You may have missed the point. I was

saying that if one person applied for a job, does it automatically mean that

that person gets the job? You say that you have three names gone up to the

deputy minister, but if there aren't three names, if there is only one person

who applies (inaudible) -

MR. OLIVERO: No, that person must be qualified and

must go through the process of being certified and credential checked. The

answer is no.

MR. WHELAN: Thank you.

MR. CHAIRMAN: Mr. Whelan, thank you. Mr. Oldford?

MR. OLDFORD: No further questions.

MR. CHAIRMAN: No additional questions? Mr. Tobin,

no additional questions?

Thank you very much.

If there are no additional questions from the members

of the Committee - I think we've had a very interesting and (inaudible)

discussion on the Commission this morning.

I think we are all looking forward to having Treasury

Board in this afternoon and dealing with some of the same topics from the

Treasury Board perspective. We might want to have cross-examination afterwards,

(inaudible).

Certainly some very important and very disturbing

matters have been raised that I think merit some very serious consideration by

the House of Assembly and by government, actually, and Treasury Board. We will

be dealing with Treasury Board on that this afternoon, and other issues, of

course.

I want to thank the witnesses for coming today and

thank you for your frankness and your answers. You've been very forthright in

giving us information that we've requested. We certainly accept without

reservation what you've told us.

Let me thank the Auditor General and her staff as

well, and the staff of the Committee, and the Committee.

We now stand adjourned, unless there are any closing

statements. I usually give an opportunity to have a - Mr. Olivero would like to

have a word. By all means.

MR. OLIVERO: Very briefly, Mr. Chairman.

I would also like to thank you for the opportunity,

for myself and my colleagues, to come to you in the context of the Auditor

General's report. We welcome the opportunity and we thank the members for their

very pertinent, probing and important questions. Thank you.

MR. CHAIRMAN: Thank you very much. Ms. Marshall,

no final comment from you?

Thank you very much. The meeting now stands adjourned.

We will resume this afternoon at 2:00 p.m. with the hearings relating to the

Treasury Board.

The meeting now stands adjourned.