Duty of Loyalty

Yesterday there was a Twitter-storm over this story about Library and Archives Canada’s new Code of Conduct for its employees. It stresses something called “Duty of Loyalty” to the employer, to the government and to elected officials.

“Duty of Loyalty” sounds Orwellian but it is in fact a term from common law. Personally I think it’s fair for an employer to expect that it’s  decisions will not be constantly and publicly undermined by its employees (unless those decisions put public safety at risk).

Ex. The employer puts the Windows 8 operating system on its computers. You hate Windows 8. Is it fair for you to launch a public campaign in an attempt to get the employer to conform to your wishes?

Sometimes an employer will adopt an approach and you think there’s a better way. That happens all the time. But rarely is it black and white. Different strategies have strengths and weaknesses, and decisions may have been made with information you do not have at hand or to address issues the employer may place higher priority on. It’s certainly right for you to bring your concerns to your employer, and any good employer will encourage this from its employees. But for individual employees to constantly refuse to accept decisions is a road to nowhere.

But what about this situation? Let’s highlight a few things from the code:

As public servants, our duty of loyalty to the Government of Canada and its elected officials extends beyond our workplace to our personal activities.

For example, in a blog with access limited to certain friends, personal opinions about a new departmental or Government of Canada program intended to be expressed to a limited audience can, through no fault of the public servant, become public and the author identified. The public servant could be subject to disciplinary measures, as the simple act of limiting access to the blog does not negate a public servant’s duty of loyalty to the elected government.

That certainly sounds chilling and my first reaction was that this certainly violated the Charter. However there was also this:

The duty of loyalty is not absolute. In assessing and making a determination regarding any particular public criticism, the duty of loyalty must be balanced with other interests, such as the public servant’s freedom of expression. The substance (i.e. the content of the criticism), context (i.e. the frequency of the criticism, the forum or medium in which it is made) and the form (i.e. the manner in which the criticism is expressed, e.g. restrained or vitriolic) are all relevant factors. Situations in which an exception is likely to be made to the duty of loyalty include the following: 1. The Government is engaged in illegal acts 2. Government policies jeopardize life, health or safety. 3. The public servant’s criticism has no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability

Mitigating? A bit, maybe, but when you consider the restrictions placed on the employee later in the code it seems, well, ridiculous. On the specifics of that and on future employment for LAC employees and on a “snitch-line” I’m going to outsource to Bibliocracy.

What do the courts say about this? The relevant case-law is here [hat-tip Matthew Lazin-Ryder]

All three cases, even Fraser v. Public Service Staff Relations Board, strike me as tipping this code of conduct over in to Charter-violating territory.

Why? It’s the intrusions into the personal sphere – the belief that even private comments could reach the public.

However, there’s a reason why I’ve bolded elected officials and elected government. That insertion moves this to a whole new level because now you’ve moved from trying to restrict criticism of corporate policy to restricting criticism of politicians and political parties.

Osborne v. Canada (Treasury Board) is clear on where the law stands on this. And this code seemingly runs right up against it, especially where it requires employees seek permission to engage in political activity. And how is political activity defined? Here. The relevant one:

Carrying on any activity in support of, within or in opposition to a political party

Does this mean you need to seek permission to say “Stephen Harper is an idiot” at a dinner party?

It certainly could be perceived that way.

But I’m not a lawyer. And I think it will take a court to resolve this.

Just another example of the restrictions being placed on us in the era of HarperGovtm

Disclosure: I am not a librarian, but I work for a municipal library.