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.

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.

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-à-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'état 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.