The Public Services Commissioner has written to the Chairs and Chief Executives of the public service reminding them of their obligations to be impartial and that they and their entities are subject to the Code of Conduct for the public service.
This has arisen out of allegations of bias on the part of senior governance figures in the public service.
Rob Campbell, the former chair of Te Whatu Ora/Health NZ and the Environmental Protection Authority criticised the leader of the National Party and likened the National Party's Three Waters policy to a "thin disguise for the dog whistle on co-governance". He refused to accept that he had done anything wrong, even though he is meant to have apologised to the leader of the National Party and the Minister of Health.
Former Labour MP, Steve Maharey, in opinion pieces in the media, has made comments that could be read as politically partial. When the issue arose around Mr Campbell, Mr Maharey front footed the matter and raised it with the Public Service Commission and his Ministers. He offered his resignation as Chair of Pharmac, ACC and Education New Zealand.
Another former Labour MP, Ruth Dyson, is Deputy Chair of the Earthquake Commission and Fire and Emergency New Zealand and has also come under scrutiny for apparently partisan Twitter comments criticising Mr Luxon's speech at Waitangi and for displaying Labour Party connections.
Mr Campbell was removed from his roles by his respective Ministers. Mr Maharey has kept his roles. In a statement last week the Prime Minister said that the advice from the Public Service Commissioner was that Mr Maharey had breached the Code of Conduct, but his actions did not justify his removal from his roles.
The Prime Minister said the Commissioner has characterised Mr Maharey's actions as 'unwise', but at the 'lower end of the spectrum’. He said there was a "clear distinction" between Mr Maharey's breach and Mr Campbell's. "In Mr Maharey's case, he proactively acknowledged the error, has undertaken to stop writing the column and apologised".
When Ms Dyson was pulled into the affray and her defence appears to have been that she had not read the Code of Conduct. But she has now said that she will read the Code and she was rethinking her social media use.
The Prime Minister last week said he had confidence in Dyson "She's a very competent and able chairperson, board member, contributor". However, he expected her to have read the Code of Conduct.
Mr Luxon has said Ms Dyson would be gone under National. "I think, you know, when you see Ruth Dyson saying she signed a code of conduct that she didn't read, I just say to you it's not a great start to a governance career."
Campbell, Maharey and Dyson certainly are not employees in their governance roles but they are subject to the Code of Conduct; as are public servants who are generally employees.
In the employment law jurisdiction there is a perception that employers should treat like cases alike when dealing with disciplinary matters. However, a fairly recent decision of the Employment Court shows that treating "like for like" is not always the right outcome.
In Smith v Director General of MPI, Clive Smith and another employee (called Mr X) were involved in a physical altercation during a colleague's leaving function at a bar on Courtenay Place. MPI conducted a disciplinary investigation into the incident and found that both empDisparity of treatment - is it justified?loyees had engaged in serious misconduct. Mr X only received a warning while Mr Smith was dismissed.
Mr Smith subsequently alleged that there had been an unjustified disparity of treatment between himself and Mr X. He said that during the investigation he took agreed leave while Mr X continued to work; he was dismissed while Mr X was only issued with a warning; he referred to an earlier incident at a work-related social function where MPI had not investigated the incident and had not imposed a disciplinary sanction in respect of it; MPI failed to take disciplinary action in respect of other similar incidents.
The Employment Court held that while there had been a disparity of treatment in this case it could be adequately explained. This is because the investigation revealed that even though Mr X had engaged in the altercation with Mr Smith, Mr Smith was the protagonist and Mr X had acted in self-defence. In addition, the Court was of the opinion that MPI was not bound by its previously lenient treatment. Mr Smith could not reasonably expect that any subsequent behaviour would be ignored.
While there is a world of difference between the physical violence that Mr Smith was involved in and the social media commentary Campbell, Maharey and Dyson have engaged in, the Government has exercised its judgement in relation to the three governance leaders differently.
You can argue that the three senior and very experienced governance leaders have clearly engaged in some conduct that appears to have a political bias and is contrary to the Code of Conduct that they are tasked with upholding in their respective roles. Conversely, you can argue that they brought entirely different approaches to the issue when it was raised. It will be the court of public opinion and not the Employment Court that will decide whether the disparity of treatment was justified. Read more....