Disclaimer: The following summary illustrates how the Merit Protection Commissioner has reviewed a particular case and should not be relied on as legal advice.
Key words: APS 5 employee—potential conflict of interest—acceptance of gift—failure to follow direction—upheld.
The agency found the applicant had breached the Code of Conduct as it determined that by failing to comply with a direction not to deal with a client and accepting a gift, the applicant created a potential conflict of interest with that client. These actions were found to have breached sections 13(1), 13(5), 13(7) and 13(11) of the Public Service Act 1999. The agency imposed sanctions of a reassignment of duties, a 2% fine and a reprimand.
The applicant worked in a part of an agency that accepted applications from members of the public who were able to appoint an agent to act on their behalf. One agent had become the subject of allegations of fraudulent behaviour. The applicant was contacted by this agent and met with the agent in a café. During the meeting the agent gave the applicant a gift. The applicant claimed that the gift had been taken to avoid creating a scene and had been returned. Subsequently, employees in the work area were told by the agency that all the agent's cases were to be handed over to one manager (the manager) and all inquiries by the agent were to be directed to that manager. The applicant was aware of this instruction.
The applicant was contacted by the agent's office and advised that they had not received any information on the progress of a number of old cases. The applicant accessed the relevant data base and then, as the manager was absent, the applicant sent an email to a supervisor and copied it to the manager. The email referred to receiving an enquiry, and raised some issues with the agency approach and the prospect of progressing applications.
The applicant asked the Merit Protection Commissioner to review both the finding of breach and the sanction decision. The applicant took the view that there was not a breach of the Code of Conduct and told this office that they had complied with all directions in relation to the agent and that they had been placed in a position of responsibility to make decisions, which they had then made.
Applicant's procedural concerns
The applicant noted a failure to be told of the allegations prior to being interviewed by the agency, which they believed was necessary in order to prepare for the discussion. The applicant also raised a concern that the transcript provided in the course of the investigation into the breach was not an accurate reflection of the discussion with the agency interviewer.
The transcript was an Auscript transcription of the digital audio recording of the interview with the applicant and this office believed that any such comments that were missing were likely to have been made before or after the formal interview. In making a decision, the agency delegate stated that they had considered the report which attached the evidence (including the transcript), as well as the applicant's response to the draft report. On the basis of the material, it was open to the delegate to agree or disagree with the conclusions reached and the recommendations. This office was satisfied that the delegate had the material required to reach a proper conclusion.
The applicant also raised concerns about adequate time given to prepare for the interview which, in line with agency policy, was conducted as almost the first step in considering the concerns raised about the applicant's conduct. The applicant was offered the opportunity at the beginning of the interview to contact a friend or relative or to arrange a support person for the interview. The applicant was advised that this could be done at any time during the conversation and that there was no requirement to say anything.
Whilst it was clear there was an element of concern and unease, the applicant did not consider a support person necessary and participated in the interview. The applicant was subsequently provided with full details of possible breaches, including the relevant material on which those breaches were based, and provided with the opportunity to comment on a draft report. Having regard to the totality of the matters dealt with above, the Merit Protection Commissioner concluded the applicant had been afforded procedural fairness.
Actions of the applicant
Whilst the circumstances are relevant, it appeared that the following conduct by the applicant was not in dispute:
- the meeting with the agent in a public place
- the taking of a package from the agent at that meeting
- receiving contact from the agent's office about a number of cases and accessing the database after the call with respect to two clients of the agent
- sending an email to an immediate supervisor after accessing the database.
The applicant also agreed in his discussion with this office that they had not informed management about the meeting with the agent or the taking of a package. With respect to the package, it was noted the applicant claimed, of initially rejecting the gift, but taking it to avoid creating an incident.
Receipt of gifts
The agency's guidelines on gifts stated that employees must try to refuse any offer or return the gift immediately and if they must accept a gift they needed to advise the gift-giver of the agency policy on receiving gifts. It appeared the applicant was aware of the obligations with respect to gifts. In the written response to the breach notice, the applicant detailed experiences concerning being offered gifts, including a formal request to keep one 'as per standard procedure'. Regardless of the applicant's intention to keep the gift or not, this office was satisfied that by taking it, and not informing the agent of the actions to be taken, the applicant had 'accepted' the gift even if the motivation had been to avoid an incident.
The direction given
The applicant said that by copying the manager into an email to an immediate supervisor after receiving the enquiry, the matter had been reported as required.
The determination report stated that staff were asked to direct all enquiries regarding clients of the agent to the manager. The applicant was told during the investigation that it was the investigator's understanding case officers were told to 'direct all enquiries, phone, email and mail directly to [the manager] and this was reinforced in the system with notes indicating that all matters were to be referred to [the manager]'. The applicant told the investigator that they probably werepart of a briefing with the other staff members in regards to the agent but did not recall that all case officers were asked to comply with the request.
In written responses to the investigator and this office, the applicant acknowledged awareness that information from the agent was to be reported to the manager. The applicant also believed that since the direction had been given, they had complied with the request that all enquiries were to be directed to the manager.
The direction was given verbally and there is no written material before this office confirming what was stated. However, there was consistent support for the main components of the direction.
In all the circumstances, this office was satisfied that it was more likely than not that an instruction was given to direct all enquiries from the agent to the manager. As such, the Merit Protection Commissioner was satisfied that the applicant's actions were inconsistent with that requirement.
The applicant informed this office that there was probably no need to access the database at all if contact was to be reported to the manager. The applicant went on to explain both an interest in the agent and the applicant's belief that it was unprofessional of the agency to have long-term active cases. The Merit Protection Commissioner believed that it was reasonable to infer from this that the actions of the applicant were motivated to some extent by personal views about aspects of the matter, irrespective of any instruction or direction.
The applicant was found to have breached s.13(1), s.13(5), s.13(7) and s.13(11) of the APS Code of Conduct.
Section 13(1) states 'An APS employee must behave honestly and with integrity in the course of APS employment'. Behaving honestly involves concepts such as truthfulness, sincerity and frankness. Integrity involves 'a soundness of moral principle and character'.
When asked why the meeting did not take place on agency premises, the applicant responded that the agent had refused a meeting at the office. The applicant said although it was preferred that these meetings were held at the office, there were no restrictions on where or when an employee could meet an agent.
However, the applicant acknowledged that he did not inform an immediate supervisor of the meeting as the applicant did not consider it necessary to ask permission but that 'after briefly considering telling [a] supervisor [I] decided not to because [I] thought [the supervisor] would deny [me] the opportunity to do so'.
Whatever might be concluded about the meeting being held in a public place, that the applicant thought about telling a supervisor about the meeting, but then decided not to because the applicant thought the supervisor would not permit the meeting, showed an awareness of the potential sensitivity of the meeting. In the opinion of the Merit Protection Commissioner, it was not necessary to consider further the actions of the applicant to be satisfied of a breach of s.13(1).
Section 13(5) states 'An APS employee must comply with any lawful and reasonable direction given by someone in the employee's agency who has the authority to give that direction'.
The Merit Protection Commissioner was satisfied that the direction to refer matters to the manager was both reasonable and lawful. As the applicant did not comply with that direction, the Merit Protection Commissioner was satisfied there was a breach of s.13(5) of the Act.
Section 13(7) states 'An APS employee must disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment'.
The agency determined that a potential conflict of interest arose through two sets of actions: first, through a meeting with the agent and the acceptance of a gift at that meeting, and secondly through failing to direct the enquiry from the agent's office and sending an email about that contact which raised issues with how the agency was handling the matter. The agency's guidelines stated that'If you have a real or apparent conflict of interest you must disclose it to your manager'. They further emphasise the importance of avoiding perceptions of conflicts of interest so that relationships and events are not misinterpreted noting:
'Even if you are confident of the integrity of your actions, you must always consider how your relationships and actions may appear to others'.
In the opinion of this office, by having what was in essence a secret meeting with the agent, by taking a gift and not divulging the circumstances at the time, and by then fielding an enquiry and raising issues with the agency on the basis of that enquiry, the applicant did create the perception of a conflict of interest. Indeed, the applicant acknowledged in hindsight that this was the case in an apology in the written response to the Code breach.
The Merit Protection Commissioner was satisfied that the applicant did not act appropriately to avoid a conflict of interest and as such was in breach of s.13(7).
Section 13(11) states 'An employee must at all times behave in a way that upholds the APS Values, and the integrity and good reputation of the APS'.
In the report the agency determined that the applicant failed to behave in a way that upheld the integrity and good reputation of the agency. Integrity here is different to integrity under s.13(1). While s.13(1) calls for an individual to behave with integrity, here an employee must behave in a way that upholds the integrity of the APS. This office was satisfied that a failure to uphold the agency's reputation and integrity would be a failure to uphold that of the APS. Damage does not need to have resulted; there is a positive obligation to behave in ways that upholds the relevant integrity and reputation. The Merit Protection Commissioner was satisfied that the behaviour of the applicant did breach s.13(11).
The need to behave at all times with integrity and avoid creating situations which could be seen as a conflict of interest, is an important component in maintaining the trust of the public in the actions of the APS. It appeared to this office that the applicant continued to believe that the actions under review were appropriate in the circumstances, though the applicant said they could be perceived to be a breach of the Code. The applicant's intent to adjust behaviour in the future was acknowledged, but in all the circumstances, in the opinion of the Merit Protection Commissioner the sanctions imposed of a reassignment of duties, a 2% fine and a reprimand were not inappropriate.
Public confidence in the integrity of the APS is vital to the operation of government. Confidence may be jeopardised if the public perceives a conflict of interest or questions the impartiality of public servants. The requirement of APS employee to take reasonable steps to avoid real or apparent conflicts of interest is a serious one. Employees are entitled to their own views but they are not entitled to advance those views when their actions are contrary to directions given by managers. Employees must also adhere to agency policies such as those covering the receipt of gifts which serve to protect public confidence in the APS.
Office of the Merit Protection Commissioner
 These elements of the Code are explained in the Outcome section of this summary.