23 April 2012
Should anything be read into the State Services Commissioner’s report on a bullying allegation in the Department of Building and Housing?  Is it fair to suggest there is an ambivalence about the role and application of the Standards of Integrity and Conduct for the State Services (the SSCer’s code of conduct)?
The findings include … “that the conduct of the Chief Executive in relation to the staff member:
  • was inappropriate in relation to the incident in which the Chief Executive swore at the staff member and unacceptable in relation to the incident in which the Chief Executive put her hands on the staff member’s head; and
  • breached the Department’s policies and Code of Conduct….”
The issue throughout was managed as a personal grievance. There is no indication that the SSCer treated the circumstances as a possible breach of his code although in the report conclusion he referred to the highest standards of conduct and behaviour expected of chief executives and that ” … the conduct of the Chief Executive in this matter fell below the standards expected of her…”
The report refers to the incident breaching the Department’s code of conduct. That code is not available on the Department’s website. (Interestingly many New Zealand organisations, in government and commercial sectors, seem reluctant to publish their codes. It is more common with international organisations, for example BP, National Bank, KPMG, Cathay Airways – although not AirNZ or Fonterra.)
A departmental code reflects the duty in section 56 of the State Sector Act that “….each chief executive shall ensure that all employees maintain proper standards of integrity, conduct, and concern for the public interest…” As a chief executive is not one of their own employees, there needs to be special inclusion of them, if the chief executive is to breach such a code.
A departmental code is a vehicle under section 57A of that Act for “…applying additional or detailed standards that are consistent with the standards applied to the agency…” by the SSCer through his code. It seems unlikely that a breach of a departmental code will not breach the overarching requirements of the SSCer’s code.
The DBH incident could be the sentinel case. It is, perhaps, a missed opportunity to explain the relationship between the codes, and when the SSCer will explore failures to comply with his code. SSC guidance is that “ …there is a relatively high threshold for the involvement of the Commissioner in individual matters of misconduct…”
The SSCer’s code would appear to be relevant to this matter. That code applies across the State Services. It applies to chief executives as part of their agency; the obligations are imposed by section 57A on “…an agency (including its employees)…”  The introductory explanation confirms that the code applies “… to everyone working for State Services organisations…”
The SSCer’s code is summarised in the transformational expression, in effect a mantra, that in the State Services “…we must be fair, impartial, responsible and trustworthy…”
This mantra is mirrored in the Cabinet Manual specification of the principles of public service, and the requirement that employees in the State sector must “…meet high standards of integrity and conduct in everything they do. In particular, employees must be fair, impartial, responsible, and trustworthy…”
From this cascade you can infer that where a State servant breaches an agency code, they are likely to have breached both the SSCer’s code and the Cabinet Manual directions.
So what does being fair mean? The SSCer’s code requires that We must treat everyone fairly and with respect. This is the first of the 18 standards – primus inter pares – the first among equals.
The SSCer’s guidance indicates that this relates to “the public we serve and the colleagues we work with. This requires being courteous and contributing to the smooth functioning of our workplaces by:
  • not discriminating against anyone, except as legally required to give effect to our organisation’s functions
  • protecting the privacy of people accessing services
  • not harassing, bullying or otherwise intimidating members of the public or colleagues
  • respecting the cultural background of members of the public and colleagues
  • having proper regard for the safety of others
  • avoiding behaviour that may endanger or cause distress to colleagues
  • not allowing workplace relationships to adversely affect our work performance
  • valuing equality and diversity by understanding our differences…”
The SSCer conducted surveys in 2007 and 2010 to measure the extent to which there was awareness of, and compliance with, his code. Abusive or intimidating behaviour towards other staff was the most frequently identified misconduct in both surveys, being observed in the previous 12 months by 38% of the 8238 survey respondents across the State Services in 2010.
Following the surveys, agencies were reminded of the importance of  the “Six Trust Elements” when considering misconduct.  One of the elements is the requirement that “Managers model the standards of integrity and conduct in their behaviour”.