Administrative Justice – what to look out for in merit-based appointments processes

PREFACE

Well, it is time for me to stop abusing the Prime Minister and give up the shtick of an invented conversation with him.  I hope, readers, that you did not find it too off-putting and that you were able to find the substance behind the no doubt lame rhetorical device

Today’s Topic

In my last post I promised to describe what was wrong with the sensible-sounding 2013 Social Security Tribunal merit-based appointments processes and the 1995/2002 IRB merit-based appointment processes and I will begin to address that subject today.  If one is designing a new model, it is important to be fully aware of what went wrong with the old.

The Standard, Merit-Based Appointments Process

As set out in my last post, the basic elements of both the failed IRB and the failed SST appointments processes were these – the standard elements for a typical merit-based appointments process:

  1. The development of a description of the qualifications required for the position;
  2. Public advertisements of the vacancies to be filled and the qualifications required;
  3. Initial screening out of Candidates whose resumés do not measure up to the specified qualifications;
  4. A written examination taken by Candidates who survived the initial screening;
  5. Examination answers graded on a pass/fail basis;
  6. Candidates who passed the examination interviewed by a designated selection committee;
  7. Candidates who interviewed successfully, are recommended by the committee to the appointing Minister as persons who are “qualified” to serve as members of the Tribunal; and
  8. The decision as to whom among the recommended candidates are to be actually appointed is made by a senior partisan – a Minister, Prime Minister, etc.

The Right Goals for an Adjudicative Tribunal Appointments Process

From a rule of law perspective, an adjudicative tribunal appointments process should be designed to optimize competence and to eliminate both the fact and the appearance of patronage or partisan appointments.

How these Goals are Subverted in a Standard Merit-Based Process – the Black Box in the Minister’s Office

A process structured in the foregoing manner has numerous places where the right goals can be subverted, and almost always are.

The most significant of these places is the office of the senior partisan where the ultimate decisions are made as to which of the candidates certified by the selection committee as qualified are to be actually appointed.   These final decisions are typically the prerogative of the Minister, the Cabinet, the Prime Minister, or, perhaps, effectively, the PMO; but for ease of reference I will refer to the place where the final decisions are made as “the Minister’s Office”.

What goes on in the Minister’s Office when the final decisions are being made?

The selection committee will always be mandated to send to the Minister’s Office more names of “qualified” candidates  than there are positions to be filled; typically it will send many more than are needed.

In the case of the SST, the tribunal’s constitutive statute authorized the appointment of a maximum of 70 members and the government was probably proposing to appoint about 50, but the selection committee sent the Minister’s office the names of 162 candidates it had found to be qualified for those positions.

In the first effort by the new merit-based process at the IRB in 1995, the numbers were coincidentally about the same.  The IRB selection committee (in that process described as the “Ministerial Advisory Committee on the Selection of Members of the Immigration and Refugee Board”) provided the Minister with 160 names for what were known to be 50 vacancies at the Board.

And the names went forward in both cases with no attempt to rank them in any order of preference; the selection committees were not authorized to provide any ranking – not authorized to find the best candidates.

Thus, in each case, from an undifferentiated mass of 160 candidates, each one of whom the committee has certified as qualified”, the Minister’s office has the responsibility for picking 50 names for the actual appointments to the positions.

On what basis does it make those picks?  What is the criteria guiding those final decisions?

Can we expect the Minister’s Office to measure these candidates’ qualifications against the qualifications that were advertised to be the required qualifications – to finally rank them against the defined qualifications so that the best qualified can be chosen?  How would it do that?  Will the qualified candidates be subjected to another examination that this time is graded? Will each of the 160 be invited to a further interview?

Of course, we know that inside the Minister’s Office neither of those things will happen; if the Minister’s Office wanted the candidates to be graded relative to the advertised qualifications it would have asked the selection committee – the people most knowledgeable about what is required to be a good tribunal member – to do that job, and it would not have been so foolish as to expect a ranking for 160 candidates.  Imagine the ignominy of being number 160 on such a list!

No, in the Minister’s office the criterion of selection is not who would do the job best, but, among all those who can now be officially touted as “qualified”, who is it that has the most compelling patronage and/or partisan credentials – the only known basis for differentiating between the otherwise uniformly qualified candidates.  Or, more directly, whose patron in the government party’s caucus has the most suasion within the Minister’s Office.

Peter Showler, the then recently retired IRB Chair, told the Toronto Star reporter in 2003 that the inevitably long delays in getting appointments made under the IRB’s merit-based selection process were caused by political infighting within the governing party as to which of the certified candidates “should get the patronage plums” – which of them would actually be tapped for an appointment.

In that environment, candidates who passed the exam, did well in the interview, and whose names made it onto the list of qualified candidates, but whose partisan credentials were non-existent or of the wrong kind, had obviously been wasting their time.  Witness the 50 labour side members of the Board of Referees referred to in the previous post, all certified as qualified for appointment to the SST but none appointed.

So, if we are serious about having appointments that are and are seen to be non-partisan, the first thing to fix is the process of final selection inside the black box of the Minister’s Office.

How does one do that?  Stay tuned.

RE

 

 

 

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