Civil service ethics

When a "top civil servant" makes outrageous comments in a submission to a select committee which are not only embarassing to the government of the day, but also call into question their political neutrality, you expect them to resign or be sacked, right? That's what the ideal of a "neutral civil service" means, right?

Wrong. Or rather, right if that civil servant is a member of what is termed the "core public service" (government departments, offices of Parliament, the Police and SIS), and very possibly wrong if they are employed by a Crown Entity.

What's a Crown Entity? It's what used to be called a "quango" - a quasi-government organisation, set up for a specific purpose, often under its own enabling legislation. There's a wide range of these things, set up for a wide variety of purposes. They cover everything from the LTSA and ACC to the Human Rights Commission, your local hospital and school.

Some of these organisations are more "government" than others, and so not all of them should be covered by the Public Service Code of Conduct. While it seems fair to have employees of the LTSA bound by it, depriving your local school board of the right to criticise government policy would be just a little harsh.

What about the Maori Language Commission? It was established under the Maori Language Act 1987, to promote Te Reo Maori and provide the odd bit of policy advice. That's more towards the government end of the spectrum. The problem is that the Act is absolutely explicit: no member of the Commission or employee "shall be deemed to be employed in the service of Her Majesty for the purposes of the State Sector Act 1988" (Schedule 2, s. 8.). What this means is that they're not public servants, no way, no how. As an employee, Haami Piripi is (legally), completely in the clear.

All the Minister can do is express their displeasure to the Commissioners (Mr Piripi's employers) - who can tell him to go swivel if they want to (that's really why there is a board structure: to insulate employees from everyday interference from the Minister). The Minister can then start sacking them for "misconduct", but fired Commissioners continue to serve until their successor is appointed, and the appointment process is not something you can do in an afternoon. More importantly, if the government starts doing that, it will inextricably link membership of the Commission (or any other Crown Entity) to supporting the government on the foreshore & seabed issue, meaning that they may find themselves with a sudden shortage of Commissioners and applicants.

All around, it's a no-win situation for the government. Crack down and risk further alienating Maori. Fail to do so and face cries of "special treatment" from the Opposition. All they can do is hope that the matter resolves itself within the Commission - that Piripi either resigns or is fired by the Commissioners. Otherwise, they're stuck on the foreshore without a paddle.