Kevin MacAdam's appointment as ACOA's director general of operations for Prince Edward Island was revoked in an Aug.8 decision from the Public Service Commission (PSC.)
CBC News has learned that MacAdam is applying for a judicial review, asking the court for a stay of the decision to end his employment.
MacAdam, a former Progressive Conservative MLA and fisheries minister in P.E.I. who had run unsuccessfully for the federal Conservatives, left provincial politics within weeks of the Harper government's first election win in 2006 to take a position as MacKay's senior political adviser at ACOA.
Federal Conservatives had failed to win a seat in P.E.I. in the 2006 election.
But after MacKay was no longer the minister responsible for ACOA, MacAdam was appointed to a senior management position inside ACOA. He was no longer part of the minister's personally selected political staff, but was a top bureaucrat earning somewhere in the range of $110,000 to $130,000 a year.
MacAdam's employment history as a political staffer and provincial politician was not heavy on public administration or management experience. He also did not speak French, a mandatory requirement for senior management roles in the federal public service.
His appointment drew criticism in the media when it was revealed that he would spend up to two years following his appointment not in Charlottetown, but in Ottawa studying French full-time.
Liberals complained of patronage
The PSC investigation was initiated following a February 2011 letter from the Liberal Party's Atlantic caucus, expressing concerns over the political affiliations of five individuals recently hired at ACOA and the Enterprise Cape Breton Corporation.
"When you start to stuff the public service with partisans, I think then we're on a very slippery slope and a dangerous precedent," Nova Scotia Liberal MP Rodger Cuzner told CBC News when the PSC confirmed its investigation last year.
Sections 66 and 68 of the Public Service Employment Act authorize the commission to conduct an investigation under such circumstances. In a letter to Cuzner, the PSC said it was conducting six investigations under Section 68 of the act, which bans political influence in the hiring of bureaucrats.
A further five investigations fell under Section 66, which covers cases where an employee is not hired on the basis of merit.
"The ACOA investigations are the most complex that the PSC has conducted under [the Public Service Employment Act] due to a number of reasons, including the number of witnesses and volume of evidence," commission president Anne-Marie Robinson said an April 2011 letter shared with The Canadian Press.
'No political interference': PSC
The Aug. 8 PSC decision found that although MacAdam's actions did not constitute improper conduct, "the behaviour of individuals at ACOA involved in the appointment process constituted improper conduct that affected [his] selection" for the management role.
The commission did not find any political interference in the appointment process, MacAdam's application for judicial review says.
The EX-2 management position MacAdam was awarded was advertised externally. In 2011, ACOA spokesman Richard Gauthier told CBC News that "[the posting] was open to all Canadians. We received applications from people who wanted to go through the interview process. Those were evaluated against the criteria of the position in question," said Gauthier.
"There was an interview board and at the end of that whole process a letter of employment was forwarded to the candidate that was identified as the most qualified and most pertinent [MacAdam]," Gauthier said at the time.
MacAdam's court filing claims the PSC's investigation report contained "factual errors" and its decision to revoke his appointment was "unreasonable."
It also reveals that four senior ACOA managers, past and present, were named for improper conduct in the case:
- ACOA's vice-president for P.E.I. Patrick Dorsey
- ACOA's acting director general for policy Kent Estabrooks
- Current ACOA president Paul LeBlanc
- Past ACOA president Monique Collette
The commission "erred in law and/or came to an unreasonable conclusion by finding that the behaviour of [these four managers] ... constituted improper conduct," MacAdam's application for review states.
If the decision is not suspended, it says, another person may be hired to replace MacAdam in the role.
"His removal from the position will cause serious hardship to him that cannot be compensated in damages," the document adds.
2 others also applying for judicial review
Dorsey, who works out of ACOA's Charlottetown office and is responsible for all of its P.E.I. activities, has joined MacAdam in applying for judicial review. MacAdam's position reported directly to Dorsey's.
Dorsey was a senior adviser to former P.E.I. Progressive Conservative premier Pat Binns prior to his hiring at ACOA in 2007, when MacKay was still the minister.
Dorsey's application says the commission "acted without jurisdiction, or alternatively, acted beyond its jurisdiction" and "failed to observe a principle of natural justice, procedural fairness or other procedure it was required by law to observe." Dorsey also alleges the PSC "erred in law" and "made erroneous findings of fact in a perverse and capricious manner or without regard to the material before it."
It's not known what measures, if any, were imposed on Dorsey by the PSC's decision, but CBC News phoned his office and found that he remains in his role.
Estabrooks, currently based in Moncton for the agency, also has applied for judicial review of the same Aug. 8 decision. As a result of the investigation, the PSC ordered him to complete two leadership training courses and he lost his authority over staffing decisions for three years, his application says.
His court document also says that the commission "made erroneous findings of fact in a perverse or capricious manner or without regard to the material before it."
Principals saying little
Current ACOA Minister Bernard Valcourt's office referred CBC News to the agency for comment on this case. But he told a Commons committee last May that "as far as I know, there is no political interference in the hiring of employees at ACOA. This is done according to the rules, according to the law, and I don't take a blood test of employees."
"I don't know where their political affiliations are, if they have any, and I'm really not concerned about that," he also told the committee.
An email message sent to CBC News on behalf of ACOA Wednesday said the agency "is co-operating with the [PSC] in its response to complaints about specific hirings at ACOA" but "it would be inappropriate to comment."
"For privacy and legal reasons, the agency does not comment on personnel matters," the emailed statement also said.
The PSC told CBC News by email that "investigations are conducted in a confidential manner to protect the personal information of individuals involved" and that normally it "does not disclose publicly the outcome of its investigations nor its investigation reports."
However, "in some cases, if the commission determines that the public interest in disclosure outweighs the privacy interests of the individuals, it can publish summaries of investigations on its website," it says.
With respect to this decision, "the disclosure process is not completed."
Defence Minister Peter MacKay's office told CBC News Wednesday evening that "this is not a political issue."
"Public court records state that the commissioner found problems with the way the public service ran their hiring process but did not find any political interference by ministers or political staff," wrote Jay Paxton, MacKay's spokesman. "The matter is now before the courts."