The retiring State Services Commissioner has yet to comply with an Ombudsman’s recommendation that he apologise to a former diplomat who was effectively unjustly stitched up in a report into leaks from the Ministry of Foreign Affairs and Trade.
The Commissioner, Iain Rennie, yesterday issued a statement in response to the Ombudsman with no mention of the apology.
The Ombudsman has found that the report, by Government go-to woman, Dame Paul Rebstock, denied the diplomat, natural justice and produced no evidence to sustain its conclusion that he had lobbied against a restructuring of the Ministry and improperly disclosed confidential information in discussions about the changes with former diplomats, senior civil servants and politicians.
A former Secretary of Foreign Affairs, Neil Walter, last night said Dame Paula’s investigation into the MFAT had had a “chilling effect” on open and robust debate and free and frank advice in the public service.
Mr Walter headed the Ministry from 1999 – 2002.
It was apparent last night that he had quiet support for his statement from many former MFAT staff who were appalled at the events that led to the Ombudsman’s report.
In a way the Ombudsman’s report closes the book on the tumultuous change process that the former CEO of NZPost, John Allen, imposed on the Ministry when he became the first non-diplomat to become Secretary in 2009 till he left to take up a $900,000 job as head of the New Zealand Racing Board last year.
As a consequence of the mass of resignations and redundancies that occurred on his watch, POLITIK understands that 40% of the Ministry’s current staff have been there less than three years.
The events that gave rise to the report had their origins in 2012 when Mr Allen introduced a radical restructuring plan for the Ministry which saw all but four of the country’s heads of mission overseas write a letter of protest.
That letter was leaked – as were some other documents – to Labour MP and former Foreign Minister, Phil Goff.
The State Services Commissioner Iain Rennie set up an inquiry into the leaks to be presided over by Paula Rebstock, an American-born former Chair of the Commerce Commission and something of a go-to woman for the Government when it wanted an inquiry done.
Her inquiry soon turned its focus on the former High Commissioner to London, Derek Leask.
In a letter from an Inquiry staffer to his lawyer, he was accused of inciting opposition to Mr Allen’s reforms and disseminating information and documents about the changes.
He replied challenging her allegations and included statements of support from two high-powered former public servants, Sir Maarten Wevers, former Chief Executive of the Department of Prime Minister and Cabinet and Mr Walter.
But Dame Paula then alleged that Mr Leask had breached “a duty of allegiance” and had breached the Ministry’s Code of Conduct.
Mr Leask was not named in the final report, but he was easily identifiable, particularly in the close-knit Wellington diplomatic community, as a former Head of Mission, who had resigned from the Ministry.
The final report essentially accused him of whipping up opposition to the changes among members of the Foreign Service Association and diplomats’ wives (who had formed a group to lobby against the changes) and then improperly discussing the changes with Government Ministers and the Department of Prime Minister and Cabinet.
He was also accused of discussing the changes with former New Zealand diplomats and encouraging them to lobby the Government against the proposals, and “discussing the change proposals with other senior public servants in the hope they might take action to influence the change process at MFAT.”
Ms Rebstock concluded: “The investigation considers these long-serving managers saw the change proposals as a personal attack on their legacy in the department and therefore put their personal interest in protecting that legacy before their professional obligations as a leader of change and supporting the Secretary to provide robust and unbiased advice to the Government. ”
The Ombudsman says that at no time before the Final Report was Mr Leask warned that an adverse finding of this nature would be made about him.
And he says that the evidence provided to him, which was relied upon by the inquiry, did not reasonably support some of the criticisms against Mr Leask and. the inquiry failed to have proper regard to relevant evidence in making its findings against Mr Leask.
Ultimately, he said, Mr Leask had been denied natural justice.
And he says the decision of Mr Rennie to publish the Final Report, in a manner that identified Mr Leask and contained unfair criticisms of him, was unjust.
The Ombudsman has recommended that the State Services Commission apologise to Mr Leask, make sure the Ombudsman’s Report is accessible alongside the Rebstock Report; pay Mr Leask’s expenses and negotiate a compensation package with him.
But former diplomats were astounded to see Mr Rennie’s response.
In a statement issued on the SSC website he reaffirmed his support for Dame Paula’s report and only said that “I also accept that the way in which the investigation dealt with Mr Leask could have been better.”
There was no apology beyond one for a misstatement Mr Rennie made in a radio interview.
However, he says that he hoped it would be possible to quickly reach a resolution of the Ombudsman’s recommendations.
Mr Leask himself said the findings against him and MFAT staff had been rubbished.
“It is good to have the slur on my reputation removed,” he said.
“Today’s findings by the Ombudsman go beyond the vindication of my actions. The Ombudsman’s report suggests that the SSC investigation was out of control from start to finish.”
And Mr Walter said that it was of major concern that the resources and power of the government should have been allowed to be used against individual public servants in this manner.
“There were numerous warnings and expressions of concern – including from senior public servants, politicians and prominent Queen’s Counsel – in the course of the inquiry that the process was flawed and unjust, ” he said.
“ These were not heeded by either the State Services Commissioner or the government more generally. “
Mr Walter said that what the Ombudsman had uncovered is evidence of a serious misuse of the power of the State by the very organisation, the State Services Commission, which should be setting an example on matters of fairness, justice, and the rule of law.
This is damning criticism from a man widely respected in Wellington.
POLITIK has spoken to other former MFAT staff who see the Ombudsman’s Report as a vindication of their own opposition to Mr Allen’s changes.
At the heart of this whole affair is the Foreign Minister, Murray McCully, whose bruising approach to politics is entirely consistent with Mr Allen’s approach to restructuring the Ministery and to Dame Paula’s report.
POLITIK sought comment from him, but none was forthcoming.
Experienced former public servants spoken to yesterday though argued that the report seriously damaged the reputation of Mr Rennie.
That will further deteriorate if he does not apologise.
And though the Prime Minister reaffirmed his confidence in Dame Paula, she would seem unlikely to be welcome in any Government Ministries as a consequence of the report.