Know your limits: free speech as a public servant

By Stephen Easton

Wednesday September 28, 2016

Close up image of Twitter web site. Budapest, Hungary – July 28, 2011:

Public service grads who want to get ahead have been firmly counselled to “be careful when using social media” by the Commonwealth human resources chief, John Lloyd. And to clear up any ambiguity he’s now published a simple plain English guide to what this really means.

In nine simple points about “Facebook, free speech and public servants” the Australian Public Service Commission seeks to reassure the workforce they are “free to engage in the life of their community, including on-line and on social media platforms like Facebook” — within some limits.

Of course, the APS Code of Conduct features a long and detailed section on “employees as citizens” but it can seem confusing, almost paradoxical, and how it applies in day-to-day situations is far from clear to a lot of public servants.

The public service itself must be apolitical, both in actuality and public perception. So far so good. It’s individual members are bound to maintain “the confidence of the community in the capacity of the APS, and each member of it, to undertake their duties professionally and impartially” but the code also recognises:

“The engagement of APS employees in robust discussion is an important part of open government.”

On the one hand, the government cannot take away the fundamental democratic rights of political participation and free speech from its employees. Public servants are free to offer their expertise on particular topics in public forums or to parliamentary inquiries and Royal Commissions in a personal capacity as well.

But on the other hand, the CoC includes a lot of caveats about every possible kind of participation in public life. There is plenty of room for differences of opinion about where the rules draw the line between the rights of all citizens and the special responsibilities of public servants. As a result, many rank-and-file bureaucrats conclude it’s safest to avoid political actions even in a private capacity, or keep them very private indeed.

The advent of social media has breathed a new kind of life into John Stuart Mill’s marketplace of ideas (although the quality of online debate also suggests he was perhaps too optimistic about how easily the truest and best ideas would triumph). As the CoC has been updated in response to this relatively new paradigm of public debate, a strong view has emerged that public servants’ rights to participate are unfairly curtailed.

The commission’s new simple guide probably won’t quell this simmering resentment, or the inherent subjectivity of the matter. But it does lay it all out in the simplest terms yet:

  • If you’re expressing a political opinion make sure that you make it clear that the views you’re expressing are your own and not your agency’s.
  • It’s generally a bad idea to make comments about policy issues that are relevant to your work in the APS.
  • Be thoughtful about the language you use. Avoid language that is so extreme that people might wonder about your ability to serve the government impartially.
  • Even if you’re not speaking for your agency, remember that people will judge your agency by the tone and content of what you say.
  • Don’t make derogatory comments about your agency or the people you work with.
  • If you ‘like’ or share someone else’s post, that can be seen as your endorsement of that post as though you had made the same comment yourself.
  • Even if you’re not using your real name you can’t rely on anonymity to protect you. Assume that whatever you say or write will be linked back to you eventually.
  • Don’t rely on your privacy settings to keep your posts private.
  • Commenting in your own time doesn’t provide you with a “Get Out of Jail Free” card.

No, you can’t watch THAT on your laptop and other advice

The nine tips are part of a new online guide to integrity matters, which includes a question box for public servants to ask the APSC specific questions about the APS Values and the CoC. The commission explains:

“There are some limits on what we can tell you, and we don’t give legal advice. We will use this space to publish your query, and our answer, but we will keep your identity and other employment details confidential so far as the law allows.”

The new integrity website has sections on reasonable personal use of IT equipment, how to recognise a possible conflict of interest and when to report misconduct.

The APSC confirms that viewing adult endeavours on your work laptop is not reasonable use, even if it’s at home, on the weekend, using your own internet connection. The example of an employee whose dismissal was upheld by the Federal Court in 2011 for doing exactly that also neatly demonstrated there is no use pondering the question of whether a code violation occurs if nobody is around to witness it:

“His activities were detected by monitoring software that had been installed by the agency, and his actions were investigated as a suspected breach of the Code of Conduct.”

On conflicts of interest, the key point is “the appearance of a conflict can be just as damaging to public confidence as an actual conflict of interest” while the brief article on reporting misconduct advises:

“In many cases, the best approach will be to discuss it with the person directly. Let them know what your concerns are in a constructive and respectful way. It may be that they did not know that what they did or said was a problem and a short conversation can often be helpful.

“If you think the behaviour was deliberate or careless, you could also consider raising it with the person’s immediate manager.

“Serious misconduct often needs to be dealt with more formally, and you may need to make a written report. Gossiping about it never helps. Once you’ve made your report, it’s best to keep your concerns confidential. Don’t share them with people who don’t need to know.”

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