Parliamentary Ombudsman criticises Ministry for Foreign Affairs in the Ottawa Embassy harassment matter
Parliamentary Ombudsman Petri Jääskeläinen has issued three decisions, all of which concern the use of attorneys or other private lawyers in tasks that are the responsibility of public administration. Two of the decisions concern the Ministry for Foreign Affairs and the third the Non-Discrimination Ombudsman.
1 Ottawa case
The Ombudsman has assessed the outsourcing of the investigation of the harassment report submitted to the Ministry for Foreign Affairs from the perspective of section 124 of the Constitution of Finland. The provision concerns the assignment of a public administrative task to a party other than a public authority. The Ombudsman has considered it possible to give an investigation to private parties as long as the Ministry clearly retains material procedural authority and the main responsibility for investigating the matter.
Now the assignment in question, which was given to a law firm and subsequently withdrawn, concerned the sending of the investigating attorneys from Finland to Ottawa, the organisation of staff interviews, and the conduct of the interviews and recording them in the hearing memoranda. On the basis of the hearings, a separate conclusion memorandum would have been drawn up for the Ministry, which would have included an opinion based on the investigating attorneys’ investigation on whether harassment or other inappropriate treatment in violation of the Occupational Safety and Health Act had taken place and the recommendations for measures.
In the Ombudsman’s view, in the planned procedure, the Ministry would not have retained material procedural authority and the main responsibility for investigating the harassment matter.
The Ombudsman has also addressed the obligations and responsibilities of the public authority as an employer in investigating the harassment report. He has stated that the principle of conformity to law of public administration, as set out in section 2, subsection 3 of the Constitution, is also essentially linked with official accountability, i.e. liability for acts in office, laid down in section 118 of the Constitution, which also includes criminal liability for acts in office. In outsourcing situations, the scope of liability for acts in office may become narrowed in a problematic manner because the persons responsible for the outsourced tasks are not public officials.
From the point of view of ex-post supervision and protection under law, it is also of significance that the persons performing outsourced tasks are excluded from the Ombudsman’s oversight when not performing a public (administrative) task.
In terms of liability for damages, section 118, subsection 3 of the Constitution guarantees the right of direct action only for damage caused by a public official and a person performing a public task.
For these reasons, the Ombudsman has taken a negative stand to outsourcing the investigation of the grounds for a harassment report to a private party, such as a law firm, in public administration.
The Ombudsman has also assessed the planned investigation of the harassment matter in the Ministry for Foreign Affairs from the perspective of objective impartiality (what the matter looks like).
Typically, the task of attorneys is to advocate the case of their clients. Therefore, from the point of view of the persons who have reported the ambassador’s behaviour and other subordinates, the recourse to attorneys does not necessarily come across as facilitating an objective investigation of the matter. This is evident from the complaint submitted by the Union of Civil Servants of the Ministry for Foreign Affairs UHVY (EOAK/4357/2024).
In the Ombudsman’s view, public administration should comply with an open and objective manner of investigating harassment matters that generates confidence from the perspective of the entire work community and also the general public and is clearly subject to official accountability.
On the basis of all the considerations he has presented, the Ombudsman has not considered the Ministry's plan to investigate the harassment matter with the help of a law firm to be appropriate.
The Parliamentary Ombudsman has brought the views expressed by him in the decision to the attention of the Ministry for Foreign Affairs for future reference.
2 Complaint from the Union of Civil Servants of the Ministry for Foreign Affairs UHVY
In his decision on a complaint by the Union of Civil Servants of the Ministry for Foreign Affairs UHVY (EOAK/4357/2024), the Ombudsman has also examined the use of attorneys in the Ministry for Foreign Affairs at a more general level.
Based on the information received, the investigation and preparation tasks related to legislative drafting and the interpretation of laws and international agreements had also been outsourced to law firms, even though the duties were the responsibility of the Ministry. However, the Ombudsman did not have any remarks on the use of law firms as representatives of the Ministry for Foreign Affairs in matters that had progressed to legal proceedings.
The Ombudsman notes that, in addition to legal proceedings, the use of legal services may be justified mainly in matters requiring special legal expertise when the Ministry does not have such expertise. As a rule, there should not be a justified need to use legal services in the application of basic administrative law at the Ministry level.
3 Matter concerning the Non-Discrimination Ombudsman
In the decision concerning the Non-Discrimination Ombudsman (EOAK/1421/2024), the Ombudsman criticises the former Non-Discrimination Ombudsman for having essentially outsourced the preparation of the general recommendations issued by the Ombudsman to a private law firm, even though the task was the Ombudsman’s core task in which public authority is exercised.
The Ombudsman’s decisions no EOAK/1421/2024, EOAK/1554/2024 and EOAK/4357/2024 have been published (in Finnish) on the website www.oikeusasiamies.fi.
For more information, please contact Principal Legal Adviser Jarmo Hirvonen, tel. +358 9 432 3336.