TABLE OF CONTENTS. Executive Summary... 22.0... e esc ce een e eee ee eee e reese nen nner ee enenn ee 1 Wrongdoing Defined .........0000ceserreetseseeeeenes enor esre Legislation 2 Background . eect ws . nee 3 Chronology of Investigation ............ cece ste moe vance ws one B Summary of Investigation and Findings «0.0.0... ‘ 4 Issues ae RARER Be HEA AB 3p B 7 4 Alleged interference by line supervisor and manager in the administration of VCOs' legislated duties . oe 4 Situation 1... 5 Situation 2 5 Situation 3 ..... — 6 Finding 6 Impact of the work environment of staff and staff duties 2... panes ree 6 Finding 7 Examination of policies and proedss 8 Finding ......020...220005 £9 Occupational Health and Safety concerns 9 Findings os esvies os anvene a) Conelusion .... bee Ame amen Gane 10 10 Recommendations cee FR enero PncmamnasiasieRenBnecaEXECUTIVE SUMMARY Allegations of wrongdoing were brought to the Office of the Ombudsman by four (4) Vehicle Compliance Officers, Department of Transportation and Infrastructure Renewal, employed at the Amherst scales. The disclosing employees alleged that management was and continues to have a negative impact on their duties to the point public safety and the integrity of the highways are compromised. The investigation conducted by this Office identified a struggling work environment where there is high absentecism, frequent tur over of personnel and performance issues. Collectively these negatively impact on public safety and staff health. These deficiencies, acts and omissions extend beyond individual performance and highlights systemic failing wit ‘management to adequately address the problem. A finding of wrongdoing is made, in accordance with the Civil Service Disclosure of Wrongdoing Regulations. ‘There have been three (3) similar studies conducted on the Amherst site since 2006, all with substantive recommendations. These recommendations have not received the attention, dissemination and action they warrant. This has caused distrust within the work site and loss of confidence in management. Eight (8) recommendations have been made in the areas of staffing action, occupational health and safety, training, quality assurance, policies & procedures and the responsibilities of the Manager and area co-ordinators, Under existing legislation the Department has 30 days to advise of an implementation plan of action to address these recommendations.WRONGDOING DEFINED This report is submitted under Section 13 of the Civil Service Disclosure of Wrongdoing Regulations. 8 (VCO) contacted this Office raising concerns issues were identified: In July 2009, Vehicle Compliance O1 regarding a potential wrongdoing. Fou + Alleged interference by line supervisor and manager in the administration of VCOs’ legislated duties; + Impact of the work environment on staff and staff duties; + Examination of policies and procedures; and + Occupational health and safety concerns. The Ombudsman investigation examined the information from the disclosure to determine if the allegations revealed a wrongdoing under Section 2 of the Regulations. (1) For the purposes of these regulations, a wrongdoing oceurs if there is (a) a contravention of any Act of the Parliament of Canada or of the Legislature, or of any regulations made under any such Act, if the contravention relates to the official activities of employees or any public funds or assets; (b) gross mismanagement; (c) an act or an omission that creates a substantial and specific danger to the life, health or safety of a person; or (@ the taking of a reprisal against an employee. (2) For the purposes of clause (1) (b), gross mismanagement means a deliberate act or an omission showing a reckless or wilful disregard for the efficient management of significant government resources. LEGISLATION The Highway Traffic Act Motor Vehicle Compliance Regulations Transportation and Infrastructure Renewal Policy Civil Service Disclosure of Wrongdoing RegulationsBACKGROUND The Department of Transportation and Infrastructure Renewal (TIR) is responsible for ensuring compliance of truck safety as required under the Highway Traffic Act and the Motor Vehicle Compliance regulations. This is achieved by monitoring trucks traveling on Nova Scotia Highways. Vehicle compliance officers (VCOs) carry out this enforcement either at fixed check points through the operation of the weigh scales located at Kelly Lake, Enfield, Auld Cove, and Amherst, or through their mobile patrols. All trucks greater than 3,000 kilograms must report to the scale houses when traveling on 100 series highways in Nova Scotia. VCOs are supervised by area co-ordinators, who are front line supervisors in the bargaining unit. These supervisors report to a centralized manager. The National Safety Code carrier safety fitness rating program was implemented by Service Nova Scotia and Municipal Relations (SNSMR) in 2005. This program provides the standards VCOs employ when evaluating vehicle compliance and safety. Safety infractions by commercial carriers could affect carrier collision and conviction records. These records are maintained in a case management system known as the Carrier Activity Profile System (CAPS). Certification requirements need to be adhered to in order for VCOs to be able to carry out their inspections. Each VCO is required to perform 120 Certified Vehicle Safety Alliance (CVSA) inspections annually, with a minimum requirement of 32 to maintain certification. There are five levels of CVSA inspections and they play an important role in maintaining public safety on Nova Scotia roadways. Through these inspections trucks may be placed out of service until the identified safety issues have been satisfactorily addressed. The primary function of the VCO group is enforcement. CHRONOLOGY OF INVESTIGATION: July 14, 2009 . July 22, 2009 Complainant contacts Ombudsman Office alleging wrongdoing Preliminary Interview - VCO 3 zi Preliminary Interview - VCO a « July 22, 2009 Disclosure of Wrongdoing Received ... . : eae July 22, 2009 Intérview:- VCO I oe es as cones ve a8 ga ah ee lee ao ne Hows eo Ale-5 92009 ThtenvicW2 VCO BBB ors ses i exenoaress ves sanmisatim ame wane wa me we AE Aug. 5, 2009 Interview - Vy ... Aug. 7, 2009 Notification to Minister of Transportation & Infrastructure Reve wal. .. Aug. 21, 2009 Notification to Public Service Commissioner . Aug. 21, 2009 Notification to Four complainants iy Aug. 21, 2009 Notification from D/Min. Darrow advising Exe. Dir. Caines - contact person ..... Aug. 24, 2009 Interview - QM- Former VCO... eee . Aug. 25, 2009 Ombudsman Office Received O H & S Review by Brian Carter ..... Aug. 26, 2009 Interview - Ms. Forysth, Ms. Laybolt & Ms. Brooks - Disposition of SOTs_ . . Sept. 2, 2009 Interview - Ms. Bonnie Drake & Ms. Joan LeBlanc - Court House - SOTs ...... . Sept. 2, 2009Telephone Interview - Sandy Fairbanks - Public Prosecution Service - Amherst .... Sept. 3, 2009 Interview - Kevin Caines - Executive Director TIR 12... ..0. 0.0 c een en ee ees Sept. 4, 2009 Ombudsman Office receives KPMG Study from TIR . . 15, 2009 Interview - VCO SN ce ee y. 12, 2009 Interview - VCO . 12, 2009 Interview - VCO nn. 00 .- Nov. 12, 2009 Interview = VCO [BBE ss 3 20 ata en saan on eu wma ase on 8 y. 12, 2009 Interview - Louie Velocci - V.P. KPMG . - 13, 2009 Interview - - Former VCO ;. 20, 2009 ThtervicW'. V CORBI « sia.goesss sa cewsracs ext win sass aa ate WSEAS 8 ean OREN aH HR Dec. 3, 2009 Interview - VCO Dec. 3, 2009 . Dec, 3, 2009 - Training Office - TIR . . Dec. 4, 2009 Interview - Jeff & David Mills - Mills Heavy Hauling...... Dec. 8, 2009 Interview - Frank Lively - Driver Art Exhibit Truck 1.0.0.0... 00sec eee eeeee Dec. 9, 2009 Interview - Ms. Dianne Chiasson & Mr. Terry Spicer - Auditor General's office ... Jan. 19, 2010 Telephone Interview - Mr. Jim Guild- NSGEU .............00. 020000 c eee eee ed Jan. 20, 2010 Jan. 29, 2010 . Jan. 29, 2010 Interview - Sharlyn Young - Director HR Consultant Interview - Carolyn O’Mallay - HR Consultant - TIR . . Interview - Allan Chapman - Area Co-ordinator - TIR Heise » Obs 9, 2010 Interview - Don Evans - Manager- TIR .... 0.0.0.0 cc cee eee eee eee eee ... Feb. 10, 2010 Interview - Ray Beaton - Area Co-ordinator-TIR .......................... Feb. 10, 2010 Interview - David Ross - Area Co-ordinator -TIR ..... 0.0.6. e scence eee ee Feb. 15, 2010 Interview - Charlie MacDonald - Executive Director - TIR . 5 5 voy FODI162010 Interview= Dan Lepold = Manager -TIR: « ssuco ss sewn ss ee a9 oe wie vines ome cee Feb. 16, 2010 Interview - David Read - Trucking Industry 00.00.00... scence eee eee eee March 3, 2010 Interview - Brian Carter - PSC, Senior Project Manager OH & S..............0/ April 14, 2010 A total of 37 interviews were conducted, including members of Management, Vehicle Compliance Officers, former employees, individuals from the trucking industry, Public Prosecution Service, NSGEU, Office of the Auditor General, PSC and the Department of Justice. SUMMARY OF INVESTIGATION AND FINDINGS Issues: Alleged interference by line supervisor and manager in the administration of VCOs’ legislated duties. Three (3) situations were examined during this investigation related to the alleged interference by the line supervisor and manager of VCOs* legislated duties.Situation 1 + On January 9, 2009, at the Amherst outbound scale, a truck was found to be overweight for the permit it carried; + VCO issued a summary offence ticket (SOT) to the driver for being overweight and suggested the driver get the correct permit in Amherst; + VCO stated he advised the driver to park the truck in the scale yard and he would have to get the correct permit in order to continue: + Driver indicated he did not want to leave the truck as it was carrying a million dollar art exhibit; + Driver contacted his supervisor to advise of the situation; + The VCO advised he was contacted by his area coordinator and instructed to bring the SOT to his office; + The VCO stated that he was directed by his supervisor to write void across all copies of the ticket and told to make the “driver and truck disappear”; + Both the Area Co-ordinator and Manager stated they recalled the situation, but were vague in the details provided to the Ombudsman Representative; + Both Area Co-ordinator and Manager advised they thought it was in the best interest of all concerned to have the ticket voided but did not recall directing the ticket to be voided; . ‘The ticket was voided and the truck was released. Situation 2: . On April 17, 2007, two trucks stopped at the Amherst outbound scale shortly before 7:00 am; + VCO noted the permits for the trucks had a travel restriction between 7:00 — 9:00 am; + VCO stated he advised the drivers to park the trucks due to the restrictions and not leave the yard; + The drivers disregarded instructions and left the yard, heading for New Brunswick; + VCO proceeded to write SOTs for the two drivers and contacted the trucking company to advise of situation; . VCO contacted Manager and advised of situation; + VCO stated Manager indicated the tickets lacked good judgement as the trucks where “within a bird's eye view of the boarder”; + VCO advised that he was directed to void the SOTs; + Both the Area Co-ordinator and Manager recalled the situation, but were not specific on the details; + The Manager could not recall if he directed to have the tickets voided, but suggested it was agreed between him and the Area Co-ordinator that they should be voided; + The Area Co-ordinator recalls that following a discussion with the Manager he contacted the VCO with the indication that it would be in the best interest of justice to void all three tickets; + The tickets were voided.Situation 3. + A former VCO advised that as a result of a Certified Vehicle Safety Alliance (CVSA) inspection he placed a trailer out of service because of safety violations; + ASOT was issued and the driver was advised the truck could not be moved until it met the safety requirements; + Driver requested to leave the yard to correct the situation; + Permission was denied and situation was to be corrected in the yard and the truck was not allowed to be in service until safe; + Driver approached the Area Co-ordinator who agreed to escort the driver from the yard; + VCO contacted the Manager and advised of the situation; + Area Co-ordinator stated he made the decision to escort the tractor trailer and did not discuss with the VCO that he was overturning his decision; + Area Co-ordinator states he should have discussed with VCO. Finding Information gathered during this investigation supports the conclusion that various levels of management have been directly involved in voiding tickets and directing VCOs in this regard. The merit of issuing tickets is not the matter being examined in this investigation, rather the procedure followed to override the legislated discretion granted to VCOs . It would appear the Area Co-ordinator and the Manager collaborated to some degree, causing interference in the duties of the VCOs resulting in SOTs being inappropriately voided. During the course of this investigation, TIR did not have a policy regarding voiding tickets. In the compliance/enforcement field the cancellation of tickets is a function that should be guided by policy and when necessary the Public Prosecution Office. The absence of clear policy creates uncertainty, confusion and has the potential to undermine the integrity of the compliance and safety program. Impact of the work environment on staff and staff duties Throughout this investigation a number of individuals have informed Ombudsman Representatives of historical and ongoing concerns of harassment, bullying, and performance management issues. These concems have been voiced by management, field staff, human resources, and industry stakeholders. This section of the report will depict the work environment as determined by the information gathered and the reported impact on staff. We are also aware complaints have been filed with the Respectful Workplace division of the Public Service Commission. As previously discussed, the issue surrounding the Amherst Area Co-ordinator and Manager interfering with VCOs’ duties and influencing the voiding of SOTs contributes to an environment that undermines trust, respect, and confidence between employees and management. We were provided with several other examples, identifying problems between staff at the Amherstoutbound and inbound scales, conflict between staff and the Area Co-ordinator extending beyond the workplace, a high rate of sick time, absenteeism, high tum over of staff, and an overall poor morale affecting performance of duties. During our investigation an incident occurred where an employee threatened to commit suicide in the Area Co-ordinator’ office, in part, due to the work environment, A protection of property order was filed in the court against a staff member by the Area Co-ordinator, further eroding the relationship between the two. Some VCOs disclosed to Ombudsman Representatives the negative work environment has created a “Them vs Us" attitude, VCOs stated this has affected the quality of work being performed. Two examples stand out from our review. Some officers admitted that they are not diligent in the CVSA inspections they are required to do, indicating they pick the new trucks with no inspection issues because they are quick and easy. Some officers indicated they were letting trucks with possible safety infractions “go by” and they were cognizant of the potential impact this has on the integrity of the highways and public safety. Other officers admitted that during the night shift it ‘was not uncommon to pull the required number of trucks in at the front of the shift, then close the scale down for the remainder of the night. While the scale was closed the VCOs would enter the trucks on the CAP system as if they were done throughout the entire shift The Auditor General did a program audit of TIR, which included the operations of the scale houses. This report indicated concerns and the impact this could have on public safety. The Department also commissioned KPMG to review the work site at the Amherst scales. As well, Mr. Brian Carter conducted-a Nova Scotia Department of Transportation and Infrastructure Renewal OH & S review, from an occupational health and safety perspective. Itis our understanding the KPMG report was not shared beyond the Executive Director, and ‘management was not provided with direction or information gathered in order to help address the issues identified. We were also not able to confirm the Manager was provided with proper direction and guidance to help address the issues at the Amherst site from the Executive Director. ‘We acknowledge that TIR has made some leadership changes during the course of this investigation which appear to be having a positive impact. Finding Over time this work site has created a culture and environment where there is high absenteeism, frequent turn over of personnel and some VCOs doing minimal work and not applying risk ‘management principles, potentially compromising public safety and staff health. This culture extends beyond individual performance and highlights systemic failure within management to adequately address the problem. The relationship between the Area Co-ordinator, management, and staff has deteriorated to the point where a staff member threatened to take his life at the work site, Altercations between the‘Area Co-ordinator and some VCOs continue to exist and conflict in the work site is evident, The Department's lack of resolve for these matters has placed staff in a stressful and unacceptable ‘work environment. Staff not adequately doing their duties, particularly with respect to CVSA inspections place at risk the integrity of the highway’ infrastructure and safety. The KPMG report contains several meaningful and applicable recommendations which should be reviewed by the ‘working committee for implementation, The restriction placed on the KPMG study does not preclude this report from dissemination to the rank and file within the vehicle compliance group. Examination of policies and procedures During the course of this investigation, several employees voiced concerns over the lack of operational policy and procedures. VCOs stated the lack of clear policy and procedures make the carrying out of their duties difficult, Ombudsman Representatives were told practices and direction from the Area Co-ordinator and Manager were often inconsistent. Concems were raised with regards to CVSA inspections, drive-bys, accidents involving trucks, issuing and cancellation of SOTs, job performance and the lack of annual performance appraisals. VCOs also expressed concern regarding training standards and there was a general feeling they lacked adequate training in high risk areas, such as dealing with dangerous goods. During several interviews VCOs brought up the issue of what they refer to as “drive-bys”. A drive-by occurs when a truck by-passes the scale yard for inspection and/or to be weighed. VCOs advised Ombudsman Representatives that drive-bys occur everyday at the Amherst outbound scale, and it has been estimated to be a minimum of one per shift. The reasons for a drive-by include but are not restricted to driver fatigue, knowingly over weight, faulty equipment, transporting an unsafe load, carrying dangerous goods or contraband or any other illegal commodity, and log book issues. VCOs have been instructed to ignore drive-bys, in fact the expression often quoted by those interviewed was “they’re within a bird’s eye view of the border Jet them go”. Management confirmed this practice at the Amherst outbound scale. Procedure number PRS088 provides VCOs with a procedure to respond to drive-by violations. It specifically sets out what the VCO must (in procedure) do in these situations. The procedure has an exception for the Amherst outbound scale: “Ifa drive by takes place at the Amherst outbound seales, the mobile officer will not attempt to stop the violator beyond the Nova Scotia, New Brunswick border.”” The procedure then outlines steps that may (in procedure) occur. TIR staff have told Ombudsman Representatives that drive-bys are not a priority at the Amherst outbound scale. Another matter came to our attention related to an HR practice within this division, Area co- ordinators are front line supervisors in the same bargaining unit as the staff they supervise. Our investigation revealed one area co-ordinator is signing off on letters pertaining to dismissal of staff, Both HR and the union have told this Office they are not in favor of this practice as it is inappropriate for unionized supervisors to provide this level of discipline.Finding Employees are entitled to have clear and comprehensive policies and procedures in place. The lack of current and comprehensive standards places not only Nova Scotians, but VCOs at risk, There is no formalized system within the vehicle compliance component of TIR to identify and manage high risk areas. This area requires a quality assurance program to help mitigate risk to both employees and the larger public. Clear, consistent policies need to be in place to guide employees and management in their duties. Training needs to be evaluated to ensure VCOs have the skill set necessary to deal with all situations. ‘The procedure for drive-bys sets a standard for the province, but yet reduees this standard for the Amherst outbound scale. The practices at this scale further reduces this standard, which potentially allows trucks with safety issues to continue to drive on the highways. The practice of dealing with drive-bys at the Amherst outbound scale compromises public safety both in Nova Scotia and other provinces. ‘The practice of unionized, front line supervisors signing off on letters related to discipline or termination needs to be reviewed. Occupational health and safety concerns During several interviews a number of occupational health and safety issues were raised. These issues include, but are not restricted to such items as safety of mobile VCOs stopping tractor trailers, air quality in the inbound scale house, not having the option of wearing body armor in or outside the uniform, jersey barriers for safety in the yard, training on how to de-escalate volatile situations, pepper spray usage, and threat assessment training. Other training requirements were identified by staff, including statement taking, search and seizure, legal training on gathering and. giving evidence in court and continuity of exhibits. The Carter review on Occupational Health and Safety brought focus to many concems from the VCOs relating to their job function. More than one version of Mr. Carter's report was reviewed during this investigation. Several VCOs expressed concer over the allegation that management made changes to sensitive areas of an independent report prior to it being signed by the author. A meeting of the Occupational Health and Safety Committee, on February 26, 2010, could not proceed because of the variance between managements’ copy of the report and the copy held by the committee members, Finding A number of concems have been raised by staff related to Occupational Health and Safety. Ombudsman Representatives have been in consultation with the Occupational Health and Safety division of the Department of Labour and Workforce Development and have referred this matter to them.Differing versions of the Occupational Health & Safety review completed by Mr. Brian Carter has diminished the credibility of the report and the process to address staff concerns related to workplace safety. A new independent review needs to be conducted. CONCLUSION This investigation has found the front line supervisor at the Amherst site and management have ineffectively managed the various problems at the workplace, allowing the conflicts to affect job performance. VCOs diminished effectiveness on the job places both employees and the public at risk. Lack of clear and consistent policies, procedures, and practices further compromise safety. The conflict at this site needs to be addressed and clear roles for front line supervisors and ‘management need to be defined. The delivery of training for VCOs needs to be reviewed, as well as, the development of operational policies and procedures and a unit quality assurance program. VCOs require adequate training, and occupational health and safety concems addressed in order to feel confident and safe in the administration of their duties. The faet that differing reports on occupational health and safety concerns were presented at a meeting is unacceptable. ‘Our investigation had found the Department did not address the various conificts in the work place in an effective or timely manner. This has impacted stalf to the point where violence was threatened in the workplace. Furthermore, practices, interference in VCOs duties, and lack of due diligence in some CVSA inspections compromise the integrity of the highways, and places the public at risk ‘The Office of the Ombudsman makes a finding of wrongdoing as contemplated in the Civil Service Disclosure of Wrongdoing Regulations under Section 2 (1) (¢ ) which states that a wrongdoing occurs if there is “an act or an omission that creates a substantial and specific danger to the life, health or safety of a person”. RECOMMENDATIONS 1. Performance and staffing issues be addressed at the Amherst scales. (Section 13(2)) 2. The Department of Transportation and Infrastructure Renewal, engage an independent source to conduct a review of the Occupational Health and Safety requirements within the job function of the VCOs, (Section 13(2)) 3. The KPMG report be released to the Manager, Area Co-ordinators and Vehicle Compliance Officers, to analyze all recommendations for implementation. (Section 13(2)) 4. Vehicle compliance operational polices and procedures be developed and made available in hard copy. (Section 13(2)) 105. A unit quality assurance program be developed and implemented to ensure sensitive and vulnerable areas of work are constantly being monitored. (Section 13(2)) 6. A review of the in-service training requirements for VCOs be conducted to ensure appropriate ‘raining is provided to adequately address their needs. (Section 13(2)) 7. Human Resource personnel responsibilities be removed from the Area Co-ordinators and placed with the appropriate management position outside the collective agreement. (Section 132) 8. The Nova Scotia Department of Transportation and Infrastructure Renewal notify the Nova Scotia Office of the Ombudsman of the status of the above recommendations. (Section 13(2)(b)) Respectfully, Pipe! , A jishop Stan Fe Or man Ombudsman Representative rt