Analysis: The same day that other morning papers covered news of Rob Campbell’s dismissal from Te Whatu Ora on their front pages, there was a different story on the front page of the Christchurch Press – about another worker on the health agency’s payroll.

Her name is Shirley Kirby and, like Campbell, she was in trouble over her social media posts. Like him, she’d launched intemperate attacks on representatives of a group with which she disagreed. He’d attacked the National Party; she’d attacked Māori.

The cardiac radiographer at Christchurch Hospital was called out on Twitter for her history of racist, homophobic and discriminatory tweets, with many people flagging their concerns with Te Whatu Ora Health NZ. Her tweets stated her job title and employer.

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* Ian Powell: The long political game behind the sacking of Rob Campbell

Campbell was summarily dismissed. Kirby’s posts are the subject of an employment investigation. But the coincidence of the two cases raises several difficult questions – and this article addresses them.

Campbell tells Newsroom that since he was taken to task for his LinkedIn post about National’s “thinly disguised dog-whistle on co-governance”, he’s heard from others in the public sector. “They include commercial people acting on Crown entity boards concerned that they make public comments on things in one role which might be interpreted negatively on a narrow or repressive interpretation,” he says. “Also Te Whatu Ora staff members concerned about social media posts which could be treated similarly.”

Campbell says the complaints against Kirby should have been elevated to him, as Te Whatu Ora chair. “In my previous role I was not consulted about these. I should have been.”

The two seem unlikely bedfellows: he’s championing an equal Māori voice in governance of health, environment and Three Waters agencies. She’s deriding Māori who take “pride” in their culture, she’s highlighting Māori criminal offending, and she’s disparaging the use of te reo Māori in her workplace.

Yet Campbell draws a parallel: neither his LinkedIn posts nor her Twitter comments impinge on their professional responsibilities.

Stay out of your lane?

That’s been a key plank of his defence: that his criticism of National’s Three Waters policy had nothing to do with the delivery of healthcare through Te Whatu Ora. 

And so too for Kirby’s post: “My concern would be regarding posts which are of or about hospital issues or patients/visitors outside of her clinical expertise,” Campbell says. “I would have been concerned as a person and concerned as a board member to the extent that our premises/staff/patients/work were referenced in any way.”

More often, of course, pundits are told to stay in their lane. But these rules imply board appointees should do the opposite. Campbell grasps hold of one passing mention in on of several sets of rules and guidelines for public servants. The Code of Conduct for Crown entity board members says: “We do not make political statements or engage in political activity in relation to the functions of the Crown entity.” 

“Different political systems have different rules. We could have a system in which senior officials are political appointments, as they are in the United States and to some extent in some European jurisdictions, and these people would change when there’s a change of government… I for one would not welcome it.”
– Prof Jonathan Boston, Te Herenga Waka Victoria University of Wellington

If this is his defence though, it’s a weak one. Because by his own admission, he’s also been told off by the minister for publicly commending Green MP Chlöe Swarbrick bill to restrict marketing of alcohol, on public health advice. And the co-governance that he referenced in this weekend’s LinkedIn post is the same co-governance he champions at Te Whatu Ora. 

He acknowledges there is a common theme in his work at Te Whatu Ora, and in his post on the National Party’s Three Waters policy: that is, the defence of co-governance with iwi Māori. 

These concepts run across the whole of government, he says, but on the occasion of his LinkedIn post, they were in relation to Three Waters, not in relation to Te Whatu Ora.

That’s rejected by Emeritus Professor Jonathan Boston, from the School of Governance at Te Herenga Waka Victoria University of Wellington. He points to the over-riding intent of that section of the of the code of conduct. The headline is, “We are politically impartial.”

That allows for few ifs, buts and maybes.

Private capacity

Te Whatu Ora is a “Crown agent” – one of seven types of entities as defined by the Crown Entities Act 2004. A Crown agent is only a step removed from core government departments. It must give effect to government policy when directed by the responsible Minister; it’s not an autonomous Crown entity (like the superannuation funds and NZ Symphony Orchestra) and nor is it an independent Crown entity (like the Children’s Commissioner, the Commerce Commission and the Law Commission) that act independently of the government of the day.

The responsible Minister may, at any time for just cause, remove a Crown agent board member. According to s40 of the Crown Entities Act, “just cause” includes misconduct, inability to perform the functions of office, neglect of duty, and breach of any of the collective duties of the board or the individual duties of members  – depending on the seriousness of the breach.

So certainly, Campbell is right that there’s wriggle room.

Campbell relies on the Code of Conduct, which distinguishes public and private capacities. “When acting in our private capacity, we avoid any political activity that could jeopardise our ability to perform our role or which could erode the public’s trust in the entity,” it says.

“If I were Public Service Commissioner – a highly improbable event at any point in my career – I would have another look at the rules and their communication.”
– Rob Campbell

He argues he was acting in a private capacity, and so the bar is lower. And yes, he and his lawyers can niggle about that – but the overriding message is in the heading of that section. “We are politically impartial,” it reads, and further, “We act in a politically impartial manner”.

So on that basis, does he accept that at the very least, he breached the spirit and intent of the code?

“I do not think so,” he says, “acknowledging that there is an interpretation – a repressive one in my view – to that effect.”

If one is looking for the “spirit and intent” of the code, he says we should look on the first page: “As board members we bring to our roles a spirit of service to the community and a desire to improve the wellbeing of New Zealand and New Zealanders, including of Māori consistent with Te Tiriti o Waitangi.”

He adds: “I feel pretty comfortable my actions are within that.”

That’s a stretch, says Boston. And even if Campbell and his lawyers could have made that argument (they tried and failed) there are two more sets of standards he must meet.

Section 12 of the Public Service Act 2020 specifies five public service principles. The very first one is “to act in a politically neutral manner”. This time, there are no ifs, buts and maybes. No caveats. None at all.

“There’s a sense in which public servants are serving the government of the day,” says Boston. “And there’s a sense in which they can’t be neutral, completely between the government and the opposition. They have to be kind of pro-government, but they have to be non-partisan.”

Current and future governments

The final set of standards is contained in the Cabinet Manual’s Principles of Public Service.

According to the 2017 edition of the Cabinet Manual, New Zealand’s state sector is founded on the principle of political neutrality.

“Officials must perform their jobs professionally, without bias towards one political party or another. Officials are expected to act in such a way that their agency maintains the confidence of its current Minister and of future Ministers. This principle is a key element of impartial conduct. It provides the basis on which officials support the continuing process of government by successive administrations.”

Rob Campbell has flippantly dismissed this requirement. He says National and ACT have made it quite clear they would, if elected, disestablish Te Whatu Ora in its present form – and so there’s no chance he will ever need to maintain their confidence. He would be gone by lunchtime.

With respect, that’s not his call to make. Or perhaps more accurately, if he does make that call it is by breaching the public service principles and accepting the consequences. 

Boston says the obligation is not just for a chair or director to maintain the confidence of current and future ministers, but also to act in such a way that their agency maintains that confidence.

So even if Campbell feels certain he personally won’t serve under a National-Act Government, he still must act in a way that give National and Act confidence that the agency he leaves behind will act impartially. He cannot be seen to poison the culture of Te Whatu Ora against National and Act.

“This principle is a key element of impartial conduct,” Boston reads from the manual. “It provides the basis upon which officials support the continuing process of government by successive administrations.”

He adds: “They can express their views on a range of issues, but it’s important that when they do, they do so in a manner that isn’t likely to make it difficult for them to work with a different minister or a different government.

“We can all express things in ways that are nice. You can make a point without making it in a way that would be clearly demeaning of the opposition, or castigating of the opposition.”

Friends, foes and more foes

Rob Campbell brings to the table his own definition of neutrality, or impartiality. “Excuse me for being literal beyond that but I think that the Oxford definition is ‘not supporting one person or group more than another’,” he says. 

And there’s an element of truth to that. Despite being unashamedly of the left, his LinkedIn posts have sometimes criticised Labour Government minister just as they have criticised National’s Christopher Luxon and Act’s David Seymour.

In the weeks before he was named as chair of Te Whatu Ora’s transitional board, he criticised Tourism Minister Stuart Nash’s lack of vision for the industry, and spoke out as a member of a business grouping critiquing the Government’s Covid response.

Indeed, in November last year, the National Opposition was more than happy to align itself with Campbell’s public criticisms, when it suited. “Who is correct,” asked health spokesperson Dr Shane Reti, “the chair of Health NZ Rob Campbell, who told Heather Du Plessis Allan last week that there are multiple crises in the health system; or the Minister, who still denies there is a crisis?”

“I am an equal opportunity commentator.”
– Rob Campbell

Campbell tells Newsroom: “Mr Reti and I would seem to have found one thing we agree on!”

Now, Luxon says he had no idea that Rob Campbell was so outspoken until the weekend’s Three Waters post was brought to his attention.

“That’s totally not credible,” Campbell retorts. “Mr Luxon has his limitations but he is not deaf and blind.”

Jonathan Boston says simply: “There are ways of saying things that aren’t going to be controversial, or undermining this particular convention of political neutrality.”

But Campbell notes that National seemed relaxed about him stepping into the political arena when his views aligned with theirs, but only got upset when he criticised them. “They are obviously sensitive souls, bless them.”

The question is, does political neutrality imply not criticising anyone – or can it entail spraying criticism at everyone?

Campbell says: “I am an equal opportunity commentator.”

Consistency is next to cleanliness

Late on Friday, Campbell emailed a statement to Newsroom, TodayFM, the NZ Herald and other media. “I am not arguing about whether I should have my jobs at either Te Whatu Ora or the Environment Protection Agency back. That is not happening and I don’t want to work with the ministers anymore anyway. They don’t trust me and I don’t trust them,” he says.

“But blatant hypocrisy should be called out. Yesterday a story emerged about an appointee to a Government investment board who called China an ‘enemy state’ on social media just this week. His remark is being treated (from what has been announced so far) as a ‘personal view’.”

Campbell is referring to a tweet by Matt Ocko, am American member of the investment committee at NZ Growth Capital Partners, a Crown entity company that invests into seed and venture capital funds. According to the NZ Herald, Growth Capital Partners invests money from the $300m Elevate Fund (primarily established with capital from the NZ Super Fund) in startups.

California-based Ocko tweeted in reaction to a reports that China has threatened to block Elon Musk’s Starlink with a fleet of 13,000 satellites. “Time to move cars, batteries, phones, EVERYTHING out of this rogue, implacably vengeful, DPRK-but-with-better-hotels enemy state,” he said.

Campbell says, to be clear, he does not think Ocko should be sacked.

He also highlighted a Stuff article by former Clark Government minister Steve Maharey, who is now chair of Pharmac, chair of ACC, chair of Education NZ and various other public bodies. The opinion piece (“as it happens I agree with a lot of it,” says Campbell) criticises Luxon’s new National Party leadership as “nothing new or fresh”. He wasn’t calling for Maharey’s dismissal, either.

But Campbell questions where the “equivalence of response” is, in sacking him for a personal LinkedIn post, while allowing Ocko to tweet in a personal capacity; in sacking him for publicly criticising Luxon, but allowing Steve Maharey to do so.

“This whole structure of ‘impartiality’ and ‘neutrality’ needs a fresh look. And probably without the Public Services Commission chair who looks pretty biased to me.”

So too the racist, homophobic and discriminatory tweets by Christchurch Hospital cardiac radiographer Shirley Kirby – Campbell points out to Newsroom that she, at least, will have her case properly considered under employment law. “She would be subject to a full and due process, far in excess of what I have been given.”

Campbell does have a point here: the Government and Public Service Commission must be seen to be consistent in their application of the rules. They would reply that each case is different: Ocko is on an investment committee for a Crown entity company, not the board of a Crown agent; Maharey’s rhetoric was more restrained and he didn’t criticise Luxon by name; Kirby is a more junior employee with no public profile or leadership responsibilities.

Boston says: “If you were to take a government department, it would be one thing for a policy analyst at a fairly junior level to be out on the streets protesting against the government on something, or to be putting themselves forward as a candidate for a political party.

“It would be quite another for the chief executive of that organisation, serving the minister of the day on a day-to-day basis, to be out on the street protesting or putting themselves forward for a political party. And it wouldn’t matter which political parties because, as you can appreciate, the more seniority you have, the more responsibility you have to set an example. And the more risk there is of you compromising the integrity and neutrality, of compromising the organisation.”

Rob Campbell was, until this week, chair of the biggest New Zealand organisation of any kind, ever. The risk, if he compromised Te Whatu Ora’s integrity, was a significant one. 

Whence this chilling effect?

Campbell worries about the chilling effect of his dismissal from both Te Whatu Ora and the Environmental Protection Authority. He is concerned that other high calibre leaders from the private sector will be reluctant to step across to contribute their expertise to the public service, if they face being so overtly gagged.

But on the most part, he’s not calling for any change to the Code of Conduct or the Public Service Principles – just more “fair and consistent” application of the rules. 

So in Campbell’s view, the problem is not with the rules themselves, but in the unreasonably rigid way they were applied to enable embarrassed ministers to sack him. “I’m not sure more freeing up is required, as long as the rules are interpreted reasonably.”

Tell me what you think about the intent to constrain public servants or officers from publicly expressing views on matters of politics? “I understand that and support the Code so long as it is interpreted fairly,” he replies.

Is the public service guilty of groupthink?

This debate is timely. It coincides with robust questions being asked this week at the NZ Economic Forum, at Waikato University, as Sam Sachdeva reports

Former Treasury secretary Graham Scott, who held the role between 1986 and 1993, told the forum there was a risk of “groupthink” in the public sector. “There seems to be a lack of creative tension: people are so busy being polite to each other, they don’t argue much anymore, it seems, whereas the public service I remember was actually a pretty hard school.”

While the creation of Te Whatu Ora had been framed as empowering local voices, the Government’s health reforms had in fact created “a gigantic Crown entity with something like 82,000 employees, probably the biggest organisation in that sense in New Zealand”.

“We can’t think of a more blatant breach of political neutrality in recent history.”
– Callum Purves, Taxpayers’ Union

There have been calls from Campbell’s supporters to loosen the rules on political neutrality – though, to be fair, not so much from him. There are those in grassroots groups who now see Campbell as a martyr of unencumbered free speech and critical thinking; somewhat ironic, given such martyrdom is usually claimed by fringe right-wingers.

It was the Taxpayers’ Union (somewhat of a fringe rightwing group itself) that raised awareness of Rob Campbell’s Twitter post at the weekend beyond some roiling discomfit on social media, to the attention of the Government and the Opposition.

Nearly a week on, its campaigns manager Callum Purves has sent out a newsletter to members, claiming vindication. “As soon as we became aware of the Rob Campbell social media rant, we wrote to the Public Service Commissioner asking him to investigate the remarks as a likely breach of the Public Service Commission’s Code of Conduct. We can’t think of a more blatant breach of political neutrality in recent history.”

Purves says New Zealanders need to be able to trust the civil service machine to act impartially and deliver on the policies of whichever party is in office regardless of their own personal political beliefs. And he rightly highlights the difference between the civil service model that New Zealand has inherited from Whitehall in London, and the model applied by France, the United States and other countries.

“Countries such as the United States allow incoming presidents and governments to sack incumbent officials and put their own trusted advisors into the senior positions of government agencies,” he says. “But, in general, New Zealand governments do not have the power to remove senior public servants at will, thus the need for neutrality.”

He steps on to somewhat thinner ice when he complains that in recent years, the public service has become “an echo chamber of employees who all agree with each other but who can become detached from wider public opinion”. He steps off the ice entirely when he calls all of Wellington “a woke bubble”.

Time to loosen the rules on neutrality?

There are entire university departments dedicated to the study of the public service and public policy. The numbers of public servants in New Zealand has grown from 48,000 to almost 62,000 since Labour took control of the Treasury benches in 2017.

It’s hard to encapsulate all it does in one sentence – but s11 of the Public Services Act 2020 makes a valiant attempt.

“The public service supports constitutional and democratic government, enables both the current Government and successive governments to develop and implement their policies, delivers high-quality and efficient public services, supports the Government to pursue the long-term public interest, facilitates active citizenship, and acts in accordance with the law.”

Boston thinks this is a good summary, and so he should – he was part of the academic advisory group that advised on drafting the act and specifically, on the wording of that one, key sentence.

What is material, in this instance, is the expectation that the public service supports both the “current Government and successive governments” to develop and implement their policies.

To do that, it needs rules and guidelines to work with both its existing paymasters, and those who may control the purse strings after this year’s election.

“There are reasonable limits,” says Campbell. “If I were Public Service Commissioner – a highly improbable event at any point in my career – I would have another look at the rules and their communication.”

That’s as far as he goes, in calling for any change to the rules.

Already, there’s at least one parts of the public service where political appointments are accepted: the diplomatic corps. It’s been commonplace for generations for governments to appoint retiring MPs to be ambassadors or high commissioners – most recently, Trevor Mallard as Ambassador to Ireland, and Phil Goff as High Commissioner to the UK.

Jonathan Boston is no champion of a move away from a political impartial public service – but if that’s what New Zealand wants, he says, it’s not impossible.

Like Purves, he contrasts with the US and other overseas constitutional arrangements. “Different political systems have different rules. We could have a system in which senior officials are political appointments, as they are in the United States and to some extent in some European jurisdictions, and these people would change when there’s a change of government.

“We could have a system in which the board’s of Crown entities – in this case, crown agents – might might be expected to resign if there’s a change of government, enabling a new government to appoint it’s own people.

“But you have to then ask, how would that affect the efficiency of administration and continuity and understanding? There’s a real consideration here for efficient and effective government.

“You know, that’s not to say we couldn’t do things differently. We could, and some countries do. But we’ve chosen not to.”

It would be a pretty big change? “It certainly would,” Boston says. “It would be a pretty fundamental change. And I for one would not welcome it.”

Newsroom Pro managing editor Jonathan Milne covers business, politics and the economy.

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