The appointments made by regulators are important. These include the selection of the regulator’s Registrar and/or CEO, appointments to committees (e.g., a discipline tribunal) and, with increasing frequency, approval of candidates who are eligible to be elected to the regulator’s board of directors. How vigorously should the regulator screen candidates for these appointments?
For the Registrar and/or CEO position, the screening usually involves the completion of an application form, scrutiny by an external HR consultant, reference checks, and interviews. For committee and board of director roles, the screening process is often much more informal. This is especially so where the candidate is a registrant, where the regulator has access to the candidate’s regulatory history and the screening body often has some familiarity with the candidate’s reputation.
A recent article by Ian Mackenzie published on Slaw discusses the process that is, and should be used, for the appointment of judges and members of major regulatory bodies: The Appointment Process for Public Office Holders – Fixes Needed.
Mackenzie reviews two high-profile appointments where surprises were revealed after the appointments were made. In one case the surprise involved a harassment complaint and in the other, social media posts. In both cases the candidates were asked, prior to their appointment, to disclose anything in their personal or professional backgrounds that could, if it were to become known, bring disrepute to the court or agency. In both cases the candidates did not make any disclosures.
Mackenzie notes that in both cases the screening processes relied substantially on self-disclosure by the candidates, which can be of limited utility if the candidate is dishonest or has flawed judgment about their past activities. Mackenzie suggests that reforms to the appointment process might include:
- A reference check with the human resources department of their last employer, which could reveal an ongoing investigation or potential disciplinary actions.
- A detailed review of the candidate’s online activities, perhaps using AI.
- An external professional investigation.
These steps may seem excessive to many regulators, especially since many candidates are not even asked to self-disclose information about their past activities that could compromise the reputation or work of the regulator. Also, as a matter of equal treatment, government appointment of public members to regulators’ boards of directors or committees likely does not meet these standards. Moreover, Mackenzie’s suggestions carry separate risks (e.g., doing a deep dive into a candidate’s online activity may expose the regulator to information about a candidate’s disability or other information related to protected grounds under the human rights legislation that the regulator ought not to factor into their appointment decisions). Despite this, Mackenzie’s article might serve as a challenge to regulators to consider whether current screening processes are adequate.
