Public servants boasting on LinkedIn poses an issue for impartiality

WRITTEN BY John Wilson & Kieran Pender

Impartiality for public servants on social media cuts both ways. Picture Shutterstock

Can a public servant express their political opinion? Can they send a pointed tweet, or express political views at a family barbeque?

How can we balance the tension between the neutrality of the APS, and the freedom of public servants – as ordinary members of our society – to participate in political discourse?

These are vexing questions that have long troubled the federal public service, as a pre-federation blanket prohibition on political expression slowly loosened. The gagging of public servants drew ire as early as the 1960s; in one high-profile case, an agency head was suspended after publicly opposing a draft law that would have affected the agency.

He apologised and admitted to breaching public service rules, but the outcry was considerable. One newspaper attacked the “unwarranted authoritarianism”, while another asked whether “responsible, prominent citizens, however eminent in intellect or achievement, were to be muzzled because they worked in the public service?”

The social media era has only supercharged this dilemma, between allowing public servants to express themselves as ordinary citizens and upholding the APS’s impartiality. It is a topic we have written about for this newspaper many times before, particularly around the long-running saga of Michaela Banerji – the tweeting public servant who found herself in the High Court.

But it feels timely to revisit the topic in light of two recent developments. Last month, the NSW Ombudsman issued a thoughtful guidance note: “Avoiding pitfalls when agencies and public servants use social media”. While not directly applicable to federal public servants, we consider it salient all the same.

And second, ahead of the referendum on an Aboriginal and Torres Strait Islander Voice to Parliament, the Australian Public Service Commission released guidance on engaging in the referendum in a personal capacity.

The starting point is the APS Code of Conduct, in the Public Service Act, which provides at section 13(11) that a public servant must “at all times behave in a way that upholds … the integrity and good reputation of the employee’s agency and the APS”. The act also requires public servants to uphold the APS Values, one of which is impartiality: “the APS is apolitical”.

Unlike some other parts of the code, these obligations apply at all times – not only “when acting in connection with APS employment.” In other words, the obligation does not cease when you leave the workplace at 5pm.

Much of the case law and commentary on this topic has focused on critical political commentary by public servants – critiques of the government of the day and so on. What makes the NSW Ombudsman’s guidance important is its recognition of the risk of the opposite. Just as neutrality is undermined by criticism, so too can it be jeopardised by praise.

How can we balance the tension between the neutrality of the APS, and the freedom of public servants?

The Ombudsman notes the increasing use of LinkedIn by public servants, particularly senior public servants, expressing concern about the risk that “public servants might come to be seen as ‘brand advocates’ for their agencies.” The guidance warns that the prevalence of senior public servants posting about work achievements might lead junior staff to believe “that this sort of activity – for example, posts about their work achievements or individual contribution to some important advice, reform or other project – is something that they need to do in order to get ahead in their agency, or in the public sector generally.”

While it is perhaps only natural that people want to note their professional achievements (especially on a platform like LinkedIn), when that errs towards praise of government policy – particularly contentious policy – there is a risk that such posts undermine public sector neutrality. Thus the Ombudsman cautions: “Public servants should avoid such messages being perceived as directly or indirectly also conveying a political message about what the government has done or is doing.”

The guidance offers a rule of thumb: “If it would not be OK to say ‘I am ashamed to have worked on this government policy’, then the safest course would be to assume that it may also not be OK to say ‘I am proud to have worked on this policy.'” It offers an example (fictionalised but, it says, based on a real situation), of a senior public servant “liking” a post of a ministerial office staff member, who had praised their minister’s achievements. Might doing so, the guidance asks, “risk being perceived as political?”

Similarly, ahead of the referendum, the APSC has issued guidance for public servants who wish to engage publicly in a personal capacity. The guidance recognises that “APS employees, like all Australian citizens, are entitled to express personal views on the merits of the various positions on the referendum question. APS employees have a lot to offer the public conversation as an informed and engaged cohort.”

However, it advises that public servants wishing to participate in public discourse around the referendum should be sure their conduct is lawful, clearly expressed as being a personal view not linked to the APS, and there is no conflict with their public service role. The guidance identifies three factors that can “increase or mitigate risk”: seniority, connection between the referendum and a public servant’s official duties, and the tone of the expression. In our view, these factors are relevant not just to the referendum, but to any political commentary by public servants.

We have long been defenders of the free speech of public servants. But even we concede that some caution is prudent, particularly at the present time. The NSW Ombudsman’s guidance raises challenging questions – not only are public servants ordinary members of society, entitled (at least to some extent) to engage in political debate, they are also only human.

Many of us take pride in the work we do – both of us will probably post a link to this article on our own LinkedIn pages once it is published. But as the guidance underscores, impartiality cuts both ways.

The above article was written for and published in the Canberra Times.

For all employment related queries or concerns, please contact our Employment Law & Investigations team at BAL Lawyers.

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