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Edgar Schmidt is a retired general counsel from the federal Department of Justice.

The Globe and Mail’s recent publication of an article by a Canadian national security official who revealed top-secret documents about foreign interference to the media (and whose name was withheld because of the threat of prosecution) raises an issue of fundamental importance in a democratic state.

The big question: to whom do public employees owe their duty of loyal service? Is it to the temporary officers of the state, such as ministers, individually or acting together as a state executive cadre or “government”? Is it to their managers in the public service? Or is there a larger and more enduring reality to which this duty is owed?

In general, the law says that employees owe their loyal service to their employer, within the larger context of the prevailing laws. When the employer is a collective entity, such as a business corporation, university or charitable organization, the Canadian legal system has long been clear that such employees serve that collectivity as a whole – not its board nor its temporary officers, such as its chief executive officer or its president. While CEOs and other officers do serve as leaders of the collectivity, their directions do not override the interests of the collectivity itself for employees of the collective enterprise.

A group or collectivity must adopt some rules according to which it will operate. In fact, one of legal scholar Hans Kelsen’s profound insights was that an “organization” essentially amounts to a set of operational rules – for example, rules that define how the organization will make decisions and how it will acquire and use resources. Such governance questions include: Will decisions of the collectivity be made by its members, by a representative body, by a majority vote, or by a vote of a special plurality? Will unanimity be required? Will the rules vary depending on the kinds of decisions? If votes are involved, how will such votes be initiated, governed and counted?

Typically, these governing rules are structured in a kind of hierarchy, with some of the rules being fundamental, constraining any lesser rules that may be made – the articles establishing a corporation, for example, or the constituting instrument of a university.

Respect for and observance of these rules and their hierarchy is important for the integrity of an organization’s functioning. If the governors of a university can arbitrarily decide to convert it into a theme park, say, and divert the resources that the university’s founders provided for higher education to some other purpose, that represents a betrayal of the founders’ purposes.

That is why common-law legal systems in Canada and beyond have held that those holding an office, such as a director or an officer of an organization, must act in the interests of that organization and in accordance with its rules. The law characterizes such obligations as “fiduciary,” meaning that the organization’s powers and resources are entrusted to the custody of these people. Therefore, they must use those powers and resources not for their own benefit or as they personally prefer, but in the interests of the organization and according to that organization’s rules of operation.

Now, let’s consider those basic organizational principles in relation to that rather powerful organization of which Canadian citizens are the owning members: the democratic Canadian state.

First, a note about language: the organization is best called the “state.” Its executive cadre is the “government,” and changes from time to time, but the enduring entity is the state itself; ministers, including any first or prime minister, are simply the state’s temporary officers. Public employees are employed by the state, not by its ministers nor, for that matter, by their managers in the public service. This should be obvious to anyone, since the resources from which their salaries are paid are state monies, and the facilities that they use in their work are the property of the state, not of any ministers or managers.

Since public employees are employed by the state, they owe their duty of loyal service to the state as the instrument of the citizens, not to the temporary occupants of state offices, such as ministers. And as employees of the state, public servants owe their employer the duty to act in their employer’s interests and according to the employer’s rules – not according to any contrary preferences of the state’s officers or managers.

Thus, public employees are not acting disloyally when they act in accordance with the state’s constitution and its democratically enacted statutes, even if those actions defy the orders or wishes of ministers or managers. In fact, such employees are acting in accordance with their true obligations.

There are perverse consequences when employees act out of misguided loyalty to officers, rather than the collectivity. With regard to the democratic state, we recently observed how important it was that at least some public officers and servants in the administration of former U.S. president Donald Trump understood their public duties to the state, rather than the executive, and acted in accordance with the U.S. Constitution and state laws rather than doing the things that Mr. Trump wanted them to do in his own interests, which were often contrary to the American state’s own interests.

There are similar examples from the corporate world. One such case was the Enron corporation, where the company’s auditors – Arthur Andersen, once one of the world’s largest auditing firms – failed to act in accordance with their true duties, aligning with the interests of the executive officers and board members rather than those of the organization and its shareholders. The financial shenanigans of these officers, with the apparent failure by the auditors to fulfill their responsibilities, led to the collapse of both Enron and Arthur Andersen in the early 2000s.

If Canada is to continue to have a functional democratic state, it is important that our press and public commentators challenge and expose as false the “disloyalty” accusations that ministers and senior public servants often direct at public servants who choose to act in the public interest according to law, rather than being silent or complicit in an illegal or against-the-public-interest activity. It is also important that ministers and senior managers in the public service understand their proper duties and the proper loyalties of public servants, and the limitations of their authority.

Let’s not allow those who prefer misguided loyalties and allegiances to control the discussion about the true meaning of public service.

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