22 December 2007

Telegram story,editorial miss important changes in accountability law

A story and editorial in the Saturday Telegram both miss important aspects of the House of Assembly accountability legislation.
From the story:
But a law passed by his government this summer sets out special treatment for MHAs and House staff who may have improperly retained public money, and gags the auditor general from talking about such situations.
The new law passed this summer exempts MHAs and key House staffers from Section 15.
“Section 15 of the Auditor General Act does not apply to a member, the clerk, clerk assistant or staff of the House of Assembly service,” the law notes.
And from the editorial:
What does that mean? Well, for starters, that there’s clearly one law for MHAs, and a different law for everyone else in the provincial civil service.
It also means that we will probably never see another scandal like the one uncovered by the AG. 

Why? Because, among other reasons, if an AG finds such a scandal, he or she is now specifically forbidden to tell us about it.
That isn't correct. 

While the Green bill does include the provision cited by the Telegram, section 45 sets out a much wider disclosure requirement for the Auditor General in any instance where he or she "becomes aware of an improper retention or misappropriation of public money by a member, the clerk, the clerk assistant or staff of the House of Assembly service or the statutory offices or another activity that may constitute an offence under the Criminal Code or another Act of the province or of Canada...".

Section 15 of the Auditor General Act requires only that a report be made to the finance minister on behalf of the executive council.

Section 45 of the House accountability, integrity and administration legislation mandates that a report on such information be provided to the Speaker, the chair of the House audit committee, the Premier, the leader of the political party to which the member or members belong, the attorney general and the finance minister. In addition, the auditor general must disclose the report, in general terms, to the public through his or her annual report.

One minister or the entire executive council could bury a report under the Auditor General Act alone and the provisions of that Act already constrain the AG.  The Green bill specifically expands the offices that must be notified in order to preclude a report being buried and the requirement to include a report in the annual, public AG report makes it difficult to imagine how such a report into alleged impropriety could escape public detection.

Section 15 of the AG Act may not apply to the House, but section 45 of the House Integrity Act does and that's far better.

There is an extensive discussion of this section of the bill in the Green report at chapters five and eight.  In his report, Chief Justice Derek Green sets out the purposes of the new, more detailed disclosure rules that are intended, in part, to ensure that any such report cannot be hidden from public view.

It's worth reproducing an entire section of the Green report in which the Chief Justice notes the basis for his recommendations on the new disclosure requirements:
The [existing AG] legislation does not contemplate that a written report be issued to the public or the media, or that a news conference be held, or that interviews be given to the media amplifying what is in the report. This is as it should be. Undue publication of the information in a report at such an early stage - before decisions are taken to lay charges, or prosecute or seek reimbursement - risks interfering with important constitutional and other values. Given the relatively low threshold justifying the making of a report, even though its issuance may cause considerable damage to an individual’s reputation that may be difficult to repair if it is ultimately shown that there is an innocent explanation, one ought to be careful about bandying details about in the public domain. Furthermore, undue publication of the information with its implicit suggestion of impropriety or criminality may have an effect on a person’s constitutional right to a fair trial if charges are ultimately laid. 
As a general rule, therefore, the reporting function of the Auditor General should be limited to making the official reports to the Lieutenant-Governor in Council and the House as contemplated by section 15. I note that, as a general rule, even at the stage of the decision
to prosecute, where the threshold for acting is higher, the police do not make a habit of
making public announcements that charges have been laid. 
While I recognize that there is a possibility that the Lieutenant-Governor in Council might not do its duty on receipt of a report and disregard it, that risk is minimized by the fact that ultimately there has to be public disclosure - at least with respect to a “general description” - of the incident in the Auditor General’s annual report to the House. 
These observations, I believe, are all the more important when one comes to dealing with situations involving public figures such as MHAs. They are particularly vulnerable to attacks on their reputations. Allegations of impropriety - even if ultimately shown to be unfounded - may have the effect, given the tendency of the public to ascribe low motives to politicians, of making the MHA’s continuing job untenable, and may irrevocably affect reelection chances. Caution in the manner of dealing with such situations is called for. 
It is outside my mandate to make recommendations with respect to the continuing operation of section 15 generally. However, I believe it to be appropriate to address the matter with respect to matters involving MHAs. After all, it was the issuance of section 15 reports that became the catalyst for the current inquiry. 
In the first place, I believe it important - indeed a fundamental aspect of fairness - that in undertaking the analysis of whether the Auditor General should exercise his or her  discretion to issue a section 15 report, the Auditor General should make full disclosure to the Member concerned, give him or her an adequate opportunity to provide any additional information as well as an explanation for what has been found, and consider those responses as part of his or her discretionary decision making. 
Additionally, I believe the role of the Auditor General, at least when dealing with identified discrepancies involving Members, to be one of preparing and delivering to the appropriate officials a comprehensive report detailing the transactions being questioned, why he or she believes that a report is warranted, and containing any recommendations he or she considers appropriate to make. I do not believe it appropriate, however, to make the report to the Lieutenant-Governor in Council as section 15 now contemplates. The Auditor General is an officer of the House and provides his or her audit services to the House. The report should therefore be to the Speaker. In addition, however, the report should be given to other persons who have a vital stake in the information disclosed.
Green then lists the specific offices to which information should be released.

There are other sections of the report the deal with some problems with the release of information by the current Auditor General and the way he conducted his reviews.  For example, the new accountability bill requires the Auditor General to give the member or members involved complete information and the opportunity to respond to the Auditor General's accusations before the report is filed.  Sadly, that was seldom the case with Auditor General John Noseworthy's series of reports. 

There are two standards for the Auditor General to follow when making a report of alleged impropriety.  In the case of the Green bill, the standards are higher in relation to the House of Assembly and that's a good thing.  Many of the problems Chief Justice Green identified have already been seen and his revised procedures are designed to restore both transparency and integrity to a process that showed little of either.

If the public does not see another scandal in the House of Assembly it won't be because the Auditor General is gagged. He isn't and in fact the situation that exists today is as far from the one described by the Telegram as possible.

The only two things to lament here are these:

1.  That the Auditor General did not conduct his reviews with more thoroughness in the first place after the scandal broke  and did not exercise sufficient care in his public comments thereafter.  The public has seen enough of the unsubstantiated allegations, inconsistent information and insufficient information coming from AG reports.  We've seen the names of individuals dragged through the mud based on flimsy evidence and half-baked conclusions. 

We've also seen some allegations that have led to charges being laid but, there remains a question as to whether or not the problems with the AG's work will undermine the process in one way or another. The public should not be left to face the prospect that after all the revelations of inappropriate spending, little if anything will come of it save for the new Green bill. 

2.  That the Telegram managed to miss such a key part of the Green bill. The Telegram perhaps moreso than most local newsrooms has done yeoman public service in digging into this scandal and exposing details of it that otherwise may never have come to light. Such is not the case with this story.  Let's not dismiss the Telly's work for one gaffe.

It's become accepted wisdom that the Auditor General has done a great public service in unveiling the scandal. His work is marred by deficiencies and some of the issues arising from the AG reports and how they were handled have been corrected by the Green bill.

At the same time, it might be tempting to imagine that things haven't changed at the House of Assembly among the politicians. That's as maybe; Chief Justice Green left the members of the legislature little alternative but to change.  Try as they might, they haven't been able to escape public scrutiny thus far.