Bond digs deeper and finds surprising result in AG saga
It's one thing to be blamed for something you did.
It's quite another to be blamed for something you didn't do.
It's another thing again to be accused of something you didn't do and then keep silent about the whole business.
In this instance, we are talking about a supposed gag order applied by the House of Assembly on the Auditor General when he makes reports on the legislature's operations.
The Telegram reported in late December that provisions of the House Accountability, Integrity and Administration Act "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."
CBC recently took up the same point. On top of that the opposition party leaders are now raising questions about the issue.
The Canadian Press story on the opposition leaders' comments makes a fundamental error of fact when it states this:
The new law exempts legislature members and some staff from public auditor general reports involving "the improper retention or misappropriation of public money.
A Telegram editorial makes a similar erroneous comment:
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.
Pure nonsense. Bond Papers already dealt with the Telly editorial, but it's worth reviewing it again.
Section 45 of the new House of Assembly administration act sets out essentially the same directions to the Auditor General as the ones contained in s.15 of the Auditor General Act: if he or his officials find a suspected case of improper retention of public funds, then he must report the case to authorities. s.45 specifies more people must be advised of the report than under the old s.15 and it includes - for the first time - clear direction that the accused person must have the right to address the allegations from the outset.
And while it's true that s. 45 does say the Auditor General cannot disclose anything about the report initially, as with s. 15, the AG is required - by law - to include a reference to the report in his next major report to the House of Assembly. That is a public document. Even in the worst case scenario, the longest period that would pass before the public would learn something of a s.45 report is a year.
12 months.
Not never.
Well, unless there is a conspiracy of such dimensions that no law could be written to preclude it. But for all conceivable circumstances and in light of the scandal itself, it is very hard to see how reporters might miss such a reference next month or the month after or even in three years time.
Just to be sure, here are the two sections of the bills laid side by side, in their entirety so you can read for yourself. The words are simple. The sentences are not complex.
| Improper retention of public money 15. (1) Where during the course of an audit, the auditor general becomes aware of an improper retention or misappropriation of public money or another activity that may constitute an offence under the Criminal Code or another Act, the auditor general shall immediately report the improper retention or misappropriation of public money or other activity to the Lieutenant-Governor in Council. (2) In addition to reporting to the Lieutenant-Governor in Council under subsection (1), the auditor general shall attach to his or her annual report to the House of Assembly a list containing a general description of the incidents referred to in subsection (1) and the dates on which those incidents were reported to the Lieutenant-Governor in Council. | Improper retention of public money 45. (1) Where (a) during the course of an audit; (b) as a result of a review of an audit report prepared by another auditor employed by the commission; or (c) as a result of an internal audit procedure, the auditor general 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, the auditor general shall immediately report the improper retention, misappropriation of public money or other activity to (d) the speaker; (e) the chair of the audit committee; (f) the Premier; (g) the leader of the political party, if any, with which the person involved may be associated; (h) the Attorney General; and (i) the Minister of Finance. (2) In addition to reporting in accordance with subsection (1), the auditor general shall attach to his or her annual report to the House of Assembly a list containing a general description of the incidents referred to in subsection (1) and the dates on which those incidents were reported. (3) Before making a report under subsection (1), the auditor general shall give to a person involved and who may be ultimately named or identified in the report (a) full disclosure of the information of which the auditor general has become aware; and (b) a reasonable opportunity to the person to provide further information and an explanation, and shall take that information and explanation into account in deciding whether to proceed to make a report. (4) The auditor general shall not make the existence or the contents of a report referred to in subsection (1) known to another person except (a) as part of his or her annual report to the House of Assembly; (b) in accordance with a judicial proceeding; (c) as part of proceedings before the Public Accounts Committee; or (d) as a result of a request from the commission. (5) The auditor general is a compellable witness in any criminal or civil proceeding and in a proceeding before the Public Accounts Committee relating to a matter dealt with in a report made under this section. (6) Section 19.1 of the House of Assembly Act does not apply to a report made under this section. (7) 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 silence from the legislature on this has been nothing short of amazing. There have been no comments from the House of Assembly on the issue and in the Telegram story, the Premier's spokesperson is merely quoted as saying that the Green bill was passed as received. No one from either the House or government has made any comment.
The Auditor General has dutifully explained to every report who asked his own rationale for staying silent, but as it should be clear, the fellow has gotten some terribly odd legal advice. Either that or he has taken it in his head to stay completely silent, given that, after all, it was his own unsubstantiated commentaries early on in the scandal and the AG's abusive investigative process that prompted Chief Justice Derek Green to write s.45 in the first place.
Take a look at sections of Green's report and you will be struck by the strong language with which Green criticizes what happened:
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.
Still, it was striking that the Auditor General was continuing to decline any public comment on his last report, filed in September 2007, and citing Green. Both reporters - one at the Telly and the other CBC - contacted Green and got the same reason. They both came to the same conclusions even though, the plain English of s.45 did not apply to anything but a report on improper retention of public funds. The September mega-report wasn't one of those.
So why no comment from the AG?
Well, either he had faulty advice, had been ordered to stay silent or there were more reports. Given that the report was made public, an order to keep his mouth shut would be odd, especially since he cited Green as the reason. He might have bad advice, but the most logical reason, namely that there had been more reports filed, is one that simply hadn't been explored by anyone. It would be pointless to ask Green himself since, by diligently following s.45 he wouldn't be able to confirm or deny the existence of a report on improper retention of funds. His silence on the whole report would be smart - under those circumstances - since he would avoid giving a hint on that a specific report existed.
The other officials identified in s.45 weren't constrained by the Act, even though the general principles Green cited in his report would restrict how much they could disclose.
So Bond started at the top and contacted the House of Assembly with a simple question
Has the Auditor General filed any reports in accordance with s. 45 of the Green Act (or s.15 of the AG Act but now covered by the Green Bill) other than those already made public on Hickey, Goudie and the individuals who have been charged?
The response took a few hours but when it came, it was as curious as could be: no comment.
No comment?
Neither "no" nor "yes", but no comment.
If there were no reports, that's easy enough to establish. If there were reports, then their existence could only be withheld for a period, anyway. A simple explanation of the fact that one existed and that it was being addressed would be news but - consistent with Chief Justice Green's own comments - details could be legitimately withheld to ensure the fundamental integrity of the process. Integrity is what Green is all about, right next to accountability.
In the ordinary course, that no comment response would have been the end of it and, duly blogged, the local media would like take up the case. They may still. In media circles and in public relations circles a flat "no comment" comes with all sorts of baggage, none of which is good. Much like an American pleading the "fifth", no comment is often taken as being tantamount to an admission, in this case, that at least one new report existed.
Other inquiries lead your humble e-scribbler to conclude that, in fact, there are no other reports. The Auditor General has some odd legal advice or is just keep quiet and using Green as an excuse. That's something he will have to, and should, answer for.
But at the House of Assembly, there is clearly a need to get a grip on a basic policy to handle this sort of contingency, this sort of question. It's only by sheer coincidence that two reporters, working separately, made the same erroneous conclusion and didn't ask the obvious. Frankly it didn't spring readily to mind at Bond until there were three examples of the AG using the same excuse.
Yes, Green creates a new set of issues and policies for the legislature but this one - a report on alleged improper retention of funds - is what broke the whole story in the first place. In the series of media stories since Christmas, the legislators are being accused of gagging the Auditor General when clearly they haven't.
And a "no comment" response to a simple question maybe now but definitely in the future will only fuel media and public curiosity. The lack of attention to this story from the Speaker, on behalf of the management committee and the House, has allowed some to question the integrity of the very process set in place to restore public confidence.
That shouldn't be allowed to stand unchallenged. The House management committee meets this week and the issue of the AG gag is on the agenda. However, the opposition leaders are coming at it largely based on erroneous media reports. This needs to be dealt with quickly and the public record set straight or the entire legislature will continue to operate under a cloud of suspicion.
Too much disclosure can lead to problems, as Chief Justice Green noted. He gave the House of Assembly the means to address the problem based on an administrative mechanism to balance accountability with fundamental integrity.
Too little disclosure - in this case no comment - has obviously produced problems for the House and, by extension for every resident of the province.
-srbp-