Note however, that they discussed it, as it appears, not after the issue was raised publicly, but before Wells was appointed to the public utilities board in the first place. An army of lawyers scoured the books to make sure there were no obvious impediments, like, say wording to the effect that the chairman can't hold down two jobs.
There is no conflict of interest, we are assured.
The lawyers from the city, the province and utilities board - presumably the ones who scoured originally - were dutifully trotted out to attest that there was no conflict in Wells serving as the mayor of a city which operates a public utility governed by the act - i.e. water and sewer services - and sitting as the head of the body that regulates the utility.
Well, sort of.
The board's in-house counsel, Dwanda Newman, wasn't quite as sure of the thing as some people seem to suggest, at least if you take a look at her comments in the Transcontinental story:
"The board has certainly — not to my knowledge — treated the City of St. John's as a public utility," said Newman. "That's certainly not the intention (of the PUB Act) to capture a large municipality that's incorporated by its own legislation. That's what I'd guess. I'm sure the intention was to capture a private company that's offering the service. But that's just a guess. I've only been here six years. I'm not aware of any history whereby the city was ever regulated by us."
Look at that last part again:
"...But that's just a guess. I've only been here six years. I'm not aware of any history whereby the city was ever regulated by us."
My lawyer guesses, I get the shakes.
Like my accountant telling me to go ahead and claim it and let's see what happens.
Or my doctor saying "geez, never saw that before."
Ms. Newman's cautions seems to derive from the clear intention of the public utilities act itself , in section 81, for example, to bring municipalities under the act for the purpose of fixing rates for providing certain public utilities. That section of the act dates from 1989.
It is by no means clear what the other lawyers are arguing given the plain English meaning of the statute's wording. Maybe they were referring not so much to the law as to the fact that the city of St. John's doesn't use the board to set water rates for its residents.
For his part, Wells is quoted by Transcontinental as saying:
"I was on the PUB 18 years ago and that definition was there [That the City of St. John's wasn't covered by the PUB]. And I was a member of council. The bottom line is that the city is not a utility within the meaning of that definition. So there is no conflict of interest there."
What Wells ignores - perhaps due to a faulty memory - is that in 1989 the utilities board was reorganized, with a changed role. Section 81, for example, applied after Wells left the board. Whatever definitions were used before 1989 may not count since the whole thing changed. Incidentally, there is some useful information in the decision rendered by the Supreme Court of Canada in Wells' subsequent law suit for compensation for the portion of his original term cut short by the re-organization.
There are other aspects of the conflict of interest inherent in Wells serving as mayor of the city and as the chief commissioner of a public regulatory body which oversees, among other things, municipalities providing certain services. These aspects of the conflict of interest has been ignored to date.
A mayor is the elected chief representative of the people of the city of St. John's. He or she is responsible for defending their interests in dealings with the provincial government. While undoubtedly the role of mayor is defined under various provincial statutes, a mayor will inevitably be required to advocate for citizens collectively and sometimes find himself in conflict with the provincial government.
Wells is no stranger to conflict and it is his forthright advocacy on behalf of his constituents collectively which Wells often cites as one of his strengths.
However, as the Supreme Court consistently noted, Wells occupied - and now occupies again - a public service position at a senior level in a quasi-judicial body. He will be paid handsomely for that job, in fact almost double his municipal salary and mayor and chief executive of the city.
His position at the PUB is tenured for at least 10 years and he serves in the appointment during good behaviour. However, it is a cabinet appointment and, given the situation, government may elect to re-organize the PUB as it did in 1989 or take some other action which will relieve Wells of his sinecure. As the Supreme Court noted, the legislature may do that, as long as they provide compensation as they would for any other employee.
So when it gets down to it, there are several problems inherent in appointing the full-time mayor of a city as the full-time chair/chief executive of the province's public utilities board:
1. There is a conflict in a fellow doing what are clearly two full-time jobs running two full-time organizations. It's not like having a day job and moonlighting at a fast food outlet or doing some other kind of job in your off hours. These are jobs that were clearly intended - both evident from legislation and from Wells' own words - to be held by someone without outside distractions. Full-time mayor used to mean working more than eight hours, according to Wells. Now he seems to believe he can fit the job in when needed or fit the PUB into the city.
Something's gotta give in the demands of two full-time jobs and the giving shouldn't be the obligations of either job. There are other people who could be mayor. or there are other people who could run the PUB.
2. There is a potential conflict in the mayor of the capital city running a board to which other municipalities in the area may be subject. Regional co-operation has been hard enough to achieve in the past. Wells' views on amalgamation and on how other cities and towns are run are well known. Imagine the idea of say Conception Bay South or Mount Pearl looking to have rates set by the PUB with the mayor of St. John's running the show. Sure he could remove himself from a hearing itself, but take a look at the Act: the chairman and chief executive officer is responsible for work assignments and scheduling.
3. There is a potential conflict of employers. Does Andy work for the citizens of St. John's or the provincial government? He can't realistically do both jobs cleanly since at some point the interests will collide. How that collision is reconciled will tell much.
And before anyone brings up public servants serving on town and city councils, let's just say that this is a conflict of interest which has gone unaddressed for some time. Just because no one has dealt with it doesn't mean it isn't an issue or that it doesn't exist.
4. There is a potential conflict of future public interest. With a single person as mayor and chair - take Andy personally out of the equation - the provincial government may have to face policy choices it shouldn't have to face.
Take municipal services. Currently, the PUB looks at water and sewerage. It wouldn't be unreasonable to consider a future point in which solid waste disposal - garbage to you and me - would be brought under the PUB to ensure that both public and private operators provide a proper service at suitable rates to the consumer.
Rather than all providers - public and private - heading off to an impartial adjudicator, they'd be staring at a stacked deck. The private company may wonder if the rates set truly are reasonable and fair if the municipality has some interest in continuing to control services within its own municipality or regionally.
When it gets right down to it, there simply is no legitimate, defensible reason to let Andy Wells - or any other full-time mayor - hold down the full-time job of chairman and chief executive officer of the public utilities board. The only reason this situation exists is because Andy and the cabinet created it.
Why they did so is not much of a mystery; Wells himself has talked about paying off his legal bills. That's a reason to pass the hat among your friends or just knuckle down and pay the bills out of your own pocket, over time. Heck, take the higher paying job and get the debt off the books faster.
None of what has been offered up by the Premier, the Mayor or the legion of lawyers can get against the inherent conflicts of interest in the arrangement the Mayor and the Premier have put together.
Then again it's not the first time we've seen this administration embrace conflict of interest as its favourite policy option.
-srbp-
