06 October 2014

Pension Judy #nlpoli

Judy Manning will go down in history as the only unelected cabinet minister in Newfoundland and Labrador since the country gained responsible local government in 1855 who went into office with no intention of seeking a seat in the legislature unless and until she was ready to do so.

The Conservatives are deliberately breaching the centuries-old constitutional convention on cabinet ministers.  It’s spectacular, really, but the attitude that Premier Paul Davis and the Conservatives are displaying on this is hardly surprising.  They think they made the place and that nothing existed before them.  Therefore, they think they own the place.  Pride might go before a fall, but in the Conservative case, they are laying a carpet of breathtaking arrogance before them, as well.

Officially, Manning and Davis have said that she will run in the next general election, whenever that happens. We have a fixed election date, supposedly, so that election could be a year away.  Manning has said we don't know when the election will come and she’s right.  But while Manning has used that to suggest the election many come before next fall,  odds are equally good that it won't come much before the legal limit in October 2016.

So Manning could be working as a minister for upwards of two years without a seat in the House.  She’ll be paid as a minister,  meaning she will get the $54,072 set for cabinet ministers. The amount is small because it’s always been established as an amount on top of the base salary of a member of the House of Assembly.  She’s not getting that salary but, as the Telegram’s James McLeod tells us,  Judy will contribute to the pension plan for members of the House of Assembly.

Some of you might be wondering how that is possible.

I worked with Edward Roberts.  Edward Roberts is a friend of mine…

The whole thing is tied to Edward Roberts, apparently.  He served as an unelected minister for six months in 1992.  The Conservatives have used Edward Roberts’ experience a lot the past week or so when talking about Manning.   They seem to think that there is a comparison and that, somehow, the Roberts experience makes the Manning one acceptable.

It doesn’t, of course.  By the time Roberts went into cabinet in January 1992, he’d already been a cabinet minister under Joe Smallwood,  a leader of the Liberal Party and Leader of the Opposition.  He’d left politics in the 1980s and run a successful law practice. 

When went into cabinet in 1992,  Roberts did so with the explicit commitment from his boss that Roberts would seek a seat at the earliest opportunity. He did just that, winning a by-election in the old district of Naskaupi after Jim Kelland resigned. 

You, Ms. Manning, are no Edward Roberts.

Back to the pension.

The official explanation of how Manning can qualify to participate in the pension plan for elected politicians is really interesting.  Here’s what McLeod got back from the crowd in the public safety department:
“Based on research that was done related to when Ed Roberts was appointed minister in 1992 and consistent with the language in the MHA Retiring Allowances Act, a minister under the Act need not be an elected member in order to participate in the MHA Pension Plan,” the statement from the department said. “Therefore Minister Manning is eligible to participate upon being appointed.”
There’s that Roberts thing, although the statement was written by someone who clearly doesn’t know Roberts.  Those who do will understand

The law the currently governs the pension plan for members of the House of Assembly is called the Members of the House of Assembly Retiring Allowances Act. The Conservatives passed it through the legislature in 2005.  They introduced it in May and passed it in a day or so in November with almost no debate at all.  It replaced the Members of the House of Assembly Pensions Act.

The Pensions Act dates from 1975. The Act is pretty simple. It sets up a pension plan for members of the House and includes within the calculation of pension benefits the pay received by MHAs once they became ministers on top of their pay as members of the legislature.

It defines “member” as a member of the House. The whole Act is based on the premise, though, that a minister could not be a minister without being a member. “Pensionable salary” is, according to the definitions section,  “in the case of a minister, the salary authorized by the Legislature to be paid to a minister but does not include indemnity, allowances or expenses paid to him or her as a member,…”.

There’s an “and” at that point in the definition and the second part of the definition says that the salary for a member of the House is the amount set out by regulation.

Notice that there’s no condition or qualification in the definition of what makes up a minister’s salary for the pension plan. The definition says “expenses paid to him or her as a member…”. It doesn’t say paid if the person is a member. The absence of that qualifying word “if” is important to understand that whoever wrote it couldn’t imagine someone being a minister without being a member of the House of Assembly.

When Edward Roberts went into cabinet in 1992 he had already been a member of the House for the better part of 25 years before he’d retired the first time.  He was coming to the House as someone who already had a pension due to him – whether he was collecting it or not is no matter – and they now had to plug him back into the system again.   Section 26 stopped him from getting a pension and contributing to the plan at the same time.

The question that pension officials faced, apparently was what they should do with Roberts’ service for the six months before he became a member of the House again, but couldn’t receive a pension and didn’t qualify to contribute to any other pension plan.

A whole new world

That isn’t the situation facing Judy Manning.  She’s never been a member of the House of Assembly.  In fact, if things go as they seem to be heading, she will never sit in the House for 25 seconds as a member, let alone more than 25 years.

And there’s a new pension law for members of the House of Assembly and cabinet ministers, so the truth is Judy Manning's situation has nothing whatsoever to do with Edward Roberts or Noel Murphy or anyone else.

One of the small but very important changes the Conservatives introduced in 2005 was to the definition of “member”.  It now means someone who pays into the plan.  Section 4 says the act applies to MHAs and ministers and, as you might expect, the definition of a minister means “a member of the executive council.”

The sections of the new Act that describe how to calculate contributions and payments distinguishes between a minister’s salary and an MHA’s salary.  The new Act also provides two sets of rules:  one for MHAs and one for ministers that are identical in virtually every respect.

But the key thing is that they create a very clear distinction between sitting in the House one the one hand and being a cabinet minister or Premier on the other.  Under the 2005 MHA pension law, you can contribute to the MHA pension plan and draw a pension without ever sitting a day in the House. You just have to be a minister.

We don’t know why the Conservatives wrote this law this way.  We don’t know because there’s no debate in the House on the substance of the bill. There’s a bit of talk about the tax-exempt status of payments under the old Act, but frig-all else.  There have also been no questions raised about the changes since then.

Frankly, there’d have been no need since there’d been no sign of any change in the constitutional convention in who can sit in cabinet.

No sign, that is, until now.