14 March 2016

Picking stuff out of the appointments hockey bag #nlpoli

One of the provincial Conservatives’ signature new initiatives in the first session of the legislature after the 2003 election was a bill that supposedly set fixed election dates. 

Changes to the House of Assembly Act also triggered a general election if the Premier left office other than within a year of an existing fixed election date and reduced the number of days the Premier had to call a by-election from 90 days to 60 days.

When the bill appeared in the House, there were some obvious problems with it.  For starters, and in keeping with the constitutional traditions of Canada, there actually were no fixed dates for general elections.  The first clause of the amendment bill made it plain that nothing in the bill change the power of the Lieutenant Governor-in-Council to call an election whenever it wanted.

There was just no need to reduce the time period for calling by-elections to 60 days. 

And, as it turned out, the Premier quitting didn’t trigger an election either. The clause of the bill was so poorly worded that the Conservatives were able to wiggle around after Kathy Dunderdale left and stay in office for a couple of years.

That last bit is not just irony or hypocrisy.  The Premier-triggered election clause was never anything more than Danny Williams’ ego at work.  He’d been pissed off that Roger Grimes didn’t do as Danny wanted and call an election 2001.  So Danny re-wrote the law. 

The last bit isn’t just irony or hypocrisy.  It’s a sign of how garbage produces garbage.  Danny Williams’ bruised ego was a ridiculous motive for making law.  Not surprisingly, the hasty result of making law based on his fragile ego was junk.

In the case of the Liberals’ new bill setting up an appointments commission we don’t have garbage, not by a long shot.  That doesn’t mean that the bill is either necessary or that it couldn’t use, at the very least, a serious overhaul.

It isn’t really clear if anything in particular triggered the bill.  In his opening remarks on second reading of the bill,  Premier Dwight Ball referred vaguely to problems with the way governments have been making appointments. Cabinet has the power to make hundreds of different appointments to positions within government and, in some cases, to organizations that are outside government but established by provincial law. 

There is no written set of rules about the way people get these jobs.  That doesn’t mean cabinets have appointed people on a whim or what Ball referred to as “entitlements.”  

Ball spoke equally vaguely about wide-spread support for his commitment to take politics out of the appointments process.

Ball’s vagueness notwithstanding, there are some rather serious problems with the way some administrations have made appointments.  Ball wouldn’t have to look beyond the appointments made during the last couple  of years to find cases like the associate secretary to cabinet for communications or the head of the provincial housing authority to see instances of people being given jobs for purely partisan reasons.

If Ball had a problem with some specific appointments, then the simplest solution to this problem would have been for Ball to get rid of the folks who are occupying positions for partisan reasons. Ball had the power the moment he took his oath of office.  He could then use his own method of finding folks to appoint. That he left the bad appointments in place suggests that Ball might not have been as bothered by them as he says.

Just waiting for the new commission might come the reply.  Well, sure, but since it may well take a year or two for the commission to start filling up some of these jobs,  the bad appointments will continue in place.  In some instances, the bad appointments may well stay in place until after the next election.  Folks who got shops Ball believes they shouldn't have will stay in place and Ball himself may never get to make what he considers the right appointment for that job.

There you have the disconnect between the supposed problem and the Liberal solution. If there really is a problem so significant that we need a whole new commission to fix it, then it cannot be that bad if Ball is prepared to  endorse the appointments for his entire term.  Had Ball cleared out some of the dubious appointments – like say John Ottenheimer following Len Simms – then we might better understand not only what the problem was but also that Ball was serious about fixing it.

Then there is the question of what the new appointments commission will cover.  Bill 1 mixes together a variety of different types of appointments into one giant hockey bag.  Cabinet currently appoints dozens of people to serve as members representing the public interest on a wide variety of boards and agencies.  There is a fairly well-developed process for finding these folks, screening them, and recommending individuals for the positions. 

The jobs often come with little or no compensation beyond basic expenses and a per diem.  There are, in most instances, no qualifications set for the positions in the law that establishes the positions.  That’s because quite literally anyone of reasonable intelligence and ability can take up the job.  The fact that they have gone to folks with party affiliations is entirely irrelevant to whether or not they are qualified for job that has - by definition - no real qualifications.  What the Liberals are apparently now proposing to do is replace those folks with people selected based on entirely new criteria that we do not even know about.  Talk about having a solution in search of a problem.  These appointments are precisely that.

In Ontario, as in other places,  the government has set up an office to collect resumes, screen them, and build up a list of eligible people.  The jobs go from ones that used to reward partisan loyalty to being ones that encourage voluntary public service. Now there's an idea to get behind and hopefully this is the way the provincial government will approach these appointments.  But if they start imposing qualifications like education or experience and so on, we could well wind up needlessly limiting who can get these volunteer jobs.

The change the Liberals should make to these appointments  doesn’t require a specific law.  Cabinet could have set up an office,  issued the principles on which the office would run,and then started working.  People interested in the jobs would send in their names and other information.  The appointments people could screen them, as they do now, and put names forward to cabinet for empty positions. The legal authority for the whole affair comes out of the law that allows government to administer itself. 

Then there are the so-called statutory offices like the Auditor General and the access to information and privacy commissioner.  These are officers of the House of Assembly and should be appointed by the House, not the cabinet.  In the newer offices,  the law that sets the agency up – like ATIPPA – actually sets up a process that gives the job of recommending an individual to a committee that is supposed to find the right person.  In other words, there is already a process designed to limit partisanship. 

What we need for the House officers is not an appointments process run by cabinet, in other words.  We need to reform the existing process and put in place  one that empowers the House, once again, to do its job.  In the case of the lobbyist registry, the law needs to be scrapped because it remains useless or reformed and put on the same level as the auditor general or the ATIPPA commissioner.  Bill 1 ignores that pressing need for reform entirely.

For Crown corporations like Nalcor and the Hydro corporation, or for entities like Memorial University cabinet needs to do a specific job for each. Cabinet needs to change the relationship between the organizations and government as part of a much broader policy shift.  Part of that may be specifying not only new criteria for board appointments but also making changes to the governance of the corporation itself that would take some appointments out of the hands of cabinet altogether. Bill 1 just leaves the existing unsatisfactory process in place for making those appointments.

Then there are the appointments not covered by the commission, namely the appointments to the senior executive. These shouldn’t be controlled by a commission outside government. They should remain the prerogative of the Premier, confirmed by cabinet.  But here’s the thing:  as a matter of policy, the Premier could rely on an executive search to staff those senior positions.  That’s the way to set merit criteria for each and ensure that the process of selection is run professionally.

We need reform to the way cabinet makes appointments to a variety of positions within its responsibility.  We need to target the reforms to fix specific types of problems with the existing process for appointing different types of positions.

Bill 1 doesn’t do any of that.  It either ignores substantive problems as at Nalcor and Memorial University,  further erodes the legislature by  taking power from the House and giving it to a commission appointed by cabinet, or promises to delay routine appointments by burying them in the hockey bag with larger, knottier problems the Bill 1 process won’t cure. 

Reforming appointments by cabinet is a good idea.  The provincial Conservatives abused the power given to them as often as not.  Paul Davis, in particular,  made some appointments characterised solely by the stench of impropriety associated them.

Bill 1 takes a stab at the reform and blows away the stink but people should appreciate that we could do so much better without a lot of effort.