23 August 2016

The Headpiece of the Staff of Ra-Ra #nlpoli

The provincial New Democrats claim the Liberals broke their own independent appointments commission law when they appointed a bunch of folks to senior executive positions in the provincial public service last week.

Right off the bat, let's be clear:  the appointments didn't break the new Liberal signature law.

That's because the law has a gigantic loophole built into it.

Section 4 of the Independent Appointments Commission Act says that the lieutenant governor-in- council or the minister making an appointment "shall consider the recommendations of the commission in making an appointment."  The definition of an appointment is one made under another Act or to a position listed in the schedule at the end of the IAC Act.

Pretty clear.  This is the purpose of the new Act, right there.  Appointments get made based on recommendations of the new commission.

And having read that, the Dipper geniuses wrote their news release.

But this is like the headpiece of the Staff of Ra and the Dippers only had one side of the headpiece.

The very next section of the IAC Act is the loophole.  It's the bit where they take back everything the law said they had to do.

Section 5 says that nothing in Section 4 shall "alter or fetter the discretion of the Lieutenant-Governor in Council or the minister to exercise an authority to appoint a person under the applicable Act or another authority."

Basically, cabinet doesn't have to pay attention to the IAC Act if it doesn't want to.  That's how the Liberals didn't break their own law but  - far more importantly - it is also why their one piece of reform,  the only major election commitment they have actually turned into a law, is utterly meaningless.

The power to appoint government employees is far older than the Executive Council Act - another simple mistake the Dippers screwed up - and the appointments to the senior ranks of the public service (assistant deputy ministers and deputy ministers) have long been the prerogative of the first minister. Even if the Executive Council Act disappeared tomorrow,  you could still have deputy ministers and other public servants by exercise of the Royal Prerogative through the premier.

No first minister in his or her right mind would willingly diminish the powers of the office.  Frankly, in this case, you'd probably have a bit of a tussle among the lawyers about whether this sort of thing forms a part of the provincial constitution and hence might not be something you could alter simply by passing a bill through the House of Assembly.

That's not really the main point here.  As it now appears Dwight Ball didn't give up anything for himself or any of his successors.  Ordinarily, given the fact Ball didn't diminish his the powers of the office he now holds, that would be a good thing.

But in this case, the fact Ball didn't reduce the powers of his office just reinforces that whole meme Ball has been busily inflicting on himself of promising and not delivering, of saying one thing and doing the opposite.  Ball is already getting hammered over the appointments because they appeared to contradict his words last year at the time Paul Davis hired John Ottenheimer to a public service job without a competition.  Ball promised his new IAC would clean that up.

The Liberals actually defended Ball's decision last week saying these appointments of former political staffers and three failed candidates were never covered by the Act in the first place.  Oh geez, everyone is barking up the wrong tree, supposedly.  Your humble e-scribbler barked right along with them, accepting the Liberal talking point as factual.  Fair enough,  you might say, given that they should know what their own legislation does.

A bit more serious look at the details of the appointments law makes it pretty obvious the Liberals actually intended to include all those senior appointments under the commission.  They just tossed aside their own commitment right off the bat and then didn't understand what their own law provides. You just got to admire the shaggin'-up skillz that kind of performance takes.

The result is that Dwight Ball is in a very hard political spot.  It's just that:

a.  everyone found him by slightly different routes,

b.  where Dwight Ball and his canoe actually sit is even farther up riviere de merde than we previously thought, and,

c.  Ball tossed his paddles into the woods, apparently just to make it harder for his new political staff to get him out.

Around these parts,  there's never been much sympathy for the appointments commission concept in the first place.  The Liberals have basically continued the pernicious trend established under the Conservatives in making appointments to the public service.  Meanwhile, in another area they have put in place a solution to a problem that didn't exist and in making appointments such as the Nalcor board, the Nalcor chief executive,  and the Memorial University president,  the Liberals have done nothing at all to fix the problems the Conservatives created.

Sadly for the Liberals, they simply cannot abandon their commission so soon after they put it in place. They should do some of those other, worthwhile things.  If they aren't on the fall agenda,  these other changes should be.