23 October 2019

Politicians shirk their duty... again #nlpoli

If the Auditor General starts the investigation of wetlands capping as requested by the Public Accounts Committee, then she will be acting illegally.

The Auditor General has no authority to conduct a review requested by the Public Accounts Committee of the House of Assembly under any provincial statute,  regulation, or constitutional practise.

Section 16 of the Auditor General is explicit about the subjects that the Auditor General may review, if requested by either the Lieutenant Governor in Council,  the House of Assembly,  or the Public Accounts Committee.  They are:

  •         [matters] relating to the financial affairs of the province or to public property, or
  •      inquire into and report on a person or organisation  that has received financial aid from the government of the province, or   in respect of which financial aid from the government of the province is sought.

In August 2019, Crosbie asked the Public Accounts Committee of the legislature to look into why the environment department had not issued a permit for wetland capping.  Specifically, Crosbie asked for an investigation of a “breakdown in communication that resulted in the flooding of the Muskrat Falls reservoir in violation of an agreement between the Government of Newfoundland and Labrador and the Innu Nation, the Nunatsiavut Government, and the NunatuKavut Community Council to abide by the recommendations of the Independent Expert Advisory Committee, which directed that wetland capping must precede any such flooding. ”

There is no way that the plain English meaning of section 16 can be stretched to cover a “breakdown in communication” of any kind. Crosbie tried to make the issue a financial one by noting in his letter to the Public Accounts Committee that the government allocated $30 million for wetland capping and some it had been spent.

But here’s the thing:  the Auditor General doesn’t get to investigate everything involving public funds because everything in government has to do with spending public money.  In the context of the Act,  the Auditor General looks at on how government departments deliver specific programs. You need only look at the annual reports the Auditor General issues on government departments to see what the Auditor General is supposed to do. Department X was authorised by the House to spend an amount of money delivering a specific program.  How did they spend the money to accomplish the purpose they had.

The AG legal authority to investigate “a breakdown in communciation” or anything like that.   It’s very simple.  Whatever happened to the promise on wetland capping is nothing of the sort the Aug should be reviewing. They were part of ongoing discussions between the government and three external groups.  The fact government thought it would cost any amount  - if it took place - is irrelevant.    

This is not just a matter of one persons’s interpretation of the Auditor General Act.  This is precisely what the House of Assembly voted for in 1991 when it approved the first version of the Auditor General Act. 

When he introduced the Act in the House of Assembly in 1991,  finance minister Winston Baker noted that government planned to give the Auditor General broad powers. “The Auditor General shall call attention to anything the Auditor General considers significant,”  Baker told the House,  including instances where… ‘factors or circumstances relating to an expenditure of public money which in the opinion of the Auditor General’ … ‘should be brought to the attention of the House of Assembly.’"

Baker made it clear, though,  that the Auditor General was supposed to deal with “expenditure of public money”.  After all, the Auditor General, no matter what other experience he or she might have is hired with the credentials of a chartered accountant to address the way in which public money is accounted for.  The AG looks at what happened to the money.

The AG is not supposed to look at why the government spent money or, in this instance, why it didn’t. That’s something that Baker explained in 1991 when he spoke about a specific clause in section 12.  The clause he quoted had a clarification included in 1991 and never removed by the legislature.  The matters brought to the House’s attention “shall not be construed as entitling the Auditor General to question the merits of policy objectives of the Government.”

“Some people might say it is strange to have a statement like that in the act,” Baker explained.  “The reason it is there is very simple. The Auditor General is suppose to comment on the expenditure and collection of public money, and the Auditor General can point out where money could have been better spent.”

“If …any Government… decides because of a policy objective to fund something, the Auditor General can quite rightly point out that perhaps the funding of that project or whatever it may be, existed and perhaps could have been done in a better way.  That is a legitimate question [for the AG] but it is not legitimate for the Auditor General to comment on the policy objective in Government of doing that.”

“The Auditor General does not comment on the correctness of that particular policy of Government. The Auditor General may comment on the financial transaction, so we thought that had to be in there because what we do not need is an individual out there who was not privy to any of the Cabinet discussions and the reasons for making a policy and then all of a sudden making pronouncements on the merits of a particular policy. We felt that the expertise of the Auditor General would be within the domain of the expenditure of money rather that the development of policy.”

Make no mistake:  Crosbie is right about the need to make government account for its actions on wetland capping.  That’s not a job for the Auditor General, though.  That job belongs to Ches Crosbie. As the leader of the opposition in the House of Assembly,  Ches gets paid to make the government answer for its actions. He doesn’t get paid to fob off his responsibility onto someone who does not have the legal authority to do it.

If Crosbie and the members of the House Public Accounts Committee want to hold hearings and call the Premier, the Minister of Environment, and other witnesses then they can do just that.  It might be a bit of a stretch under the PAC’s terms of reference but it’s a lot less troubling to have elected politicians do their job than take the Crosbie route of trying to pawn of his job on someone else.  If Crosbie got the members of the PAC to agree to do something illegal – as he apparently just did – then he should have no trouble getting them to do something that is perfectly legal and absolutely appropriate, like politicians investigating politicians in the House of Assembly as they are paid to do.

Unfortunately,  Crosbie and the AG can rely on previous examples where the Auditor General have undertaken these sorts of reviews.  The most recent example took place when the current Auditor General was the Clerk of the Executive Council.  In 2016,  Dwight Ball gave the Auditor General the job of looking into the “appropriateness of the severance benefits” paid to Ed Martin by NALCOR or under his employment contract.  Those words and The AG’s specific task under section 16 of the Auditor General Act are in an order-in-council numbered OC2016-071 that was approved on 29 May 2016.

That request is bad enough in that it is outside the scope of the Auditor General’s powers for a review under section 16. Ed Martin compounded the problem when he accepted an inappropriate order from cabinet.  He then compounded *that* mistake by exceeding the task assigned to him. He did not merely review the severance entitlements and determine whether or not the amount Martin received was consistent with the terms of his contract.  The Auditor General criticised the government for the way it dealt with Martin.  The Auditor General  - who had been the deputy minister of finance at crucial times during the development of Muskrat Falls  - criticised Ball in Ed Martin’s departure when he said it had been a case of constructive dismissal. The Auditor General had neither the authority nor the expertise to make such a judgement.  He may well have been in a conflict of interest given his former position as deputy minister of finance.

The Auditor General’s review of Humber Valley Paving was similarly outside the scope of subjects the Auditor General is legally supposed to be reviewing.  That the AG report ht the time gave political cover to government on a controversial issue only compounded the situation in that case.  This was another inappropriate action by the former deputy minister of finance.  It continues in the same fashion of his predecessors both of whom undertook deeply flawed if not openly partisan investigations during their terms of office.

The pattern of shirking responsibility – as Crosbie is doing – also follows the example set by Dwight Ball.  In addressing behaviour of cabinet ministers and members of his own caucus,  Ball refused to exercise his own responsibilities.  Instead he invited an officer of the House with no legal power or professional expertise to investigate and make decisions about issues that were outside his mandate. Ball’s actions also raised conflicts of interest and constitutional issues.

These improper uses of officers of the House is similar to the tendency of bureaucrats and politicians to use the access to information legislation for purposes for which it was not intended.  In some instances, this has led to continued illegal practises such as redactions for which there is no legal authority.

Two wrongs don’t make a right and umpteen wrong acts, as in the abuse of public offices and statutes are a cause for much deeper concern.  The best thing for the Auditor General to do is refuse the request.  And if she has already accepted it, then, the province will just continue its slide away from the rule of law.