If the members of the House of Assembly vote to accept the reports from two statutory officers as presented they will have to accept that Chris Mitchelmore committed an act that does not rise to any reasonable definition of gross mismanagement.
If they accept that he has committed such an act, then they must accept he did it alone despite evidence that others are at the very least equally culpable.
Then they must also accept that the punishment for such an offence is far below the standard one ought to expect.
And in the process, they will endorse reports that are, by any reasonable measure, far below the standards that should come from an office as important as that of the Citizen’s Representative and that of the Commissioner of Legislative Standards.
The conventionally
wise were conventionally outraged by two
reports released on Monday about how Carla Foote got her job at The Rooms.
None of the
reports told us anything of substance about the whole business that we didn’t know
before. Dwight Ball wanted Carla Foote
in a new job and Chris Mitchelmore obliged by fixing up a spot at The Rooms. That did not stop the Chorus from moaning,
wailing, and bunching up their tighty whities at this unprecedently extreme,
unusual, and hitherto unknown display of corruption unseen in this place before
now.
Unknown,
that is since the last crowd got punted from office in 2015. Truth is, by example of politics in
Newfoundland and Labrador between 2003 and 2015, Mitchelmore ought to be ashamed at himself
for falling so far short of the standard
of corruption represented by the
appointments of cabinet ministers’ bedmates, hacks, and failed candidates to
all manner of jobs far more influential than directing advertising for the provincial
museum and art gallery. In those heady
days, the legendary A.B. Morine, looking
up from the warmer climes in which he is spending Eternity, could be heard on
especially still nights slow-clapping his approval from the old House of
Assembly as his heirs on The Hill bested his century-old record time and again.
Yes, Dwight
Ball promised to stop this sort of thing, but so too did Danny Williams, gone
from office now these nine years this week.
Williams’ parting act was to try and put his future wife onto the
offshore board. He failed but not before a few
people - in and out of government - embarrassed
themselves in some pretty spectacular ways.
Even Williams’ shag-ups are legendary.
And yes,
they both deserved to be pummeled for making promises they knew or ought to
have known they would not keep.
But the
thing that people should be concerned about in this is more than hypocrisy. They should read the two reports released on
Monday and ask many more questions that are every bit as troubling as the way
the Premier and his administration moved the Assistant Secretary to Cabinet to from
one part of the public service to a Crown corporation.
We can
start with the fact that, as minister, Chris Mitchelmore, had no legal
authority to direct the CEO to hire anyone at The Rooms. The Rooms
Corporation Act as it currently exists and under the revised
legislation that is not in force gives the power to hire within the corporation
solely to the Chief Executive Officer and the Board of Directors. They are bound to follow the Public Service
Commission Act when staffing positions.
Literally
everything else that happened with respect to this incident is a result of
failures by many individuals from the Clerk of the Executive Council through
the deputy minister of Mitchelmore’s department to The Rooms Board and the
former CEO himself to act appropriately or to seek appropriate advice about
what as, by the former CEO’s admission, a request and subsequent instructions from
Mitchelmore that made him uncomfortable from the outset.
The
conclusion by both statutory officers that Mitchelmore alone acted improperly
is ludicrous on the face of it. The
lengthy discussion in both reports about the nature of the two positions -
public service versus executive (order-in-council) is either a sign that both
lost sight of the simple facts of the matter or that both embarked on a
diversion. What both officers have found, at the very least, is administrative
bungling that is extensive and stretches throughout the senior public service. If the paperwork is improperly completed,
then that is not Mitchelmore’s fault. Mitchelmore is a part of that bungling
but he alone should not bear responsibility.
This is
part of the problem with both reports released on Monday. Both are inadequate in their execution and
reach conclusions that are either not supported by the available evidence or
that fly in the face of the evidence.
For example, despite assertions that the Premier was directly involved
in this matter, neither of the statutory officers interviewed the Premier or
any member of his staff. Nor did the
officers request records from the Premier’s Office with respect to what role he
might have played in this matter. Had
either officer been serious about the issue of order-in-council appointments, something
which Mitchelmore quite clearly drew a blank on, then the officers would have
known these are the purview of the Premier alone by constitutional convention. No matter how one slices it, they ought to
have interviewed Ball. That they did not
is a fatal flaw in their conclusions.
It is
evident from the reports that both statutory officers simply do not understand
one of the fundamental points in this matter.
The objective pursued by Mitchelmore was to move Foote from a senior executive
position in the public service (Assistant Secretary to Cabinet) to a position
at the rank of a departmental director.
That is, they proposed to move her three ranks below the job she held to
one outside the level appointed by cabinet by statutory authority.
But
Mitchelmore could not have acted alone. No one should lose sight of this plain
truth in the whole exercise. Foote held
her position solely by a decision of the Premier. To remove her required his decision as well. *Any* changes to the senior executive of the
public service and Crown corporations are his alone. That both officers ignored Ball’s role in this
situation is reason enough to reject their reports as inadequate on the face of
it.
Once one
understands that, the rest falls into place as well. The changes to salary and
title were undertaken solely to allow Foote to retain her executive position
and salary. No one did Foote any favours by demoting her, in effect, to a job
three ranks levels below the one she held at the apex of the public service. The
raft of commentary about doing her a favour, giving her a salary boost, or
sticking an unqualified, political friend into a job for which she is not
qualified simply favours simplistic and trite commentary over the substantive
point.
This brings
us to the finding that Mitchelmore is guilty of gross mismanagement. The words appear seven times in the combined
reports. The reports note, accurately,
that the terms are undefined in legislation. But the Citizens representative
makes no effort to look to case law – the usual source for guidance in the
absence of statutory definition – for guidance as to what constitutes gross
mismanagement. He might have looked to
news media and found a story that audits of the federal
integrity commissioner found gross mismanagement, which was based on
several incidents that fundamentally undermined the integrity of the office.
He could
have looked to the comparable Nova
Scotia legislation, that includes this definition: “a deliberate act or an omission
showing a reckless or wilful disregard for the efficient management of
significant government resources.”
Or he could
have looked to his Ontario
counterpart.
“It
is the Commissioner’s view that ‘gross mismanagement in the work of the public
service of Ontario’ can manifest itself in two ways: (1) conduct motivated by
bad faith or improper purpose, such as personal gain or an abuse of authority;
or (2) conduct that, while not motivated by improper motive, constitutes gross
mismanagement.
“To assess whether particular conduct, while not motivated
by bad faith or improper purpose, is gross mismanagement (category 2), the
Commissioner considers a series of non-exhaustive factors
- The seriousness of the conduct. For instance, mere errors will not constitute gross mismanagement, but an error that is serious and not debatable among reasonable people could.
- The frequency or systematic nature of the conduct. Patterns of conduct are more likely to constitute gross mismanagement than are isolated incidents.
- The public interest. Gross mismanagement is more likely to exist if the conduct is something that would shock or concern a reasonable member of the public.
- The impact on the organization and/or the program area. Gross mismanagement is more likely to exist if the conduct has significantly affected, or could significantly affect, the organization’s ability to carry out its mandate, the organization’s employees, clients or the public trust.
- The conduct of the public servant. Gross mismanagement is more likely to exist if the conduct is reckless or wilfully disregards established policies, practices, and procedures."
There is nothing in the information that is readily
available in these two reports that rises to this sort of standard. The Rooms was not impaired in its
functioning. The behaviour was not
frequent or systematic, at least on Mitchelmore’s part. Nor was it as egregious
as denying someone their human rights. As
minister, he relied on advice, which he either did not receive or which was
inadequate.
Other parts of the episode might constitute mismanagement, but
it would not be Mitchelmore’s alone. It bears noting, again, that the CR’s
failure to address the obvious mismanagement by public servants that he found in
his review – such as it is – is baffling. The allegation may have been made initially
against Mitchelmore, but the CR had a duty of care to address any other
substantive failings he uncovered in the course of his investigation. That he failed to do so would arguably
constitute gross mismanagement in itself.
That the Commissioner for Legislative Standards has yet
again produced a flawed report within his area of responsibility is not a
surprise. That he has not been sacked is.
As it is, the members of the House of Assembly are now faced
with a quandary if they are serious about their jobs.
If the members of the House vote to accept the reports as
presented they will have to accept that Mitchelmore committed an act that does
not rise to any reasonable definition of gross mismanagement. If they accept that he has committed such an
act, then they must accept he did it alone despite evidence that others are at
the very least equally culpable. Then they must also accept that the punishment
for such an offence is far below the standard one ought to expect. And in the
process, they will endorse reports that are, by any reasonable measure, far
below the standards that should come from an office as important as that of the
Citizen’s Representative and that of the Commissioner of Legislative Standards.
Individual members of the House, particularly Dwight Ball
and Chris Mitchelmore, would have to accept findings that are contrary to their
stated position. Mitchelmore says Ball
offered Foote the job. Ball maintains he
had nothing to do with the whole business.
Since the Citizens Representative deliberately - and inexcusably - failed
to interview Ball on a matter central to the allegations against Mitchelmore, there
is no satisfactory answer to a central question of this controversy.
The only sensible resolution to this matter is to reject
both reports and start them over again by someone else capable of undertaking
such an investigation. Unfortunately,
there is no way to do this without bringing in outsiders specifically to look
into the original allegations. A second set of reviews would have to look at
both statutory offices and the incumbents to determine if they have also failed
to carry out their responsibilities appropriately.
The sad truth is that none of this is likely to happen and those
who appear to have participated in this fiasco will stay in place. Chris Mitchelmore has been thrown under a
political bus by his boss repeatedly.
While he may survive in office for the short term, his reputation has been
destroyed.
Were Mitchelmore to quit politics, no one should blame him. This entire process has been evidence that in
provincial politics these days, one is apt to find the truth turned to chalk
and cheese made of incompetence and lies.
-srbp-