09 December 2019

Political Foote Ball #nlpoli

Since 2003, the legislature has become more about political theatre than the public interest.  This past sitting of the House proves how much that is so.
Public discussion of policy issues in Newfoundland and Labrador takes place inside an echo chamber. It tends to stay inside arbitrary, artificial boundaries.  Participants  ride their hobby horses and ignore or try to shout down anything that contradicts their assumptions. often comments are not about what is actually going on.  They emphasise the trivial and superficial – the spats with Gerry Byrne and Tom Osborne – and ignore the  far more serious. Much of what they do is absurd:  they chase Chris Mitchelmore, knowing that Dwight Ball actually made the decision. 

Only the Premier can approve appointments
to the senior public service. 
You see them a lot.

New releases from the provincial government announcing changes to the senior public service in the province.  New people taking jobs.  People being moved from one job to another. A handful of retirements or people who left, implicitly to take up another job.

In October 2018, for example,  there was an announcement of a new appointment as associate secretary to cabinet for communications. There’s no mention of what happened to the person who used to have that job,  although the release for that earlier appointment came in January 2016.

The senior public service includes deputy ministers, associate and assistant deputy ministers, and executive directors.

There were 56 changes at that level in 2016, 60 in 2017, and only 16 in 2018. 

They don’t issue news releases for every one, any more.  Dwight Ball stopped announcing any appointments below the rank of deputy minister.  The high number of changes in the senior public service under Kathy Dunderdale became a major issue and an easy way to stop people finding out about the changes was to simply stop announcing some of them.

Fortunately for openness, transparency, and accountability, there’s a database online of orders-in-council that anyone can search.  Those are the legal documents that make each senior executive appointments official. 

And it’s where the numbers came from in an SRBP post in January 2019 about the number of changes in the senior public service during the tenure of each Premier over the past decade.   
Of all the things that cabinet does,  changes to the senior public service are one of a few things the Premier alone gets to do.  The Premier also gets to appoint chief executives in Crown corporations.  And that's pretty much the way it across Canada.

The only exception, according to Chris Dunne, the late political science professor at Memorial University, is Alberta, where the appointments are made officially by the senior public servant in the province.  Everywhere else, Dunne notes, appointments to the senior public service remain the “prerogative of the Premier”.

That's how things work in Newfoundland and Labrador and have worked since 1855.  The Premier alone picks who gets the senior jobs. The top public servant  - the Clerk of the Executive Council usually gets a say in the jobs in central organizations – like Cabinet Secretariat – or the line departments like health, transportation, or natural resources.  

Outside of the provincial public service, statutes cover only the top position – the chief executive – and there the Premier in Newfoundland and Labrador makes the call.  Depending on the preferences of each Premier for making these decisions, he or she can get advice from the senior political staff in the Premier’s Office as well as the senior public service.  Sometimes ministers are involved.  Sometimes, they aren’t. This level of discretion is important because, as in the private sector, senior leadership depends as much on personal qualities and characteristics as experience and formal qualifications.  People have to be able to get along.  They should have compatible or complimentary styles. And ultimately, the pairing has to ensure that departments and agencies function properly, and that the organization will meet the government’s goals.

There’s no restriction on who can have these top jobs.  Premiers have appointed people who have worked their way through the ranks of the provincial public service.  They have appointed people from the federal public service or the private sector.  In the years after 2003, it became a common thing to see active Conservative partisans put into positions that normally wouldn’t be filled by anyone other than a career public servant.  On the communications side, the Conservatives started shifting people far below the senior level into political staff positions in the Premier’s Office and back out again.  They were also the first to appoint two political staffers, in succession, into the senior public service as associate secretary to cabinet for communications.

All that information has been in public for years.  Some of it is fundamental information about how government works.

Fitting the Twisted Frame

Now go back to October 25, 2018 and take a look at the first CBC story about Carla Foote, Chris Mitchelmore, and the job at The Rooms. Headline: Well-connected Liberal staffer lands high-paying civil service job without competition.   Patronage – politicians hiring their well-connected friends into high paying jobs.  Initially the notion Foote was unqualified for the job was implicit.  Later the claim Foote would not qualify for the job - an assertion made without any evidence – would form an integral part of the story for many of the people talking about it. 

In fact, that notion of looking after your friends with high-paid jobs is the core of Anthony Germain’s analysis piece posted online on November 24 after a month of questions in the House of Assembly about the story.  And the focus was on the minister whose name appeared on the internal administrative paperwork approving Foote’s job at The Rooms, a provincial Crown corporation.  

Not the Premier.

There’s a quote in Germain's story from a local political science professor who - despite all the information readily available from an academic perspective on senior public service appointments - assessed things in the context of the information that had been in the media and the House of Assembly. No wider context at all and certainly nothing about how things work in Newfoundland and Labrador.

Curiously enough, it took CBC more than a year to present something closer to the whole story of what happened.  The whole thing came from the Premier's Office. D'uh.  And there’s the political scientist condemning the whole business based not on information about what actually happened or what happens in Newfoundland and Labrador but judged against an arbitrary, artificial standard of what ought to happen in some mythical ideal situation.

“Sure, the salary and the rank are comparable, but a lateral move would be one within government. The Rooms is not government.”

Not government?  By any conventional understanding of what is government, The Rooms certainly is.  And according to both the initial stories in late 2018 and the two reports completed by the Citizen’s Representative and the Commissioner of Legislative Standards into claims of wrongdoing,  the minister involved in this situation routinely signed off on hiring within both his department and within the government agencies that report to the department.  

By the way,  in this instance, the only basis for claiming that the Minister and chief executive at The Rooms did not follow proper administrative procedure - according to the reports - was that a section explaining the reason for hire was left blank.  They didn’t fill out their forms properly, in other words.

But there’s no evidence that the transfer of Foote from her senior executive position to the one at The Rooms didn’t follow the normal procedure for these types of moves with the Government of Newfoundland and Labrador.


Barry Fleming’s Incompetent Report

We don't know because at no point did the Citizen's representative bother to find out what the usual practice of hiring and transfer is. You'd think a key part of establishing that something was abnormal would be describing what normal looks like.   Apparently not.  

That’s just one of the one of the glaring problems with the Citizen’s Representative investigation, completed, incidentally, by outgoing CR Barry Fleming in the few months before he was replaced by Bradley Moss.  His report doesn’t describe the hiring and staffing process within government at the level we are talking about and he ignores comments from knowledgeable informants that the matter of Foote's move was handled in a normal way.  

Fleming’s evidence of impropriety is essentially based on some documentary evidence about how to fill out forms. He doesn’t describe at all senior executive appointments, permanent position staffing, hiring of temporary employees, hiring of contractual employees, and the byzantine administrative practices used through the provincial government - line departments and Crown corporations alike – to put people in jobs and pay them. 

And it *is* complex. 

Fleming doesn’t even clearly describe the complaints and the results of his investigation.  Instead, he states on page 25 that his goal was to determine if Mitchelmore committed “gross mismanagement” or violated the code of conduct established under the House of Assembly Accountability, 
Integrity, and Administration Act. We don't know how he determined that was the issue to investigate compared to - for example - what happened and then determine if there was wrongdoing of some kind at that point.

Neither Fleming in his initial report nor Moss in his supplement define gross mismanagement nor do they explain how giving a job a new title and salary - the crux of the administrative aspects of what happened at The Rooms – constitutes gross mismanagement.  Again, without some basis for making a judgment,  some standard against which to compare events in this instance, it is hard to know if something was right or wrong.

There’s even a question about the legal basis on which Fleming and Moss reported on Mitchelmore.  The province’s whistleblower law applies to allegations against public servants, which would include the former chief executive of The Rooms.  It doesn’t cover ministers either explicitly or implicitly.  You can see this plainly in the instructions to the Citizen’s Representative in section 18 about who gets his report.  In a complaint against a public servant in a department, the report goes to the minister.  For a complaint against an agency, board, or Crown corporation like The Rooms, the report goes to the board of directors *and* to the minister to which the department is responsible.

And with that in mind, there's a huge question as to why Fleming/Moss didn't find that the chief executive committed wrongdoing.  Under The Rooms Act, the chief executive actually has the legal authority to hire and fire.  T

At the same time, the HAAIA and the code of conduct established under it covers members of the House of Assembly in their capacity as members of the legislature.  That is clear both from the wording of the legislation itself and the report into the House of Assembly spending scandal more than a decade ago.  There’s no reason to believe it was intended to or should apply to ministers acting in their capacity as members of the Executive Council.  The executive branch of government, in other words, to make a political scientist’s distinction, as opposed to the legislative branch.

 The Undistorted Lens

The story that dominated the House of Assembly for the past week was always really what is popularly known as inside baseball.  That’s the minutia of politics and government that no one really cares about outside the limited group of policy wonks and policy wanks inside and outside government.  Dwight Ball decided he wanted to move Carla Foote out of the job as the top communications person in government.  Ball’s staff put the whole thing in motion, figured out there was a spot at The Rooms, and with the assistance of Mitchelmore,  the deputy minister of the department, and the chief executive at The Rooms,  they shifted Foote out of her job in Cabinet Secretariat over to a job at a Crown corporation.

The officials had to re-classify the job: change the title and boost the approved pay to make it happen.  That has happened many times at high levels and it has happened many more times at lower levels as people are shunted around after a major restructuring or down-sizing.  Because it took a curiously long time to go from first broaching the idea of moving Foote to actually shifting her, the chief executive hired someone else in the meantime, apparently thinking the minister and the Premier had changed their minds. That resulted in the incumbent being let go, presumably with appropriate compensation.  Not ideal but also not unheard of in either the public or private sector across the province for one reason or another.

People can wonder *why* Dwight Ball wanted to ditch Foote.  The CBC piece last weekend offers a plausible explanation.  But that’s been the obvious question that should have been posed to an obvious person (Ball) from the start.  

Except it wasn’t and that’s the far more interesting aspect of this entire business.

From the outset, the media framed this story as one of nepotism and cronyism. They made references to politics, the lack of a competition, Foote’s political connections to Dwight Ball and her mother’s standing as a prominent politician and now Lieutenant Governor.

But they never mentioned Dwight Ball. They focused on Chris Mitchelmore.

You can understand part of the reason the media spun the story. Staff changes in advance of an election are a footnote.  They are so far inside baseball that even insiders don't care.

But political corruption makes news.  And if you can drag in the Lieutenant Governor, all the better.  So CBC started the story,  appropriated spun.  The rest followed along.  Shortages of staff, the dramatic decline in the number of older, more experienced people in newsrooms, and pressures of time always make it easier to follow a story that seems to tell itself than to break new ground.

For their part, local politicians in opposition parties are notorious for getting their issues from the local media. So with a story like this, the opposition was quite happy to take up a line that fit their campaign strategy of accusing the Liberals of being corrupt. Both media and politicians used Dwight Ball’s promise to get politics out of government hiring as a rod to beat Chris Mitchelmore’s back. 

Mitchelmore was an easy target. Ernest, decent, but with a quirky public profile damaged by a few gaffes, he wasn’t likely to mount a strong counterattack.  In the House, Mitchelmore stuck to a script prepared by the Premier’s Office, who, as usual proved unable to understand the issue and manage it successfully. Three different comms teams on the 8th Floor have handled this issue in a single year – an enormous inside baseball story in itself – and none have managed to find a way to get this story under control.  Their only idea was to hold up Mitchelmore as arrows flew in while those responsible for the whole affair hid below the parapet.   

What’s especially curious about the choices by both the media and the politicians is why they studiously avoided making Dwight Ball the focus of their questions. There's just no explanation for it. They had enough to focus on him even as he told nose-puller after nose-puller when if he was involved.  Dwight Ball doesn’t frighten anyone *that* can't be why everyone has focused on Mitchelmore. That, too, is a question that begs for an answer with potential far greater implications than wondering when Carla Foote found out she was getting a new job.

More rookies than ever

Part of the explanation might be the inexperience on the opposition benches both before and after the elections.  The Conservatives under leader Ches Crosbie have been almost as inept as the Premier's Office at managing political communications.  The same applies to the New Democrats.  

In order to get the right answers, you have to know what questions to ask.  When you are relatively inexperienced, you are more likely to make makes.  It happens in every job but when you are in the House of Assembly,  you are in a job like no other. it takes a while to know what is going on. 

Take Lela Evans, for example.  She is the Conservative member of the House of Assembly from Torngat Mountains.  She has gained a profile for her pointed questions and comments about government policy. She got more attention last week for her impassioned comments about the Mitchelmore Reports.

“I stand here today with two emotions,”  Evans told the House during debate Wednesday morning on the motion to accept the Mitchelmore Reports.  “One of them is actually anger. I'm actually feeling anger at what's going on in this House today. I also feel ashamed; ashamed at the defence of the indefensible, as my fellow colleague pointed out.”
“There's a report here with findings in black and white. I find it difficult to actually sit through a lot of these proceedings where people, actually good people, rise and defend bad behaviour, people that I actually respect across the House. Unfortunately, it's not the first time that I witnessed that. I find that very disheartening, which gets back to frustration, anger and actually shame because the actions of this House affects all of us, whether we're innocent of wrongdoing or whether we're actually guilty – I don't know if I'm allowed to use that word – of wrongdoing. Because eventually the public tars us with the same brush.
As my fellow colleague pointed out, we're here to represent the people. We're here to try and better the people of Newfoundland and Labrador, the living conditions, the life that we want for our fellow Newfoundlanders and Labradorians, and I find it difficult.”
Evans is one of the 43 percent of members in the legislature who have only been there since last May.  Fully 78 percent of men and women sitting in the House last week have only been there since 2016.  

That’s the second largest number of new and rookie politicians in the House at any comparable period since 1949.  The largest was in 2007 when 85% of the members in the legislature had been elected to the House for the first time not much earlier than the preceding general election.

The members of the House of Assembly are intelligent, capable people.  They come with considerable life experience and every ounce of the sincerity and passion evident in Lela Evans.  But few of them, certainly not the majority of the current members, and only maybe a couple on the opposition benches have a sense of what members can do or should do in any given situation.  It’s a function of their lack of experience doing the job they now hold.  Even the ones who have served on boards or in municipal government before have never held a job like the one they now have.

Members sit in the House for only a handful of days.  The most recent sitting was a few hours a day over a mere 15 days.  They do not spend much time thinking about what they are debating and what little research they do get comes from a handful of political staffers in each caucus. According to the government phone directory, there are 17 non-political staff in the House of Assembly to keep track of members’ spending.  Just one person and her administrative assistant support the House’s committees

To ask the right questions…

You have to know enough to be able to ask the right questions.  Lela Evans accepted the reports in front of her as definite proof of a wrongdoing so severe that it would normally require dismissal not just from cabinet but from the legislature.  She pointedly criticised her colleagues on the Liberal benches for supporting Mitchelmore.  

She reached that conclusion because she didn't have enough background information to assess the reports.  Neither Evans nor her colleagues had the time to think about what the reports and what they meant either. They got them one day and were expected to debate them the next and vote on them a couple of days after that.  Nor do MHAs and their committees have the staff to help them wade through something as complex as a report on hiring in the public service and wrongdoing by a cabinet minister.  

That's especially troublesome when the reports are as flawed as the ones Evans and her colleagues faced last week. Barry Fleming produced a report so fundamentally flawed that *it* represented gross mismanagement.  He failed to interview key witnesses.  He failed to correctly and thoroughly describe the administrative practices he was supposed to be assessing.  He rushed to get the job done knowing he might be finished in his appointment.  he should have left it to someone else to finish properly and thoroughly.  If Fleming had been re-appointed, the Mitchelmore Report was cause to fire *him*. 

The fault here is not on Evans and her colleagues. She could be a hypocrite but it far for more likely that Evans and her colleagues took advice from others and went along with her team. She and her colleagues simply didn’t think of the questions they should have asked.  

That would explain why no one said a word about substantive alternatives to the government motion to accept the report. They could have voted to table the motion and bring it back for debate later, once everyone had had the time to mull it over properly.  They could have rejected the report and sent the Citizens representative back (under section 36) to conduct a new, thorough investigation that included Dwight Ball.  

For the opposition, directing attention to the Premier would surely have been a desirable political outcome heading into a new budget debate.  After all, if the opposition parties were as upset at the Liberals for not co-operating with them, there would be no better way to force the government to deal than prolonging the inquiry into an embarrassing - albeit fabricated – scandal.  And as a matter of due diligence to the public interest, members of the House of Assembly should have taken the time to understand what they were doing.  There was no need to rush. 

One member could have said “I need more time and information.” 

But they didn’t.

The Wider Problem

Instead, the opposition parties worked together on an alternative punishment while accepting incompetent reports.  They wound up in a farcical game of voting to reject an increased sanction because it wasn’t precisely the one, they wanted that almost wound up being no sanction at all. It was basically a replay of the expropriation disaster, which was another of the rushed decisions taken by a rookie legislature operating under a fictitious deadline.  it was like most of the legislation passed in the last 15 years.  It is all done hurriedly and without proper thought, research, and consideration.

For anyone sincerely concerned about public policy in Newfoundland and Labrador, how government works, the House of Assembly, public debate, and democracy, the events of the past sitting of the House should be deeply distressing. There remain enormous problems in the legislature.  

In the wider sense, though, the problems are not confined to the House and the way it works. The Mitchelmore/Rooms mock scandal reveal how little has changed in the political culture and the way the media, academics, assorted commentators, and political parties conduct themselves.  

Public discussion of policy issues in Newfoundland and Labrador takes place inside an echo chamber. It tends to stay inside arbitrary, artificial boundaries.  Participants ride their hobby horses and ignore or try to shout down anything that contradicts their assumptions. They emphasise the trivial and superficial – the spats with Gerry Byrne and Tom Osborne – and ignore the  far more serious. Much of what they do is absurd:  they chase Chris Mitchelmore, knowing that Dwight Ball actually made the decision.

Since 2003, the legislature has become more about political theatre than the public interest.  This past sitting of the House proves how much that is so.