Tagged: Jacques LaPointe
The strange case of the NDP vs. the AG – ctd.
Graham Steele and I had a further email exchange. I suggested he had not answered the question at the heart of my original query:
Why didn’t you (or, if you wish, why didn’t [Cabinet Clerk Greg] Keefe) simply waive solicitor client privilege in these cases?
Canny Mandarins
I added:
A second question that I didn’t ask, but which still hovers over this: Is this a sign that the NDP government, with its very small cabinet, is falling prey to a classic malady of new governments, especially new governments whose ministers have no experience in government: that of being unduly led by the canny Mandarins?
Steele replies:
The answer is that the issue on this specific audit was supposed to be resolved by the broader discussions on revisions to the Auditor General Act. At the time the AG wrote to the Premier in October, everyone expected amendments to be introduced in the spring sitting.
The answer to the second question is “no.” That’s not a fair characterization of what went on here. I think people want to see some dark conspiracy on this issue. The reality is, as usual, much duller. A process to revise the Auditor General Act was underway, and this was one of the issues on the table; the process took longer than expected; the government was busy with other priorities. We’ll deal with the issue in the fall. Within six months, it will be a non-issue.
The strange case of the NDP vs. the AG
At first blush, Auditor General Jacques Lapointe’s refusal to issue an audit opinion on the province’s two largest business loan funds looks like another in the lengthening string of Dexter Government screw-ups. This is the NDP, for heaven’s sake, perennial champions of openness and accountability, withholding 281 documents and redacting a further 32 on grounds of cabinet confidentiality and solicitor-client privilege, thereby thwarting independent scrutiny of the corporate welfare trough they once scorned.
Solicitor-client privilege protects communications between a lawyer and a client from being disclosed without the permission of the client. It binds the lawyer, not the client. In the case at point, government is the client; it has an unfettered right to waive confidentiality. Contrarian asked Finance Minister Graham Steele why it didn’t simply do so.
Steele replied by email: “The key issue is how to allow the auditor general to have access to documents, without thereby opening to disclosure documents which are legitimately confidential…
“This issue, which is known as ‘limited waiver,’ is enshrined in statute in other provinces like Ontario,” Steele wrote. “We have no such provision in our Auditor General Act. Our view is that it is necessary to have a legislative framework in place before privileged documents are handed over to the Auditor General. The auditor general apparently believes the existing legislative framework is sufficient. With respect, we disagree, and we are backed up by the court case and the practice in other provinces.”
Steele cited a December, 2000, Nova Scotia Supreme Court decision, Nova Scotia v. Royal & Sun Alliance, in which the province sued two insurance companies seeking to recover damages paid to abuse victims in residential schools. While carrying out a review of the compensation program, the auditor general of the day was given access to various documents over which the province later tried to claim cabinet or solicitor-client privilege. Partly on grounds of that prior disclosure to the AG, the chambers judge agreed to give the companies access to some but not all of the documents.
In a statement to the media Wednesday, Steele said the province wants “to put the same framework [as Ontario], or a similar one, into our legislation, and then the documents will be turned over to the auditor general.” AllNovaScotia.com quotes Lapointe as complaining he suggested doing exactly that, but was stonewalled by government lawyers.
“[W]ith the benefit of hindsight,” Steele wrote to Contrarian, “It is obvious that we should have identified the issue of limited waiver as an issue that needed to be expedited, and we should have dealt with it in advance of the rest of the revisions.” Yup.
Steele made two other points in his email:
Something that was missed by the reporters was that the audit was supposed to cover March 2008 to September 2009 – in other words, 15 months of the last government, and only 3 months of ours. The idea that we are “covering up,” when most of the audit would have covered the previous government, is … well, far-fetched.
Our Cabinet has never made a decision to deny access. The matter never came before us because in the normal course we would have dealt with the matter when a legislative proposal was ready. In denying access, the Clerk of the Executive Council was simply following through on long-standing and well-established practice.
The second point is at best a distinction without a difference, at worst specious. Through most of the new government’s tenure, Robert Fowler was Clerk of the Executive Council. I worked for Fowler for two years, when he was CEO of the Sydney Tar Ponds Agency and I was its director of communications. We remain friends, and while we didn’t always agree, I can attest that Fowler was punctilious in his observance of elected ministers’ prerogatives. He may well have advised government to withhold the documents, but it is inconceivable he would have directed departments to do so without clearing the matter with the premier or deputy premier. I’m confident the same is true of his successor, Greg Keefe.
The whole embarrassing saga further erodes the new government’s political capital and moral authority. It suggests that, as with many new governments, especially those with no experience governing, senior civil servants are running the show. If this is indeed a problem, it is partly a result of a too-small cabinet, spread too thin.
One final note: Lapointe comes off as a bit of a show-boat in this exchange. He appears to enjoy his increasingly frequent sashays through the media spotlight. A civil servant who has experienced one of his audits complains that his MO is abrasive rather than constructive. That’s consistent with the impression he left here.
MLAs’ pay and public begrudgery, redux
Back on February 15, Contrarian had the temerity to opine that the MLAs’ expense scandal was pretty small potatoes—more a matter of public begrudgery than actual wrongdoing. This evoked private expressions of appreciation and gratitude from MLAs and political aides of all parties—and howls of indignation from readers (here, here, and here).
Events swiftly made my apologia seem naively over-generous. Two MLAs resigned, a third was kicked out of government caucus, and Premier Darrell Dexter, who built his career on his seemingly perfect ear for public sensibilities, turned suddenly, stubbornly, and uncharacteristically tone-deaf when his own personal expenses fell under scrutiny.
Much of what I said remains true and warrants repeating.
- It’s invidious to conflate legitimate expenses for riding offices, and travel to and from Halifax, with salary, and call it all “compensation.”
- The circumstances of individual MLAs — remoteness from Halifax, size of riding, local culture of constituent service, committee duties — are almost infinitely varied. Any set of rules governing expenses will necessarily be arbitrary, and will beget examples that seem unreasonable.
- MLAs incur many expenses that are not receiptable They are hit up constantly for donations, gifts, handouts.
And:
The public nurses an attitude of begrudgery toward politicians, and the media fans these embers at every opportunity. This is not our most attractive quality, and it makes it almost impossible for MLAs — who by definition must set their own salaries — to pay themselves appropriately for the work they do. So MLAs have, unwisely but understandably, developed a variety of secretive ways to pad their allowances.
All true, I still think. But I should have remembered Jeremy Bentham’s famous maxim:
In the darkness of secrecy sinister interest, and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.
It should not have surprised anyone, least of all Contrarian, that sinister interest had flourished in the darkness of secrecy. It certainly didn’t surprise my readers, though it did infuriate them.
A few days after I posted my comments, Dexter’s maladroit handling of his own financial transgressions became the focus of the story. Word leaked out that taxpayers had been unknowingly footing the $3500 annual bill for his Barristers’ Society dues. The premier sought to justify this practice by asserting that the late Tory House Leader Michael Baker, also a lawyer, had suggested the arrangement, as if good-ole-boy bipartisanship would make it all OK.
When this didn’t fly, Dexter grudgingly agreed to stop charging us for his fees, but declined to pay back money he already collected. And just by the way, now that he was picking up his own tab, a switch to inactive status, at $250 per year, seemed in order.
NDP insiders were privately chagrined at the brand damage caused by this cluelessness, and relieved when attention shifted to the almost comically sordid details of Trevor Zinck’s alleged financial misadventures. In Zinck’s case, for once, the party got out in front of the story, ousting him from caucus before the news broke.
A coda to the scandal played out on the last day of the session, when the media drew Dexter into speculating about whether the Auditor General Jacques Lapointe would or should name any MLA transgressors fingered in his soon-to-be-released forensic audit. Opposition leaders Stephen McNeil and Karen Casey had no trouble fielding this softball, forcing Dexter to reassemble the press corps for a clarification: He was in favor of naming names after all. Stay tuned.
The continuing saga has deepened already extravagant public cynicism about politicians, and sapped the New Democrats’ hard earned credibility as idealists. Both are sorry developments, in my lonely view. Our politicians face an array of issues requiring unpopular decisions, and it doesn’t help that so many citizens regard them as scoundrels.
[AllNovaScotia.com's Brian Flinn deserves credit for pursuing this story for months before the Auditor General hit pay dirt. And a hat tip to Nelson MacDonald, who challenged me to revisit this topic.]
Auditor General slams H1N1 readiness
Civil servants are happy with the Dexter Government’s methodical approach to policy because ministers are listening carefully to policy advice and deliberating before acting.
But the issues keep coming, whether government’s ready to act or not. The risk of Dexter’s approach is that ministers may fall into reactive mode, moving from crisis to crisis rather than driving the new government’s policy agenda.
We have already seen Health Minister Maureen MacDonald struggling with the discovery that she cannot wish away the problem of rural emergency room closures, as she and the party assured voters they could during the election. (More on this soon.)
Today, the government faces an alarming report from Auditor General Jacques LaPointe sharply critical of the province’s readiness to deal with the unfolding H1N1 epidemic. He urges “immediate” action to address key deficiencies:
- No one is authorized to exercise overall command and coordination over government’s response to a serious pandemic.
- No central agency has responsibility or authority to to ensure critical government and non-government services such as power, water, snow clearing, policing and fire response continue during a time when absenteeism may be high.
- The province has not assessed the adequacy of pandemic response plans by district health authorities, which provide hospital-based health care service.
- 55 percent of family and emergency room doctors surveyed by the AG were “not happy” with their ability to obtain critical supplies.
Moneyquote:
Given that we are currently experiencing an H1N1 pandemic, we feel most of our recommendations should be addressed immediately to ensure Nova Scotia responds effectively to the current situation and is ready for any worsening conditions.
