Van Dongen's First Question
On May 2 John van Dongen asked his first question in the legislature as a BC Conservative, technically an independent. He wanted to know the precise section of the Financial Administration Act which authorized the Deputy Minister of Finance to approve the $6 million write-off of legal expenses in the BC Rail corruption trial. Attorney General Shirley Bond avoided the details of his question and spoke about the statement provided by the Deputy Attorney General on the Basi-Virk matter dated October 20, 2010 which said that he and the Deputy Minister of Finance made the decision under the authority of the Financial Administration Act. Van Dongen pressed without success for what section of the Act authorized the payment. The debate between NDP finance critic Bruce Ralston and Finance Minister Kevin Falcon a year earlier, May 31, 2011, might outline the answer to his question.The write-off of the $6 million was done under the authority of Section 1 of the Guarantees and Indemnities Regulation to the Financial Administration Act. Unlike other provisions in the Act which punt decisions over $100,000 to treasury board or cabinet, the indemnities regulation allows the Director of the Risk Management Branch, or a person he specifies, unlimited scope in approving indemnities. In answering Ralston, Falcon said: "I am advised that back in 2005, a recommendation was made from the Deputy Attorney General to the Deputy Minister of Finance to approve the indemnity, and that decision was made by the Deputy Minister of Finance at the time. The Deputy Minister of Finance at the time, I am led to understand, is empowered to make those decisions under the Interpretation Act." One might have thought that Falcon would have simply said that the Director of the Risk Management Branch authorized the Deputy Minister to approve the indemnity. Why he referred to the Interpretation Act raises suspicions there is no audit trail.
The Interpretation Act is a statute that is used to interpret legislation when meaning is not clear. Section 23(3) of the Act states: "Words in an enactment directing or empowering a public officer to do something, or otherwise applying to the public officer by his or her name of office, include a person acting for the public officer or appointed to act in the office and the deputy of the public officer." That subsection may mean that a deputy minister can do anything a public officer who reports to the deputy can do; however, that subsection might also be limited by the context of the full section. Whether a correct use of that section was made might depend on jurisprudence with respect to that section of the Act.
On Saturday, May 6, Gary Mason in the Globe and Mail and Vaughn Palmer in the Vancouver Sun both wrote their columns on van Dongen's question and criticized Bond for not answering the question. I agree with Mason, that if Bond didn't know the answer previously given by Falcon, she should have promised to get back to van Dongen rather than arrogantly dismissing him. When Falcon answered the question in estimates debate a year earlier he had the benefit of having the Comptroller General sitting next to him and giving him the answers.
There could be a legal issue on why the Interpretation Act was relied on and whether it was appropriately used. In what other circumstances can a superior, ultimately a Deputy Minister, assume the authority of a subordinate? The fundamental question is not so much what authority was used but whether it should have been used. Having authority to squander $6 million on self-confessed criminals does not mean that authority should be exercised. Fortunately the Auditor General will eventually report on these questions, after fighting in court for access to documents.
May 7, 2012 Update: My Freedom of Information request is now on the government website, click here.
May 3, 2012
Clark's Health Transfer Proposal Fails
We now know that Premier Clark's proposed modification to reductions in the Canada Health Transfer will leave BC with a loss of $154 million per year.On January 17, 2012 Clark chaired the Council of the Federations meeting in Victoria. Prior to the meeting, Clark endorsed Prime Minister Harper's changes to the Canada Health Transfer subject to her proposal to replace equal population shares with equal age-adjusted population shares. At the time I wrote that I doubted whether the Ministry of Finance produced calculations showing that Clark's approach would offset the $250 million per year that Harper's formula will cost BC starting in 2014-2015. I submitted a freedom of information request for any work done on the issue by the Ministry of Finance.
The response to my information request will soon be posted to the "open government website" where responses to most information requests are made a couple of days after a response is sent to the request. I received a Ministry of Finance document with the key table blanked out but the data used to produce that table remained in the document. It shows that under Harper’s formula BC would receive 13.4% of the total federal health transfers, but under Clark's age adjusted formula BC would receive 13.7%. When applied to total transfers of $32.1 billion, that 0.3% difference equals $96.3 million. It would reduce the cost to BC from a $250 million loss to a $154 million loss, putting Clark on record as supporting that cut in federal transfers to BC.
Clark's proposal would result in Alberta and Ontario losing relative to Harper's formula. Alberta would receive $385 million less and Ontario $128 million less. Not only does Clark's proposal cost BC $154 million but it is unlikely to succeed against the opposition of Alberta and Ontario.
The next time Clark represents BC in high stakes negotiations, she needs to be accompanied by staff who are thoroughly briefed on the file.
Update: April 21 The inappropriate partisan news release has been removed from the government website.
April 20, 2012
Liberal Party Organizing out of Premier's Office
Premier Clark and her senior staff appear to be using public resources for blatantly partisan activities.In an astounding display of bad judgment, Premier Clark's response to the April 19th by-elections was posted to the government website. That may have been appropriate had she limited her remarks to congratulating the candidates, but most of the response was a rant about how to defeat the NDP with a coalition. That kind of partisan nonsense belongs on the BC Liberal website, not on a site paid for and maintained with taxpayer resources and the contact person for that kind of response should be a Liberal party official not an employee in the Premier's office, Communications Director Sara MacIntyre.
During the campaign the Premier's outreach director, Pamela Martin, was seen with Liberal candidates. It will take a freedom of information request for her appointment calendar to determine whether claims that she was on her day off can be verified. An FOI won't be required to verify partisan activity of the Premier's chief of staff, Ken Boessenkool. On April 20 the Globe and Mail reported that during the campaign he phoned the campaign director for the Conservatives, Hamish Marshall, to discuss politics. The article quotes MacIntyre saying: "we're going to reach out. We need to talk to people to find out what we need to do to strengthen the coalition." They don't seem to understand where the line is drawn between activities that should be financed by the Liberal party and activities that are appropriate for staff on the taxpayer's payroll.
In 1997 when Clark was first an MLA in the opposition caucus of Gordon Campbell, the Auditor General rapped the hands of the Liberal caucus for using public funds for a partisan mailing. The principle is no different now than it was 15 years ago. Partisan activities should be financed by political parties; public funds should be used for nonpartisan government activities. Perhaps the Auditor General needs to review what's going on in the Premier's office.