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January 9, 2013

Reappoint Doyle

The controversy over not reappointing Auditor General John Doyle hit the news last weekend when an advertisement ran in various newspaper and appeared on the Selection Committee's legislative website asking for applicants for the job. The Selection Committee is made up of three Liberals and two New Democrats (following the practice of having a government majority on committees). On Saturday, January 5th, committee member John Les spoke to Sean Leslie on his afternoon show on CKNW and revealed that the committee was not unanimous in reappointing Doyle. Since New Democrats have been vocal in calling for the reappointment of Doyle, Les' statement meant that one or more Liberals were preventing his reappointment. Many news stories followed criticizing the Liberals for "firing" Doyle.

Doyle has not been fired. He could yet be reappointed if the committee, or its successor which will be established when the new legislative assembly meets after the May 14th election, unanimously recommends that Doyle be reappointed. There was no intervening election, but when George Morfitt was reappointed in 1994, the selection committee at that time advertised, interviewed other applicants and finally decided to reappoint Morfitt. What makes the decision not to reappoint Doyle so controversial are several reports he has issued to the embarrassment of the government and his action in taking the government to court to force the release of documents that are relevant to the $6 million Bassi-Virk legal bills. It looks like the Liberals are being vindictive against an Auditor who has earned praise from the public. From a political point of view, the Liberals once again shot themselves in the foot; they could have earned credit for a gracious and prompt reappointment.

It is not clear where the process of choosing an Auditor General will go from here because there could be a dispute over when Doyle's six year term began. The legislature appointed him Auditor General by motion on May 28, 2007 but he did not begin work until October 29, 2007. One interpretation of the Auditor General Act is his term began May 28; however, there may be legal grounds for supporting the October 29th start date that is given on the Auditor General's website as the beginning of his term. Which date is relevant is very important for how the process might unfold.

In the short term the Selection Committee may interview applicants but unless there is unanimous agreement the committee will be stalemated. MLAs cease to hold office when the election writs are issued 28 days prior to the May 14th vote. The government (members of cabinet) continue to hold office, but no one holds office as an MLA, hence there is no legislative assembly and no committee. If Doyle's term expires on May 28, the provisions of the Auditor General Act will not allow the appointment of an Acting Auditor General because that requires a recommendation from the committee; however, there may be an argument under the Interpretation Act that government could make an appointment. It would be highly controversial if a lame-duck government waiting mere days for the transition to a newly elected government made any appointments. What is most likely, if May 28th is the end of Doyle's term, is that the position would be vacant until a new legislative assembly appointed a new selection committee and that committee recommended an Acting Auditor General until it could complete its work selecting someone to be appointed for a six year term. Doyle could be appointed to either the Acting or six year positions, or both.

If Doyle's term ends October 29th, the process is a little less messy as the position would not become vacant before a new selection committee was appointed and given a chance to complete its work. It is important to note that two of the Liberals on the current committee are not seeking re-election and it's chair, Liberal MLA Eric Foster from Vernon-Monashee, is facing a tough fight for re-election. The Doyle matter might contribute to his election defeat. After the election a new committee will be appointed with three members from the government side and two from the opposition. Any Liberal could still block the appointment of Doyle, but the election may have the effect of clearing minds and changing attitudes, especially if it is perceived that the failure of the Liberals to agree to the re-appointment of Doyle was one of the election issues.