Tuesday, 26 March 2013

The Auditor General has become part of the problem, not the solution

Here’s what we know.  In the first week of February Auditor General Doyle told Business in Vancouver magazine that he would have stayed in British Columbia if his appointment had been “automatically renewed as expected.”  (The Times Colonist reported this on February 5th.

Here’s something else we know.  A few days after it became public that the Legislative Committee responsible for the appointment of the Auditor General was not going to recommend Doyle’s re-appointment, confidential information in the form of a so-called management report concerning the Auditor General’s examination into the constituency office renovation expenses of the MLA for Vernon Monashee – who was chair of the committee – was leaked to a Times Colonist reporter.

Here’s what we don’t know: who leaked that constituency office “management report”?  It could have been any number of people who were on the distribution list for that report.  I certainly hope it wasn’t an Auditor General who was angry that he was not going to be re-appointed.

Here’s something more we know.  As of today the Auditor General has informed the media that he has five more reports he intends to release.

Typically, Auditor General reports are tabled in the Legislative Assembly if the House is sitting.  That’s what the law requires, and it's how they became public.

I think there is reason for concern that the Auditor General apparently decided to delay the release of these five reports until after the House adjourned.

But I am more concerned that, less than three weeks before the writ for the May election is issued, the Auditor General is indicating his intention to release five more reports.

That feels to me like an Auditor General who wants to influence the electoral process.  And that is not his job.

There is no reason why his reports cannot wait to be issued until after the election.  I know the usual suspects will howl at me that this is just a ruse to help the Liberals avoid accountability.  Well, if the Auditor General had wanted to hold the Liberals accountable for something more than he has already reported about, he should have issued these reports months ago.  I think he’s too late now.  He's become part of the problem, not part of the solution.

More's the pity.  Becuase if this train keeps barreling down the track it’s on, which at this point looks inevitable, sooner or later someone will realize that we are not supposed to be governed by unelected, unaccountable officers of the Legislature and the Auditor General Act will be amended to curtail the powers of the office because the circus that has become his office is not healthy for democracy.   The Auditor General is supposed to be an impartial analyst of public administration, not the star attraction in a political gongshow.  

Friday, 22 March 2013

In which the author humbly critiques an article in today's Province

Cassidy Olivier’s article in this morning’s The Province is a good illustration of the clever way in which journalists gloss over inconvenient facts in order to suit their storyline. 

The article concerns the preparation of a document entitled the “Book on John Cummins”, a four page outline of Conservative Party leader John Cummins’ policy promises and commitments.  According to Olivier, the document was drafted by Sam Oliphant, then a research officer with the government caucus.

Olivier notes that Oliphant communicated from a private email account.  He says this:

As noted in the recently-released Dyble report, which was drafted in response to the Liberal’s controversial ethnic outreach plan, the work political staff – executive assistants, ministerial assistants and government caucus – do often crosses into a grey area.

For example, drafting the book on Cummins falls within the duties of a caucus researcher.  But overt partisan activities or discussion inside the workplace is against the rules outlined in the BC Public Service Act.

Olivier quotes an unnamed confidential source as saying that the purpose of a so-called “team” of political staffers was to use taxpayer funded resources for the benefit of the BC Liberal Party.  Olivier cites no evidence in support of this assertion other than the statement of his source.  This should make you suspicious.  After all, it appears that some documents were provided to Olivier by his source, and yet none of the documents cited in the article provide any support for his contention.  So all he has for evidence is the unverified, undocumented assertion of a “confidential source”.  Pretty thin gruel, I’d suggest.

Of course, if all that is meant here is that the work of this team is meant to advance the interests of the BC Liberal Party, then I have to wonder, what’s the news in that?  Does someone think that the government’s political staffers should be working to advance the interests of some other political party?  There is a reason, after all, why they are called political staff.  Their job is to advance the political interests of their employers.  NDP caucus staff members don’t sit around dreaming about the public interest; they are hard at work advancing the interests of the NDP.  And they, just like the political staff for government, are all paid for by taxpayers.  And have been, for as long as these offices have existed.

So let’s deal with a few other aspects of this article that are offensive.  I quoted the paragraph that points out, correctly, that drafting the Cummins document does fall within the duties of a caucus researcher.  But it was pretty cute of Olivier to follow with this sentence: “But overt partisan activities or discussion inside the workplace is against the rules outlined in the BC Public Service Act”.  The reason I say this is cute is because the Public Service Act does not apply to caucus researchers.  Olivier wants us to think that if Oliphant was engaging in overt partisan discussion inside the Legislature it would be a violation of the BC Public Service Act.  But in fact it wouldn’t, because those rules don’t apply to caucus researchers like Oliphant. Don’t you think that’s a bit unfair?

Olivier contributes to his self-created confusion when in the previous paragraph he says, “As noted in the recently-released Dyble report… the work political staff – executive assistants, ministerial assistants and government caucus – do often crosses into a grey area”.  In fact, the Dyble report said nothing of the sort.  Dyble made it very clear that his report would not deal with caucus staff.   

And similarly, when Olivier points out that Oliphant was using a private email account, it would have been nice if he had taken the trouble to point out that the Freedom of Information and Protection of Privacy Act does not apply to MLA or caucus staff.  As a caucus researcher, Oliphant was free to use any email account he felt like. 

You can’t help but laugh when Olivier refers to the so-called Book on John Cummins as “at least one tangible product of the team” when he’s already made it clear that it was actually written by Oliphant, who was perfectly entitled to write it, and he has not produced a single other “tangible product” of the so-called team.  It’s like he’s standing with a bag of square pegs trying desperately to pound at least one of them into a square hole.

Yes, it is a concern that his email of September 11, 2011 was sent to the private email accounts of government political and communications staff who are subject to the FOI Act, and as the Dyble Report and others have recently pointed out, this is an area in need of clarification.  But let’s not be na├»ve about this. When I look at the content of the emails, there is nothing surprising in them.  It’s just the work that political staffers do.  They research the policies and positions of other parties, they look for weaknesses and inconsistencies, they dig out the scandals in the past lives of politicians, they meet in the Legislature to discuss these things, they prepare their bosses for the cut and thrust of Question Period, and they stand around in the hallways of the Legislature answering the requests of political writers for juicy stuff they can put in their columns.  It’s the way politics works. 

Of course, it would be a concern if political staff prepared documents at taxpayer expense which they then forwarded to the political party in whose interest they are working.  That’s where the line is drawn traditionally, and I would suggest it is the right place to draw the line.  But to repeat myself, there is no credible evidence to support that assertion here, just an undocumented claim by a confidential “source”.  When all is said and done, here’s what we know: a government caucus staffer did something he is entitled to do and communicated it to people he is entitled to communicate with from an email account he was entitled to use; he probably ought not to have sent it to the private email accounts of ministerial and government communication staff members, but that’s the only questionable  thing that’s actually happened here. 

One last point.  It’s pretty funny that when the story first appeared online last night, the actual quote from Oliphant was this: “In fact, I remember being asked to dig up stuff on John Cummins because your colleague Mike Smyth was looking for some information.”  But in the online version I pulled down to write this piece, Mike’s name was deleted.  I wonder why?  Because it didn’t suit the convenience of The Province to admit that  taxpayer funded provincial legislative caucus political staffers routinely supply attack facts to political columnists? 

Thursday, 21 March 2013

Since when did the Lobbyists Registrar become a law reform agency?


Now the question whether it is advisable to legislate a code of conduct for lobbyists in British Columbia is certainly worth discussing.  I happen to have the view that we should not do this.  When I introduced BC’s first lobbyist registration legislation in 2001 the policy objective was transparency.  The goal of the Act was to help shine a light on an important way in which policy making happens by requiring lobbyists to make their activities known by disclosing them in a registry available for public viewing.  It is one thing to enhance transparency by requiring lobbyists to register.  It is quite another thing – and a much more intrusive exercise of state power - to enact laws which regulate the practice of lobbying.


My point here, however, is not to debate the merits of legislating lobbyist ethics.  I have a different question.  Where did Registrar Denham obtain the authority to conduct this consultation?


The registrar of lobbyists is a statutory office, created by an Act of the Legislative Assembly.  It is not a self-help club, or political advocacy organization.  The registrar’s powers are clearly set out in the Act.  Here, in summary, is what they are:

1.      To establish and maintain a registry in which a record of all returns and other documents submitted under the Act are to be kept.

2.      To verify the information contained in returns filed under the Act.

3.      To reject returns that do not comply with the Act.

4.      To undertake investigations and inquiries into compliance with the Act and, in appropriate cases, impose administrative penalties on those who are not in compliance.

Lastly, the registrar is given the authority to “develop and conduct public education and information designed to promote awareness and understanding of this Act.”

Please note that the “education and information” authority is carefully and clearly written; it is to promote awareness and understanding of this Act. It is not to advocate (I was going to say lobby) for changes to it.  Nothing in the Act gives the registrar the power or authority to discuss or consider, let alone advocate for, changes that would represent a significant departure from the policy intention of the existing Act.

One of the water cooler complaints commonly made about bureaucracies is that they are self-enlarging.  It’s a harsh criticism, but there’s a grain of truth in it.  Give a public official a job to do and all too often they will find a way to start agitating to make their job bigger.  In other contexts it’s called “mandate creep.”  It’s one of the ways government relentlessly grows over time.

Put simply, the job of the registrar of lobbyists is to administer the Act she has been given, not to try to change it.  The registrar is not a policy maker.  I realize this is probably a desperately unpopular view.  It’s certainly not a personal criticism; Registrar Denham is a thoughtful, informed, and highly articulate commentator on lobbying regulation.  I certainly would have no complaint if she decided to advocate for changes to lobbying law on her own time.  But it’s not in her job description.  It’s not what she’s paid to do. 

This is far from just a technical complaint.  It reflects a more profound concern about the role and responsibility of public officials.  It also reflects my view that it’s actually supposed to be legislators, not officers of the Legislature, who decide whether, how and when to make and change our laws.  I’m not saying we should never empower public officials to advocate for law reform.  But when it’s not in their job description, it’s none of their business. 

And there’s one more thing.  The Registrar has coercive powers.  She can deprive people of their right to earn a living.  I don’t take these powers lightly and neither should you.  So.  What if I were to make it very clear that I disagree with Registrar Denham’s views about whether BC should legislate a code of conduct for lobbyists?  And then let’s say someone decides to file a complaint against me as an occasional lobbyist for failing to comply with the Act.  Should I have confidence that the Registrar will dispose of that complaint fairly and impartially, or should I be worried about our public disagreement on lobbyist regulation?  There’s a reason why judges are not permitted to undertake – of their own volition – wide-ranging public consultations on the state of the law.  We expect them to be independent and neutral, to apply the law, rather than to make it.  Doesn’t that same principle apply here, too?

Friday, 1 March 2013

Regulating free speech does not make it free.


Andrew Coyne’s trenchant criticism of the Supreme Court of Canada’s decision this week in Saskatchewan Human Rights Commission v. Whatcott 2013 SCC 11 caused me to read more carefully the following paragraph from the court’s reasons for judgement:


[116] The purpose of hate speech legislation is to restrict the use of representations likely to expose protected groups to hatred and its harmful effects. The expression captured under hate speech laws is of an extreme nature. Framing that speech as arising in a “moral” context or “within a public policy debate” does not cleanse it of its harmful effect. Indeed, if one understands an effect of hate speech as curtailing the ability of the affected group to participate in the debate, relaxing the standard in the context of political debate is arguably more rather than less damaging to freedom of expression.


Apart altogether from the merits of the decision as a whole – and I am not writing about that here – there’s something troubling about this paragraph.  The Court is saying that a “relaxed standard” to hate speech in the context of political debate is harmful to freedom of expression itself.  I’m not sure there is any difference between saying it that way, or simply saying (what I believe the Court intends) that speech is not truly “free” unless it is regulated, in this case by preventing hate speech.


May I respectfully disagree? 


Our constitution attempts to strike a balance between the protection of free expression and the limits which may justifiably be imposed upon free expression.  The Constitution allows legislatures to restrict free speech.  But please don’t try to convince me that something which is actually a restriction on free speech is necessary if speech is to be truly “free.”  That’s an intellectual slight of hand which is unhelpful, and also unsupported by our constitution.  Speech is truly and completely free when it is, well, truly and completely free.  Unrestrained, unregulated, untrammeled, and sometimes, yes, unhinged.  But free nonetheless.


When we decide whether or not we are going to restrict free speech let us do so only as the Charter both allows and requires, namely by asking whether the restriction in question can be demonstrably justified as a reasonable limit in a free and democratic society.  That’s the balancing act provided for in our Constitution.  We do ourselves no favours if we try to avoid that exercise by pretending that some forms of regulation are necessary to make speech truly “free.”