There's a big problem in the House of Assembly
About 20 minutes before the House of Assembly started up last Wednesday afternoon, Speaker Derrick Bennett sent an email to independent Member Ed Joyce, copied to the House Management Commission, about the procedure he used when handling reports involving someone working on or for the House of Assembly. Not any specific report. Just generally.
Bennett wrote that what happened was set out very clearly in legislation. He quoted sections of the Act specifically to say he had no authority to release the report to the public or members of the House.
According to Bennett, the House of Assembly Accountability, Integrity, and Administration Act required him to give a report of misconduct to specific officials depending on what wrongdoing there had been. Anything involving a statutory officer of the House had to go to “the Lieutenant Governor-in-Council” - that is, the cabinet - because under the legislation covering the six statutory officers, they were appointed and fired by the cabinet.
As it seems, someone alerted a number of people in the House of Assembly and the local media the week before all those happened that the Speaker had a report prepared by the Citizens representative into something like 21 allegations of bullying, harassment, and similar offences by Bruce Chaulk, who is the Chief Electoral Officer and the Commissioner of Members’ Interests. He or she knew of the report because she was involved in it. What happened to it?
Bennett’s email is important because a few minutes after he sent it, Bennett ruled out of order a question from opposition leader David Brazil to the Premier about the report.
“Mr. Speaker,” Brazil asked, “is the Premier or his office aware of a report related to the conduct of an Officer of this House? If so, when was the report submitted?”
Notice precisely what Bennett said immediately after the words left Brazil’s lips.
The question is not in order. It doesn't fall within the purview of the administrative confidence of the Executive Branch.
“Purview of the administrative confidence of the Executive Branch” is not a set of words likely to trip off Bennett’s tongue unrehearsed or unprompted. Bennett was obviously ready for a question about the report and someone gave him lines to read. Maybe the Clerk of the House. Maybe the Legislative Counsel. Maybe someone else.
Doesn’t matter. Whoever told Bennett what to say in the House didn’t know about the email since the two contradict one another.
If we take Bennett’s email at face value, the report everyone is talking about apparently falls clearly into the category of something that would go to the Premier. The story - here is a VOCM and as a couple of NTV reports - is about a 178-page report into allegations of harassment, bullying, and similar offensive acts - against the Chief Electoral Officer. The allegations date back to the last provincial election, at least, and involve either 21 people or 21 allegations. Either way, the thing is a mess. The investigation lasted the better part of a year and two months ago, the Citizens Representative delivered his report and findings to Speaker Bennett.
The report sat there until last week when one or several of the complainants alerted the news media and opposition politicians. At least one gaggle of politicians - namely the provincial New Democrats - claim they had allegations of this kind during the election. Odd then, that they sat on them.
To make matters worse for Bennett, he ducked the media last week and has said nothing about the report at all. Then there’s the business of his ruling that no one in the House can ask questions of the Premier and cabinet about the report.
In any other legislature, Bennett’s ruling would have been absolutely right. But in the Newfoundland legislature, Bennett was just wrong. In 2016, the Liberal majority in the House of Assembly changed the laws that affected each of the statutory officers. The official reason was to standardize the language in each Act about how the officers were appointed and fired. The amendment bill certainly did that. But it went further.
To appreciate what happened, let’s remember that there are three separate branches of government: the Legislature, the Executive, and the Judiciary. The Legislature is especially important since it alone can approve how the three spend public money. Ideally that happens in public during a sitting of the House of Assembly and after lots of questions, debate, and argument. Ordinarily, the three are separate with either interfering in how the other operates, except for the clearly understood jobs making decisions on the law or deciding how to spend money.
In Newfoundland and Labrador, though, there’s been a move over the past 20 years to haver the Executive undermine the House. The House doesn’t sit very often during the year. It doesn’t spend much time in debate either, often passing bills after a day or two of speaking. Not debate. Just a few people speaking.
There is seldom any real disagreement - think of Muskrat Falls, the Abitibi-ENEL-FORTIS expropriation, and chronic and excessive overspending - and all too often very serious new laws get passed based on a backroom deal.
A very good example of that came during the first year of the pandemic. Every party in the House agreed it was a great idea to let the Minister of Justice send the police out to throw people in jail without bothering to see a judge first. Real Argentine junta stuff and not a single voice in the House made a whisper to question it. In fact, most spoke enthusiastically about the need to give the chief medical officer any powers she wanted to keep us safe.
A second good example came just this session. Not content to end the ridiculous string of problems about the pay for Provincial Court judges, the House voted to give cabinet the power to set judges’ pay. Exactly the opposite of what the Supreme Court of Canada said should happen. Totally unnecessary besides that. Yet, the House did it anyway. Without a single vote against it.
After the House spending scandal erupted in 2006, Chief Justice Derek Green warned against all off this. Here we are 15 years later and things are arguably worse now than they were then. And things were bad then.
To get back to the House officers, let’s remember that the House rules itself. In every other Westminster-style legislature like ours, the House hires and fires its own staff with the Speaker acting as the day-to-day boss of it all.
But in 2016, and as Bennett’s email clearly shows, the Legislature (the House) is now controlled by the Executive (the cabinet) especially when it comes to hiring and firing of employees of the House of Assembly.
You can see the traditional (correct) way and the new (troublesome) in the parts of the Elections Act, 1991 that deal with the job Bruce Chaulk holds. The Elections Act, 1991 used to read:
4. (1) There is established the office of the Chief Electoral Officer to be filled by resolution of the House of Assembly.
(2) The Chief Electoral Officer holds office during good behaviour and may only be removed by resolution of the House of Assembly.
Now it reads:
On resolution of the House of Assembly, the Lieutenant-Governor in Council shall appoint a Chief Electoral Officer.
Removal or suspension
5.3 The Lieutenant-Governor in Council, on resolution of the House of Assembly passed by a majority vote of the members of the House of Assembly actually voting, may suspend or remove the Chief Electoral Officer from office because of an incapacity to act or for misconduct, cause, or neglect of duty.
Suspension when House of Assembly not sitting
5.4 When the House of Assembly is not sitting, the Lieutenant-Governor in Council may suspend the Chief Electoral Officer because of an incapacity to act or for misconduct, cause, or neglect of duty but the suspension shall not continue in force beyond the end of the next sitting of the House of Assembly.
That’s a huge constitutional problem since it compromises the ability of one branch of the government - namely the House of Assembly - to operate without interference or control of another, namely the Executive Government.
The House doesn’t sit very often these days. That’s also part of the way the politicians in the Executive have weakened the House, so this transfer of power to the cabinet is very much about creating the appearance of a problem and then fixing it as you want. Truth is, the Speaker can always take action, whether the House is sitting or not. But this latest move by the Liberals is consistent with what the Conservatives did in 2006 to control how the House spending scandal rolled out. It was plain at the time that the Premier’s office controlled the Speaker’s actions, what happened in the House, and even tried to influence the way the Auditor General - a future Conservative candidate, by the way - ran his audits before and during the scandal.
All of this is in line with other changes within the Executive starting in 2003 that weakened the cabinet itself and concentrated more power than ever in the hands of the Premier and the Clerk of the Executive Council. Not minor stuff at all. Not normal stuff. We are talking about the kind of thing where cabinet ministers find out about cabinet decisions on any subject after the Premier makes them. That was actually part of the briefing book Dwight Ball got when he took office. And by the way, curiously missing from the stuff Furey got… after your humble e-scribbler inquired about it while Ball was still in office.
We cannot be sure that practice has stopped, by the way. Bureaucrats seldom give up power once they have it. They just leave things out of what they say publicly. Like say a report into allegations of wrongdoing by an important House officer.
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It is possible – not likely, but possible – that there is nothing here at all.
Most likely we have a string of very big problems.
First, there is the allegations themselves. Very serious stuff. regardless why Bennett and others have bungled this, the people involved deserve to have this settled as quickly as possible.
Second, there is the mishandling of the allegations. Chaulk has remained in office when he should have been relieved at the start, pending the outcome. Someone needs to be held accountable for that failure.
Third, there is Bennett’s failure last week to handle the questions properly. If that is connected to the overall mishandling of the allegations and investigation, then he needs to go as Speaker. Period.
Fourth, there is the question about what the people in Premier’s Office knew of this, when they knew of it, what they did, and so on. Bennett’s email lays out a process that clearly involves the Premier’s office. If the PO knew, then that’s one thing. If no one knew, then that’s another problem. We could be looking at another version of the mess of the last election either because of what the Premier’s Office did or failed to do.
Fifth, there is the implication for the election. Anything that raises questions about Chaulk’s conduct could impact the validity of the election. There is an active court case and this report could affect the case.
Sixth, the public has a right to know anyway, especially since this could affect the validity of the last election.
Seventh, the public has a right to expect any wrongdoing in this case will result on serious consequences for those involved.
Eighth, if there is any substance to any of these allegations against Chaulk, bear in mind this is the umpteenth black mark against him. In particular,
Chaulk was clearly unprepared for the COVID election and much of the responsibility for what happened falls on his head.
Chaulk found Chris Mitchelmore guilty of misconduct based on a hastily compiled, incompetent report by an outgoing Citizens’ Representative with a reputation for coming to half-assed conclusions. Accepting the obviously ridiculous report was bad enough. Condemning Mitchelmore with it was unconscionable.
Chaulk found Ed Joyce and Dale Kirby guilty of misconduct despite reports by an independent investigator that exonerated both politicians.
Chaulk’s fumbling of elections: the special ballots fiasco as well as the entire 2021 election for which Chaulk was obviously unprepared.
Ninth, there is the failure by whoever is responsible for keeping Chaulk in this job. They not only left him in place but endorsed his misdeeds and incompetence every time before and once since the Speaker had this report in his hands. Chaulk pursued his personal vendetta against Ed Joyce with the House threatening to suspend Joyce over what turned out to be nothing at all.
The House is off this week.
But when they come back, this scandal - the latest in an unprecedented string over the past two decades - should become the only topic on the public agenda until everything is in public and the whole thing is put right.
Anything else would be just more of the same.