Festering Conflicts of Interest

Andrew Furey and the ethical Wild West Show of GNL

“The Office of the Child and Youth Advocate is an independent Statutory Office that supports the province’s children and youth by advocating for their rights and interests in dealing with child serving systems.”

That’s how Linda Clemens-Spurrell began a statement issued by her Office on Monday.

The second sentence was self-congratulatory nonsense: “The Office works tirelessly to ensure their voices are heard – and elevated – in matters that affect them.”

Those are the most important things Clemens-Spurrell wanted you to know as she reacted to calls for an inquiry into the Humby matter by someone who - unlike Clemens-Spurrell - is not in a serious and unmanageable conflict of interest on the file.

Look at the first sentence again. Apply the Rule of Opposites. If Clemens-Spurrell wants to start with a bald statement that hers is an independent office, then we know it is not. X equals Not (X). In the post-2003 political world of Dannystan, this is not a mere rule of thumb. It is an iron law.

On the face of it, Clemens-Spurrell is in a deep, unmistakeable, and unavoidable conflict of personal interest. There is no way to work for so long within the system you are supposed to investigate and with the people still in the system and be objective about people and events. Her personal history intersects with the case of the stuff weren’t enough. “Stepping back” until someone who reports to her decides if Clemens-Spurrell is involved is so laughable a stitch-up that it does not even pass the sniff test of integrity this investigation needs.

What’s mistakeable is that for some of the time that Tony Humby and possibly others were allegedly sexually abusing young men in the care of the Government of Newfoundland and Labrador, Linda Clemens-Spurrell was the assistant deputy minister in charge of the officials responsible for protecting the young men. In her other work before becoming ADM, she may have been involved at lower levels in the department dealing with the same cases and for all we know, so were some or all of the other people in Advocate’s Office since they are *all* long-serving employees of the government’s health and social services systems.

At the very least, those long careers in the organization they are supposed to watch over make the entire CYA office anything *but* independent of the people they are dealing with generally and on this latest assignment from the Premier’s Office, they are definitely unable “to review, investigate and report on the policies and procedures in place to ensure the safety and well-being of children and youth in receipt of protective intervention services where a report is received alleging that a child or youth has been sexually abused or exploited.” Not with any genuine independence, anyway and therefore not with any credibility.

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In her statement, Clemens-Spurrell tries to shift the focus from her own conflict of interest and implicitly smears those raising legitimate, obvious questions. That, too, undermines her credibility calls into question her professional judgment.

“Given recent public discourse, I am gravely concerned with the conversation as it relates to the recent Order in Council that directed me “to review, investigate and report on the policies and procedures in place to ensure the safety and well-being of children and youth in receipt of protective intervention services where a report is received alleging that a child or youth has been sexually abused or exploited.” I adamantly believe the focus needs to return to the fundamental rights, well-being, and the safety of vulnerable children and youth in our province. Young people need to have their voices heard, rights respected, and their issues responded to appropriately. This is my promise and responsibility to them, and should be everyone’s promise to them,” said Linda Clemens-Spurrell, Child and Youth Advocate.

The focus of critics on Clemens-Spurrell’s own deep conflict of interest is precisely because *she* cannot credibly and reliably protect the “fundamental rights, well-being, and the safety of vulnerable children and youth.” She has no reason to imply - as she does slyly, passive-aggressively - that those calling for an independent investigation are not concerned for the young people affected by an obvious failure of several parts of the provicnical justice and child protection departments. Yet there she is struggling to climb up on a white horse by flicking mud at others. The statement itself is scurrilous, inappropriate, and entirely unbecoming of the Office Clemens-Spurrell holds.

Her zeal to hang onto this investigation now looks too keen and too eager, too self-righteous.

The result is that she has no credibility.

Period.

That said, we should not forget how Clemens-Spurrell got this assignment that she is so tenaciously clutching. As the letter to Clemens-Spurrell suggests, Premier Andrew Furey improperly directed the matter to the Advocate using what is known inside government as the Premier’s Prerogative. As the Cabinet Secretariat explained this to Dwight Ball when he took office, this prerogative allows the Premier alone to exercise any legal power of the Lieutenant Governor-in-Council solely at his own discretion.

This is constitutional nonsense, of course, that dates from 2003 and figured prominently in the Muskrat Falls fiasco, as evidence at the inquiry showed. But constitutionally, the Premier may only exercise some powers on his or her own authority. They are limited to the organization of the Executive Council (Cabinet), appointments to the Executive Council, appointments to the senior executive of the Public Service, prorogation of the House, calling together of the House, and dissolution of the House and the timing of an election. Literally everything else must involve a deliberation of some of all of the Cabinet. This one did not get that and it shows.

The Order-in-Council assigning the Advocate the job was put together hastily by all accounts but carefully enough to limit what the investigation involves. The full text of the Order directs “the Child and Youth Advocate to review, investigate and report on the policies and procedures in place to ensure the safety and well-being of children and youth in receipt of protective intervention services where a report is received alleging that a child or youth has been sexually abused or exploited.” Italics are added.

The part in italics is a crucial limitation that means Clemens-Spurrell can only look at cases where there was a report and cannot look at others even to find out why a report was not received even in cases where, as a result of the police investigation into Humby, it is clear or where it appears a child or youth in care has been sexually abused or exploited. No report? No comment from Clemens-Spurrell or her officers.

There’s more.

The OC specifically cites section 15(1) of the Child and Youth Advocate Act in what the Advocate may not investigate. Note the discrepancy between the Premier’s letter (aboved) and the OC. That section prevents her from looking at:

• a decision, recommendation, act, order or omission of the House of Assembly, the Lieutenant-Governor, a committee of the House of Assembly, the Lieutenant-Governor in Council, the Executive Council, or a committee of the Executive Council,

• an order, decision or omission of a court, a judge of a court, a master of a court, or a justice of the peace made or given in an action or proceeding in the court, or before the judge, master or justice of the peace.

• a matter in respect of which there is under an Act a right of appeal or objection or a right to apply for a review on the merits of the case to a court or tribunal constituted by or under an Act, until after the right of appeal, objection or application has been exercised or until after the time limit for the exercise of that right has expired.

At the very least, as far as Humby and others go, she cannot do anything with those cases until after Humby and any other accused as well as the Crown have exhausted all appeals. She also will be delayed by any lawsuits against the provincial government, one of which is already filed. In other words, there is nothing she can do of any substance for several years. That makes it all the more curious that Clemens-Spurrell is so desperately clutching this charge and - even if it is passive aggressively - smearing those demanding a substantive inquiry.

The root of this problem is the haste Furey took in setting up some response to the Opposition’s demand for an inquiry. His reply was obviously half-assed. That is, the Premier and his advisors acted without thinking through any of the implications. There are issues in the Humby case that go beyond just the child protection services department into the police and Crown prosecution service.

The questions raised by the Humby case are serious enough to warrant a proper inquiry under the Public Inquiries Act. Stop the CYA farce. As there can be no action until the accused have his day or their day in court, there is time to make sure that the inquiry is set up properly with the right task and the right powers to get the job done. That was the case in the Hughes Inquiry, for example, which is potentially the closest analogy we have to this case.

All of that would give the Premier and Cabinet something they could defend publicly. They could argue credibly they took the issues seriously, that they wanted to make sure the thing was done thoroughly and correctly, and that everyone had their rights protected. Hasty action could make matters worse. Instead, we got a controversy and three reminders of all that has been wrong with Andrew Furey’s time in office.

The biggest of these is the half-assed way things get done. Furey likes to toss a stick down the road - make an announcement without details - and figure out later on what the stick looks like or whether or not it is a stick. That leaves us with messes like hydrogen or this one now with both the Advocate’s office and this investigation.

The next is the fundamental corruption of the statutory offices, inherited from the Conservatives, accelerated by Dwight Ball’s administration and now cemented in place during Furey’s time. Recall the Bruce Chaulk fiasco in which a statutory officer not only obviously bungled investigation after investigation but cocked up an election and was left in place by the Speaker and others despite there being accusations of abusive behaviour against him by members of his own staff. That last one is not on Chaulk and Chaulk may well have been the victim of spurious accusations. We’ll never know because the investigations into that were also bungled. The point to remember here is the way that those responsible for taking action to protect the rights and interests of people failed categorically and repeatedly to do so. Rather than put Chaulk on leave with pay, they left him working in the office and with the people who had accused him of abuse. it was, itself, abusive to the employees and to Chaulk.

The corruption is not just that sort of thing. It is the way the Cabinet had taken control of the offices from the House and appointed people who typically are independent of the government departments they report on. Turning one deputy minister of finance after another into the Auditor General is the clearest example of this.

The third is the low ethical bar that Furey has set for himself and others around him. Furey had no trouble excusing his own trip to John Risley’s fishing camp. We have two different stories of who paid for the thing but more importantly, in defending himself Furey invented for himself a fictional and preposterous period when he is on his own time and hence outside any ethical constraints on him as Premier.

In the Advocate’s conflict, Furey similarly cavalierly brushed aside any questions figuratively with an arrogant Danny Williams-style pfftt and a figurative brushing motion as if the whole thing were too petty to be worth his attention. "Life is full of conflicts,” Furey told reporters. “It's not about the conflict itself, it's about how you handle it.” True as far as it goes but in Furey’s case he has a problem with handling conflicts of interest, both his and those of people he is ultimately responsible for. In this case, getting it right went by the wayside in the face of Furey’s own concern - as he told reporters a couple of weeks ago - to get something rolling immediately. By Furey’s own standard, he failed.

No one should forget that Andrew Furey has his own interest in setting a low bar against conflicts of interest. He practices medicine, despite the obvious legal liability issues with that not to mention the questions of when he finds time. But as we learned Tuesday morning, inquiries by AllNewfoundlandLabrador to the Commissioner of Legislative Standards about Furey’s medical practice triggered that officer - also appointed by Furey - to ask new questions about what Furey is up to outside the office.

According to AllNL, the Premier’s Office issued a statement saying that Furey only bills for his medical work through the Medical Care Commission (MCP) and does not provide “uninsured medical services.” The AllNL story noted that in the past Furey has done consulting work for WorkplaceNL. That work and any other insurance-related work would not be covered by MCP and are therefore defined by the provincial government as uninsured medical services. Physicians refer to them as “independent medical examinations.” They’d be a greater risk of an interest conflict than billing MCP which is already problematic, whether Furey still did that work for Workplace NL or a private insurer. Since those cases often wind up in court, there’d be the spectacle of him appearing in court. Not an interest conflict but certainly needlessly spectacular were it to happen.

AllNL noted a couple of examples of medical doctors who’ve continued to practice while in cabinet. One Harper cabinet minister kept up the requirements of her licence by volunteering since federal law prohibits cabinet ministers from doing paid work while in Cabinet. Interestingly, AllNL missed the section of the House of Assembly Act amended in 1993 that sets the ethical standard for ministers in this province:

27. (1) A minister shall not

(a) engage in employment or in the practice of a profession;

(b) carry on business; or

(c) hold an office or directorship other than in a social club, service club, religious organization or political party,

except as required or permitted by the responsibilities of the minister or where the activities are not likely to interfere with the public duties of the minister.

A minister shall not engage in employment or in the practice of a profession. The intention of the section is clear. There is an allowance at the bottom for a Cabinet minister to work outside of ministerial duties but there’s no requirement of being Premier for Furey to practice medicine. Plus, it’s arguably not possible for someone to do the Premier’s job properly and be a full-time member of the House of Assembly and work a third job in any kind of medical practice without compromising at least one and possibly all three. Even if it were possible, the downsides to it are considerable such that everyone else over the past 30-odd years has avoided it. There is also a question of whether Furey has been cleared to moonlight by the Commissioner in the first place, but that is another matter.

And that brings us back to Furey’s lax expectations of others like Clemens-Spurrell. Furey can hardly hold someone to a higher standard than the one to which he holds himself. In this case, since he specifically gave her a job for his own partisan reasons - Furey wanted to get something going right away - Furey would be embarrassed at the very least to admit he’d rushed ahead so thoughtlessly that he’d given the job to someone who obviously was in an impossible conflict of interest and couldn’t do the job.

Now if Clemens-Spurrell *were* truly independent of Cabinet, she could have told Andrew Furey that there’s no way her office could take the job. As originally set up, the statutory offices were supposed to report to the House of Assembly, which itself is supposed to be independent of the Executive Council except to the extent that its members sit in the legislature. The House is supposed to hold the Executive Council to account on behalf of the public.

But under changes to all the laws governing statutory offices in 2016, Cabinet took de facto control of appointing the statutory officers. In effect, Furey gave Clemens-Spurrell her current job as Advocate just as she got her job from another Premier when she became assistant deputy minister. Like deputy minister John Abbott in 2006 - when he kept information on the breast cancer scandal from health minister Tom Osborne but gave it to Premier Danny Williams - Linda Clemens-Spurrell knows who butters her bread, let alone what side he puts the butter on. Hence even in dealing with this issue, she was obviously compromised with a naked conflict of interest and could not act independently.

And that brings us neatly back to that starting point Clemens-Spurrell put at the first sentence of her statement about why she’d keep going on.

Mine is an independent office, dontchya know.

Fine were it true but not fine give it is utterly false in so many ways.

Premier Andrew Furey had plenty of people to advise him and plenty of options to pick from if he wanted to deal effectively with the implications of the Humby case. Clearly, he listened to few if any and didn’t even bother to make sure that the person he chose to run the investigation he rushed out the door was able to do so without being fatally compromised.

So much for protecting the most vulnerable people in our society.

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