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BC Politics

Key Health Ministry Advisor Was Surprised Firings Targeted Just 'Low Level People': Emails

Lawyer Alana James had expected probe to reach senior officials, emails reveal.

Andrew MacLeod 6 Nov

Andrew MacLeod is The Tyee's Legislative bureau chief in Victoria. Find him on Twitter or reach him here.

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Former health minister Margaret MacDiarmid announced RCMP probe of research practices on Sept. 6, 2012. A key advisor questioned who was targeted.

After the health ministry announced in 2012 that seven people had been fired or suspended, the person who had started things rolling expressed surprise that people higher up in the bureaucracy had not been affected.

"Basically they are going for low level people," Alana James wrote in a message to a contact in the auditor general's office on Sept. 6, 2012, the day former health minister Margaret MacDiarmid held a press conference saying the ministry had asked the RCMP to investigate allegations related to potential conflicts of interest, contracting and responsible data management.

James is a lawyer who at the time was a senior health information advisor for the ministry. She has since left the government.

In another message to the same contact, James said she expected the investigation would affect people at the assistant deputy minister or associate deputy minister level. "Definitely lots goes on that I don't know about so maybe they are slowly getting around to looking into issues with some of the ADMs and such," she wrote.

Two years later, nobody above the executive director level has received discipline in relation to the investigation. Health Minister Terry Lake has said the government overreacted in some of the firings and employment lawyer Marcia McNeil has been appointed to investigate what went wrong.

McNeil was supposed to report her findings by Oct. 31, but the government extended that deadline until Dec. 19 after she asked for more time due to the complexity of the case and the number of people with information to provide.

In 2012, James wrote that she already saw signs that the government was trying to limit the damage. Within the ministry "the message is that it is a very small number of people, very contained, very limited, it does not go very high up and except for a tiny number of individuals it was just ignorance of the law and policies, so smarten up dummies," she wrote.

$1-a-year contract

The Tyee reported that James raised alarm in May 2012, that she was routinely being asked to approve of contracts that she believed were illegal, and that she said top officials ignored her concerns for more than a year. She threatened to take those concerns to someone outside the ministry if higher-ups didn't act.

After The Tyee published that story, the ministry's legal counsel John Tuck wrote that the ministry "demands that you refrain from further publication of any personal information found in the Records."

He wrote, "This letter is not intended to stifle or limit public debate about the general issue referred to in the Article. However, the [Freedom of Information and Protection of Privacy Act] obliges the Ministry to take steps to contain this privacy breach so as to prevent harm to the individuals whose personal information is at issue."

In consultation with our lawyer, The Tyee decided it's in the public interest to publish more details from the health ministry emails that we received from a source outside of the government.

In an outline written during the early stages of the investigation and sent to a colleague on April 20, 2012, James detailed far-reaching concerns about allegedly illegal contracting practices and the failure of senior officials to tighten those procedures.

Among her concerns, James singled out a $1-a-year contract given to someone who also worked at a university that regularly receives ministry contracts and funding. "Additionally, this individual's wife is a [ministry] employee who regularly negotiates the terms of and drafts provisions of the data agreements and [Proprietary Information Agreements] for the university [where] her husband works."

The Tyee and others have previously reported that Bill Warburton had a $1-a-year contract that gave him access to ministry data. His wife Rebecca Warburton was a co-director of research and evidence development in the health ministry's pharmaceutical services division and a professor of public administration at the University of Victoria.

Rebecca Warburton was among those fired and she has sued for wrongful dismissal and defamation. Sources have said that she did not have signing authority and anything she worked on was approved by people higher up in the ministry.

Bill Warburton's contract was cancelled and he has sued, alleging the firings were a "bad faith" attack on research that exposes the harmful effects of pharmaceutical drugs and were aimed at protecting the profits of donors to the BC Liberal Party. Both cases are ongoing.

Deputy minister approved

The $1-a-year contract was also prominently cited in a Sept. 4, 2012, briefing note released through the FOI process that investigator Wendy Taylor from the Labour and Citizens' Services ministry prepared for former health ministry deputy minister Graham Whitmarsh.

Highlighting the contract is interesting, given that several sources have told The Tyee that the agreement was signed with the knowledge and full approval of Stephen Brown and other senior ministry officials. Brown was the ADM of the medical services division until April, 2011, and after a brief period outside the ministry he is now the deputy minister of health.

Asked for confirmation of Brown's approval of the contract, a ministry spokesperson responded, "The ministry will not comment on this matter as it is a matter before the courts."

In emails sent to colleagues in 2012, James identified seven senior officials inside and outside the health ministry that she had taken concerns to in the past. The original concerns included some $17 million worth of contracts going back as far as 2004.

"I have not felt it was dealt with appropriately," she wrote. "I have been told things such as: I don't understand how government works; that it doesn't matter what the legislation says, we have government policy; that it's unfortunate that we don't follow the law but that we plan on changing the legislation at some point so that we will, so it's ok for now; that my job was on the line; that this is the way it has always been."

A source who was involved in the firings said the government is now making a crude attempt to unwind what was done two years ago, and that the people who are backpedaling now -- including Brown, John Dyble and Elaine McKnight -- are the same ones who had long known what was going on but failed to act.

Calls to Dyble and McKnight's offices, and email to health ministry spokespeople with questions for McKnight, were not returned by publication time.

Dyble is deputy minister to Premier Christy Clark and up until March 2011 was the deputy minister of health services. McKnight is an associate deputy minister in the health ministry, and has been chosen to replace Lynda Tarras as the head of the Public Service Agency next month.

Dual roles

The outline James sent to a colleague on April 20, 2012, detailed concerns about activities of ministry employees and contractors who also held positions at universities, but it also stressed the failure of more senior managers to follow or enforce the ministry and government's policies.

"The health research they perform at the universities utilizes data they have received from the [Ministry of Health] and are often funded by the [Ministry of Health]," she wrote. "A number of these individuals with dual roles at the [Ministry of Health] and universities are also related to each other, are friends with each other or have supervised each other at some point in the past."

The ministry had "repeatedly increased its risk" of being exposed to conflicts of interest by allowing employees or contractors who also worked at universities "to draft, negotiate the terms of and/or be a signatory to a contract or agreement on behalf of the [ministry]" in situations where their relative, or even they themselves, would receive ministry data or funding, wrote James.

"The risk that someone could object to this and question the possibility that these instances may have presented a potential Conflict of Interest is increased by the fact that in some of these examples the [ministry] acted contrary to its normal practice," she wrote.

In some cases, James wrote, the ministry broke with its normal routine and "expedited its disclosure of data; disclosed data or advanced funding before any agreements were signed; conceded more generous grants of intellectual property than normal." Nor, she wrote, did the ministry "document how or why these anomalous decisions were made."

Loose management

The failure was part of a wider problem of loose management, the document suggested. James wrote she believed the ministry had "unfortunately not complied with the Financial Administration Act, Procurement Services Act, Copyright Act, government Core Policy and Procedures Manual and Treasury Board policies on a number of contracts that are also vulnerable to allegations of potential Conflicts of Interest."

In some cases the ministry had paid for the provision of services but had not "complied with legislation and policy that mandate having an actual agreement in place for the other party to provide the service to MoH."

In many cases the ministry has "service agreements that do not document and define the deliverable or output." Under numerous agreements the ministry had never monitored or assessed the performance of the recipient, she wrote. In some cases it had approved agreements where pre-approved contract templates were modified, but had not sought legal review or advice on the changes.

"[The ministry] acknowledged in writing that under a large service agreement that has been renewed a number of times, it has never asked for nor received accounts or receipts but instead just regularly gives the other party money because we are nice," James wrote.

"There are documents of MoH receiving written advice and direction that a contract could not precede by way of a direct award, yet [the ministry] later did exactly that," she wrote.

"There are documents citing how to work around the required procurement and bidding process, including how to redirect money to another entity first with the direction that they will then forward the funds to the intended recipient."

A spokesperson for the health ministry, Ryan Jabs, has previously said both the Office of the Information and Privacy Commissioner and the consulting firm Deloitte have in the last two years looked at the ministry's data management, audit and contracting procedures. "Strengthening these systems and processes allowed us to restore contracts and give researchers access to our data once they completed the information security and privacy training."

Low-hanging fruit

A source told The Tyee that the PSA deliberately limited its investigation in 2012. "They seemed to make the decision about the fired people and told the whistleblower that if they wouldn't take the issues public they would deal with it internally but that their role was to protect the government as the employer and thus they wouldn't be pursuing people higher up."

The individuals fired were "low-hanging fruit" and in some cases were acting with approval or even instructions from people high up in the government, the source said.

The source said they told PSA "they fired some very low key people and when those people threatened to tell the public what was actually going on, they were rehired."

Two of the seven people fired in 2012, Bob Hart and Malcolm Maclure, have returned to working at the ministry after settling their lawsuits with the government out of court. A third case, filed by Ron Mattson, settled with the government expressing regret about the firing.

Three BCGEU members who were fired filed grievances, but did not regain their jobs. One of them, co-op student Roderick MacIsaac, committed suicide in 2012. Both Lake and Clark have apologized to MacIsaac's family.

In an Oct. 28 column, the Vancouver Sun's Vaughn Palmer wrote that McNeil's review of the firings is limited by terms of reference designed by the Public Service Agency, the same organization involved in the terminations, a point the NDP has also made in the legislature.

The PSA's terms of reference forbid McNeil from reviewing the policies on drug research, contracting and data management that were factors in the firings. Doing so, it appears, could raise some very uncomfortable questions for top members of the government.  [Tyee]

Read more: Health, BC Politics

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