When the British Columbia government launched a review last month to probe the controversial firings of seven health ministry staffers in 2012, Graham Whitmarsh, the former deputy health minister, worried that senior government officials had already decided to blame him.
Whitmarsh, who was removed last year from his post, expressed concern that the review has zeroed in on him alone to take responsibility for the firings. His concerns were expressed in a series of emails and letters he shared with The Tyee, however he did not give an interview.
"Mr. Whitmarsh is concerned that the most senior levels of the Government intend to portray the findings and recommendations of the PSA's [Public Service Agency] review as if the review is a fault-finding exercise and that Mr. Whitmarsh has been chosen as the convenient individual to carry the blame for the events in 2012," John Adams, a lawyer representing Whitmarsh, wrote in an Oct. 20, 2014 letter.
Adams' letter was addressed to Premier Christy Clark, Health Minister Terry Lake, Finance Minister Mike de Jong, deputy minister to the premier John Dyble and to Lynda Tarras, the head of the Public Service Agency.
Tarras is also leading the government-ordered review.
The health ministry firings have dogged the provincial government for two years. In Sept. 2012, then-health minister Margaret MacDiarmid, with Whitmarsh at her side, called a news conference to announce that she had asked the RCMP to investigate allegations that led to the termination of four ministry employees and the suspension of three others who were later fired. MacDiarmid and other government officials have never specified the allegations beyond saying they had to do with potential conflicts of interest, contracting and responsible data management.
Since then, the government has admitted it mishandled the affair. The firings affected lives and damaged reputations. However, the government has never publicly accounted for why it fired the health employees in the first place.
The government-ordered review, announced in October, was expected to get to the bottom of the 2012 firings. But the government's choice to lead the probe –- the Public Service Agency –- raised eyebrows because some agency staffers, including its head, were also involved in the firings.
Whitmarsh noted that an Oct. 24 letter signed by deputy Attorney General Richard Fyfe outlined that the government did not intend to assign blame on Whitmarsh and that the review is intended to find facts. It gave Whitmarsh permission to provide a copy of the government's letter to anyone who believed the government was preparing to blame him personally.
The letter from Whitmarsh's lawyer to which Fyfe was responding had outlined his concerns that senior government officials are preparing to blame him for the firings.
"Comments of the type that have been recently made that are designed to place blame on Mr. Whitmarsh for the events in 2012 must cease and desist," it said, noting such comments had come from Clark, Lake, Dyble and current health deputy minister Stephen Brown.
"Those comments are in themselves a 'rush to judgement', are damaging to our client's reputation, and reinforce Mr. Whitmarsh's concerns about the lack of independence, artificial deadline and restrictive scope of the PSA's review," it said.
Five lawsuits and a suicide
The 2012 government investigation, which targeted employees involved in drug research, resulted in the freezing of several research contracts and five court cases for wrongful dismissal and defamation. Three of those cases have now been settled out of court, with two people returning to work for the ministry and a third receiving a settlement and having his name cleared.
A co-op student who was suspended three days before his work term ended and later fired, Roderick MacIsaac, 46, committed suicide in December 2012. He had been designing a way to evaluate a smoking cessation program that had been a pet initiative of Premier Christy Clark.
Both Clark and Health Minister Terry Lake recently apologized to MacIsaac's family. Lake has said the ministry in some cases overreacted and was heavy-handed.
Earlier this fall, the government announced a review into the matter to be conducted by the Public Service Agency. It also went outside the government, hiring employment lawyer Marcia McNeil to investigate. The deadline for the review, originally announced for Oct. 31, has been extended to Dec. 19.
Eventually, MacDiarmid lost her Vancouver-Fairview seat in the 2013 election, and Whitmarsh was removed from his position as deputy health minister. He received about $400,000 in severance payments.
Whitmarsh alleges conflict
The correspondence Whitmarsh shared with The Tyee shows he was concerned about the selection of Tarras to lead the review.
Tarras heads the Public Service Agency, which was involved in the health ministry investigation and firings. That puts her in a conflict of interest, Whitmarsh argued.
He also believed Tarras' boss, deputy premier Dyble, was also in a conflict of interest, though a more minor one, since he'd been kept abreast of events in 2012 and was involved in some of the decisions. Dyble was also deputy minister of health at the time that many of the events that led to the firings took place, he noted.
But it's what the correspondence reveals about the goals of the investigation that may be most in the public interest.
While Premier Christy Clark has said publicly that the review is intended to get to the bottom of what happened with the firings, the correspondence between the government officials and Whitmarsh suggests the government has other goals.
Tarras and deputy attorney general Fyfe both assured Whitmarsh that the review is not intended to find anyone at fault and will instead focus on the Public Service Agency's procedures.
Whitmarsh declined an interview, but did say his correspondence with the government began after reading in the media that officials said the Public Service Agency could do the review because they said they weren't involved in the firings.
That statement set off alarm bells. "I knew that wasn't true," he said, adding the Public Service Agency is always involved in hirings and firings. "I just knew somebody wasn't being straightforward."
The trail of emails and letters going back to Oct. 5 include details of how the Public Service Agency, Tarras and others were heavily involved in the process that led to the decision to fire the health ministry employees in 2012.
"Early in the investigation process [that led to the firings], it was decided, as is the norm in such serious human resource matters, to have the Public Service Agency (PSA) lead the investigation," Whitmarsh wrote on Oct. 6 to McNeil, adding that the Public Service Agency had support from the province's Chief Information Officer to investigate the handling of government data.
"The PSA is always significantly involved with processes, investigations and decisions which result in serious disciplinary actions against any BC Public Service employees," wrote Whitmarsh. "Such grave matters are not left to the discretion of individual ministries under any circumstance. This is absolutely appropriate. This case was no different.”
Independent review needed
On Oct. 20, Whitmarsh, who had sought an indemnity agreement from the government, instructed his lawyer, John Adams, to write to the government.
"We are writing to set out Mr. Whitmarsh's concerns with respect to the manner in which the Public Service Agency's review is being conducted, as well as the damaging public comments that have been made about him recently by the Minister of Health Terry Lake, Premier Christy Clark and others in Government," wrote Adams.
In the emails, Adams writes that Whitmarsh supports an independent and full review of how the Public Service Agency handled the 2012 investigation, as well as the actions the public service took because of the investigation.
But he stressed that he did not believe that the organization and staff that conducted the 2012 probe should be doing the review. That smacks of conflict of interest, Adams wrote.
"He [Whitmarsh] considers that the PSA is [in] an obvious conflict of interest in the handling of the review, and that the review will be extremely cursory in nature rather than a thorough examination of the relevant events in 2012," he wrote.
"The deadline for and the scope of the review are so restrictive that it appears that the review has been deliberately designed so that it cannot result in a full review of the 2012 investigation and of the actions taken by the public service as a result of the investigation."
In the absence of a full review, and considering some of the things Clark and Lake said publicly, Whitmarsh worried he'd be made the scapegoat for anything that was found to have gone wrong, the letter said.
Reviewing policies, not people
The Whitmarsh emails and letters drew a quick response from the government.
On Oct. 24, deputy attorney general Fyfe responded on behalf of the province, saying that the review is focused on the human resources procedures and is designed not to blame anyone individually.
Any allegedly damaging statements government officials made about Whitmarsh "were not intended to, nor should they reasonably be considered to refer to your client, alone or at all in a manner that would negatively impact his reputation while a deputy minister," Fyfe wrote.
The government then described Whitmarsh's involvement.
"The ultimate decision to effect these terminations was made by the then deputy minister, your client," Fyfe wrote. "Any such decision is based on the activities and recommendations of all involved personnel, and on the applicable human resources policies and practices. The latter are the subject of the current PSA review."
Fyfe also wrote that the government did not agree with Whitmarsh's assessment that Dyble and Tarras had conflicts of interest.
"Given the specific scope of the review being undertaken and the arrangements that have been implemented with respect to the fact finding portion of the review, we do not agree."
Fyfe wrote that Tarras was to make recommendations based on the review's findings. And he noted that the fact-finding had been turned over to employment lawyer Marcia McNeil.
"The purpose of the review is to identify any shortcomings in the human resources and investigation processes and procedures and to identify improvements to these processes and procedures," wrote Fyfe. "The review is expressly not a fault-finding mission, nor is it second-guessing the termination decisions. It is the process that is under review, not the decisions that were made."
He also disagreed that Tarras's involvement has tainted the review process. "It is the role and responsibility of the deputy minister of the PSA to review processes and policies for the purpose of potentially recommending improvements for future investigations."
Whitmarsh detailed conflicts
The response from Fyfe is similar to explanations Tarras provided to Whitmarsh in earlier emails.
"We will not be examining or revisiting the decisions that were made or reviewing any actions after the date that the termination decisions were executed," she wrote on Oct. 7. The review would be limited to the steps and procedures up until the terminations were made, she said.
The review would be limited that way, because that's how she designed it, Tarras wrote. "I drafted the terms of reference, I engaged Marcia McNeil to conduct this review and I have met with her to lay out the work plan for how the review would be undertaken," she said.
But after considering an earlier message from Whitmarsh, she'd decided not to attend McNeil's fact-finding meetings. "I do not want any perception of bias in this review," she wrote, while adding that she would remain involved in crafting the recommendations and producing the final report for public distribution.
Whitmarsh's responded to that email with further concerns about the review. "Your acknowledgement that you drafted the Terms of Reference arguably makes the situation worse," he wrote on Oct. 9. "You have directly written the Terms of Reference for an investigation into the actions involving your own organization. This is a serious matter and creates another obvious conflict of interest."
The conflict went further, Whitmarsh wrote. "Your immediate superior John Dyble is also seriously conflicted in this matter," he wrote. "You and I, both individually and together briefed John on many occasions during the course of the investigation.
"While his involvement was much less than your own, he was involved in some of the key decisions and the timing of some of the key events," wrote Whitmarsh. "In addition, he was the Deputy Minister of Health at the time many of the actions that were the subject of the investigation happened.
"The original investigation never looked in depth above the Executive Director level, at the executive accountability for events in the ministry. These facts together put him in a position of substantive conflict of interest."
Changes made to review
Tarras responded Oct. 10 defending her involvement. "As head of the BC Public Service Agency, I am responsible for identifying and implementing process improvements related to HR management across the public service," she said.
"That is the only purpose of this Review, as described in the Terms of Reference previously provided to you," wrote Tarras. "The concerns that you have raised may have relevance if the intent of this Review was aimed at finding fault for past events. That is not the case."
She did, however, say she had formally amended the Terms of Reference. "In light of the concerns that you have expressed... to provide that Marcia McNeil will come to a completely independent finding of the facts related to the processes followed in this case."
The change would "avoid even a perception of conflict of interest," she wrote.
The most recent letter in the exchange shared with The Tyee, written Nov. 7, 2014, expressed Whitmarsh's ongoing concerns about the review.
"Your letter states that the Public Service Agency's review is directed solely at 'the human resources and investigation processes and procedures' that led to the termination of the employment of a number of Ministry of Health employees in 2012, rather than being a review of the decisions themselves," Adams wrote on Whitmarsh's behalf.
"It is questionable, however, whether the public will share this view, particularly in light of Premier Christy Clark's and Minister of Health Terry Lake's public statements in October which suggested that the review would have a broad rather than a limited scope," he wrote.
"It is also difficult to see how the review's comments on the processes and procedures that resulted in the termination decisions being taken, will not end up being interpreted or portrayed as a commentary on the appropriateness or inappropriateness of the termination decisions themselves," he wrote.
Review could affect legal cases
The firings led to five lawsuits for wrongful dismissal and defamation. Three have been resolved, with two people, Malcolm Maclure and Bob Hart, returning to work for the ministry. Ron Mattson reached a settlement, dropped his suit and says he decided not to return to the ministry.
But the cases of Rebecca Warburton, who was a co-director of research at the ministry before she was fired, and her husband researcher Bill Warburton are ongoing.
Asked Adams, "Is the review premature until those legal proceedings have been resolved in one fashion or another?
"If the review results in findings that the processes and procedures that resulted in those two decisions were flawed in some manner, then those findings will almost certainly be used against the Province by the plaintiffs in the two court actions even if the review avoids directly commenting on these two termination decisions," he said.
Finally, Adams said the government didn't provide enough time to conduct a thorough review, even though it extended the deadline to mid-December.
"December 19 still appears optimistic considering the number of documents that are relevant to the processes and procedures leading up to the termination decisions and that Ms. McNeil will have to review, even if the actual decisions are not examined as part of the review."
Whitmarsh was willing to meet with McNeil, the lawyer appointed by the government to help with the probe, but continues to have concerns about the review process. He wrote that he would prefer an independent investigation done by the Auditor General's office.
Whitmarsh confirmed over the phone that he has a preliminary meeting scheduled with McNeil for Nov. 24, after which he will decide whether or not to participate in the review. He declined to comment further ahead of that meeting.