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Ombudsperson Issues Reality Check on Potential Health Firings Probe

Support of opposition MLAs, ex-workers needed for successful investigation, says Jay Chalke.

By Andrew MacLeod 8 Jul 2015 | TheTyee.ca

Andrew MacLeod is The Tyee's Legislative Bureau Chief in Victoria and the author of A Better Place on Earth: The Search for Fairness in Super Unequal British Columbia (Harbour Publishing, April 2015). Find him on Twitter or reach him here.

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Ombudsperson requests more power to 'ensure public confidence' in health firings probe.

In a letter to a British Columbia legislature committee, Ombudsperson Jay Chalke has outlined several major concerns about his office being asked to investigate the botched 2012 firings by the health ministry.

"The purpose of this letter is not to advocate for or against a referral of this matter to my office," Chalke said in the 10-page letter to the Select Standing Committee on Finance and Government Services.

"It is to ensure that if a referral to my office is made, such referral is based on a realistic understanding of what an Ombudsperson investigation would entail, a proper assessment of the legislative and practical measures that would be necessary to ensure that my office can carry out this task fully and effectively, and a careful consideration of the conditions that are necessary to ensure public confidence in its outcomes," he wrote.

In September 2012, the health ministry announced allegations related to data management, contracts and conflicts of interest that would lead to seven firings and the freezing of several drug research contracts. Work that stopped as a result included an assessment of Premier Christy Clark's pet anti-smoking program.

The government has since reinstated two of the people who were fired, settled out of court in three wrongful dismissal and defamation lawsuits, and Clark has apologized for some of the firings and for misleading the public. Two lawsuits are ongoing.

An earlier investigation report by employment lawyer Marcia McNeil said some key senior officials declined to participate in her review and she could not answer the questions of who made the decision to fire the employees or why.

Under pressure to launch a public inquiry into the matter, last week Terry Lake, the province's health minister, said he would ask the finance committee to refer the matter to the Ombudsperson.

Detailed concerns

Referring a matter to the Ombudsperson this way appears to be unprecedented in the 35-year history of the office, though the Ombudsperson Act allows for it, Chalke wrote to the committee.

"There are a number of pre-conditions that need to be addressed in order for a referral and the resulting investigation to be successful," he wrote.

For one thing, the committee's recommendation would have to be unanimous, with support from both government and opposition MLAs, if it's to be credible, he wrote. "Without the support of both parties represented on the Committee, I am very concerned about the potential appearance of politicization of this office, whose independence and impartiality are its most precious assets."

The committee would also need to consider the views of the former employees on whether the Ombudsperson should review the matter, or if there might be a better alternative, he said. "In my view, the perspective of the former employees is very important and I would suggest that the Committee give those views the utmost consideration including inviting the employees to make submissions to the Committee before the question of whether to make a referral is decided."

The committee needs to acknowledge it is standard for the Ombudsperson to conduct investigations in private, that a budget will need to be set, that the office may limit its scope to avoid overlapping with other independent officers of the legislature, and that no deadline should be set on the office's work, he said.

The government would also need to commit to repealing or replacing section 19 of the Ombudsperson Act, which could interfere with the office's ability to compel people to participate in the investigatory process, Chalke wrote.

It would need to release people from any confidentiality agreements they'd signed as part of earlier legal settlements and it would have to give assurance that it would follow the established protocol of releasing cabinet records and legal advice that the Ombudsperson's office might want to see, he said.

Fired worker 'encouraged'

The committee approved a motion to invite Chalke to come to its next meeting, likely the week of July 13, to answer questions.

It failed to approve a motion to also invite the people who had been fired to make submissions to the committee.

Ron Mattson, one of the people who was fired in 2012 and whose wrongful dismissal and defamation lawsuit was resolved with an out-of-court settlement, was at the committee meeting today.

"I am very encouraged the Ombudsperson has identified many of the same concerns we identified in our statement," he said, referring to a June 24 letter to Lake signed by eight people affected by the firings that called for a thorough public inquiry.

"I was also encouraged the committee expressed an intention to launch a review process that had the full confidence of the public," he said.

The committee also received a July 8 letter from Suzanne Anton, the province's attorney general. "The Ombudsperson's letter has assisted by identifying potential challenges to an investigation by the Ombudsperson, the majority of which would have equal application in the case of a public inquiry," she wrote.

Anton's letter included a two-page table suggesting ways to mitigate the Ombudsperson's concerns and comparing them to what would happen in a public inquiry.

Further consideration

"We're all expressing the same concerns," said Scott Hamilton, the Liberal MLA who chairs the finance committee. "We want to get to the same place. We want full disclosure."

Asked about Chalke's concerns, Hamilton pointed to Anton's letter. "We're going to see where this takes us next week," he said. "I'm not going to pre-judge what the committee's going to decide."

He said the committee has worked well together and he hopes it will reach a consensus. "I certainly want to see a unanimous decision," he said. "I don't know if I'm going to be able to achieve that or not, but I certainly hope so."

There's a great deal of public interest in getting answers to what happened, why and who is accountable, said George Heyman, an NDP MLA on the committee. "It's obviously been bungled from the start by the ministry."

Anton's letter, Heyman said, "Appears to be an attempt to minimize the concerns of the Ombudsperson."

The Ombudsperson's concerns need to be taken seriously, he said. "I fail to see how if the committee was to refer the matter to the Ombudsperson in a manner in which he felt he couldn't do an inquiry justice, one in which the public wouldn't have confidence, there's any purpose to the process whatsoever."

Heyman said the committee needs to hear from the Ombudsperson and get the necessary assurances from the government on the matters Chalke raised before he can say whether NDP members would support referring the matter to the Ombudsperson.

NDP leader John Horgan said the Ombudsperson raised several concerns the NDP also had, and added a couple more. He agreed that for credibility the committee's decision should be unanimous, and expressed doubt the NDP would be able to support referring the matter to the Ombudsperson. "Based on what I've read in [Chalke's] letter, not likely," he said.

The NDP wants the truth of what happened, and the government needs to support a process that can get there, rather than pushing for a minimal response, Horgan added. "They didn't think this through yet again."  [Tyee]

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