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Crosbie Asks Citizens’ Representative to Investigate Premier for Wrongdoing
PC Opposition leader Ches Crosbie has written to the Citizens’ Representative requesting that Premier Dwight Ball be investigated for wrongdoing with respect to the hiring of Ms. Carla Foote at The Rooms.
Wednesday, December 11, 2019

Office of the Official Opposition
For Immediate Release

St. John’s, NL (December 11, 2019) – PC Opposition leader Ches Crosbie has written to the Citizens’ Representative under subsection 55(1) of the House of Assembly Accountability, Integrity and Administration Act, requesting that Premier Dwight Ball be investigated for wrongdoing with respect to the hiring of Ms. Carla Foote at The Rooms.

Crosbie said, "The Premier needs to be investigated for his role in t‎he hiring of Ms. Foote. That hasn't yet been investigated. If it is shown that he had a role, then he violated the Members' Code of Conduct and should be punished."

“It is hard for reasonable people to believe the Premier is not involved in this,” said Crosbie, citing the following:

· The report said the Rooms Board was told the Premier offered her the job.

· Although the Premier denied his involvement eleven times in the House, the Minister was evasive when asked about whether he was directed by the Premier’s staff.

· A former Ball Minister has stated in the House of Assembly that such hires never happen without the Premier’s involvement.

“The public is concerned the Premier may have promised to keep the Minister in Cabinet if he would take the fall and hide the Premier’s role.”

“The public interest requires the many unanswered questions in this scandal be thoroughly investigated by an officer of the legislature to get to the bottom of matters such as these,” said Crosbie.

Below is a summary of the contents of Crosbie’s submission to the Citizens’ Representative.

Contacts:

Bradley Russell, Director of Policy and Research

(p) 1.709.729.3668

BradleyRussell@gov.nl.ca

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Backgrounder

I write pursuant to subsection 55(1) of the House of Assembly Accountability, Integrity and Administration Act, which reads: “An employee or a member who reasonably believes that he or she has information that could show that a wrongdoing has been committed or is about to be committed may make a disclosure to his or her supervisor, the clerk, a member of the audit committee chosen under paragraph 23(2)(b), or the investigator.” The investigator is defined as the Citizens’ Representative.

In your Public Interest Disclosure report dated June 11, 2019, you concluded that the intervention of a Member of the House of Assembly and Minister to facilitate the hire of Ms. Carla Foote at The Rooms in the fall of 2018 not only breached the Members’ Code of Conduct, but grossly mismanaged his obligations under sections 2, 4, 7 and 10 of the Code; and you further concluded that the Member, by either directly authorizing a significantly higher level of pay for Ms. Foote or acquiescing in that decision, grossly violated his obligations under section 8 of the Code. Your report formed the foundation of the November 13, 2019 report of the Commissioner for Legislative Standards, in which the House of Assembly concurred on December 5, 2019. In other words, you found – and the House concurred – that a wrongdoing had indeed been committed by a Member in the hiring of Ms. Foote.

It stands to reason that, if another Member of the House of Assembly also facilitated this hire and directly authorized or acquiesced in the decision to approve a higher level of pay, then that other Member would also have grossly mismanaged that Member’s obligations under the Members’ Code of Conduct.

Your report of June 11, 2019 was limited to your investigation of allegations of wrongdoing by St. Barbe - L'Anse aux Meadows MHA Chris Mitchelmore, who was at the time the Minister of Tourism, Culture, Industry and Innovation. All five of the allegations before you were specific to that Member.

I write to provide information that could show that a wrongdoing has been committed by the MHA for Humber – Gros Morne, Premier Dwight Ball.

For your assistance, we set out allegations for your consideration, which are posed additionally and alternatively.

Allegation #1

That the Premier offered the job to Ms. Foote, according to testimony from the Executive Board, which subsequently acted in accordance with that belief.

Some of this information is found in your June 11, 2019 report. The section of your report regarding the Board of The Rooms and its Executive Committee implicated the Premier in the appointment of Ms. Foote. On page 8, you wrote:

“A Board meeting was held on September 21, 2018. A new organizational design for The Rooms was discussed and approved. It provided for a Director of Marketing and Development position to be classified at HL 24. After the meeting the Executive Committee met with Mr. Brinton in his office. He received a call from the Minister and the Deputy Minister. The Executive Committee stepped out of the room. When they returned they were advised that the Minister and the Deputy Minister had said that the Premier had offered Carla Foote the position of Executive Director of Marketing with The Rooms. This was the first time that any members of the Executive Committee had heard Mr. Foote’s name in association with that position. Shortly thereafter, she received a call from the Deputy Minister to see if the Board was onside with the decision. It appeared to the Executive Committee that the decision was a fait accompli. Ms. Allen says that she told the Deputy Minister this was a bad idea and that it would have negative repercussions for The Rooms. The Executive Committee felt that there was little they could do given that the Premier had made the offer to Ms. Foote.” [emphasis added]

Subsection 60(1) of the Act states: “A person shall not (a) in making a disclosure; or (b) during an investigation, orally or in writing, knowingly make a false or misleading statement to a person to whom a disclosure has been made or to the investigator.”

It is therefore reasonable to conclude that the Executive Committee did indeed believe, based on what they were told, that the Premier had offered Ms. Foote the job and that the Premier’s job offer would result in her being hired without competition.

Allegation #2

That the Premier was aware that the job was being offered to Ms. Foote without competition and, in allowing that to happen, he bears responsibility for her hiring and the manner in which she was hired.

The Premier has repeatedly denied “directing” or “ordering” the appointment of Ms. Foote. The following instances are excerpted from the contextual quotes appended to this letter:

· “I did not direct anyone to hire Ms. Foote for a job at The Rooms” (written statement, December 21, 2019)

· “No, I did not” [order the minister to hire Ms. Foote at The Rooms] (Hansard, December 3, 2019)

· “I did not order Minister Mitchelmore to hire Ms. Foote, and none of my staff were a part of this process” (Hansard, December 3, 2019)

· “I wasn't involved in that at all” (Hansard, December 3, 2019)

· “I was not involved in this” (Hansard, December 3, 2019)

· “There was no direction given to me [sic] to hire Ms. Foote” (Hansard, December 3, 2019)

· “there's no secret deal, there's no secret conversations” (Hansard, December 4, 2019)

· “where that came from certainly didn't come from me, Mr. Speaker, because I had never given direction to the minister” (Hansard, December 4, 2019)

· “I can clearly tell you that there was no direction given by me to hire Ms. Foote. That is not the case” (Hansard, December 4, 2019)

· “the direction did not come from me” (Hansard, December 4, 2019)

· “there was no involvement in this and there was no direction” (Hansard, December 5, 2019)

However, the Premier has reportedly publicly stated that he was aware of the hiring. CBC journalist Peter Cowan reported on a media scrum with the Premier on December 5 through a Twitter post which stated: “Premier Dwight Ball says no one in his office directed Carla Foote to be moved to The Rooms. Says he was informed about it but didn’t direct it”. Link: https://twitter.com/PeterCBC/status/1202658076588986368

It is our understanding that Executive Council records all media scrums, so I would suggest that you follow up with them to obtain the actual audio recording.

We also have remarks by the Member for Humber – Bay of Islands in the House on December 5, 2019. While that Member would not have been privy to events directly related to the hiring of Ms. Foote, he had been a Minister under Premier Ball and is in a position to speak about the way executive transfers were conducted under this Premier. Mr. Joyce stated:

“I've been in government a long while. There's no executive position, no executive position going to be taken out of government unless the Premier sanctions it. Now, if he could sanction, that's up to him. If he don't sanction it that's again, but I can tell you there's no executive position. Now, he might direct someone underneath him Greg Mercer which usually does it, to go do it, that's fine but the Premier of the province stand here and say I never spoke to this person. Premier, there's a lot of ADMs and DMs that were removed or transferred you never spoke but you gave the direction and the Clerk of the House [sic] took care what your direction was.”

And:

“I ask anybody who's been in this House and Legislature as long as I have, name me an executive position that was ever transferred or put in the Premier didn't okay it. Just doesn't happen in government. It just doesn't happen in government. Minister, you're falling on the sword.”

The Premier has been unable to explain how the appointment could have been made without his approval or awareness, since Ms. Foote was a senior executive of the Executive Council, which he administered as Premier. She was in an executive role working for the Premier. It is inconceivable that he would not have known that she was leaving her job, where she was going and under what circumstances. By his own admission he was indeed aware of it, according to the report of a journalist who heard him say it.

In your conclusion on Allegation #3 in your report, you found that a Minister would be equally culpable if he “directly authorized” a decision or if he ”acquiesced” in the decision to authorize the pay raise for the position that Ms. Foote was being given. You concluded that in either case: “we find that Minister Mitchelmore grossly violated his obligations as contained in section 8 of the Code of Conduct.” If the Premier, by his own admission, was “informed about it” and acquiesced in her hiring and the manner in which she was hired, then he bears responsibility for that, just as if he had directly authorized it.

Allegation #3

That the Premier directed, counselled or caused a staff member or members in the office of the Premier to direct, counsel or cause Minister Mitchelmore, either directly or indirectly through Deputy Minister Lomond, to arrange the job for Ms. Foote.

Again, I cite the remarks by the Member for Humber – Bay of Islands in the House on December 5, 2019:

“I've been in government a long while. There's no executive position, no executive position going to be taken out of government unless the Premier sanctions it. Now, if he could sanction, that's up to him. If he don't sanction it that's again, but I can tell you there's no executive position. Now, he might direct someone underneath him Greg Mercer which usually does it, to go do it, that's fine but the Premier of the province stand here and say I never spoke to this person. Premier, there's a lot of ADMs and DMs that were removed or transferred you never spoke but you gave the direction and the Clerk of the House [sic] took care what your direction was.”

In the House on December 5, 2019, I asked a very specific question of Minister Mitchelmore: "Did the Premier's Chief of Staff or other officials speaking or purporting to speak with the authority of the Premier, give him direction on the hiring?" The Minister responded that "the Premier did not direct me in this matter". I persisted: "With due respect, the minister did not answer the question. Did someone speaking for the Premier or purporting to speak for the Premier give him that direction?" This time, the Minister responded with an even more evasive answer: "I encourage the member to read the report that is put before the house here today."

As you as the author of the report would well know, the report itself does not answer the question asked. The focus of the report was on other issues. But even in the absence of direct evidence from those with personal knowledge, there is a basis in common experience of how government works for an inference that the answer to the question I asked in the House is "Yes". I submit that there is a reasonable basis for belief that a wrongdoing has been committed, and that direct evidence from those with personal and circumstantial knowledge may well prove the allegation.

You have already found that facilitating the hiring and additional remuneration of Ms. Foote constituted a wrongdoing and indeed a gross mismanagement of obligations under the Member’s Code of Conduct. It is reasonable to believe it could be shown that the Premier has also committed this wrongdoing.

Were this to be concluded following your investigation, then as a Member of the House of Assembly he would surely be in contravention of the Members’ Code of Conduct in, at the very least, the same ways his Minister was found to be in contravention of the Code’s provisions 2, 4, 7, 8 and 10. In fact, one could reasonably argue that his contravention would have been even greater in degree because of his role as the First Minister, who appoints and fires Ministers at his pleasure.

I note that paragraph 54(1)(e) of the Act defines "wrongdoing" with respect to a Member to mean “(i) an act or omission constituting an offence under this Act, (ii) gross mismanagement, including of public money under the stewardship of the commission, in violation or suspected violation of a code of conduct, (iii) failure to disclose information required to be disclosed under this Act, or (iv) knowingly directing or counseling a person to commit a wrongdoing described in subparagraphs (i) to (iii).” [emphasis added]

The Premier would surely also be in contravention of the Members’ Code of Conduct for subsequently denying his role on the official record in the House of Assembly, and for allowing the Minister to bear sole responsibility.

In this light, the Premier – as the head of government – would be in breach, not only of the five provisions of the Code of Conduct that the Minister breached, but also of provision 3, which requires Members to “reject political corruption and refuse to participate in unethical political practices which tend to undermine the democratic traditions of our province and its institutions.”

I respectfully submit that the subject matter of this complaint is a matter of great public importance and concern, which directly engages the principles of the Code of Conduct stated above, and in particular principle 3, which requires the defence of the democratic traditions of our province and its institutions and the rejection of political corruption and unethical practice. I must inform you that in view of the gravity of the matter and its effect on public confidence in our democratic institutions, I intend to release a summary of this complaint for the information of the public.

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