The Commission met at 9:00 a.m. in the House of Assembly.

MR. SPEAKER (Fitzgerald): Good morning.

I would like to welcome staff and members of the House of Assembly to a regular meeting of the House of Assembly Management Commission. We will start as we do every other meeting by asking members and staff to introduce themselves, and I will start at my immediate left here with Marie.

MS KEEFE: Marie Keefe, Clerk’s Office.

MR. KENNEDY: Jerome Kennedy, MHA, Carbonear-Harbour Grace.

MS E. MARSHALL: Beth Marshall, MHA, Topsail.

MR. KELVIN PARSONS: Kelvin Parsons, MHA, Burgeo & LaPoile.

MS BURKE: Joan Burke, MHA, St. George’s-Stephenville East.

MS MICHAEL: Lorraine Michael, MHA, Signal Hill-Quidi Vidi.

MS LAMBE: Marlene Lambe, Chief Financial Officer.

MR. MACKENZIE: Bill MacKenzie, Clerk.

MR. SPEAKER: My name is Roger Fitzgerald, Member of the House of Assembly for Bonavista South.

The first item on the agenda will be the adoption of minutes, approval of minutes from two previous meetings, the first one being October 7. Members have had an opportunity to review a copy of the minutes. If there are no errors or omissions, would somebody move that the minutes be adopted as written?

Moved by Ms Michael, seconded by – do we have a seconder for the minutes? Ms Marshall.

All those in favour, 'aye'.


MR. SPEAKER: All those against, 'nay'.

Minutes of the October 7 meeting are adopted.

On motion, minutes adopted as circulated.

MR. SPEAKER: The next item would be the adoption of a brief meeting that we held on October 20. All those meetings, by the way, were public meetings held right here in the Chamber. If there are no errors or omissions in that particular meeting, would somebody move that the minutes of the meeting be adopted as written?

Moved by Ms Marshall, seconded by Ms Michael.

All those in favour, 'aye'.


MR. SPEAKER: All those against, 'nay'.

The motion is carried.

On motion, minutes adopted as circulated.

MR. SPEAKER: Before we get into the agenda, I might say that we are not going to be discussing the Members’ Compensation and Review Committee report at this particular meeting. What we will do is next week we will survey members and set a time that is convenient to have a quorum, where we can probably have a meeting to discuss the Members’ Compensation and Review Committee report, and with the direction of the Committee, if the Committee wishes to have the Committee appear for clarification or to ask questions on any particular recommendation in the report, then we can do that with the recommendations of the Committee at that time.

Continuing on, the Speaker’s report for travel by other modes; according to section 40 of the Members’ Resources and Allowance Rules, there are two to report, two by the hon. Member for the District of Cartwright-L’Anse au Clair for the charter of aircraft. While there was one charter taken for the cost of $2,162.31, while there is another one reported, that was not used and it was cancelled at that particular time. So there was one cost incurred and the other was cancelled. So that is just a report of a mode of transportation that I had approved.

The next item on the agenda would be the business arising from the minutes, would be the Fraser March update. As members know, we brought forward in the last meeting we had a request by Mr. March to have legal counsel approved. At that particular time, in order to carry out a review of Mr. March’s dismissal, members wanted to suggest that we get an estimate of costs of what legal services would be, that would be payable by the House of Assembly. As you will note there, it is strictly an estimate, thirty-five hours at $250 an hour and 100 hours at $140 an hour, for a total of $22,750 from the law firm of O’Dea, Earle, and those are pure estimates.

We will ask the Commission’s direction on this particular item.


Mr. Parsons.

MR. KELVIN PARSONS: Just for the record again, Mr. Speaker, I have excused myself from all discussions of this issue from day one and I would like the record to show that I am taking no part in these discussions whatsoever.

MR. SPEAKER: You are excused.

Further commentary?

Ms Burke.

MR. KENNEDY: I just had a question, a procedural question, Mr. Speaker.

MR. SPEAKER: Mr. Kennedy.

MR. KENNEDY: Can we proceed in the absence of a Liberal representative? I know we have one Opposition member. With Ms Jones not being present and Mr. Parsons excusing himself, we can still proceed with one Opposition?

MR. SPEAKER: Yes, we can. We still have a quorum. There has to be one member from Opposition and one member from government in order to make up the quorum, the four.

Ms Burke.

MS BURKE: I just had, I guess, some concerns around the fact that this is an issue that – and I do not mean to specifically say with Fraser March that we have been dealing with, but how do we deal with legal expenses and what is our policy? Obviously, we do not have that defined yet. I was not at the meeting where the decision was deferred for more information, or for an estimate of whatever. I guess my question is, in the lack of information or detail, although it says here we requested a detailed estimate, we just got a cost. Is that sufficient for us to not have any detailed information? Because we do not have a policy, we have a cost, but what are we paying for? And I do not know enough about legal fees to know what this would entail or what this means, so I do not know if this was our intent just to get a price quote like this or did we need more information?

MR. SPEAKER: The Clerk I think has probably had correspondence with O’Dea, Earle law firm and maybe he can just explain why we have only come forward with the cost and the reason it is difficult to get a complete breakdown of what the end result in the last invoice might be.

The Clerk.

CLERK: Yes, thank you, Mr Speaker.

Yes, I had two or three conversations with O’Dea, Earle. They do not feel that they have a clear enough perspective on what Justice O’Neill review will entail, the hours that might be required and so on. So, I pushed them a bit and I referred them to the Hansard for the meeting where Minister Kennedy discussed what he would like to see, but they were reluctant to put anything more than this rather general outline, they said. I think their concern was if they underestimated, that would then be a concern then for the committee and so on. So, in the absence of sort of a full understanding of what might be required, this was as precise as they were willing to be.

With respect to policy, the only policy, I guess, we have, Minister, with respect to legal services would be the government-wide one on employee liability. So that does not really apply in this instance of review.

MR. SPEAKER: Further commentary?

Mr. Kennedy.

MR. KENNEDY: Yes, I can certainly help out in relation to the fees here.

Mr. Earle, as a senior solicitor, I think he is probably one of the most senior solicitors, barristers in the Province right now, and at $250 an hour, it is probably a pretty good deal. I am not sure if Randy wants me to describe it that way, but that – and I do not know David Williams, but at $140 a hour – it is not the hours here, I guess, it is the lack of the ability of the law firm to be able to give us an idea of what they are doing. I think that is back to Ms Burke’s point. The money itself, I am not concerned about the hourly rates.

MR. SPEAKER: Ms Michael.

MS MICHAEL: Thank you.

I am glad to hear Mr. Kennedy say that, because knowing just some bills that I have seen, $250 an hour seems more than reasonable for the senior lawyer, and I suspect the $140 for the junior person is the same way.

I am comfortable, personally, without the detail because I think – well, I do not know if we all have experience of legal stuff, but some of the discussion, I would imagine, around what they will be doing would have to be part of solicitor-client confidentiality, I would imagine. So giving detail, from that perspective, would be difficult. If they do not know exactly what the justice is going to be looking for, I would suspect that makes it difficult to give the detail also.

I am comfortable accepting this without the detail. The one thing, I think, we may want to know, and I would not make approving this conditional on it, is when do they think they would have a better notion of how accurate or inaccurate this estimate might be?

MR. SPEAKER: Ms Marshall.

MS E. MARSHALL: Yes, Mr. Speaker, I have a little bit of a different concern in that when this motion came before the Management Commission and also through the House of Assembly, went through the House of Assembly, we were provided with a lot of background material and it was never ever mentioned that we were expected to pay for the legal cost of Mr. March.

When it first came before the Management Commission, and I cannot say I, enthusiastically, agreed with it, but yes, I did agree with it. So I thought that the cost to the House of Assembly would be the cost of the retired Supreme Court Justice, and there was never ever any mention of legal fees for Mr. March. Based on the documentation that was given to us, my understanding was that this would give Mr. March an opportunity to appear before this retired Supreme Court Justice and state his case. We are back here now; we have to entertain legal fees. We have an estimate here of almost $23,000, but it is only an estimate. I have never seen anything come in underestimate, so I would think that it is going to go over the $23,000 figure.

So I am just very concerned about where we are going, not only with the cost, but also with the precedent that we are setting at the Management Commission.

MR. SPEAKER: Further commentary?

Ms. Michael.

MS MICHAEL: I cannot remember if Ms. Marshall was not at the last meeting where we -

MS E. MARSHALL: (Inaudible).

MS MICHAEL: You were.

I made this point then, so I am going to make it again. The approval that was given for the independent review was given by the House of Assembly and the request initially started with the Minister of Justice and then was brought to the House of Assembly through the House Leader. To my knowledge, and we had a lot of background material, Mr. March was not part of any of those requests. The request came from the Minister of Justice, to the House Leader, the House Leader brought it to the Management Commission to not approve, but to say we would support its going to the House, and that process happened.

Mr. March was not part of any of that. Therefore, Mr. March would not have been - a discussion of the implication of legal fees for him would not have been part of any of that discussion because he was not part of this process. When he was notified that this process was in place, and his letter refers to that notification, then the implication of legal work for him was something that became an issue, and he immediately came to us with that issue. Because he did not start this process, it was started within government and within the House of Assembly, even though there is not a precedent for it in terms of a particular case, I think, in justice, his legal fees should be covered so that he can respond in this review, which he did not start.

MR. SPEAKER: Further commentary?

Mr. Kennedy.

MR. KENNEDY: Yes, I still think, Mr. Speaker, we are back to the point, and I am sorry that we are not beyond this, but the terms of reference for the review include the opportunity for Mr. March to be heard by the retired Justice. We have heard the lawyers say, well, they cannot tell us what exactly is needed because they do not know what Justice O’Neill is looking for. Now it is my understanding that Justice O’Neill also has counsel. So we have Mr. March saying that he needs, based on fairness, the House of Assembly – in judicial equity, the House of Assembly to pay for legal services in order to properly participate. Now, Mr. March is not a lawyer. So, again, I can see some confusion on his part.

It seems to me the only person who really can give an idea as to what is going on here would be Justice O’Neill, as to why Fraser March – he would have some idea as to what is going on now and as to why Mr. March needs legal counsel in order to properly participate. We are asking the lawyers to almost guess at a process that they do not know what is going on. So, it is not a question, from my perspective, I am not even looking at this point in terms of the hourly rate or the lawyers. My concern is that the terms of reference as outlined by Ms Marshall, in fact, require him in order to properly participate, and Ms Michael has outlined that.

That, I think, is the still the missing piece in my mind, is what is it he is participating in, from Justice O’Neill’s perspective? Has anyone had any discussions with Justice O’Neill on this point?

MR. SPEAKER: The Clerk.

CLERK: Yes, thank you, Mr. Speaker.

Only to say that when I discussed with O’Dea, Earle, and they said: Well, how can we give an estimate, we do not know what is required? I put them in touch with O’Neill’s counsel, Toby McDonald. So they have had a discussion. I was not privy to it, and then following that we got the estimate and they said they could not be any more precise. So I do not know if they felt they did not have a clear understanding of where O’Neill was going, or just it was early days and that was the best they could do on an estimate.

MR. SPEAKER: Ms Burke.

MS BURKE: So we are in a position where we have an estimate but we do not know if the counsel have clear understanding of what they need to do, and we could actually pay double this if we approve it. Is that where it is today?

MR. SPEAKER: Does the Clerk have further commentary?

CLERK: Well, I guess that is conceivable, and it was one of the reasons they did not want to be more precise, O’Dea, Earle that is, just in case it went on. So based on their understanding, from their discussions with Toby McDonald, they came up with this. I suppose if they were engaged and the hours went on there may well be an obligation for us to cover it, yes.

MR. SPEAKER: The other thing here, as well, is that members need - I think we need to make a decision, and I know we need to be informed as well, but I think this review is supposed to be completed by the end of November, and it is important that whatever decisions we are going to make that we make them to allow the process to be at least on time or else we are going to get into further expenses if decisions are made that will allow Justice O’Neill to come back looking for an extension because of the lack of decision by the Commission.

Does the Commission have enough information to make a decision? Is the Commission ready for the question or is there further clarification needed? If there is, than that is going to put us further into, closer to the deadline to have the report received. Is the Commission ready for the question?

Mr. Kennedy.

MR. KENNEDY: I am still not comfortable, Mr. Speaker, that we have enough information. I have to tell you, I would like to see something from Justice O’Neill. I am reluctant to simply say let’s approve legal fees when we do not know what we are approving legal fees for.

Is this a matter of – because I saw the documents, we all saw all the documents that have to be reviewed. Now maybe a justice reviewing it will have to go back into the claims, but we have Hansard. There is a file on this. From my experience as a lawyer, it did not take me a whole lot of time to read that, but Justice O’Neill has the Terms of Reference in order to properly participate. In Justice O’Neill’s opinion, does Fraser March need legal counsel in order to properly participate?

There is a counsel there, an independent or commissioned counsel, which was hired I guess by Justice O’Neill. Justice O’Neill is an eminent jurist and if I had something from him I would feel a bit more comfortable because then we could go back to the lawyers and say, well – because it is not fair to the lawyers to say to them: well, this is what we are going to approve, and all of a sudden a bill comes in and we go: well, that is not what we approved. So, that is where I am today. I do not know about other people. I know this has some urgency but we have to do this right. There is a precedential value, and the other thing, Mr. Speaker, I really think we have to get a policy in place on this and I do not think it needs to be that complicated. One, that any time there is a person requesting that the House of Assembly or the Management Commission pay legal fees, that there be a request in advance of the incurring of any legal fees. Secondly, that it has to relate to the duties of the individual as an Officer of the House of Assembly. Thirdly, Mr. Speaker, that there has to be sufficient detail before the Management Commission in order to allow the Management Commission to make a decision that would include, one, why the fees should be covered, two, the necessity of a lawyer, and three, an estimate from the law firm as we have here.

Now that is pretty well all - I do not know what else anyone else would have to have in a policy, but that is something that could be put together fairly quickly; because, if not, my concern is that what we are doing here today, if we say well, yes, with Fraser March, then we go back to every other situation where an issue could arise and there is an argument: well, it was in the course of my duties.

There is a difference, as Ms Michael has pointed out, in this case in that the House of Assembly made the decision based on the advice of the Minister of Justice. That is the distinguishing factor and that is still the factor in my mind that makes me lean towards the paying of legal fees. However, I still would like some more detail on why is it necessary to pay legal fees in order for Mr. March to properly participate. I do not necessarily expect that from Mr. March. I do not expect that the lawyers can give us that information. So, can Justice O’Neill - and I do not know if he can - can he provide us with that?

MR. SPEAKER: The Clerk.

CLERK: Thank you, Mr. Speaker.

I asked Justice O’Neill if he would be willing to go on the record, not on details, but that Mr. March requires it. His concern is he is operating as a private citizen based on this resolution, so it is not under the Public Inquiries Act. He does not have those sorts of authorities and protections. He is really a private citizen engaged by us to conduct this review. Given that, I mean, whatever protections and indemnifications you would have under the Public Inquiries Act, he cannot avail of them; he is a private citizen. I do not know if he feels he should be recommending pro or con on these sorts of matters because of that.

I mean I can ask him again, but we may find he does not feel he could go that far as to be held accountable for a recommendation on one side or the other on this matter.

MR. SPEAKER: Ms Michael.

MS MICHAEL: I am not a lawyer, and maybe Jerome is going to be able to help us with this in terms of the concerns that have just been expressed by the Clerk. It would seem to me that what we would be asking for, from the judge, would not be a recommendation or a judgement, it would just give us an idea of what his expectations are in terms of his relationship with Mr. March and if it is to make one appearance to him, if you spent an hour if it is to clarify some questions. I would agree with Jerome, that is all that we are looking for is some sense of what his expectation, as the judge, would be, or of the person, in his position, would be, vis-à-vis, how much Mr. March needs to be engaged with him to give us an idea of what we are dealing with.

I would suspect he should be able to do that by the end of this week. I would like us to try to make a decision by next week at the very latest; I think we have to. That is my understanding of what Jerome is expecting; that is what I would expect as well.

MR. KENNEDY: That is all I am asking.


Mr. Kennedy, one final comment.

MR. KENNEDY: In terms of the Clerk, the Public Inquiries Act, I know that - and Mr. Parsons will remember this because I think he was the Minister of Justice when the Lamer Commission was brought into force. Normally, there is a condition, or in the Terms of Reference there is a clause that the inquiries - that the justice appointed or the retired justice appointed has all the powers given under the Public Inquiries Act. I am not quite certain of Justice O’Neill’s concern. All we are looking for here is: What do you expect? Do you want written briefs? Do you want oral submissions? Because that will help us judge the legal fees.

MR. SPEAKER: I am hearing an agreement that we will defer a decision on this particular item and we will put it on the agenda of a meeting that should be held, probably as quickly as possible, once there is a call made to Justice O’Neill to get further direction and get his advice. We will just defer making a decision on the Fraser March issue right now.

The next item on the agenda will be Caucus Operational Funding Grants. Some time ago the staff had put forward some suggestions on a policy for the funding that is provided to the government caucus, the Third Party caucus and the Official Opposition caucus. There were some concerns at that time that the policy was not complete and may need some additions or deletions to be deleted from some of the things that were suggested.

We have gone back to the three caucuses; we have heard back, and some suggestions from two. So, just for reporting purposed only, a second draft policy is in the making and that will be brought forward for adoption at another Commission meeting.

The next item on the agenda was would the Legal Opinion regarding Automobile Allowance. Just to give a quick review of this particular item, this was, I think, a decision and a legal opinion provided by the Comptroller General’s office that the Leader of the Official Opposition, the Leader of the Third Party and the Speaker could not avail of automobile allowances, has always been the case, and has been the norm in ministers being able to avail of automobile allowances.

We have had some discussion on this matter. Minister Kennedy, in the last meeting, was going to see and report back why the legal opinion could not be made available to the Commission. I do not know if Mr. Kennedy has anything further to report?

Mr. Kennedy.

MR. KENNEDY: It would seem to me at this point, Mr. Speaker, that could very well be a moot point. I know in my reading of the Commission report, the House of Assembly, the Commission that we appointed, the Compensation Commission, they made a recommendation on the automobile policy. So I would think that that would now more significantly come in under that discussion; and, if I remember correctly, I think the recommendation of the committee was that it be approved.

MR. SPEAKER: The only thing with that is the Comptroller General had suggested that the monies that had already been accessed by the Speaker and the Leader of the Third Party and the Leader of the Official Opposition be repaid, and I think the Management Review Committee, their suggestions I do not think are any retroactive suggestions, it is on a go-forward basis. That is where the short comings are with that particular suggestion.

Ms. Michael.

MS MICHAEL: One question I have in relationship to that, and maybe it is when we discuss the report that we discuss it, is that my memory of reading the recommendation is that whatever needs to be put in place to allow this to happen, that should be put in place, and it seems to me that the legal opinion is dealing with what needs to be put in place. It may be as simple as just making the language, legislative language change that was recommended by the Auditor General and I think that would be very simple and that may be what we want to do without any legal opinions.

MR. SPEAKER: So are you suggesting a change in legislation and make the legislation retroactive to - is that what I am hearing?

MS MICHAEL: Not at this time. I think we have to have that discussion, but –

MR. SPEAKER: Okay. Further commentary?

The Clerk.

CLERK: Yes, thank you, Mr. Speaker.

The most recent discussions on this, if you remember back to the Comptroller General’s letter of April, 2009, was as the Speaker suggested. If authorization did not exist from October, 2007 to April, 2008 - or 2009, I should say - then repayment and recovery of those funds might be in order.

In his letter to us, to me I guess, he suggested that the estoppel principle may apply and therefore recovery would not be required from the three individuals who received the monies, but when we were discussing the estoppel principle at this Commission, that is when we first said, well let’s see the legal opinion. That is when the issue first came up. So now we have been a few months trying to seek a legal opinion, but behind all of this there is still this principle of: Does estoppel apply to the matter or in fact does it have to be repaid? So short of a retroactive application of the Members’ Compensation Review Committee recommendation, that would still be hanging out there. So somehow we will have to find the means of addressing it.

MR. SPEAKER: Ms Marshall.

MS E. MARSHALL: (Inaudible) maybe the Clerk can clarify that. Why would we need, is it - the legal opinion, why are we asking for a legal opinion? Is it to see whether the members have to repay the allowance already given or is it for some other purpose?

MR. SPEAKER: The Clerk.

CLERK: Yes, it is to see whether in fact this Commission agrees with the legal opinion that has apparently been provided from the Department of Justice to the Comptroller General. If you remember, I put a submission into the Members’ Compensation Review Committee suggesting that this matter should be addressed by them, and I outlined some of the reasons for that. I (inaudible) it to Commission members. The Law Clerk and I do not believe, or we would like to see at least another legal opinion. There are enough concerns respecting the interpretation that has been applied to this to cause us to seek another legal opinion outside of the Executive Branch legal opinion. You will remember Mr. Locke’s letter says: I advise Executive Branch, not the Legislative Branch.

If you look at section 15, which uses the term non-accountable, you then look at 16, which establishes the Members’ Compensation Review Committee, uses the term non-taxable. Now, the $8,000 automobile allowance was taxable. So there is an inconsistency in the statute. Someone looking at that may point out that inconsistency. Section 15 and 16 are not congruent in their language. You would then go back to the Green report, the Green report is incontrovertible. He is not talking about expense regimes for automobiles. He is talking about the 50 per cent tax-free allowance on members’ indemnity, which was permitted under the Income Tax Act. It is a separate matter, and it would be helpful for us to have a legal opinion addressing that.

The other point in the note which - and if you look at the recommended minute in that note - it talks not merely about the act but the members’ rules. We now face another issue on the 9,000 kilometre higher mileage rate. Now, the Members’ Resources and Allowances Rules are subordinate legislation. So, I will defer to the two former Attorney’s General at this table, but that means they are law. Policies do not supersede law. We have law that says the first 9,000 kilometres that a member travels on constituency business is reimbursed at the higher rate, but the Comptroller General feels that that 9,000 has to be shared with other offices, such as ministerial. Now, we do not agree with that either. The Ministerial Expense Reimbursement policy cannot supersede the law as expressed in the subordinate legislation. So there are a number of these issues on how the act and the members’ rules interact. It seemed to us an objective legal opinion on that would assist.

MR. SPEAKER: Ms Marshall.

MS E. MARSHALL: Mr. Speaker, I do not have a problem if the officials wanted to get a legal opinion on the issue, but that is not going to rectify the problem with the Comptroller General. I mean if we get a legal opinion that contradicts his legal opinion, he is not going to fold and start paying those allowances again. So, it is really two issues we have to deal with. One is, if you are going to go get your legal opinion to find out what sort of firm ground we are on, that is fine, but in the meantime we have to do something to – or we have to make a decision whether we want to put in place legislation that would allow for the payment of those allowances, and the legal opinions are not going to fix that because I do not think anybody here – I think there is some provision that the Comptroller General may be overruled, but I do not think we want to go there. So, I think in order to – if we decide we want to pay those allowances, I think that we are going to have to go back and look at amending legislation. The legal opinions are not going to do that.

MR. SPEAKER: Mr. Kennedy.

MR. KENNEDY: Thank you, Mr. Speaker.

Mr. Parsons may also be able to help me out on this, but the way I look at this is fairly simple. We now have a recommendation by the Compensation Review Committee, if we were to accept - and it is my understanding that there will be a provision here now for a period of time to discuss with the members of the Committee, if we so wish, as to what should happen. If we were to adopt that recommendation and say, well it is going to be paid from this point on. Then, obviously, we have to look at what has taken place in the last six or seven months. Now, this is where, I think, it can be dealt with if a decision is made.

Legislation can be made retroactive if there is a clear direction in the legislation. So, as opposed to perspective - and personally, I am going to have a concern when it comes to the compensation committee. We are going to have to look very seriously at every recommendation they have made before we change anything that they have put in there. In terms of a retroactive, it seems to me to be a matter of common sense, that if we are going to say that the people involved are entitled, we accept the recommendation, then we have to look at the retroactivity of the same because it would not make sense in my mind to - again, Mr. Parsons might be able to comment on this. From a logical perspective, if you are entitled to something from this point forward but that has been under dispute or in dispute for the previous six or eight months and there is a legal opinion. So I agree with Ms Marshall. I do not think that legal opinions, at this point, are really going to resolve anything. I think it is going to have to be a matter of legislation and further discussion.

I do not know if anyone else has any opinion on that, but it seems to me to be – I am reluctant to pay anymore money to lawyers, I guess, is my point. We are paying too much money to lawyers and unless we really need it, I do not want to do it.

MR. SPEAKER: Ms Burke.

MS BURKE: I think it comes down to a very simple concept as Members of this Management Commission. We are here because of the Green report. The Green report is a result of the fact that the Auditor General was out of the House of Assembly and there was a lot of inappropriate mismanagement of public funds that happened and the public are absolutely intolerant of this going on any further. We can address this; when we look at the Review Committee’s report we will have a meeting that will address that, but here is what it boils down to with legal opinions or not.

The public do not want us, as Management Commission, to be paying out money that we were not supposed to pay out. Whether it was a mistake or whether or not – if there was no legal entitlement or the rules or the policy did not allow us to pay out that money and we did so by mistake, we have to deal with it. Now, it is as simple as that.

If we looked at how we would treat somebody on Income Support and the policies were not in place and we paid someone inappropriately, we know what action would be taken. If we change government policy tomorrow on an Income Support policy or on a tax policy or whatever, we are not going back over the books and saying, what do we reimburse you because you paid too much rent or we gave you too much money for your Income Support or whatever.

Now, I think we park it at that. We are going to have our meeting to deal with the Management Commission, but the bottom line is if we paid out money that was not supposed to be paid out, that is the simple question: Are we, as members of this Commission, held accountable to be responsible for those decisions or are we sitting here and making decisions that pad our own pockets because of all this?

Now, it comes right down to a simple policy, on a go forward basis it was in place and we pay something, we pay it. If there was a point in time when there was no policy in place, are we obligated to use taxpayers’ money to pay that out, in the absence of a policy, or collecting something that should not be there? It is as simple as that.

MR. SPEAKER: Mr. Parsons.

MR. KELVIN PARSONS: With all due respect, I think Ms Burke missed the boat here on what the issue is. This is not about anybody taking public funds inappropriately, which the Green report addressed. This is about three officers of this House who operated on the basis of goodwill, good faith, and on the policy that everybody else, ministers, function under. This is not something that they created out of their own doing, took money from the public purse.

This is a case where, for eternity, as I understand it, these three officials of this House, the Speaker, the Leader of the Opposition and the Leader of the Third Party got funding for an allowance.

Now, the Comptroller General has a problem with that and whether it should or should not be recoverable. I appreciate where he is coming from. I have no problems whatever understanding what he is saying. He, himself, acknowledges that even though this happened, even though there might be some technical difficulties in certain wordings in certain statutes, that he is not sure himself whether it should or should not have happened, whether it should or should not be recoverable. That is the dilemma we got. He has a dilemma; we have a dilemma. Somebody has got to solve it. It is not about taking public money out of the public purse and giving it to somebody improperly.

He, in his own letter, as I recall, said we had a legal opinion. He is concerned about whether it should have ever been paid and he is saying even if it was not paid properly, for example, with some hard and fast black on white statute, would we ever be able to recover this if it was paid out in good faith? That is where he got into this principle of estoppel. He, himself, had a legal opinion from the Department of Justice saying, based on that legal opinion, and estoppel principle, that might not be recoverable. So, he is not saying it should be recovered; he has concerns of his own.

I think the management committee did the proper thing and said: Well, okay, fine. Give us a copy of your legal opinion so we can see what you have and why you feel that way, or that lawyer felt that way in Justice. He refuses to give it to us. The Department of Justice refuses to give it to us. So, even the man who raised the concerns, the Comptroller General, will not give us the opinion that he, himself, has in his files saying that estoppel may apply. So we are left with the situation again, the very person who raised the issue himself, has a legal opinion saying that it might not be recoverable.

The Clerk here has given, I thought, a very logical explanation of why he thinks the Comptroller General is off base when he interpreted this thing in the first place by going to the Green report as to what are allowances and so on. I think it was a very good explanation from the Clerk here as to what was intended by Chief Justice Green and that the Comptroller General may well have misinterpreted what Green said himself.

Now, I do not think we need to go get legal fees and pay legal fees and get another legal opinion on this either. I believe, first and foremost, that the Comptroller General should have released the legal opinion here. There has been money paid out of the public purse to get a legal opinion, whether it came from Justice or came from outside, it ought to be used here. Forget about this legislative branch versus executive branch. It is for the benefit of everybody in this Province to have a copy of that legal opinion, in my view.

It solves nobody any purpose to go out and pay somebody else for the same piece of information and get ten opinions with ten different lawyers. What is the point? We ought to have that legal opinion, in my view. It only helps clarify things for everybody, if everybody is dealing with the same information base.

I accept the comments that were made by the Clerk in his letter, in terms of explanation of what Justice Green meant in his report when he dealt with this issue. Anybody and everybody knows that is the way the system has worked for years. Nobody invented any rules here that have happened with these officers of the House. So why would we go to that trouble and expense again?

The Commission who looked at compensation, who just reported two days ago, three days ago, to the Speaker, is saying yes. Obviously, there is recognition by them, as Mr. Kennedy says, that this should be considered and should continue to be done. So, if everybody always operated that it should have been done and it was done, and the Members’ Compensation Review Committee is saying yes, it should continue, why are we making such a big fuss about this? Nobody took any money here inappropriately. Everybody did what was here in good faith and there are good existing legal opinions, which say it should not be paid back or it would never be recoverable.

You can beat a horse to death here. To me, there is enough information available. We have legal counsel who advises us. We have a person who works for this House, who is our own legal counsel, who I believe, no doubt, advised the Clerk, in his conclusions, in the letter that he has provided, and an interpretation. I do not think Mr. MacKenzie did that on his own. So we have another legal background person, a legal person giving that advice.

So, obviously, we have to amend the legislation. I think the justification for amending the legislation and making it retroactive is already there. We need to get past this, bring in the appropriate legislative amendments say yes, this happened, and we are going to continue, as recommended by the Members’ Compensation Review Committee, but it will be retroactive to a date and time, which removes any concerns that the Comptroller General had.

MR. SPEAKER: Ms Michael, a final thought?

MS MICHAEL: I just want to put on record, Mr. Speaker, that because of the points that had been made in the discussion, I feel it is inappropriate for me to continue to be part of the discussion or to be part of any vote on this issue, because something has been put out in the public that would give public perception, I think, of conflict of interest in the discussion. So I feel I have to step back from any discussion further on this.

MR. SPEAKER: Well, I guess, if we take it there, then I should step back as well, but I do not think we are going to have a vote on this particular issue here today. From what I am hearing is that we will talk about this issue further when we discuss the Members’ Compensation Review Committee report and make some recommendations at that particular time.

I agree with the comments that are made that another legal opinion, where does it get us and where does it take us, and what do that we have two conflicting - or one that we do not know, but appears to be in a conflicting opinion. So, I will not have any further commentary on that either.

We will leave that particular item for our next meeting. We need to conclude some of those items, because our binders our getting thicker and thicker, and a lot of them are issues that have been brought forward here at many meetings before. So, hopefully, we will soon start making some decisions and get on to new business. We will leave that particular topic until our next meeting and have it included on the agenda.

The next item on the agenda, which I will to refer to the Clerk as well, is the Forensic Audit Report - Update. This, again, is the Auditor General’s response to the Commission on possible discretionary allowance overpayments, and here again, the unclearness of what should be done and if or how we could collect.

I refer to the Clerk and for further commentary after.

CLERK: Thank you, Mr. Speaker.

In your package there is an updated briefing note of the one that we used at the October 7 meeting. That briefing note was dated September 29, and we have provided an update of October 28. So the last two bullets, which are in bold, are updates on that. It is really just following along from the October 7 meeting.

The Commission deferred a decision on the specific issue of: Should we seek recovery of any discretionary allowance overpayments? The Commission, to give themselves some background information, asked for a status report on the recovery of double billing amounts and the excess constituency payment amounts.

So in the package we have included that first briefing note, and we have also included the more detailed briefing note which was at the June 24 meeting which provides some of the history on this forensic audit report, and we have included the Auditor General’s letter of July 22 in response to a request from the Commission talking about whether or not he could identify these matters with reasonable certainty. Following that, past the next yellow sheet, you will see a briefing note on the double billings and the status of members’ repayments. So perhaps if we could go to that first, following a review of that note and the report on the status of repayments we can look at the excess constituency allowance repayment issue, and there is a separate note on that. Then, ultimately, we would have to go back to the original issue which gave rise to these two: Should we seek recovery of any possible discretionary allowance overpayments? So I guess if we are at the double billing report, I could cover that with you.

MR. KENNEDY: Excuse me, Mr. Speaker, how many people -

MR. SPEAKER: Mr. Kennedy.

MR. KENNEDY: What I am trying to find out here, and there are a lot of documents. How much money is owed and who owes it, other than the criminal charges. I guess that is my real issue.

CLERK: Yes. If you could find this note, minister, it is double billings, Auditor General’s 2007 Report.

MR. KENNEDY: Yes, I have it, okay.

CLERK: Status of Members’ repayment.

MR. KENNEDY: Yes, I have it.

CLERK: Right after that, you will see a summary sheet called Summary Accounts Receivable–Double Billings. So this summarizes the information that is presented in more detail on the following two pages, but this summarizes the main points. So I can pick out some of the highlights of it just as members are reviewing it. The Auditor General’s September 14, 2007 report identified eighty-eight members who had double billings, totalling the $212,108. Currently, seventy-nine of those eighty-eight members have repaid in full.

MR. KENNEDY: Seventy-nine out of how many?

CLERK: Out of eighty-eight.

MR. KENNEDY: Eighty-eight, okay.

CLERK: Yes. So there are nine that still have balances. Two of those nine - and they are identified there, Mr. Shelley and Mr. Sparrow, are making payments.


CLERK: And four of the members, Mr. Flight, Mr. Grimes, Mr. Penney and Mr. Ramsay have never made a payment nor acknowledged the debt. So that is six of the nine, and then we come to the three members who face criminal charges, Mr. Andersen, Mr. Byrne, and Mr. Collins. Their double billings total the $64,602, but the Office of the Comptroller General, through his various actions, is recovering the amounts they owe. The double billings were considered part of the excess constituency payments. So the steps he is taking through attaching the supplementary benefits under the MHA Pension Plan, civil action and so on, will address, we believe, the double billings for those three. So if we exclude those three, the $64,602 from the total, we are at a 90 per cent recovery rate. The only amount not yet recovered would be the subtotal in the middle of the page, $14,573.

MR. KENNEDY: If I could just clarify, that is two who are making payments and four who are not making payments?

CLERK: That is right, and the total there is the $14,573. So assuming we get the full amounts from Andersen, Byrne and Collins, at this stage we are short the $14,573. One assumes, because Mr. Shelley and Mr. Sparrow have been making payments, they will continue. Then the amount that is seriously in question would be the $6,963 from those four members.

MR. KENNEDY: The four who are not making payments?

CLERK: That is right.

MR. KENNEDY: You say they have not acknowledged the debt?

CLERK: That is correct.

MR. SPEAKER: The question that I might ask is, should we move this from our book of business here and pass it to the Comptroller General? Would that be an appropriate place? Would the Comptroller General have more luck or have a better collection record and have means of doing things that we do not have?

CLERK: He would still be subject to the Limitations Act. So he cannot pursue court action any more than we could on these matters, but the Comptroller General can intercept funds, for instance. If someone has a debt to the Crown and it is beyond the periods outlined in the Limitations Act, it would get put on an intercept list. So any monies, if government were ever to be sending cheques to these individuals, he could pursue that. I guess I would not want to comment on whether he feels he could use the same process he is using for the three members, Andersen, Byrne and Collins and attach elements of the supplementary benefit provision of the MHA Pension Plan. That is the means he is using for Andersen, Byrne and Collins. Those are the provisions, the supplementary pension benefits over and above what Canada Revenue Agency allows at the maximum of a Registered Pension Plan. So he may well be able to do that, but I guess he would have to get legal advice on that front.

MR. SPEAKER: Ms Marshall?

MS E. MARSHALL: So, Mr. Speaker, when we look at the summary here of the accounts receivable, it is presented for information but were the officials looking for some decision with regard to this, because this is now set up as a receivable? Were you looking for – like what action is required from the Management Commission on this?

MR. SPEAKER: Ms Lambe.

MS LAMBE: I do not think there is any action required at this time. We (inaudible) are regarding contacting the Comptroller General’s Office regarding any other options. We have been continuously in contact with these four people trying to make recovery efforts. So I guess we are still at the point where we have not given up yet.

MS E. MARSHALL: So this is for information purposes as opposed to asking for some direction with regard to write off because I would not be receptive to that. No, that is okay.


MR. SPEAKER: Further commentary?

The Clerk might continue on the other topic of the Forensic Audit Report.

CLERK: Yes – oh, sorry.

MR. SPEAKER: Mr. Parsons.

MR. KELVIN PARSONS: Just the one question in regards to those outstanding double billings issues. The Clerk referred to the Limitations Act. Are there any concerns that by simply continuing whatever, in writing by letters or conversations over the phone, in recovery of these that we might bypass any appropriate statutory limits of recovery? I would not want to find ourselves six months out saying we did not deal with it and somebody says, well, you missed your limitation period now.

MR. SPEAKER: The Clerk.

CLERK: Thank you, Mr. Speaker.

In the last bullet on the briefing note, I will just make a general comment on the Limitations Act. In fact, to Mr. Parson’s questions, the court would ultimately rule on the various matters in the Limitations Act, I guess.

Generally speaking - and I am not providing legal advice here to former Attorney’s General by any means. Ms Proudfoot has done an exhaustive review of the dates of the various double billing and a review of the Limitations Act. Generally speaking, you have to proceed with debt recovery actions within a six-year period, with certain circumstances you can go back ten years, but there are other matters the court would have to – under no circumstances can you go later than ten years with any legal action. Again, I defer to Minister Kennedy on this. I am not providing legal advice, just my imperfect understanding.

The other issue that arises is: When was the debt discovered? When was it acknowledged? The one other troublesome provision for us is, when it ought to have been discovered. So we could argue these double billings were not discovered until September, 2007 when the Auditor General did his report, and I suppose that is true. That is when it came to all of our attentions. However, ought to it have been discovered by staff of the House years earlier, and this is a matter, if we went to court the court would have to decide on.

If you look at the various permutations of discoverability, dates, limitation period, six or ten years and so on and so forth, almost all of the matters for those four members who have not yet acknowledged that or paid are beyond the limitations period already. So, delaying this decision is not really going to change much. Mr. Flight’s $59 was in 1991. Mr. Penney was back in the 1990s. Mr. Ramsey was in the 1990s, I guess, until 1999 - Mr. Parsons?


CLERK: These are already at the six and ten-year extension so that pursuing legal action is almost fruitless. The law clerk is concerned the court might even deem it frivolous, knowing the Limitations Act, for us to go to court after a period of greater than ten years for instance, and attempt to get a court judgement. Her view is, I think, the court would rule that you ought to know what the law says; you cannot do this longer than ten years. So the period you mentioned, Mr. Parsons, in almost every instance, has already expired for those individuals.

As I say, taking another month or two on these matters, it is not going to allow them to escape matters.

MR. SPEAKER: Further commentary?

The Clerk may continue.

CLERK: Yes, if you turn over to the next yellow sheet you will see a briefing note entitled: Excess Constituency Allowance Payments – Auditor General’s reports. This also, during the October 7 discussion of the possible discretionary allowance overpayment recovery actions, was a request by the Commission to see how the excess constituency allowance repayments were going.

I wrote the Comptroller General a letter there of October 19, and that is attached. These were the matters, by the way, which were e-mailed to you yesterday as PDF files. So I wrote the Comptroller General and asked him for information on the status of the accounts.

It appears my letter might not have been specific enough because I think the Commission is wanting the individual accounts for each of the four members. It may be that my letter was not quite precise enough. What the Comptroller General has provided, in his November 2 letter, was the total for all four combined, so he did not provide the individual amounts.

If you can see the Comptroller General’s letter of November 2 - that was the one that was e-mailed out yesterday - you will see the balance for the four members, as of October 21, was approximately $826,000. Payments for the first six months of the year, roughly, up to October 21, were $89,000 plus $9,000 in adjustments; so roughly, $98,000 in payments or adjustments. So, you take that off the start of the year balance of $924,000, you’d come to the $826,000 as the balance owing.

The information in the middle paragraph is not particularly germane to the question the Commission asked, because it does not relate to the excess constituency allowance payments, it is another matter.

The final paragraph notes that these matters, because they are subject to various civil proceedings, are subject to adjustments. So, I take that to mean that for those four MHAs their solicitors are looking at the documentation and, at various times, the balance may be adjusted based on additional documentation or information as it goes through the courts.

That is the status of the four excess constituency allowance matters, but it is presented in total rather than the individual matters. I think, as the briefing note that goes along with this information says, the Comptroller General has the right to attach this through the supplementary benefits of the MHA Retiring Allowances Act. So, I think, over time, this will all be collected, that is my understanding from the Comptroller General. Between that and the civil actions, I think this will probably, ultimately, be collected, although it may take a few years.

MR. SPEAKER: Commentary?

If not, I guess we can revert back to the Forensic Audit Report, and the update. Here again, the Clerk might want to take the lead on this one. This is the Forensic Audit Report –

MR. KENNEDY: Mr. Speaker –

MR. SPEAKER: Mr. Kennedy.

MR. KENNEDY: Unfortunately, I have to go. Do we still have a quorum?


MR. KENNEDY: Oh, do we? Okay, thank you.

MR. SPEAKER: Here is the situation where there was a forensic audit done. The Auditor General provided a copy of the report, again, where the Auditor General is suggesting because of bookkeeping and because of the movement of figures and work done by other individuals that it is not clear if we can make any effort, or if we would have any legal right to try to collect, or even establish overpayments. This has been, again, on the agenda for a number of meetings.

I am wondering now if the Clerk wants to say a few words on that particular item, and if the Commission is ready to make a decision or give further direction?

CLERK: Yes, back to that original briefing note - it is dated September 29, and we have an October 28 update. So if you can go back to that note entitled: Forensic Audit Report Update and the issue is Auditor General’s Response to Commission on possible discretionary allowance overpayments.

This was the matter, you will remember, where we wrote the Auditor General, could he say, with reasonable certainty that discretionary allowance overpayments existed. While he feels, in the global sense, he can say that, he is reluctant to say it on specific discretionary allowance payments for the reasons the Speaker said. His letter of July 22 is attached to that package.

When Ms. Lambe and I looked at this and discussed this with the Auditor General, there are so many problems with the documentation. The Director of Financial Operations in the House of that day merely arbitrarily assigned something to discretionary allowance versus receipted. All of these matters respecting documentation give him pause as to whether he could categorically state, with sufficient evidence that it would hold up, that this specific discretionary allowance, or apparent discretionary allowance payment, constitutes an overpayment. The fact that the Director of Financial Operations may have assigned it there, was that what the member intended and so on. There may be a preponderance of evidence one way or another, but could you actually demonstrate this sufficient to seek recovery as it were.

When we drafted the note - and in taking to heart Minister Burke’s comments of a few moments ago, and I understand all Commission members feel that. No member of this Commission wants to be charged with being lax or slack on public funds. If there is any possible way of approaching this and seeking recovery, we should do it.

I am sure it has not escaped you that in - because I feel we should let this go, the way I phrased the recommendation. That I am recommending that we do not pursue recovery action, and the recommended minute was your concurrence with me. So, I am trying to assume equal responsibility with all Commission members that this is probably a fruitless task. The Auditor General would have to go back, do his best estimation of each individual item. If you remember the Grant Thornton forensic audit report, they did their best, but the Auditor General then disagreed with them on a number of matters.

The discretionary allowances were instituted in 1996 and ended in the spring of 2004. The Limitations Act would certainly apply with respect to the ten-year period, so anything pre-1999, given that this is 2009, we could not successfully pursue to the courts. Then you have the six-year period, which brings you up to 2003, and that would be another consideration. All of which, combined, make me recommend to the Commission that we let this go. The RNC has been through it, the Comptroller General has been through it, the Auditor General has been through it, Grant Thornton has been through it, and the review commission on constituency allowances has been through it, to some degree.

I know it rankles members to think that a former member might have got away with something, but it just seems, given all those factors, we would have probably no success and be wasting a lot of effort to no end at the end of the day.

MR. SPEAKER: Commentary?

Ms Burke.

MS BURKE: I guess it still comes down to the fact, I hear what the Clerk is saying, we did ask for the forensic audit that was requested in Green; we got the forensic audit. There is a certainty, based on that, that there were overpayments made in the discretionary allowances that were not backed up by appropriate minutes of the IEC at that time.

We can have a vote here, maybe I will be voted down on it, but I just think that, based on everything this House has been through, through Green, through the changes, through what is going on in the courts, through the overpayments that have been paid back so far, that it is our duty to go after these overpayments. If there are no IEC minutes to say they were made, and we can go through the files, the members may have their files to go through and be able to document some of the issues, I just think that we have been through so much that I just do not feel it is my responsibility to say that - some of it, yes, it is here, it is in front of us. We do not have it all. There was a lot of work that had to go into a lot of these cases right now. A lot of us went through our own to see if there were overpayments and make sure that there were not and to notify the House and do whatever had to be done.

It just does not sit well with me to know that there are outstanding issues here that no one can say that everything was done appropriately. That is not what we are getting. We are saying that, in all likeliness, there are reasonable grounds to feel that there were overpayments made in the discretionary allowance. We all know the bookkeeping was terrible. Every one of us know that, so that is nothing new here. When they went back, they certainly had enough to charge four members, very serious charges before the courts – well, some have been dealt with now. We have more information here - and I just feel, as a Member of this Commission, that by saying that we do not go after these overpayments, we do not give those members the benefit to bring in their own record keeping and see if we can deal with some of the discrepancies, I think we are just dropping the ball on it and it does not sit well with me.

Now, we can have a vote here. I have a feeling I am probably outnumbered as I say those comments, but that is exactly how I feel about it.

MR. SPEAKER: Just for further commentary, Minister Burke, how do you suggest we go about- where do we go from here? We have gone to the RNC. We have gone through the Comptroller General. We have gone through the Auditor General. All of this has been complete, so where do we go and what do we do different in order to get those answers and to deem that somebody owes money, because up until now, nobody has been able to tell us? Some direction?

MS BURKE: I think that we look at the Forensic Audit Report and where they identified that members received discretionary amounts over and above what was approved in the IEC minutes and that we go after what has been identified in the Forensic Audit Report. At that time, if any members have information that they have that they can come in that supports that fact that it was inappropriate posting somehow in the finances, or that they have their records to show that there is something wrong, but if we cannot demonstrate that there was something done wrong and they cannot demonstrate there was something that was not posted appropriately based on their own records, I think that we have to go after the amounts that were identified in the Forensic Audit Report.

MR. SPEAKER: Who would do that?

MS BURKE: I do not care who does it. Maybe the Clerk can do it or the Director of Finance. I do not care who does it.

MR. SPEAKER: Ms Marshall.

MS E. MARSHALL: Mr. Speaker, I would like to speak to it because this has been ongoing now for quite a while. The Auditor General had done a lot of detailed work and then we had the Forensic Audit undertaken by Grant Thornton. Actually, I did spend time with Ms Lambe. I went through some of the records and tried to reconcile differences between the Auditor General’s records and Grant Thornton’s, and we pulled out some supporting documentation.

It is true, like Ms Burke said, the record keeping was horrendous and, really, even the documents we looked at were in terrible shape. Then there is another step to go forward and say we are not going to take any recovery action. It is a big step, and I think it is because of the environment in which we are living in that everything we do is under a microscope. So while I do acknowledge that the records are in terrible shape, even having the Auditor General look at it and Grant Thornton, they came up with different results, that it is very difficult to look at this and say we are not going to take any recovery action. I think that I would have to stop before I got to that point -

MR. SPEAKER: Further commentary? Sorry, Ms Marshall.

MS E. MARSHALL: Maybe it is a point of going back to individual members and letting them know what has come out of the reviews. Maybe that is a suggestion, but I think that all the members here, or most members, will have a problem with regard to taking no action from here on in.

MR. SPEAKER: Ms Michael.

MS MICHAEL: Yes, just to put on record that I agree with what my colleagues are saying. The thing that sort of makes me feel that way is the phrase: reasonable certainty. It is like jargon that we would be hiding behind, and I have felt uncomfortable with that right from the beginning, and should not having reasonable certainty stop us from doing what is being suggested by Ms Marshall and Ms Burke, and I do not think it should. I think we do have an obligation.

Because of what Ms Burke said earlier in our meeting that, good heavens, we all know what Revenue Canada and what our own provincial bureaucracy would go through to retrieve money from people that we say have been overpaid; they did not even do anything wrong. Sometimes they have been overpaid by government and then everything that they have to go through to even pay back something that they did not even cause to happen. Sometimes the overpayments are not really overpayments at all. When we know what happens to the average citizen, from government, I do not think the phrase reasonable certainty stops our systems from trying to get small bits of money back from individual citizens. So, I am not comfortable not taking action either.

MR. SPEAKER: Maybe Ms. Lambe or the Clerk might want to respond. If we are going to go in another direction or offer a further follow-up, I think it is important that we know what can be done and where we are going. Ms. Lambe, do you have anything to add that you could provide that has not already been done that would seek clarification and be able to identify funds that we feel has been done inappropriately? How would we do it?

Ms Lambe.

MS LAMBE: Well, I mean the forensic audit only covered two years and we are looking at from 1996 to 2004. So that is eight fiscal years now. In the September 2000 AG’s report, he had a section on the discretionary allowance and did identify some numbers. So I would think where we should start is to go back and ask him if he can help us out in this and probably provide the details of how he came up with those numbers.

I do not think there is any point in getting another outside auditor to start from scratch and look at everything again. I think the Auditor General exhausted all the efforts he could, I mean especially in the discussions we have had with him. This was the best he could do with what he had. So, if we look at the basis for his numbers at least as a starting point and see where we can go from there.

MR. SPEAKER: Do members agree with going in that direction and report back at another meeting?

I sense agreement. Thank you. We do not need a motion or a minute to that effect.

The next item on the agenda will be Jurisdictional Scan of Statutory Offices Oversight. This again is a situation where any time that we have an issue with Statutory Offices, members always question, who has the oversight for Statutory Offices and how independent are the Statutory Offices? The Clerk undertook, or the staff undertook to do a survey of other jurisdictions across Canada that has statutory offices within their jurisdiction. The Clerk suggested that we just do two for an example, the Citizens’ Representative and the Child Advocate. You will see in your binder the jurisdictional scan that was done and what other jurisdictions - how they serve their Statutory Offices. Here again, this is just for information purposes so members can be aware what is done in other places. As you will see, most of them are completely different from each other, but it is for information purposes only.


The next item on the agenda will be Tab 3, and maybe we can finish this tab. It seems like maybe we will have a fifteen minute break after we go through this particular item here. This is the Financial Reports of April 1, 2009 to September 30, 2009. It is the financial performance of the Legislature and the approved allocations and actual expenditures of Members of the House of Assembly. I am not going to go through all of the pages here, but members have it in their information and if there is any item there that members want to ask about, then we can entertain your questions and provide the answers at this time.

Ms Michael.

MS MICHAEL: Again, this is just a question for information as we look to the future. I am looking at the page with regard to members’ resources, it is 1.1.04.

MR. SPEAKER: 1.1.–



MS MICHAEL: Yes, 1.1.04. So, that is the fourth page, and it is just for future that I am thinking about. We obviously - well we knew, I guess, that the Compensation Review Committee had to happen in this budgeted year, or we hoped it would because we were getting to a point where it had to happen and we did not have, I guess, enough experience of it to understand what the expenditure would be. So I am assuming that, now that we have one experience under our belt when we come to – well, some of us will be around I guess for when we set up after 2011. The next committee or commission, and I think the recommendations that we will be seeing when we put the report on the table is that that commission should be set up within six months I think after the next election. That we now have a projected, or we now have an experience that will help us be more accurate in the expenses that we expect.

MR. SPEAKER: Yes, this was put forward Ms Michael exactly as you said, and if you note as well that the legislation or the rules state that the Members’ Compensation Review Committee can be made up of one to a maximum of three members. So not knowing how many members by resolution of the House would be brought forward here, it was just an estimate but now at least we have some benchmark to be guided by.

Ms Marshall.

MS E. MARSHALL: I do not know if Ms Lambe has this information, but how much did we budget for the Review Committee and how much are we projecting? I mean I see the projected overruns here but just take it out of those numbers.

MR. SPEAKER: Ms Lambe.

MS LAMBE: We budgeted $60,000 in professional services and it is estimated it will cost somewhere between $150,000 and $155,000.

MR. SPEAKER: Further commentary?

Members can take a minute to look through the expenditures.

Ms Michael.

MS MICHAEL: Almost for my own purposes, as somebody who is the leader of a caucus, if under our caucus expenditures - I think this is correct, I just want to put it on the record. I think we could have, for example, under supplies maybe we may go over but if we went over we would look for somewhere else in the budget to make up for that. Would that be correct? We could move from one line item to another?

MR. SPEAKER: That is my understanding, but Ms Lambe may want to provide further commentary.

Ms Lambe.

MS LAMBE: Yes, that is correct.

MS MICHAEL: As long as we stay within our ballpark figure.

MS LAMBE: Well, last year -

MS MICHAEL: (Inaudible) stay right on the ballpark figure.

MS LAMBE: Yes. Last year is the first year, of course, we did the budget this way by caucus. So again, similar the Members’ Compensation Review Committee, we had no experience to use in determining what would be appropriate for each caucus. So, it is basically based on the block funding for the salaries. So this year, you know, as part of our budget process we are looking at if certain caucuses may need adjustments because we did not provide enough funds in certain areas and probably too much in certain other ones.


MR. SPEAKER: Ms Burke.

MS BURKE: The only comment I have on this is when you go through the individual members, there are some members that spend nothing.

MR. SPEAKER: Yes. Ms Burke, maybe we can do the House of Assembly first –

MS BURKE: Okay, yes. I appreciate that.

MR. SPEAKER: - because I think Ms Marshall had her hand up too, before we move off that heading.

MS E. MARSHALL: The only question I had, Mr. Speaker, is under the Allowances and Assistance. We budgeted about $3 million and we are projecting expenditures of $1.7 million, and I was just curious as to mid-year we are $800,000. So how do we do our projections? Do we just double and then put a little bit extra on, is it like that?

MR. SPEAKER: Ms Lambe.

MS LAMBE: Basically, yes. It is difficult. Usually toward the end of the year, we usually find the last couple of months the expenditures are higher because everyone is trying to get their expense claims in before the end of the year, but we assume that it will carry on throughout the remainder of the year as it had at the beginning of the year.

MR. SPEAKER: Further commentary on legislation?

Under 4.1.01 Office of the Citizens’ Representative, numeral 3 there: Projected overruns for operating costs, printing and purchased services related to on-going Whistleblower legislation, $18,000. Would you mind explaining that, Ms Lambe?

MS LAMBE: Yes, it is for printing and other unexpected costs, I guess, that we thought might come up. I think reviewing it again it is probably a bit high. We do not anticipate at this time that it will be that much but these things are moving targets, I guess, and it was our best estimate at the time, but I think at this point it will probably be about half of that.

MR. SPEAKER: Do you have any idea what the appointment of the Acting Citizens’ Representative might be going to cost us?

MS LAMBE: Right now, we are projecting overruns of – well, not overruns, but a cost of $110,000 for the professional services and then it is just the additional cost for the printing and normal operating expenses.

MR. SPEAKER: So the $110,000 is a projection? It is an estimate?

MS LAMBE: It is an estimate. It is based on 500 hours for Mr. Noseworthy and $40,000 for other legal costs associated with the investigation which may be for staff for other reason.

MR. SPEAKER: I might ask the Clerk: Has Mr. Noseworthy completed his work?

The Clerk.

CLERK: We have not received anything yet. My understanding is he is very close, but we have not got anything in a formal sense that it has been completed.

MR. SPEAKER: Further commentary?

If there is nothing else on Legislature, Ms Burke, getting into the members’ allowances.

MS BURKE: I just want to make the comment that when you look at some members’ allowances and they spend nothing, zero, that maybe at some point, as we monitor and there are anomalies or there are certain things that are just not right, that we should take some action. I cannot imagine that a member conducts business completely without ever engaging expense of even mileage within their district or something. So there may be some problem there that they are uncomfortable with the process of how we have things set up or they are not aware – I do not know, I cannot answer of them.

The reason why I bring that up is we recently had issues that became public regarding telephone bills and why some bills were so much higher than other bills. Now, it could be just the use. It could be as simple as that, but it could be, the other side of it, is that we could have probably members who live in rural areas and have rural phone numbers using the phone, primarily, in the city and everything becomes long distance, or there could have been international packages attached to these phones that we were not aware of.

So when we see something that stands out, I think that as we do our monitoring we should address that to see what the reason is, rather than just keep looking at it time and time again that these bills are excessive, these bills are not coming in at all and to try to address to make sure that (a) everyone understands the process, but if we have something set up as simple as if you are making all - or say, 80 per cent of your calls are being made in St. John’s and they are all being charged as long distance, whereas your district phone is only 20 per cent of your calls. Somehow, we have to look at some of that stuff. I do not know, maybe the phone calls were just completely appropriate and had the best package and all of that, but when we see anomalies, I think we should start looking at that and seeing if there is a better way to do business.

MR. SPEAKER: You are right. As you look down through them, many members spent absolutely nothing and we are six months into the fiscal year. We have offered training programs on members’ allowances and all members, to my knowledge, have taken advantage of the training and the information packages. If members feel comfortable, they should feel free to contact the Clerk’s office or my office and we can, at any time, go over the rules with them and provide them with our best information of the understanding of them.

Somewhere down the line or at another meeting we are probably going to have to look at members’ allowances because, for the most part, members’ constituency allowances or intra-district allowances need to be changed. You have some members, especially the urban members in St. John’s, that use very little. There are $7,500 allotted for their particular expenditure; they use absolutely non of that. And you have other members, like the Member for St. Barbe, Mr. Young, who is unable to visit parts of his district because of the amount of allowance that has been identified for him.

So some things need to be changed, and I think that is a piece of work that we are going to have to address. The Members’ Compensation and Review Committee have even suggested that as well.

Ms Marshall.

MS E. MARSHALL: I would like to make one comment. That is that I think that some members are reluctant to use their allocation, because when the Auditor General did his review, people made expenditures in good faith, thinking that they were bona fide and valid expenditures, only to receive negative comments from the Auditor General. So I think some people are going on the premise once burnt, twice shy.

I think one of the problems, just to pick up on what Ms Burke is saying, is that because some members are reluctant to charge some of their expenditures to their constituency allowance, when you start tinkering with those allowances, if the current member leaves, then you do not want to cut the allocation back too much so that the new member, who comes in, has not had this experience with the Auditor General will want to have a sufficient allocation.

I think that is going to be our challenge, because even for this year’s budget for the allowances and the assistance, we have had savings now of two consecutive years that we are going to have to come up with a better number than what we have used the past two years. I think that is going to be a challenge because, as time progresses, people feel a little bit more comfortable with spending their constituency allowance. So, to get a handle on an estimate, it is going to be a real challenge.

MR. SPEAKER: Some of that, Ms Marshall, has already been identified. As you recall, in the past it was an issue where certain members had spent most of their constituency allowance, as it was known at that time, and probably served three or four months of their term and had resigned. Now, it is done every quarter, once a member goes over 10 per cent of the allowable amount, the member is notified and the Speaker’s Office is notified. So it is kept in check that particular way, no member would be ever allowed to do that kind of action again.

MS E. MARSHALL: Could I just make -

MR. SPEAKER: Ms Marshall.

MS E. MARSHALL: Yes, just one more comment to pick up on what Ms Burke was saying about - and we are talking about the phone bills. I was quite concerned to see it in the media because, as you know, I am on the Audit Committee with Mr. Parsons. We are undergoing a lot of audits in the House of Assembly by both the Comptroller General and the Auditor General and neither had raised that issue with us and it never showed up in an audit report. I raised it with both the Comptroller General and the Auditor General and no, they really have not picked up that issue. So I think it really is going to go back to Ms Lambe’s officials to keep an eye on those types of expenses and to make sure that the expenditures are, I guess, spent according to our policies and procedures.

MR. SPEAKER: Commentary, Ms Lambe?

MS LAMBE: Yes, as you recall, we did adopt a phone and cellphone policy, and members now receive their detailed report of all their phone calls every month to review and question if there are any issues. So we have put that in place in the last number of months. In addition to that, we do work with Aliant on the right type of package. Like, when a new member comes in, we ask them do they want a local number or a St. John’s number, but we do review the bills periodically to see, and so does Aliant actually, they do certain reviews to make sure that individuals are on the package that best suits their needs. But, like anything, it takes time. So they will say okay, you have been having a lot of long distance calls, it looks like you are making most of your calls in St. John’s and you have a local number outside. That has to happen two or three months before they will make the adjustment. They want to see if there is a pattern. It could be just for that month; you needed to be away from home a lot.

While it does work in the long-term, in the short-term, you will get those fluctuations in costs because of that. I think we do have a good process in place right now to monitor it.

MR. SPEAKER: Mr. Parsons.

MR. KELVIN PARSONS: Just to follow-up on what Ms Marshall said, when we did have our recent audit meeting - and I appreciate the information from Ms Lambe because I am personally not familiar with all the different packages that are available from Aliant either, and the cases that hit the media. A gentleman, for example who is on the Audit Committee, said: Well, there is a package you can get. Apparently, if you pay $40 you get 100 free minutes or something. Now, if that individual was not aware of that package and had made arrangements to have it on his or her phone, obviously he or she incurred substantial, probably very high costs because they were not aware of it.

So I would appreciate, again, if the House staff could keep all members informed as to - once you get a chance to do your surveys and see who is burning what kind of minutes and so on, and where they are burning them, is it long distance and so on, and roaming charges and all that issue - any guidance that you could give to members in that regard so that they can have the properly modified package would certainly be helpful.

MR. SPEAKER: Ms Lambe, do you have commentary to Mr. Parsons?

MS LAMBE: Yes. The House now, in the last year, has been part of government standing offer for phone services, but that phone service does offer different packages for different levels of use, and both Aliant and our staff do monitor it. We actually automatically move you to a different plan if we see over a period of time that your usage has increased. We will not do it if it has just increased for a short period, as I said earlier, but there is an automatic movement. Sometimes we will move it before Aliant would do it, but if you wait six months Aliant will actually do it. They will move you to the most appropriate plan. So that process is in place. It is just there is always that time lag, of course.

MR. SPEAKER: Mr. Parsons.

MR. KELVIN PARSONS: Again, in that regard, and because the issue that was in the media recently I think caught a lot of people off guard and suggested that there might have been some abuse of the telephone privileges. As Ms Marshall said, we on the Audit Committee were never aware of any issue, the Auditor General was never aware of an issue, the Comptroller General never raised the issue, it was never raised at a management meeting. So, when that happens it again reflects upon the member, I think sometimes improperly and unfairly, because if it is the House staff that are monitoring this and Aliant, and making the packages appropriate over time, the media may well report on something at this point in time that we have not caught up to what the package should be. So I just think there should be some clear explanation of what is happening here. We are not just willy-nilly doing this. We are subject to the controls that are in place regarding the telephone packages and the usage and so on.

MR. SPEAKER: Thank you.

Ms Marshall, you are right when you say that members sometimes I think are reluctant to incur an expense. I know members that have given back their cell phones and have not used it. I say again that members should not feel that they cannot carry out their duties. There is an allotment of money that members can spend. It is all receipt driven. It all has to be approved. It goes through the test of time here right now and members should not feel one bit guilty about carrying out their work and their constituency duties and putting forward the appropriate charges.

It being 10:38, maybe we will take a quick fifteen minute break and return back here at say 10:50 to continue with the agenda items that remain.

Are members agreeable?

So, we will take a quick recess.


MR. SPEAKER: The next item on the agenda will be Budget Transfer Request and approval of transfer funds per the Transfer of Funds Policy. I ask the Clerk if he would explain this particular item.

CLERK: Thank you, Mr. Speaker.

This is another budget transfer that we are recommending come from the Allowance and Assistance main object under Members’ Resources. Whenever we look at that main object the Management Commission has to approve it under the policy. Other transfers, Marlene and I can do, or the Statutory Office, but allowance and assistance requires the Commission’s approval.

Now you can see in Summary, there is $103,800 required for four separate matters. So we are suggesting that $103,800 be transferred from Members’ Resources, Allowance and Assistance to the subdivisions noted below. The Office of the Citizens’ Representative Salaries, that $36,000, that is to pay the cost of a staff member of the Office of the Information and Privacy Commissioner who is assisting Mr. Noseworthy with his Acting Citizens’ Rep, Whistleblower investigation. The Office of the Information and Privacy Commissioner has been without his services for these three or four months, whatever the period is, and costs are more appropriately charged to the Citizens’ Rep. This will result in certain savings in the salary budget of the Office of the Information and Privacy Commissioner, but I believe he has temporary staff to assist him in the work while the investigator is helping Mr. Noseworthy.

The $62,500 under Citizens’ Rep Professional Services, that is a part of the professional fees for Mr. Noseworthy based on the contract we have with him to conduct the investigation as Acting Citizens’ Rep. The $1,000 Supplies, as noted above in the Budget Transfer Request, that is simply office supplies and so on the Members’ Compensation Review Committee required, and the $4,300 under Purchased Services for the Members’ Compensation Review Committee, that was various purchased services, such as renting the hotel rooms for meetings, putting the advertisements out for the public sessions and those sorts of expenses. So, in short, it would be $103,800 transferred from Allowance and Assistance to the four subdivisions listed below.

MR. SPEAKER: Commentary?

Ms Marshall.

MS E. MARSHALL: I just have one comment, Mr. Speaker, and it is one that I have made before so I guess I am sort of repeating myself, but when we do these transfers, is the commitment already made? And we have talked about commitment control. Should the money not be there before we enter into contracts with individuals for services? Like, shouldn’t the money - are we late transferring the money?

MR. SPEAKER: Ms Lambe.

MS LAMBE: I guess on both of those issues was, you know, these were matters that happened outside the - even when it comes to the hiring of an Acting Citizens’ Rep for the investigation under the Whistleblower provision, that decision was made by the Executive Branch. So I guess we were left with trying to identify savings in order to cover the cost and even at that time without being able to make a reasonable estimate of the cost. So we could have, upfront, tried to make some sort of estimate I guess, and transfer the funds at that time but we felt it was better to wait until we had some better estimate of what it was going to cost.

We did know right upfront that we would have savings in Allowances and Assistance, so we were comfortable that when the Executive Branch did make this decision that there would be funds to cover it. So we did not immediately proceed for a special warrant or whatever.

MS E. MARSHALL: The Comptroller General has mentioned now a number of times regarding encumbrance control, so that is why I am raising it. If there is a requirement – and I know sometimes you are sort of stuck to pick up - you have to pick up the pieces, but nonetheless, I have seen him in a couple of his audit reports now. He has talked about encumbrance control and he would like to see it sort of beefed up.

MS LAMBE: Well we have, and we have had discussions with the Comptroller General’s Office also. So, some of the items that we, I guess previously felt probably did not need to be encumbered, we are encumbering them now. We do certainly try to encumber all our known contracts and expenditures. So I think we are there now with those types of things. We did have many discussions on these two areas but it was really difficult to make a good estimate.

MR. SPEAKER: Being no further commentary, the motion will be that the Commission approves the transfer of funds from subdivision House of Assembly Members’ Resources, Allowances and Assistance for a total of $103,800 to subdivision Office of the Citizens’ Representative for Salaries, $36,000; subdivision Office of the Citizens’ Representative, Professional Services, $62,500; subdivision Members’ Resources, Supplies, $1,000; and subdivision to Members’ Resources for Purchased Services, $4,300.

Would somebody move that particular motion be accepted?

Moved by Ms Marshall, seconded by Mr. Parsons.

All those in favour, 'aye'.


MR. SPEAKER: All those against, 'nay'.

The motion is carried.

Motion carried.

MR. SPEAKER: The next item on the agenda would be, again, Budget Transfers. Here again, the policy requires only certain Budget Transfers to be approved by the Commission, but for transparency reasons, it was proposed that all transfer of funds should be reported to the Commission.

In your package you will see a total of fifteen transfers of funds. Since those are all put forward publicly, I will not go through the fifteen of them, but they are clearly stated and listed here. If members have questions on either one or all of the fifteen, then members can ask those questions now. It is for information purposes only.

Ms Marshall.

MS E. MARSHALL: I will just make one comment and that is on the one where funds are being transferred from Professional Services in the Office of the Chief Electoral Officer. So, when the money comes out if, say, in a couple of months time the Chief Electoral Officer needs money for legal services, for legal fees, are we able to transfer money back in?

MR. SPEAKER: Ms Lambe.

MS LAMBE: No, we cannot transfer funds back into a main object where funds have been transferred out of. So, you have to be really certain that you have the funds to transfer out of and into. Actually, that brings up a point, when we were talking about the encumbrances, that is one of our other challenges with encumbrances, because if we move money in somewhere and we move too much and we need it somewhere else, we cannot move it back out again. So, that is one of our real challenges, actually, with encumbering funds for –

MS E. MARSHALL: The only concern I would have with that is where we are incurring so much in legal fees. If there is a legal issue now with regard to, I do not know, a by-election or something that the money is gone now, the money is moved out. So, I am just thinking all the legal fees we have incurred this year, let’s hope that we do not have anything in the Chief Electoral Office.

MR. SPEAKER: Ms Lambe.

MS LAMBE: These were actually at the end of last year; so it was toward the end of the year. The majority of these budget transfers were for February and March of the last fiscal year.

MS E. MARSHALL: These are old ones?

MS LAMBE: These are old ones, yes.

MS E. MARSHALL: Have we transferred any money this year from that account?

MS LAMBE: No. The only transfers we made so far, I think we have one since the last report to the Commission, at the last Commission meeting.

MR. SPEAKER: Hearing no further commentary the next item on the agenda will be under Tab 4. It is the Memo to the House of Assembly Management Commission and its Approval of the Audited Financial Statements of the House of Assembly and Its Statutory Offices for the Year Ended 31 March 2009.

I ask Ms Marshall if she would lead us through this particular item –


MR. SPEAKER: - and probably, as well as the next item on the agenda, which is the Self Assessment of the Audit Committee.

Ms Marshall.

MS E. MARSHALL: Thank you, Mr. Speaker.

There are several items here from the Audit Committee and I will start off with the first item, it is the memorandum to the House of Assembly and it is regarding the audited financial statements. I just want to say that these were received and they were reviewed on October 20 by the Audit Committee with the Auditor General and his staff. There is a recommendation there now that the financial statements be approved and signed off by the Management Commission, and that is a requirement under the House of Assembly Accountability, Integrity and Administration Act - so I see there are being passed out here now.

There was an issue which arose with regard to the financial statements and which we discussed on October 20, and that is with regard to note eight. There is a note eight in the financial statements and the note is not quite correct. There are some inaccuracies there with regard to pensions and who is entitled to receive pension benefits and under what legislation. There is also an issue there with regard to the group health and life insurance program whether all members and whether all staff of the House of Assembly can continue on with those programs once they retire.

We had hoped, it was the intention of the Audit Committee when we met on October 20 that the Auditor General would revise that note to make sure that it was accurate and that the statements would be reissued. When the Auditor General sent the original statements over, he sent twenty copies. In order to issue new statements with the correct note, he needed to get the twenty copies back. There are two missing copies, and he will not reissue his statement with the revised note eight.

So I have corresponded with him, and he has indicated that given note eight and the problems with it he did not feel that they were so significant that we could not go ahead and approve those statements. So what he suggested is that the statements be approved and that note eight would be revised next year.

I do have some concerns with that, but it is within the right of the Auditor General to say he is not going to reissue the statements if he does not have the original twenty back.

So I have informed the Clerk and I have informed the Speaker and I talked to my colleagues on the Audit Committee, and it was agreed that we would go forward in this manner and I would write the Speaker and indicate to him the concerns that we had with regard to note eight to the financial statements.

So I can put that out there and answer any questions?

MS MICHAEL: Just a question -

MR. SPEAKER: Ms Michael.

MS MICHAEL: Thank you.

Just a question on why it was, obviously, impossible to find all twenty copies and get them back?

MS E. MARSHALL: Perhaps I can refer to Ms Lambe. We did a thorough search. Perhaps you can speak to it, Ms Lambe?

MR. SPEAKER: Ms Lambe.

MS LAMBE: Normally, when the twenty copies come over from the Auditor General’s office, which the members of the Management Commission get a copy and the Audit Committee gets a copy, and the rest are there for anyone else that might like to have a copy.

We did not anticipate, I guess, this circumstance, and did not keep track of anyone that might have even picked up a copy, an extra copy. I believe, Ms Marshall, yourself, you actually had two copies instead of one, and that might have happened to other individuals where they had an extra copy other than what we would have expected them to have.

As you know, we went back to all the Commission members just in case someone else also had two copies. We have checked all the staff, everywhere, and we really do not know where the two copies were. I think the plan next year is that instead of the Auditor General’s office issuing the twenty copies, they will give the copies to the Audit Committee first for their review and that way, if there are any changes that need to be made, they can be made and a full set issued at that time. So, I think that will take care of it for next year.

MS MICHAEL: Thank you.

MR. SPEAKER: Further questions?

If not, a motion is in order to approve the audited financial statements of the House of Assembly as presented by the Audit Committee.

Moved by Ms Michael; seconded by Ms Burke.

All those in favour, 'aye'.


MR. SPEAKER: All those against, 'nay'.

The motion is carried.

Motion carried.

MR. SPEAKER: Ms Marshall, do you want to continue with your commentary regarding the memo to the House of Assembly regarding the self-assessment of the Audit Committee?

MS E. MARSHALL: Okay. Well, the first paragraph was on the financial statements. The second issue I wanted to raise was when the Auditor General issues the financial statements he also issues a management letter, and the last year we had the opportunity to review both documents together because the management letter is actually commenting on issues that are in the financial statements. This year the management letter was not available. So, at this time the Audit Committee has no comments on the management letter because we have not seen it yet.

The third paragraph - and I would like to provide opportunity also for my colleague who sits on the Audit Committee with me, Mr. Parsons, to comment on some of these items. When we review the financial statements the Audit Committee goes into great detail with regard to what is included in those statements. So, we raised a number of issues, and I am just putting these out there because they will be further discussed when we have an opportunity to see the management letter. Some of the concerns noted was the increasing amount of overtime owed to employees, and I have had some preliminary discussions with the Speaker and the Clerk on that. The amounts receivable from members and former Members of the House of Assembly, and we have had some information on that this morning. Those numbers show up in the audited financial statements.

While we met with the Auditor General I took the opportunity, as I always do, to ask him when he is going to be conducting his compliance audit. There is a requirement under the legislation that once during every Assembly that he come in - and it is not a financial statement audit, it is what you call a broad scope audit - and he would do a very, very thorough audit of the House of Assembly, and of course I am very interested in having this audit done as soon as possible so we know where we are on the wrong track. He did indicate, he has not made any firm commitment as to when he will be commencing but I would expect it will probably be next year that he will be conducting his compliance audit.

Once we finished discussions with the Auditor General on October 20, we did discuss some other issues that I want to make the Commission aware of. We had some discussions on the internal audits that are being undertaken by the Comptroller General. He has undertaken a number of audits over the past year and this is continuing on. So, I want to make you aware that the House of Assembly is continually having auditors in doing audit work. You know, I find some consolation in that. We also reviewed the unaudited financial information of the House of Assembly as of September 30, which Ms Lambe provided to us.

The third issue was that we took the opportunity - section 23 under the legislation outlines what the responsibilities and duties are of the Audit Committee. We felt that now was a good time, it was sort of like mid-point through this Assembly, and we thought that now was a good time to go through and do a self-assessment. So we took probably about half an hour, forty-five minutes to go through and just discuss how we were carrying out our mandate. The Audit Committee did ask that I provide the self-assessment to the members of the Commission to let you know that we are conscious of our mandate and complying with our mandate.

One issue that I did want to bring to your attention relates to the reporting. There is a requirement under the legislation that we report regularly to the Commission. So there is a third report here, but we have had seven meetings since the Audit Committee was established. We decided at the last meeting that after each Audit Committee meeting that I would come back with some form of report as to what had been covered at the previous meeting.

I think now, Mr. Speaker, if it is okay with you, I would like to – Mr. Parsons sits on the Audit Committee with me. So before I get into this document in which I provide a third report, I am just going to provide Mr. Parsons with an opportunity, if he has any comments he would like to make.

MR. SPEAKER: Mr. Parsons.


I would concur with the statements that Ms Marshall said. Just for the record and for process again, albeit these statements of the Auditor General are being tabled here today, it is my understanding that the process will allow all members, not only those present today, but all members to have an opportunity to study the documents and there will be an opportunity afforded at meetings here in some future date to raise questions about this. So an acceptance of the report from the Auditor General which came via the Audit Committee is not necessarily an acceptance of everything in it. I think there ought to be opportunity to study it and to comment, particularly the issues of overtime, which was raised by the Auditor General and which we had a substantial discussion on in the Audit Committee, and I think that members ought to be allowed to study this and then be afforded an opportunity to comment on it. I would encourage members, in fact, to do that.

MR. SPEAKER: Thank you.

Ms Marshall, if you would like to continue with the comments regarding the third report of the Audit Committee to the House of Assembly Management Commission, you can do so now.

MS E. MARSHALL: Thank you, Mr. Speaker.

As I indicated a few moments ago, we are undergoing a lot of audit activity within the House of Assembly and we have received a number of reports. I would just like to briefly outline how we follow-up on the reports to give you some assurance that they are being looked at.

We receive the reports either from the Auditor General or Comptroller General, depending on who has conducted the audit. We do go through the report in substantial detail at the Audit Committee level. I usually have a preliminary meeting with the Comptroller General, in the case of the Comptroller General, but after that we would have the Audit Committee meet with the Comptroller General and his staff, or the Auditor General and his staff, and we would go through it in detail. In addition, once we hear the concerns of the Comptroller General and the Auditor General we would follow up then with a meeting with the Clerk and his officials. On a number of occasions I have met by myself, going through details of the reports with the Clerk and the Chief Financial Officer.

So what I tried to do, instead of bringing in all of the reports because some of them are quite lengthy, I went through each of the reports and tried to prepare a summary. So, I did the summary. Hopefully, I have captured what I feel are the major issues. In some cases I have gone back, for example, to the Comptroller General and said you have fifty recommendations, which ones do you think are the most relevant. So, I have tried to condense it while giving you a flavour as to the sorts of things that are coming forward to the Audit Committee.

We have effectively gone through a first cycle, so there are still items that you will see when you go through this document that are still outstanding. I will be following up with the Clerk and the Chief Financial Officer to make sure that recommendations that were made are actually being implemented. Because what happens after the audit is completed, the officials, the Clerk and the Chief Financial Officer will say we accept the recommendation and we are going to implement it, and we do not know if it has actually been implemented until the auditors go back in to take another look.

I was not going to go through every individual summary, but, of course, if anybody has any questions. There is one there that I would like to bring to your attention, and that is the one that is under Appendix H. This is the audit that was conducted of the Management Certification Contract and Related Documents. Some of you will probably remember about a year ago that we were asked to approve some expenditures. There was a contract for the Management Certification Contract and actual expenditures greatly exceeded the estimates. The Commission asked that it be referred to the Comptroller General’s office for audit, which was done. The audit was completed in May and was sent back to the House of Assembly, and then the Management Commission decided that the audit report should go the Audit Committee and the Audit Committee would deal with it.

So, we met and discussed the report in June of this year. We did have the Comptroller General in to discuss the audit report with us, which he did in detail, and he made five recommendations and all five were accepted by the Audit Committee and are supported by the Audited Committee. It has been discussed with the Clerk of the House of Assembly and he has indicated that he supports the recommendations made by the Comptroller General’s office, and he is in the process of implementing them.

Having said that, when you read the report that came over from the Comptroller General’s office there was some concern expressed - and I am relaying this to the Commission because the Audit Committee asked me to. There were some concerns expressed with regard to some of the information that came forward to the Management Commission. So you really do need to read the report. It goes back to some of the information that is coming forward on which we base our decisions, so there were some comments in that area. I consider them comments relating to staffing. I have discussed them with the Speaker and I have left them at that, but I would encourage you to read the full report.

In our follow-up meetings with the Clerk, we will be checking to make sure that those recommendations have been implemented. So I do not know if anybody has any comments or questions?

MR. SPEAKER: Ms Michael.

MS MICHAEL: It has been an extremely busy time so I have to ask: Do we, personally, have that report yet?

MS E. MARSHALL: Yes, you do.




MS E. MARSHALL: Actually, you should have it; it should be in your binder, the May 6, 2009 binder.

MS MICHAEL: May 6, 2009.

MR. SPEAKER: It was attached, I think, inside the first cover of the binder when it was distributed last Wednesday.

Further commentary, Ms Michael?

Ms Burke.

MS BURKE: I guess my comment relates to having the Audit Committee - and it seems like, from the Self Assessment, that most of the areas that we would like to ensure that the Audit Committee is all about is happening and we are getting our reports and, certainly, have it set up and, I guess, functioning in a way that we feel is appropriate and you will report back now after each audit meeting. I think it is important, and it goes back to the comments I said earlier even just about the phone bills and about some people not claiming anything. Whenever there is something that stands out as an issue, the Audit Committee, I think, and from your reports coming back, we will have the opportunity to deal with it. They need to come back to us because we just cannot say we are doing an audit and then we sign off the audit and that goes, the committee is doing their job, because if there are anomalies or there are issues that are arising that need our attention, that has to come back to the table, which is different from saying you are doing your function just simply by auditing. So, I think, that if we close the loop on it and there are issues that you feel need discussion at this table, I think that will truly then close the loop on what we are trying to accomplish through the Audit Committee.

MS E. MARSHALL: Yes, I agree with that. I think what happens is that when you first establish a committee or a group, you are trying to get a template in place to make sure that you are effective. I realize, myself, that I would like to have probably more frequent reporting to the Commission, and that is why we decided at the last meeting that after every Audit Committee meeting now we would come back.

The recommendations, we do follow up on the recommendations and anything – if we have a problem with any of the recommendations, we would bring that forward. To date, of all the recommendations made, we have not had what I would call a problem with any of the recommendations. The big concern for us is that the recommendations are usually accepted, there is a commitment that it is going to be implemented, but we do not know, it is almost too early in the game to know whether it has actually been implemented.

So, I am hoping that this year’s management letter from the Auditor General will report on the recommendations he made last year because he made, say, fifteen recommendations. We were going to, I think, implement all of them, and partially implement one, but until we get his next management letter, we will not really know whether it has actually implemented.

So yes, your comments, I do accept your comments. I think that reporting after each meeting will probably be an improvement.

MR. SPEAKER: Further commentary?

I just have a comment and a question, Ms Marshall. When the Auditor General brings forward his report and he identifies concerns and makes recommendations, he always allows the person, or in this case, I guess, it mostly would be the Clerk, to put forward an explanation. In your report it just says: has been discussed with the Clerk, or the recommendations made.

Would the Audit Committee consider following that format? Because sometimes there is an explanation. I think it might be helpful if the explanation was written in the report, if the response that was brought forward regarding the House of Assembly to the Clerk or to the Financial Officer and it would be much clearer for everybody then to see what is being done, if anything, other than just to say the recommendations have been made or discussed.

MS E. MARSHALL: Yes, that certainly can be done. When the report was finalized, I did provide a copy to the Clerk for any comments. So, he can take a look and if he would like to see some changes in the format that that would be no problem.

MR. SPEAKER: Thank you.

I would like to refer also to Appendix B where it relates over the past fifteen months the Comptroller General’s office has identified twenty-seven duplicate claims within the House of Assembly. How do you identify a duplicate claim? If I was to put in a claim with two items on it, on one claim, would that be two duplicate billings or would it be one?

MS E. MARSHALL: There was a time when they were counting it as two and, in fact, we did get a report, probably about six months ago now, where there was one claim, say the same claim was submitted twice, so if there was thirteen items on the claim they considered it thirteen duplicates.

I did have some discussions with the Comptroller General and he has indicated now that they are going to change that format, because it actually looks worse, the numbers make it look worse than it actually is. So he has indicated that he will change the format with regard to the way he counts the number of duplicates.

MR. SPEAKER: So would these twenty-seven duplicate items, duplicate claims, probably relate to five claims or six claims?

MS E. MARSHALL: I would have to go back and get the number for you, but I think it would be a lesser number, yes.

MR. SPEAKER: Yes, because it seems unfair for a claim, if you submit a claim and if it is double billed to have every item on that claim that –

MS E. MARSHALL: But that was the way they were doing it. I did speak to him about it and asked for them to reconsider the way they were reporting. Now, I have no authority or control over the Comptroller General.


MS E. MARSHALL: The numbers did make it look worse, but the bigger concern that I had was that we were still picking up duplicates and there was quite a bit of discussion at the Audit Committee level as to why are we still picking up duplicates when we have all of these processes in place. We raised it with both the Comptroller General and the Auditor General and neither of them have expressed, what I would call, significant concerns about this that they feel that the duplicates are being picked up that the systems are working. So, they are satisfied with what is happening. They feel that you are going to get some errors, and what they are picking up are items that would be considered errors. It does not give the appearance that somebody is trying to deliberately override the system, that in fact what they are picking up are bona fide errors.

MR. SPEAKER: Further commentary?

Thank you, Ms Marshall.

The next item on the agenda would be a letter from a Member of the Commission, Ms Michael, echoing some concerns regarding a quorum; a meeting being scheduled and a quorum not being able to be maintained and the late notice of cancellation, and has made a suggestion here for all of us to be guided by a deadline.

I will pass it to Ms Michael for her commentary and to raise her concern. I might also add that, not to take anything away from what Ms Michael is going to raise, but there is also a concern of having air time booked and having to pay from public coffers television time which has to be cancelled but is the responsibility to be paid by the House of Assembly when those kind of events unfortunately happen.

Ms Michael.

MS MICHAEL: Thank you very much, Mr. Speaker, and thank you for putting it on the agenda.

I guess what I am asking is once we have an agreed upon date and the confirmation has come out from the management staff that we have a date, I guess what I am requesting is that we all agree that unless there is an unforeseen emergency, that we would give a twenty-four hour notice. If something happens within twenty-four hours and I get word that Mr. Parsons cannot be present, I am going to assume that is an emergency. I am not going to ask for any further clarification from Mr. Parsons.

Once we set a date, and I am assuming it is the same for all of us, that date goes into my book. Nothing interferes with that date for me unless something was to come up that I possibly could not attend and it was the last minute. So it can be, and it was in this case, extremely inconvenient. It was more than inconvenient because I would not have done a travel that I did on the Sunday to be back here Monday morning. I would have stayed where I was to continue doing the work I was doing there, but I had said I would be at the Management Commission and I came to it. I am not blaming either one of the two members who had to give us notice. That is not what I am doing. It is just that it brought up for me the fact that we do not have any guidelines about how late we can go before we say that we are not going to be present once the date is set. So I am just asking if the members would be willing for us to say that within twenty-four hours we would be committed to the meeting, unless an emergency comes up, and as I said, I would never question if somebody then sends in and says I cannot be present. I would just accept that it is an emergency. I am sure we would do it all for each other, but I put it out there for discussion to see if the other members agree with me that it makes sense to have some kind of guideline with regard to our meeting.

MR. SPEAKER: Commentary?

I think it has happened on two occasions since I have been Chair of the Commission, and I know it is frustrating. My members have put an effort to come by. I guess we will always have an emergency and that can be dealt with, but it is just a note for members to try to make the Clerk’s secretary aware, as soon as possible, if a member can or cannot attend. Because sometimes as well, we operate by the mere fact of when we get a quorum, but sometimes members never, ever reply whether they are going to be present or not and that makes it difficult. So, I just ask all members, and I will take the guidance from your suggestion as well, Ms Michael.

Thank you.

MS MICHAEL: Thank you.

MR. SPEAKER: The next item on the agenda will be Constituency Assistants and Rules. We are into Tab 5, according to 26(4) and 26(5) - and I will ask the Clerk to guide us through this one as well. He seems to put it in perspective a lot quicker than I can. It is a situation here again that we have been dealing with and have come to the Commission’s attention on previous meetings. Maybe we can look at making some recommendations at this meeting.

The Clerk.

CLERK: Yes, thank you, Mr. Speaker.

This can be rather complicated, so I think what I might try to do is work my way through the briefing notes sort of step-by-step and see if it will follow in a logical sequence.

Those two subsections of the rules the Speaker mentioned state that "constituency assistant salaries and benefits shall be paid directly…" and I will emphasize that word, to those employees by the office of the Speaker. There is no office of the Speaker per se as a budgetary activity, but nonetheless, I think the point of that was to be paid directly out of House of Assembly funds. Then (5) talks about: when a member considers it necessary to engage a replacement the costs associated with that engagement shall be reimbursed by the office of the Speaker.

So those are the two issues which are causing us trouble. If you go back into the Green report, he has a section called Resource Supports in which he discusses constituency assistants, certificates, flags, matters which he felt the House of Assembly should provide to members which should not be subject to the existing block of constituency allowance which applied during the 2007 period, 2006-2007 period he was writing, and he did not feel a member should have to juggle and budget replacement costs for constituency assistant, for instance. A member gets one constituency assistant. If that individual were to become ill or vacations, the past practice often had members taking money out of their block fund to pay salary costs. His point was you should always have the assistant. You should not have to budget that by reducing other costs to manage.

There is a section there called Resource Supports, but in that section he makes this statement, and it is at the second bullet, "Most MHAs have one constituency assistant located in his or her office. The constituency assistant is paid out of general House of Assembly funds." Now that is not the case and has never been the case in the general sense. Constituency assistants who are with ministers are budgeted in the department, they are in the estimates of the department, and that is similarly true with parliamentary secretaries and the Parliamentary Assistant to the Premier.

So, when you look at the current situation, it actually splits twenty-four with the Executive Branch of government and twenty-four with the Legislature. There are eighteen ministers, I think, four parliamentary secretaries and a Parliamentary Assistant to the Premier. I think there are actually twenty-three CAs charged to various departments in the Executive Branch because the Premier currently does not have a constituency assistant. The other twenty-four are with private members or the Speaker and so on. So they actually split out 50-50. Green, however, thought they were all in the House payroll as he stated in that section, page 10(9). Going down you will see he also said in the 2007 situation, "…an MHA may fund additional support staff out of his or her constituency allowance." That was the block fund he is describing of those days. So a member in those days could in fact cut back on other expenses and use it to hire additional staff for replacement purposes or otherwise.

When we look at this and go back again to the Green report, we think the purpose of what he said in Rule 26(4) that is paid directly from the Office of the Speaker, was to show that the replacement costs or the permanent costs would be paid directly from a payroll system and not through a member’s blocked fund. We think that is the intention, and that is, we believe, supported by his use in the rules of the words directly, which he says, "Expenses related to constituency assistant salaries and benefits shall be paid directly to constituency employees by the office of the speaker." So that it did not flow through a member’s allowances or block fund.

Then, in the next bullet, when he discusses his recommended changes - which now are in effect in the Members’ Resources and Allowances Rules. I have quoted the section there that leads up to that part of the rules and emphasized the last section, "The costs should come out of the general

budget of the House and not out of an overall capped constituency allowance…." We believe that was his key point. Not that all constituency assistants had to be on the payroll of the House. I think that was just a misunderstanding he had, and he was making the point pay them directly. Because he believed they were already on the payroll of the House, he did not have to recommend they be transferred to the payroll of the House; he thought they were already there.

The Commission, of course, has already developed a policy for hiring a replacement constituency assistant. When replacements are hired, irrespective of where the permanent salary of the constituency assistants is budgeted, the House of Assembly pays for the replacement. So even though a minister, like Minister Burke might have a constituency assistant budgeted in the department, the replacement is paid for by the House of Assembly.

Having said all that, in the various audits, internal audits conducted by the Professional Services and Internal Audit Division of the Comptroller General’s office, which Ms Marshall just mentioned, in reading that rule, 26(4), which says, "Expenses related to constituency assistant salaries and benefits shall be paid directly to constituency employees by the office of the speaker." He interprets that to say all CAs, currently forty-seven of them, should be on the House of Assembly payroll, and he has recommended that in one of the internal audit reports that Ms Marshall referenced.

So, we told the Comptroller General we would bring it forward to the Commission for their decision. In his case, he is faced with that rule, 26(4), it very clearly seems to suggest that all CAs should be on the payroll, so he has pointed that out. I think when you go back and read Green, it was probably a misstatement by Green, but nonetheless, the rule is as the rule states.

When we come to making this transfer of these twenty-three constituency assistants, there are a lot of issues that arise. As we looked at it, this, for instance, is a departmental restructuring under the Executive Council Act, so in fact, the House of Assembly does not have complete authority over this. Moving staff from one budget to another department, for instance, that is a departmental restructuring under the Executive Council Act, and there are administrative concerns and so on.

So, as we looked at it, Ms Lambe and I said we would try to lay out this entire situation. Our recommended approach is not, in fact, to take the twenty-three constituency assistants who are currently on various departmental budgets within the Executive Branch and transfer to the Legislature. Our preferred approach is, in fact, to amend that rule, so what we believe Green’s original intention was, is clarified, that would, in effect, with the recommended rule amendments we have had here, essentially, confirm the status quo. Constituency assistants on the budgets of departments would stay there. Constituency assistants with private members or the Speaker and so on would stay in the House of Assembly.

So we would be clarifying what we have believed to have been Green’s original intent to amend the rules. We would not be doing what the Comptroller General recommended based on his reading of Rule 26(4). So, we will put that out for discussion with the Commission.

Irrespective of the decision on that issue, 26(5) is incorrectly written in the sense that it talks about reimbursement. So, if you read the original 26(5), which is still in our rules, it talks about the temporary replacements and the costs associated with that engagement shall be reimbursed to the member. Now this Commission has already established a replacement CA policy where we are paying directly, so there is no reimbursement to members. So irrespective of what the Commission decides on 26(4), we do need to amend 26(5) to take out a reference to reimbursement.

I guess I will leave it there, Mr. Speaker, and see what questions arise.

MR. SPEAKER: Ms Michael.

MS MICHAEL: Thank you.

I understand clearly what it is that you are recommending and the language that you are suggesting for the rewrite backs up what it is you are recommending.

I remember us having some discussions around the issue of constituency assistants and departments, I think when we were doing budget discussions, and I still do not understand the rationale for constituency assistants being covered under the budget of ministers and parliamentary secretaries. I still do not understand why they are not covered under the House budget.

I do not think you have given me any compelling argument, Mr. MacKenzie, for saying that we not go there and look at it. You are recommending that we not, but maybe it is because it is simpler not to, but I do not understand the rationale for its not being that way. If we are going to do some changes, maybe this is the time to make that change. I do not know, does it become too cumbersome, bureaucratically speaking? I sort of do not see why it would. Does it matter where the person is located? It still would be relating to the House of Assembly in terms of administration. I do not think it really would matter where the person is seated, whether it is in the department office or whether it is in a constituency office, wherever that office might be located. So, I would like more discussion on that issue because we did sort of have some chat about that when we did budget discussion.

MR. SPEAKER: Does the Clerk want to respond to some of the –

MS BURKE: Mr. Speaker, I have a question that will relate to the answer actually what Ms Michael was –


Ms Burke.

MS BURKE: I guess my question is: Has it always been this way or, at some point, did we change it from the House to the departments?

MR. SPEAKER: The Clerk.

CLERK: I do not know when it first started, but it almost seems within living memory it has always been this way. We cannot find any particular point where it was changed. If you go back with, I guess, the predecessors to constituency assistants they used to be shared between members; one assistant for two members and then that started to develop one for one. But as long as anyone can remember with the constituency assistants, the ministerial ones were with the department.

MR. SPEAKER: Mr. Parsons.


I would concur with the thoughts of Ms Michael here. Regardless of what was in the past, I do not see any rationale as to why it ought to stay that way other than it might simplify things for the House that you do not have to change anything. I do not think that is, in and of itself, justification for going with the status quo.

You can cut it any which way you like, but constituency assistants work for MHAs. They might work in a minister’s office, in that environment, because it is more practically, physically okay and close at hand. Regardless of where they do their work, whether it is in this building, in the minister’s office or in their office in the district they are hired solely, wholly for the purpose of doing that person’s work as an MHA.

If it says an MHA, our rights and privileges as MHAs come from the House of Assembly not from departments. Therefore, regardless of the fact it might cause you some trouble to change it, it ought to be changed so that if it is money to be spent for MHAs’ duties and so on, which these are, they should all come under the House of Assembly. Now, you might have to go back and say to the executive branch look, we need to do some restructuring here, but right is right. To leave the status quo we are ignoring what the Comptroller General is telling us ought to be the right way to do it.

So, why don’t we get past this trying to justify what we have and justify where it came from. We have changed a lot of stuff in this House of Assembly since the Green report. Why wouldn’t we go back to doing what the Comptroller General tells us is right, put CAs who work for MHAs in the budgeting pot they ought to be in, which is the House of Assembly?

MR. SPEAKER: Ms Marshall.

MS E. MARSHALL: I have discussed this with the Comptroller General and we have had some discussions too with the Clerk. I would like to see all of the implications of doing this. So I think the Clerk was saying that it affects some legislation with regard to reorganization of the Public Service, but that is not the only implication. I think that if we are going to make a decision now on this issue, let’s know what all the implications are, because I would not want to either approve or disapprove and then find out two months down the road: Whoops, well, we forgot to tell you that.

I am interested in pursuing it, but I would like to know: what are all the implications of this decision; because I think there are some human resource implications, too, with regard to benefits for staff and things like that. So I would like to have that looked at.

MR. SPEAKER: Ms Burke.

MS BURKE: I agree, obviously, with what is being said because, in fairness, the constituency assistants work for the member in doing constituency work. Despite the fact that as a minister it is posted to your department, I would think if you looked at almost all the ministers who are not from St. John’s have a constituency office outside the department. I would think people who are probably from St. John’s, and as ministers, it is convenient, your office is here anyway. I think most of the members who represent a rural riding have their constituency offices outside the Capital.

So, you are really operating completely separately from the department. If there are department issues or work or whatever, they are not even in the loop; they are completely working on constituency matters. So, there may be issues with why we cannot do it or should not do it, or we would have to look at in order for us to do it, but I would think that, as for looking into our next fiscal year, that there must be a way that if we have people working for the House of Assembly that they are paid by the House of Assembly.

MR. SPEAKER: Further clarification or further comments?

Ms Michael.

MS MICHAEL: Just to add one point, and with due respect to Mr. MacKenzie, he says in the third last bullet that it also appears that he, meaning Chief Justice Green, did not intend to change the current structure of having ministerial and parliamentary assistants, CAs, paid on the departmental payrolls, but I point out that how could he have considered it when he did not even know. He did not know they were paid on that. So, there was not a structure for him to change, because he expected that CAs were under the House of Assembly.

This sort of appeared to me as a reason for us not looking at changing, but it was an issue that was not addressed by Chief Justice Green because he did not know that that was the situation.

MR. SPEAKER: Mr. MacKenzie, Mr. Clerk.

CLERK: Well, just that yes - and I agree with Ms Michael’s point. We were not trying to argue, it was to point out that he really did make an error when he said they were all on the House payroll. If he had felt they need to be on the House payroll and I need to take them out of departments, I think he would have gone into that. So his –

MS MICHAEL: But he did not know, so he could not address it.

MS BURKE: It would have only made sense that they were in the House anyway.

MS MICHAEL: That is right.

CLERK: That is the point.

MR. SPEAKER: Ms Marshall.

MS E. MARSHALL: I just want to make the point, again, that – and I think Mr. MacKenzie is aware of this. I think it is correct when I say this, that for the CAs that are located in departments, they can apply for internal competitions, whereas those in the House of Assembly cannot. So, if there are implications like that, I think that the Commission should know about those implications before we make the decisions, because we should know what impact this decision is going to have on the staff and their, I guess, benefits or entitlements or whatever.

MR. SPEAKER: The Clerk.

CLERK: Yes, we can do up a note sort of outlining some of these.


CLERK: There are a number of them. The administrative ones, I do not want to emphasize that, they are not insurmountable.

MS E. MARSHALL: No, that is right.

CLERK: They are burdensome, and I will talk about those briefly.

In the first business, if we decide to proceed with this, we do have to write Executive Council. This is a departmental restructuring under the Executive Council Act. You are taking permanent positions and assigning them from department X to the House of Assembly, so that requires their concurrence.

Ms Marshall is right on some of the human resource implications. If you are on a departmental payroll, those departments are scheduled under the Public Service Commission Act. That scheduling provides the rights to apply to internal competitions if you are on a departmental payroll. If you are on the House of Assembly payroll, we are not scheduled to the Public Service Commission Act, the political staff, they could not apply for internal competitions. So there currently exists discrepancy there based on which department -

MS E. MARSHALL: Yes, and that is a big impact.

CLERK: That is a big impact for the individuals who are currently on departmental payrolls.

Administratively, the administrative matters are not dramatic, at least I can say that, I do not know if Ms Lambe agrees. As Minister Burke says, if you are a CA in a district office, things are relatively straightforward. There is the payroll issue, but we have provided the furniture, we are handling all your phone lines, all your utility costs, office supplies, all of that. The complication arises when CAs are physically located with departments. That would be the constituency office. So in that one room in a department, I guess we would have to provide the standard office equipment package. Because the CA and all the expenses associated with it are part of a member’s allocation, we then have to - they would have to abandon the departmental phone lines. We would have to put in phone lines, the bills would come directly to us. We would supply all supplies. You know, it would not be appropriate for a CA in a department to avail of departmental supplies and thereby reduce the member’s expenses on that category. So, some of these things

If a member or a parliamentary secretary, because they also come into this, were to be shuffled we then have all the inventory issues. The equipment and furniture and so on, all has to be tracked and moved to the next department. You cannot intermix it with departmental desks or chairs and so on. Now these are not insurmountable, but these are some of the considerations we would have.

MS E. MARSHALL: No, that is right. Those are some of the implications.

CLERK: We can manage it. Ms Lambe and I have talked about it. She is not looking forward to it but we can manage it.

MR. SPEAKER: Final commentary?

Ms Michael.

MS MICHAEL: I think, actually, we may benefit from it in a budgetary way. I want to speak to two things. One is that what we are saying is that CAs who are in a ministerial office have an advantage over other CAs because they have the opportunity to apply for jobs, for example, within the public service sector, which is something –

MS E. MARSHALL: Or the ones with us here have a disadvantage.

MS MICHAEL: That is right. Exactly.

So, it makes two classes of CAs, and yet I think the spirit of the Green report was that we would try to have CAs treated equally as possible. I think that is very much a part of the spirit of his report. So that is one thing that disturbs me, is that two classes of CAs. It is a lot more and I had not really thought about it. This is information we have not had. It is the kind of stuff that we need to get.

The other thing is, when I look at the budget – now I am choosing a person who is a parliamentary secretary, I am not giving names – but under our budget there is an office accommodation of $6,195 that is kept in that person’s name and will be kept because that position should have it. Yet, that is not going to be spent. It will not be spent, and if we go through every single minister and every single parliamentary secretary that has that budget item. So multiply that by twenty-seven, we have a fair bit of money that is not going to be spent but that is allowed for on paper in our budget, right.

MR. SPEAKER: Just for clarification, Ms Michael, if the minister chooses to have their CA out in the district then it would be spent.

MS MICHAEL: I know that, and there are some who do, but I am just looking at one who does not, a parliamentary secretary who does not. If we go through, there would be more than that one. So, all of the expenditures under the office allowances which we allow for every member have to be allowed for but the ones who do choose to have their CAs in their office that is not going to be spent. So we are always going to have these kinds of big sums of money allowed for in the House of Assembly. However, if all the CAs come under the House of Assembly that will become real expenditures and not just money that every year it looks like to the Comptroller General we are not spending, because we have to allow for it because we do not know who is going to be a minister or parliamentary secretary and who is going to choose to have the person in that office or elsewhere. So we will always have to have it on paper. I think it allows for better budgeting of the House of Assembly expenditures to have everybody under the same rubric here, financially. It would really clean up one big - one of the parts of where we have, it looks like money allotted but never spent; just a point.

MR. SPEAKER: So 26(4) will not be dealt with at this particular meeting. My understanding is that the staff will come forward with all the information where a decision can be made regarding the suggestion whether CAs remain with departments or come under the House of Assembly.

Is the Commission ready to vote on 26(5), whereby it is suggested in the rules that monies be paid to the member for the constituency assistants and have that removed because that has never been followed? The monies are paid directly to the individual, the replacement constituency assistant and not the member. I do not think there is any argument and there is anything that would not allow us to proceed with that particular amendment. Do members agree?

The Clerk.

CLERK: Perhaps just - because it appears the Commission was not going to take my very wise recommendation here. The amendment we proposed to 26(5), you will notice how it concludes: "…paid directly to the employee and voted in the salaries main object under the appropriate head of expenditure." That could mean then any department or the House of Assembly. If indeed this Commission is ultimately looking at saying it should be in the House of Assembly, perhaps we should hold this in abeyance until the full decision is made on 26(4), and if indeed it is going to say House of Assembly we will state that explicitly instead of appropriate head of expenditure.

MR. SPEAKER: Thank you for your input, and we will park both of those suggestions and have them brought back to another Commission meeting with a full explanation. Do members agree? It is obviously a lot of concerns and suggestions.

The next item on the agenda is, again, a briefing note. Back in the spring of this year there was an ad hoc committee appointed, which consisted of Ms Dunderdale, Ms Michael and Mr. Butler, to look at and make recommendations regarding maternity, paternity, adoption, sick leave for Members of the House of Assembly. As members will know, that in Chief Justice Green’s report, any member that is absent from the House of Assembly without just cause is deducted $200 for each day absent from the member’s paycheque. The committee reported back and made a suggestion that where a Member of the House of Assembly becomes a parent because of birth or adoption of his or her child, a deduction of $200 shall not be made under subsection 13.(2) of the House of Assembly Accountability, Integrity And Administration Act for one spring or fall sitting of the House of Assembly within a year of his or her child’s birth or coming into his or her care.

The committee also made a recommendation that we probably address the sick leave benefit and absenteeism for bereavement by bringing it forward to a presiding officers’ conference or a conference whereby it can be openly discussed with other jurisdictions. No other jurisdiction has any policy in place to deal with sick leave or bereavement for members of the Legislature. Members are elected, they serve for a maximum of four years without going to the electorate. They cannot access EI, Employment Insurance, they cannot access sick benefits. The only access they have is their paycheque that they get from the House of Assembly. It is not uncommon for when members are sick to have other members assigned to carry out their duties, and even in the absence of the member, there is a constituency assistant that is paid for by the House of Assembly to continue the work of that particular member.

We have not made a recommendation here and we are asking for the Commission’s recommendations. The conferences, whether it be the presiding officers’ conference or any other national conference, it is not a place where policy is set or where suggestions are made to change legislation. There are no resolutions brought forward, and it would not be – I do not see where we could achieve anything by going in that direction. There is something coming forward right now from the federal government. I do not how it would be addressed or if it would even be meaningful where self-employed people can access Employment Insurance and other benefits. That is, I think, in its infancy being introduced in the Parliament of Canada. Whether it would be something that we could marry into or make it part of what we do here remains to be seen.

So I just want to ask members’ suggestions. It has not been a problem, by the way. In the seventeen years that I have been here I do not know if – well, it was a problem for one person. That has been addressed and it happened two years in a row where a member was absent for other reasons than what was stated here for a brief period of time but other than that, and that has been addressed in the $200 a day that has been identified already. It has not been a problem for members being absent from the House of Assembly, and that is what we are talking about here. We are talking about the forty or the fifty or the sixty days that the House is in session. There is no reference being made or even suggested - I do not know how we would even attempt to try to change what members do when the House of Assembly is not in session. So I would like to ask for members’ thoughts and opinions and what we can do to try to change things or keep things as they are.

Ms Michael.

MS MICHAEL: As a member of the committee I would just like to speak to the recommendations and point out something that was in the letter that we sent to the Speaker, that the Premier and Cabinet have authority over ministerial duties and the member’s constituency ultimately have authority with respect to members’ constituency duties. So the only thing the Management Commission can determine is members’ duties in terms of being in the House of Assembly. So that is why the first recommendation was made. It could be because not only our Legislature but no Legislature in the world recognized parental responsibilities and in bringing work life issues together, it could be that there has never been an issue because nobody ever gave an opening for there to be an issue. So the fact that when we were doing this study, for example, the very time that we were holding our meetings a minister over in France was having to bring her newborn baby a week later into her office with her. That was happening.

I think we, as a committee, really believe that this kind of thing is not acceptable. We use the language of trying to have family, friendly policies and we have used that language even with regard to our own Assembly. So, as we get younger people being elected, both men and women, there are parental responsibilities that we have not recognized in the past. There were fathers in the House of Assembly who had children while they were in the House of Assembly but there was nothing that would say those fathers also had a responsibility, maybe would have liked to have had a week off or two weeks off, but because it was not part of the culture it did not happen.

So we believe that we should recognize – we did not take on the sick leave, we were only dealing with the parental leave because that is all that we were given to look at, but we really believe that since we do have jurisdiction over the House of Assembly, and attendance in the House of Assembly, that a parent because of birth or adoption - and it is not saying male or female - of his or her child, that we will not deduct further absence from the House, and I think we are fairly clear in what we are recommending. Now, there has been a recommendation for a change in the wording with regard to spring or fall sitting of the House of Assembly and what is the recommendation for the change?

AN HON. MEMBER: Regular sitting.

MS MICHAEL: Regular sitting, yeah.

So, there is a limit to what we are saying and we felt that was the only limit that we could give in the context of where we have jurisdiction. So, we felt very strongly about this recommendation, but we also felt strongly that this is a major issue, and since we do have parliamentary discussions that happen in our country on a national level, wouldn’t it be great if we could start this discussion with the Canadian Parliamentary Association and give some leadership by bringing it forward? Hopefully, then we will find maybe other ways to deal with it, but in the interim we really thought we should put something in ourselves for the interim until we create a larger discussion in the country that would help give more guidance to how we might deal with the issue of family related issues for parliamentarians and legislators.

MR. SPEAKER: Yes, and Lorraine, just for clarification, my comments were not on your recommendation. I think it is a good one.

MS MICHAEL: Yes, no.

MR. SPEAKER: It was on the sick leave part of it.


MR. SPEAKER: Further commentary?

Ms Marshall.

MS E. MARSHALL: Yes, I just have a question on process. The members leave ad hoc committee, where is the authority for that committee vested or was that a committee we created? Could the Clerk just refresh our memory, or refresh my memory?

MR. SPEAKER: Yes, the Clerk.

CLERK: Yes. It was really just an ad hoc committee.

MS E. MARSHALL: It is truly an ad hoc committee.

CLERK: Yes, it is truly ad hoc committee.

MS E. MARSHALL: It has no authority in any legislation.


MS MICHAEL: Our job is done.

MS E. MARSHALL: Yes, I remember that now.

MR. SPEAKER: It was strictly a committee that was appointed and did a piece of work for this particular purpose only, and -

MS E. MARSHALL: For this purpose, yes, I remember that now.

MR. SPEAKER: - when the report was made the committee no longer existed.


MR. SPEAKER: Further commentary?

The Clerk.

CLERK: Well, just on one point Ms Michael referenced. While we have not actually recommended the word regular, when we were putting this note together in September we had just had that two-day sitting, and we said: well, if we talked about that - you remember the House was open for two days, and that is what prompted us to say: well, maybe we should not say one fall sitting, because someone might say: well, your two days are up; that’s it. So that was the reason we just suggested that, Ms Michael, just because that two-day sitting made us think about it.

MS MICHAEL: Excuse me, if I may, Mr. Speaker?

MR. SPEAKER: Ms Michael.

MS MICHAEL: It highlighted though a problem that we had with our own language with regard to sitting and sessions, et cetera. Our language is not clear about what a session is and what a sitting is, and we struggled with that in coming up with this language. I think, Ms Keefe, you wrote this for us, didn’t you? Yes, and you remember the struggle we had with what language to use because we are not clear ourselves on what is a session and what is a sitting.

We use session interchangeably is what I am trying to say.

CLERK: Yes, we do.

MS MICHAEL: So we use session interchangeably, that when we are in the House in the spring, we say that is the spring session, but our session is from the beginning of the parliament until the end of the parliament. So that is what we were trying to get at, but it was hard to get the language. We can try to find that, but it is the spirit of what we are trying to say there that we want to get at.

MR. SPEAKER: Mr. Parsons.


The comment I would make is, first of all, I have read section 16 of the act which deals with the duties and parameters that the Members’ Compensation Review Committee can deal with. Albeit it seems to be four pretty specific areas: salaries, allowances, pensions and severance, I am wondering if that is so narrow or should it be given its wide and liberal interpretation that this issue of whether there is sick leave, whether there is parental leave, if that is deemed to constitute a, quote, benefit of some kind, is that an issue that ought properly to have been forwarded to the Members’ Compensation Review Committee, albeit that act only refers to four specific things? If we are talking about members’ benefits, and that is what we are talking about, members’ compensation, I guess there is no question that it is a compensation in a way if, for certain reasons, you are allowed to be absent from that House of Assembly.

Now I realize in saying that, that we are three days, four days, from that Commission having filed its report. It seems to me that, again, when we do not want to get into this issue, or I certainly do not want to get into this area of being a party to suggesting that we ought to adopt a policy regarding sick leave, parental, bereavement, whatever, that somebody deems to be, again, a situation where MHAs are dictating themselves what their benefits should be. I think that we could properly be accused of that, but I also believe it is an issue that we should pay some attention to.

So I am in that conflicted position where I feel that it is something that you almost should not be touching yourselves for that reason, but by the same token we should give some attention to. I do not know if we are really in the position to give direction, because if we adopt something now, I think that can easily be suggested. Albeit it might be some time out, but we are waiting to see what the feds are going to say. There is nobody else in the country or anywhere else that we know of that has a policy on this. We have never ever had an issue here, and the Speaker has always dealt with it on behalf of any member who has had an issue. It is certainly not an issue of absenteeism from this House for whatever legitimate reasons and the Speaker deems those to be, for example, whether it is sick or had a baby or whatever.

Perhaps we should consider actually waiting until the next Members’ Compensation Review Committee and let them decide. I do not do that just for the purpose of pushing it off of our table, but I think it is a legitimate question to ask.

MR. SPEAKER: The Clerk.

CLERK: Yes, I appreciate Mr. Parsons’ comments. It is such a sensitive area, I guess anything that seems to touch on the benefits, in the broadest sense, may be open for public commentary and so on. I think in this particular case because we did that amendment, which I guess was last spring, I think the Commission is well within its rights to address the matter.

The amendment was to - I think it is in the briefing note. Yes, the second bullet of the briefing note, we added this exemption (a.1). That was the one - anything on adoption, pregnancy, parental leave as established by directive. So we added that to the act, giving the Commission the authority to issue a directive. It is not to say that there would not be public comments, but I think it is defensible; you can say the Commission does have that authority.

MR. SPEAKER: Ms Burke.

MS BURKE: I was wondering if Mr. Parsons wanted to follow up (inaudible).

MR. SPEAKER: Mr. Parsons, further commentary on the same topic?

MR. KELVIN PARSONS: Just a comment on that; just to follow up on that. You could have easily admitted section 16 to refer to the Members’ Compensation Review Committee.

CLERK: Yes, but we did not.

MR. SPEAKER: Ms Burke.

MS BURKE: I guess my comments are the fact that one time, no doubt, a Legislature was probably filled with men and these issues should have been addressed a long time ago. We often talk about how we want to have more females in the Legislature and we would like to get to that critical point were we influence decisions and policies at all levels. I think, as a Legislature right now, we have done really well. We have the Leader of the Third Party, Leader of the Opposition, Government House Leader, Deputy Premier. We have some very strategic positions right now filled with women. A fact of life is the fact that as we attract women, and young women, to a Legislature we will have to deal with these issues.

I think the time has come that we cannot sit on it and ignore it anymore and we have to come up with some policy. I really like the policy that was put forth right now. I do not necessarily disagree with the fact either that the members’ review committee should look this as well, because it falls in those parameters of benefits.

I am going to make a couple of suggestions. One is that as we review that report that we are going to bring it forward and accept or not accept, or amend or not amend anything, that we discuss that in relation to that. I would also have no problem knowing that right now as we make this decision, because we have to - we cannot let this go for another four years, because that could impact present members who are planning to have families or it could impact people who may decide not to seek election in the next election because of their family circumstances. I still would have no problem referring this out to the next Commission as well. We can make our decision now in view of the other decisions we have to make. We have to look at this issue, but if we feel that it should be reviewed by the members’ compensation and review commission, I would have no problem, when we strike the next one, that we adopt this as an interim measure until they can thoroughly look at it. They may improve this policy at that time or, I guess, they could come back and recommend we strike it down - but whatever.

I just think right now that it is critical. We have been faced with this a number of times. We have a number of sitting members who did start families as members; most were men, I think. Some of us adopted during the last sitting, or this present sitting, and we finally had somebody who gave birth during their time as a member, the first time in the history of this House. So we cannot let it go any longer. I think there are implications for even how we attract people to run for our Legislature.

I like Mr. Parsons’ comment that we do not make these rules usually without going back to that committee or the commission that we strike, and that it should go back there. I think in the interim, as we discussed that report that we have now plus this, we come forward and then because this did not go through that process, it should.

MR. SPEAKER: Further commentary?

I understand that we should put a motion forward. The motion is that we follow the recommendation made by the members’ ad hoc committee. It states, "Where a Member of the House of Assembly becomes a parent because of birth or adoption of his or her child, a deduction of $200 shall not be made under subsection 13(2) of the House of Assembly Accountability, Integrity and Administration Act for one…." We can reword this or leave it exactly as they put forward. We can either say: one regular sitting, or one spring or fall sitting of the House of Assembly within a year of his or her child’s birth or coming into his or her care.

Does somebody want to make that motion?

Made by Mr. Parsons, seconded –

Mr. Parsons.

MR. KELVIN PARSONS: I am not making it.

MR. SPEAKER: Made by Ms Michael, seconded by Ms Burke.

All those in favour, 'aye'.


MR. SPEAKER: All those against, 'nay'.

Mr. Parsons, in relation to this particular item?

MR. KELVIN PARSONS: You are going a bit fast for me here now, Mr. Speaker.

I agree with Ms Burke’s comments, and what I was going to suggest is that the recommendation or the amendment to the recommendation should actually say that this is an interim motion subject to future review by the next Members’ Compensation Review Committee.

MS MICHAEL: I was thinking that (inaudible) second motion.

MR. KELVIN PARSONS: However you want to follow it, but I think it should be tacked on here somewhere and let known that this is an interim thing until subject under review and it will be amended, modified or varied by the next Members’ Compensation Review Committee.

MR. SPEAKER: Okay. So as we will not be doing that on the fly, do you want to - I see some hands with further commentary, maybe we can bring it back to the next meeting with the motion clearly defined, or does the Clerk have one written now?

Ms Michael.

MS MICHAEL: As the mover of the first motion, I think I could very clearly move that we have agreed to the motion and the motion would be set out with the understanding it is an interim arrangement and that this issue will be forwarded to the next review committee, Members’ Compensation Review Committee for revision.

MR. SPEAKER: Okay, clearly stated.

The Clerk, further commentary?

CLERK: Yes, that is fine. Do you want to add the word regular spring and fall or - because we did not quite resolve that precise issue.

MS MICHAEL: (Inaudible) regular sitting.

CLERK: We could add regular and leave spring and fall. That might even be -

MS MICHAEL: Yes, regular spring or fall.

CLERK: Regular spring or fall, okay.

MR. SPEAKER: It has been properly moved and seconded, and everybody I think clearly understands the spirit of the motion.

All those in favour, 'aye'.


MR. SPEAKER: All those against, 'nay'.

The motion is carried.

I thank the Members’ Leave Ad Hoc Committee for their work and for their suggestion.

We now move to the last item on the agenda, and I will pass this particular item to Ms Lambe. It is the Position Classification/Reclassification briefing note.

Ms Lambe.

MS LAMBE: This one is a new position that is being classified in the Office of the Information and Privacy Commissioner and they also applied for a review or reclassification of another position in the office. As you know, we have set up a House of Assembly Classification Review Committee. So those two position descriptions came to the committee for review and subsequent classification.

The result of that review was that the new position, which was actually - the funding was approved in the budget for 2009-2010. That position, it is recommended that will be classified at the HL 18 level, the Mediation, Communications and Policy Officer for the OIPC. It is also recommended that the current classification of HL 26 should remain for the Assistant (Deputy) Information and Privacy Commissioner.

So those are the two items that we are looking for approval. There is an additional housekeeping item. The position of Director of Members’ Services, the former Director of Financial Operations, that position is still on the HR system, and in order for us to remove it from the system we need approval from the Management Commission. So it is more of a housekeeping item. The next page shows the actual recommendations that we are looking for the Commission to review.

MR. SPEAKER: Commentary?

Ms Marshall.

MS E. MARSHALL: Yes, I had one question. The Classification Review Committee, who is on that now? Do we still have, I think it is AEM Consultants? Is that the right name?

MR. SPEAKER: Ms Lambe.

MS LAMBE: Yes, Bert Meadus from AEM. Yes, he is still the chair of the committee. I am one of the members, also Sandra Mitchell-Cooney, the Manager of HR, and Victor Powers from the Electoral Office.

MR. SPEAKER: Further commentary?

If not, the motion is that: The Commission confirms as permanent the position of Mediation, Communications and Policy Officer with the Office of the Information and Privacy Commissioner effective April 1, 2009. The Commission confirms the classification of HL 18 for the permanent position of Mediation, Communication and Policy Officer. The Commission confirms the current classification of HL 26 for the position of Assistant (Deputy) Information and Privacy Commissioner. The Commission approves the abolition of the position of Director, Members’ Services, according to PCN 02381.

Could somebody move that motion?

Moved by Ms Marshall; seconded by Ms Michael.

All those in favour, 'aye'.


MR. SPEAKER: All those against, 'nay'.

The motion is carried.

That concludes the agenda. I am surprised, actually, that we got through the amount of business that we did, and even before the time that we had allotted. So I thank members for their indulgence and staff for their contributions. We will have to set another meeting. I think next week will not be a good time because I understand that members of the Compensation Review Committee will not be available. So, members can expect to hear us trying to get a quorum for a meeting probably following next week. We will survey the members, come up with a time and a date that is agreeable to most, and we will arrange a meeting at that time.

If there is no further business, this meeting is now adjourned.