Tuesday, 31 May 2016

ED MARTIN'S ALLEGATIONS NEED SCRUTINY OF A JUDGE

The release, yesterday, of a statement by fired former Nalcor CEO Ed Martin underscores a concluding comment contained in Monday’s Uncle Gnarley Post. It is this:

“That he (Premier Ball) would afford a bunch of Danny Williams’ cronies, including Ed Martin, such power over his own political future, giving himself no protection via a paper trail and having failed to disclose the firing on the heels of Martin’s ostensible retirement, constitutes one of the worst acts of political stupidity since Dunderdale declared DARKNL ‘not a crisis’.  

Ed Martin’s written recollection of the two meetings (April 17th and 19th) held with the Premier might give rise to an expectation that Dwight Ball is able to refute Martin’s assertions with the release of his own notes or ones taken down by his own officials.

The Premier could produce nothing of the kind. He is left standing by an inconsistent verbal record, unwilling to release even the Department of Justice opinion on the issue, having promised to so do. He does not afford even a peek into his claims of truthfulness or give us reason to have confidence in his integrity or his leadership.

While the Premier can be condemned for engaging in behaviour pundits call “amateur hour”, it would be unwise to bring the curtains down on Premier Ball just yet, even if any latitude the Caucus or the public may yet afford him is very slim.

Such a caution is warranted for essentially two reasons:

First, Ed Martin has acknowledged he engaged in a charade with the media and the public. The former CEO wrote: “…reiterating my offer to stay on provided the constructive dismissal issues were reasonably mitigated, I choose to accept the government’s decision and depart gracefully by stepping down.”

“Departing gracefully” hardly seems the same thing as fired, does it? When is a lie a euphemism for the truth? Yet both men stood at their podiums and declared Martin had voluntary retired.  

Martin proceeded to say in his two page release: “…I cannot stand by, from a values perspective, and allow the lack of clarity to impact the integrity of board members…” Unless you count deceit as a value, the sophistry takes your breath away!

Second, who communicated to the Nalcor Board any decision taken during Ed Martin’s final meeting with Premier Ball?

Did the one who was fired, the one seeking the gift of severance, give those instructions to former Board Chairman, Ken Marshall?

Or, did the Premier, his Minister, or the Chief of Staff advise Ken Marshall of the Government’s position and, through him, ask the Board to comply?  

The Premier says he did not have a conversation about severance. The Minister of Natural Resources says she did not “have a conversation with Mr. Martin or the Board Members on severance….” The Premier should confirm whether his Chief of Staff or any other person in his Office communicated with the Nalcor Board on the issue.

Until we discover if it was only Ed Martin who issued instructions to the Board, or if the communications occurred via the Premier or someone connected with him, Ed Martin’s written cry of righteousness is an indictment of himself as much as it is of Premier Ball.

Still, Martin’s missive hardens the view someone is either lying or trivialized the $1.4 million severance. The Premier, too clumsy by half, is unable to extricate himself from suspicion.

Ball is not helping himself when he should be fighting for his very survival. 

He confirms that we have reason to be suspicious of him and to doubt his integrity having asked the Auditor General merely to report on the “appropriateness of the severance benefits received by Mr. Edmund J, Martin…” That is a matter quite distinct from whether the Premier approved the severance arrangement, and whether he lied to the public about it.

The issue involves legal questions to be sure, but even more than the money central to the issue on the public’s mind is whether this Premier is a person of integrity.

The A-G is not equipped to ferret out the issues which cloud that question. It is doubtful he has broad enough powers of inquiry to get to the bottom of the severance issue itself.

The A-G can determine whether, in having granted the severance payment, the proper financial controls were adhered to under various policies and procedures.

But can he establish that under law the severance was legal?

Given he is an accountant and not a lawyer, can he establish the entire sequence of events which led to the payment to Ed Martin, to the decision which saw the Premier make a false public statement, and to the Premier’s subsequent denials he approved severance or ever discussed it?

The Government’s asks the A-G to determine the appropriateness of the severance payment under Section 16 of the Auditor General Act. But it is under Section 18(1) where the A-Gs right “to examine a person on oath or affirmation…” is found, and only then “on a matter pertinent to an account submitted to the auditor general for audit…” It is not certain at all whether the Government’s request is an ‘an account submitted for audit’.

Anyone who reads the A-G’s review of the Humber Valley Paving affair will readily see why he should be excluded from matters outside the accounting field. Not the calculator, but the right to subpoena evidence and conduct a cross examination of witnesses are the tools used in the search for truth. Lawyers and judges serve the purpose well. Ball's reference, in the House of Assembly, to "interviews" the A-G might undertake as opposed to "cross-examinations" suggests he misunderstands the process, else he has taken bad advice.  

Indeed, the job given the A-G is best performed by a former Judge whose retirement has not diminished his legal scholarship, experience, or independence. Ball also has the option of referring the matter to a sitting Judge. 

If Ball is unafraid of the outcome, he will beg the A-G to defer to a Judicial Inquiry. That is really the only process that will get at the whole truth and restore public confidence in the government. 

On the other hand, if Ball digs in his heels, cowering under public outrage, he will receive no relief from this political nightmare.

At the very least, the Premier must give the A-G a wider terms of reference as well as better suited and unfettered powers of inquiry, specifically under the Public Inquiries Act.

Overt transparency is Ball’s only hope of political salvation. The Premier is a man hanging on a thin thread of credibility. It is barely greater than Ed Martin's.

He can hide behind an ill-equipped A-G for now. 

But soon we will hear from the former Nalcor Board Chairman, Ken Marshall; likely no friend of his. And the questions will begin again.

Then, too, the Liberal Caucus has a role to play to play in how long Ball survives. If there is a modicum of wisdom among that group they will dictate the terms under which Ball is permitted to stay. What affects him affects them. 

Unless they are willing to practice politics under an atmosphere of distrust, they will insist that he call an inquiry under the Public Inquiries Act or move aside. 

Ed Martin's allegations are of a kind that not just threaten Ball's but their political survival, too.

22 comments:

  1. Very good post. The AG has no power to compel testimony or subpoena witnesses. This is not only a testament to the foolishness of the current situation, but a reminder that the people running government appear to have no idea how government is actually supposed to function - disturbing trend at least 15 years in the making in this province.

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  2. The constructive dismissal element has not been discussed in any detail here or elsewhere. It would be interesting to get a legal opinion (I'm sure Uncle Gnarley knows a lawyer or two...) as to whether a person in Mr Martin's position could reasonably claim constructive dismissal, given the expressions of lack of confidence in Nalcor from the Premier & Finance Minister. Perhaps the undocumented legal advice to the Nalcor board was along the lines of "If Mr Martin sues Nalcor (or the govt?) for constructive dismissal, he has a good case and it will likely cost us more than $1.4m so we should pay him his severance"? Perhaps Mr Ball got the same advice.

    Of course that doesn't excuse the utter ineptitude, evasion and confusion on the subject coming from the govt and the Premier in particular. Nor does it excuse the laughable fantasy in Mr Martin's resignation letter about how he's built Nalcor as the legacy fund for the province. Such hubris shouldn't really be a surprise from a leader of an organisation that truly believe they are world class, when the facts rather speak otherwise.

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    1. Anything that insists on running around calling itself "world class" is not world class.

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  3. I am truly thankful for this blog and you des. You are the only one left (it seems) that really cares for the province and it's people. We can see through the government, and social media will keep them honest (I hope) or atleast keep the pressure on. I have totally lost faith in this government, and am absolutely disgusted by the recent events. He needs to step down immediately. Again thank you. The media is certainly not asking the pertinent questions. Keep up the fight.

    Signed:
    A true Newfoundlander that's smarter than the government thinks.

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    1. What are these pertinent questions?

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    2. If I have to tell you, then you either have no clue yourself? or are a supporter? which is it?

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  4. Seems like Mr. Ball opens his mouth only to change feet.

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  5. Ed Martin's public statement on April 20: "I’ve thought about the work that has been done, and when would be the natural time for me to move on to the next stage of my life. Today, I have come to that time and I will be stepping down as President and CEO of Nalcor Energy."‎

    Ed Martin's pubic statement May 31: "I met with the Premier, his Chief of Staff and the Minister of Natural Resources on April 17. I felt I had been effectively undermined and prevented from fulfilling my role‎ (i.e. "constructive dismissal") following the comments made about Nalcor Management during the budget presentation and subsequent related public commentary..."

    So which is it Mr. Martin? You ‎can't have it both ways. But either way, you have no credibility now even if the latter statement is the truth.

    As for you Mr. Premier and you Madam Minister of Natural Resources‎, the fact is you both met with Mr. Martin and had much more information than you told the public you had. And it wasn't just prevarication that you both indulged in; it was an outright attempt to deceive the public. That is an unforgivable offense that the public of this province cannot accept. Neither of you have a shred of credibility and you have gone out of your way to demonstrate that you cannot be trusted in these most important leadership roles. Both of you have to go.

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  6. I see, Uncle Gnarley, that you have goaded Ed Martin into playing the ego card. It didn't take long for him to take the bait. ‎It's indicative of the size of his ego, but that's a whole other matter. Now he has made himself look even worse than if he had stayed silent. What a fool. As for the other two geniuses, they are unsuitable to hold the offices of Premier and Minister. Bloody hell, is there anyone involved in this tawdry affair that understands the old adage: 'It is better to remain silent and be thought a fool, than to speak up and remove all doubt.' We have to give these two puerile incompetents the boot.

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  7. Some are quick to call for Balls resignation. And replace him with who? Bennett? Byrne? DAVIS?. If Ball resigned, what then? The problem still remains unresolved. I think Ball needs to come to terms with the fact that he is the BOSS. Grow a pair & take charge.... And while you're at it, get some competent executive staff. Explain why you got tangled up in this mess - that poison pill - that sweetheart contract gifted to Martin by Williams. He should have fired Martin on the spot for incompetence. The public would have cheered him.

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  8. Sophistry....the art demonstrated by a person who has talent to twist a lie into a virtue. So goes Ed Martin and Premier Ball it seems, and a fitting word to describe these men. Such were the class of public con artists that condemned Socrates to death in Athens. It was an art form for those in the public forum, and seems to work well, unless exposed by standards of real virtue, as expressed by Socrates. SO much for my slight understanding on that deep subject, for which I have no formal training.
    Martin declares that Nalcor is to be our heritage fund,in 50 years or so, as Nalcor in fact edges us toward bankruptcy.... he having exited with his heritage fund in hand. What difference does a million or so make as they bleed the treasury dry. Entitled to their entitlements, right.
    Nfld history... a Greek type tragedy in a way.
    I read that we once had a wise and respected Prime Minister, Bond, who put up his own money to assist the country during a financial crisis. I bet hardly one in a hundred Nflders know he existed. Integrity of character is not much prized in selection of our leaders, nor in the teaching of our history. He eventually quit politics due to the level of corruption here.
    What is our recourse.... other than: God Save Thee Newfoundland.
    Winston Adams

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    1. Our recourse...?? Well the "executives" are not likely to clean up their own sty, now are they? Indeed, have they ever?

      Des has eloquently explained the answer for this province...

      The rule of law! Call the cops so to speak. Or to put it more into the context of today's NL politics scene.... "Wahhh, I'm tellin Mom." and at this point we should ALL be wailing plenty loud. But the babysitter (A-G) doesn't have the power to discipline....

      The Attorney General needs to be called in to sort out what the Auditor General very likely cannot and/or will not.

      You fight corruption with law and law enforcement. Let us correctly identify the problem first, then apply the correct methodology.

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    2. But the Attorney General in this case is Andrew Parsons the son of Kelvin Parsons who works in the Premier's Office and was reported to be at the meeting involving the severance issue.
      A little close for comfort in the conflict of interest dept.Don't ya think?

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    3. I totally agree if the Auditor General cannot figure it out then call in the Attorney General!!!

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  9. So Muskrat Falls is a good deal? You think? If you had a gross pay cheque of $825 but the take home was $100, would you work for that employer? Muskrat Falls 825 MW at riverside, minus 20% given away to Nova Scotia for 35 years. minus 10% (IR) loss on a 1,200 km transmission line to soldiers pond substation, minus 450 MW Holyrood shut down equal about 100 MW. Muskrat Falls 60 times more expensive to build than the Upper Churchill on a kW-hr basis. The Upper Churchill never cost the NL taxpayers a dime to build, all build by BRINCO, a private company. So you agrees with all of this? . . . Along with his severance package, worth about $1.4 million, Ed Martin received a lump-sum "supplemental executive retirement plan" payment of about $4.7 million. He'll also get a public service pension plan, worth about $95,000 yearly. Hmmm, good deal? Good deal for Ed Martin. I'll wait to see what the Auditor General has to say.

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    1. I think Ball got played big time by Dannys boys, the Nalcor Board. Instead of firing Martin immediately, Ball allowed himself to be talked around to permitting Martin a so called graceful exit. Ball naively walked wide eyed into a trap orchestrated to create political turmoil. Once in & embarrassed, he tried to bluff his way out. The trap was sprung & now he wears the mess. To understand this, you have to go back to the beginning & the crafting of the contract by the Williams govt. The contract was a grotesque gift to Martin with no concern for the public finances. It simultaneously was a ticking time bomb for the Liberals. The Board knew after Dannys departure, their shelf life was limited. I wonder how many have share in Emera, with the hope they will skyrocket once Emera seizes control of the Muskrat for pennies on the dollar. Well played boys...Well played indeed.

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    2. Does anybody know how many multi-millionaires have been created since the mid 1990s in Newfoundland and Labrador. Surely there are many politicians and their appointees, who have become very rich from the contracts struck in Newfoundland and Labrador by those so-called governors who were supposed to be taking care of the electorates, who elected them to take care of business for their province and its electorate. I am sure the said multi-millionaires are salvatating and rubbing their hands together waiting impatiently to invest their monies now into P3s, another scam that will shaft the elctorate of Newfoundland and Labrador and bankrupt our province further. Are we ever going to learn from all the shaftings that we have had perpetrated on us and take action the against the scammers?

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    3. Said it before and will say it again. Rogues. The lot of 'em. Back when a certain businessman was running, his supporters said government could and should be run like a business. These rogues had no business bringing personal business and gain to the table. I'd pay another tax levy if it meant that prosecution could be sought after.

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  10. Anonymous of 1 June at 22:39 Yes, indeed, Rouges, and why is it that our electorate has attracted so many of them over the past 68 years? Is it because the Rouges perceived the Newfoundland and Labrador electorate to be naive? The Rouges not only stole our natural resources for their benefit, they have weaken our economy to such a state that now the province cannot service its infrastructure, it had to severely cut back medical services, take much needed schools out of service, apply taxes on every commodity and service and apply an exorbitant levy on all households, all the while those in charge are appointing people with no expertise in what they are appointed to oversee and giving them multi million dollar packages for incompetence.

    Sent from my iPad

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    1. I 100% agree. History has shown us time and again that we've paid for incompetence. I realize that no politician can please the masses on the whole but would take a politician who can please half the time while being honest all the time over what we've been served up. To everyone who says democracy is alive and well, I scoff. We have 3 parties that are not at all up to the task – lacking in vision and driven by personal gain. 3 parties where the choice is bad, worst or in the case of RED, horrendous. When MHAs are fearful of standing up for their constituents, democracy IS indeed lost. So to will their political careers in 3 years time. I am of no particular strip and call it how I see it.

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  11. Dear Uncle Gnarley:

    I know from your 23-May-16 post (Premier Not Telling the Truth...) that you are "all lawyered up" but you and legal team are wasting valuable time parsing the language of the Executive Employment Contract.
    In Canada & NL, any employee can be terminated with or without just cause. If an employer wants to do the latter immediately, he should pay the employee what he likely would have obtained in court. This practice is usually supported by Employment Standards Legislation and a very large body of case law. Many factors are considered but two years wages & benefits is not unusual.

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    1. This is not about what the contract says; it is about the fact that all the parties (Martin, Ball, Coady) didn't feel the need to tell the truth. If fact, it speaks to the stupidity of Ball and Coady. If they has simply came out to the public and said that they had fired Martin, the people of NL would have cheered, patted Ball on the back, and the matter would be behind us. Instead, they felt the need to lie to the public. That's it.

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