Nothing more will happen with respect to the severance of former Nalcor CEO Ed Martin.
Most people will just feel dismay over the role of the Premier and the former Nalcor Board in the affair. They will also let the Auditor General's Report compound their distress and chalk up to immature institutions those things they associate with poor public administration.
Still, Ed Martin’s severance and the handling of the issue by the Auditor General (A-G) deserve comment.
In the first place, the political furor that followed news of the payment forced Premier Ball to refer the issue to someone. It didn’t have to be the A-G.
Ball chose the accountant when someone schooled in the law — preferably a Judge — would have been a more appropriate adjudicator.
It suited Ball’s interest not to have his bungling illuminated. The Premier didn’t even include in the A-G’s Terms of Reference an assessment of his own culpability in the affair. The Order-In-Council simply asks the A-G to “… inquire into and report on the appropriateness of the severance benefits received by Mr. Edmund J. Martin.” Ball had chosen the right Office. The A-G’s unschooled inquiry into the Humber Valley Paving affair still aggravates.
Undermining the A-G, on the other hand, is his construction of a concept called “constructive dismissal”. The A-G states that “the Executive Employment Agreement does not contemplate termination without just cause by anyone other than Nalcor” but he doesn’t tell us why grounds for “constructive dismissal” need not have a Nalcor origin, too.
Conveniently, the A-G decided that the Government’s failure to give Ed Martin public fealty was the central issue. Even the former Nalcor Board is let off the hook, though they demonstrated their lack of professionalism in having failed to let the incoming Board — one with possibly fewer personal ties to the payee — deal with the matter. And the A-G should have noted the behaviour.
Nowhere in the A-G’s Report is there reference to the fact that Martin had become a menace to the public treasury. The A-G fails to weigh Martin’s unwarranted recommendation to sanction Muskrat or his bungling of the project.
Isn’t the rise in project costs from $6.2 billion to $11.7 billion evidence, not of accomplishment deserving reward, but of monumental failure and incompetence? Martin wasn’t pouring cement. He was the CEO. His tenure was a disaster. But for the A-G it seems not to have mattered.
Former Nalcor Chair Ken Marshall uses the A-G’s Report as a weapon, claiming it vindicates the former Board members. Likely it never occurred to him that a prudent Board might have fired Martin long before a quisling Premier paid him deference.
“Constructive dismissal” is defined by one source as “a fundamental violation of the rights of an employee, by the employer, so severe that the employee would have the right to consider himself as dismissed, even though, in fact, there has been no act of dismissal on the part of the employer.” A basic requirement of proof of such a violation, however, is described in Volume 16(1b) of Halsbury's Laws of England, (2005, 4th Ed), page 91: “The employee must leave in response to the breach of contract."
Ed Martin did no such thing.
Instead, he wrote a syrupy “retirement” letter for public consumption, claiming it was a “natural time for me to move on to the next stage of my life.”
Were they not the man’s own words? Had he not spent days on lyrical construction, having forsaken the 'bricks and mortar' kind?
Has the A-G no soul? Was he so mired in legal constructs that he failed to notice that Martin — already gone down in infamy — now sought resurrection in an enterprise more in keeping with his skills?
The A-G must have known how Nalcor likes to give grants to the arts community — presumably to shut them up from commenting on Nalcor's worst excesses. How could he not see that he had dismissed Nalcor's very own incarnation of Robbie Burns — the bard of Muskrat Falls?
I expect, though, the subtlety would not have been missed by a Judge.
No Judge would have found a “natural time… to move on” compatible with the notion of “constructive dismissal”.
The A-G is rightly due criticism. The Report does nothing to exhibit either the intellectual depth required of his Office or the moral courage demanded of government institutions.
That said, the A-G did not cause the province to be out of pocket. He is only culpable for having advanced the Peter Principle.
And, speaking of Peter: the comments made in a June 2016 post entitled "Reflections on the Severance Issue" still apply. I suggested then that “a busy Premier doesn’t waste time on poor performers… Ball’s naiveté… was that when Ed Martin issued the ultimatum, he didn’t cut him off at the knees — that when the issue of severance, and his dignity, was raised the Premier didn't take his keys and escort him to a waiting Jiffy cab!”
Predictably, I also opined: “Before this Premier ever gets asked to leave for being untruthful, he needs to answer for his stupidity.”
Of course, I might have added that the former Nalcor Board ought to have been stuffed into the same Volkswagen!
As recently as Wednesday Ken Marshall could be heard saying that Dwight Ball asked him to stay on. In the House of Assembly, Dwight said that the Board should have resigned and let the new Board decide on Martin’s termination. The Premier cannot have it both ways. Now the Premier says that he accepts the A-G’s conclusion. He said the opposite a few days ago.
Weak leadership among governmental institutions and the boards of crown agencies give offense to the very idea of a professionally-run government. The Premier’s job is to provide leadership, to help set standards of public administration, and to find the best people available to maintain those standards.
When the Premier himself is a big part of the problem, the public can only expect more of the same.
We could demand, as David Vardy has argued, that the severance issue be reviewed by a judicial inquiry.
But when a Premier can’t even deal with someone of Ed Martin’s ilk, an inquiry with spine is not the first thing that comes to mind.