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.
