The Review of Government Appointments Should Be Public

Integrity Commissioner J. David Wake recently indicated that he could investigate the Ford government’s appointments of people with whom the Premier’s former chief of staff, Dean French, had some form of association or, indeed, all previous appointments. (Mr. French resigned as the premier’s chief of staff after news of appointments initially broke.) However, Mr. Wake also stated that he could report only to the premier and not release his findings to the public. Yet the public has an interest in such cases, perhaps particularly one that appears to be so extensive, and not only in the appointments themselves, but also in how Mr. French could get away with so much under the premier’s watchful eye. Or was the premier’s eye so watchful? The public has a right to know that, too.

The idea that the premier is the one who can decide whether the Iintegrity commissioner’s report is released is contrary to the kind of transparent, open government for which an integrity commissioner is meant to be a safeguard. It is also inconsistent with the status of the commissioner as an officer of the Legislative Assembly. Furthermore, section 130 of the Public Service of Ontario Act, 2006 (“Public Service Act”) permits the Integrity Commissioner to make a report public.

In March 2019, the integrity commissioner released a report (“Re Ford Report”) about the premier’s alleged involvement in the appointment of Ron Taverner as commissioner of the OPP. The complaints leading to the investigation were about the premier’s conduct and thus were subject to the Members’ Integrity Act, 1994, which applies to MPPs. Mr. Wake found that the premier had acted at arm’s length and did not breach the Members’ Integrity Act, but also that the process of selecting the OPP commissioner had some “troubling aspects … that may have led, perhaps unintentionally, to a preference being given to one candidate” and recommended the establishment of a transparent process. (The commissioner found insufficient grounds to investigate a complaint alleging Premier Ford’s involvement in the dismissal of Brad Blair as the deputy commissioner.)

As a result of discovering that a number of appointments made by the Ford government involved people who had ties to Dean French, and who did not appear to be qualified for the positions, the interim Liberal Party leader requested the integrity commissioner to look into all the government’s appointments. The iIntegrity commissioner has accepted that he has jurisdiction to inquire into these appointments and others; this would also include the conduct of the premier’s former chief of staff. Public servants are in part defined by section 47 of the Public Service Act as persons employed to work in a minister’s office. Under section 14 of O. Reg. 382/07, dealing with conflicts of interest, the premier’s chief of staff holds a “designated senior position” as a public servant.

According to Global News (and other outlets), “commissioner J. David Wake says in a letter to Fraser that if he investigates the conduct of Dean French – who resigned as chief of staff last month – under the Public Service of Ontario Act, he has no legal authority to release any conclusions publicly.” The commissioner stated that he could notify only Premier Doug Ford of the results of any review. (Mr. Ford’s office has said that it would be reviewing all appointments, but others believe an external review would be more appropriate.)

The responsibilities and powers of the integrity commissioner are set out in the Public Service Act. Among the purposes of the Public Service Act, the following are particularly (although not exclusively) relevant when considering the appointment process and quality of appointees:

1. To ensure that the public service of Ontario is effective in serving the public, the government and the Legislature.
2. To ensure that the public service of Ontario is non-partisan, professional, ethical and competent.

5. To set out rights and duties of public servants concerning ethical conduct.

Unlike the Members’ Integrity Act, under which the integrity commissioner conducts an investigation, under the Public Service Act, the integrity commissioner’s authority to investigate a disclosure him or herself is limited and can occur only under certain circumstances. The default process is that the commissioner refers a disclosure to one of several people for investigation, specifically a deputy minister, any individual prescribed by the minister responsible for the administration of the Act (that is, the President of the Treasury Board), the chair of a public body, the Secretary of the Cabinet or an individual designated by the Premier (Public Service Act, subsection 118(3)). Mr. Wake will no doubt consider carefully to whom to make his referral of the disclosure of wrongdoing.

However, if the commissioner is not satisfied by the resulting report, he or she may refer it to another person or investigate him or herself (Public Service Act, section 122). (The person to whom the disclosure was referred may refer it back for specified reasons.) In contrast to the Members’ Integrity Act process, there is an emphasis on privacy under the Public Service Act, with section 112 requiring that the identities of those involved (“including persons who make disclosures, witnesses and persons alleged to be responsible for wrongdoing”) be “protected” “except where the interests of fairness require that a person’s identity be disclosed to one or more persons”.

On completion of the investigation, the integrity commissioner is to provide a report to the person to whom he or she made the referral under section 118; if that person referred the matter back to the commissioner, the commissioner “shall make the report to such other public servant as the Commissioner considers appropriate in the circumstances”. The commissioner is to provide a copy of the report to the relevant minister or body where the alleged wrongdoing occurred (section 129 (5)). Since the individual involved in these impugned appointments was the premier’s chief of staff, this is presumably why the commissioner has stated that he must report to Premier Ford.

The Office of the Integrity Commissioner’s website summarizes the process as follows:

• Refer allegations of wrongdoing to an appropriate senior official within government for investigation and review the results of those investigations.

• Make recommendations and monitor corrective action taken or commence an independent investigation.

Importantly, under section 130 of the Public Service Act, theiIntegrity commissioner may also make reports public if, in his or her opinion, it is in the public interest and must make sure that it is accessible to the public. Furthermore, “Where the Integrity Commissioner makes a public report, he or she shall also deliver the report to the Speaker of the Assembly, who shall lay the report before the Assembly at the earliest reasonable opportunity.” (Some information may be removed for privacy reasons.) There are also provisions relating to the reporting to the person who made the disclosure.

Mr. Ford emerged unscathed from Mr. Wake’s review of the Taverner appointment. Although he was not investigating Mr. French’s conduct in that investigation, Mr. Wake expressed some concern about Dean French’s role, including what could be described as a “hands-on” involvement consisting of being kept up to date on developments. For example, Mr. Wake expressed concern about the email exchanges between Mr. French and the Secretary of Cabinet:

What I found most disconcerting in all the evidence were the text messages from the Secretary to Mr. French as to Mr. Taverner’s progress throughout the process. There seemed to be a tacit acknowledgement by the Secretary that Mr. French was rooting for Mr. Taverner’s success. Anyone examining these messages would have serious doubts as to the fairness of the process to the other candidates. (Re Ford Report, para. 241)

Furthermore, although the evidence about how close Mr. French was with Mr. Taverner was not clear, the Secretary thought that it was sufficiently close that Mr. Taverner was the preferred candidate. It cannot be ignored that when the premier’s chief of staff is sending out particular messages, it is not unreasonable to think that these are aligned with the premier’s wishes, although, of course, the chief of staff may consider that his wishes supercede those of the premier, if the premier fails to hold him to account. Otherwise, the chief of staff’s conduct can give the premier “plausible deniability”.

Whether Mr. French did have a close relationship with Mr. Taverner and whether he was acting as the premier’s proxy, there is no question that the current impugned appointments do lead back to him in some way or another. For example, one of the most blatant examples is that of the young man appointed as the agent-general to New York state, a position intended to develop business with the state; he was a friend of Mr. French’s son and had a connection with Mr. French through lacrosse. Although the government claimed that this individual as having financial experience in New York, The Globe and Mail reported, “According to his LinkedIn profile, his only U.S. work experience was as a sales and trading intern in New Jersey for a summer during university”. This was one of the appointments in particular that triggered questions about the process. Other appointees appear to have been more qualified for their positions, but nevertheless had ties to Mr. French.

The Re Ford Report contains helpful statements in the context of Mr. Wake’s inquiry under the Members’ Integrity Act that might be helpful in the investigation of the process of hiring and conflicts inherent in the selection of individuals who were associated with Dean French. Friendship in and of itself may not be a problem, but, for example,

[i]f there is no objective basis for a decision this will be a factor leading to a conclusion that the decision was made for an improper purpose. To take an extreme example, if a minister were to appoint their best friend as the OPP Commissioner, when that friend has never before had any experience with policing or held any kind of police post, then the decision would point towards impropriety. (Re Ford Report, para. 319)

It is of interest that many of the individuals who gained appointments with the Ford government were not necessarily close to Mr. French himself, but close to others with whom Mr. French was close. Mr. French, the circumstances of the appointments suggest, was happy to show he could do favours for others. For instance, one appointee was Mr. French’s niece by marriage; she was appointed to the Public Accountants Council, the spokesperson for which stated she was well-qualified to be on the Council, the National Post reported. Other appointees included a lawyer who had been Mr. Ford’s lawyer on the Taverner investigation and had represented Mr. Ford’s late brother, Rob Ford, and is representing Mr. French in a defamation suit brought by Mr. French.

Although the premier has apparently intended “cleaning house” by removing many of the appointees sponsored by Mr. French, or at least giving the impression that this is the case, it is not clear that this addresses the scope of the questionable appointments. Mr. Ford has also ordered a review of “pending” appointments and The Globe and Mail reported, “[a] spokeswoman for Ford says in addition to a review of pending appointments, if any past appointments are found to have been made for the wrong reason, they will be revoked.” Nevertheless, Mr. Ford appears to believe that the problem has been resolved now that Mr. French has left the government, criticizing media asking questions about Mr. French’s departure as being “‘into the weeds'”.

The public has an interest in ensuring that competent individuals are appointed to positions designed to advance Ontario’s interests; they are entitled to believe that there is a fair process for determining who holds these positions. Sometimes, as Mr. Wake points out in Re Ford Report, an individual is so clearly qualified for a position, particularly a senior position, that an appointment outside a process is not a problem. Indeed, in such cases, the general response might be that the government is lucky that the individual is prepared to contribute to the public good. And as Mr. Wake also points out, friendship should not be a barrier to an appointment if the person is qualified. However, when certain appointments, among many that have been made with people with ties to a particular individual, are clearly inappropriate, all the appointments become questionable, especially when it seems that no one was checking in on Mr. French’s appointment spree. Or that no one had concerns about it.

We do not actually know what Mr. Ford — or anyone else who might have had responsibility for appointments — knew about the appointments or whether he simply left Mr. French to go off on a frolic of his own. Either way, he is not immune from consideration of his role — or lack of it. Any report, whether by Mr. Wake or another body, needs to be made public. Mr. Wake appreciates the need for public airing of this kind of matter. He stated in his Re Ford Report that, although he did not hold a public inquiry (he could have held a public inquiry, but explained why he did not), he chose to write his report acknowledging,

…this matter has attracted considerable public attention in the legislature, the media and within the public service, including the OPP itself. Since my fact gathering was not done in public I have abandoned the first rule of judgment writing which is to “reduce the statement of facts as much as possible. The only essential facts are those that are necessary to decide the legal questions at hand.” Instead, when I deal with the evidence and the findings of fact below I will forsake conciseness for the sake of completeness and transparency. (Re Ford Report, para.17)

The Public Service Act appears to permit the integrity commissioner to make a public report and it is important in a democratic system that where there appears to be an extensive network of appointments engineered by a particular person, and perhaps especially when that person is the close confidante of the premier, the public is fully informed about the appointment process.

Comments

  1. Maybe they can look into how I won the competition for my tribunal job nine months ago and why no OIC was ever issued.

Leave a Reply

(Your email address will not be published or distributed)