6, 2009 HOUSE OF
ASSEMBLY MANAGEMENT COMMISSION No.
The committee met at 5:30 p.m. in the Chamber.
MR. SPEAKER (Fitzgerald): I would like to welcome members of the House of Assembly Management Commission.
We will start as we do every regular meeting, for the benefit of those who are viewing by the medium of television, to have members introduce themselves.
Before I do that, I just wanted to welcome - and he will have a chance to introduce himself - a new member to the Management Commission, the hon. the Minister of Finance and President of Treasury Board, Mr. Kennedy.
I will start to my immediate left with the Deputy Speaker, and we will ask the Members of the House of Assembly and the members of the staff of the Legislature to introduce themselves.
MR. T. OSBORNE: Tom Osborne, St. Johnís South.
MS E. MARSHALL: Beth Marshall, Topsail.
MR. KENNEDY: Jerome Kennedy, Carbonear-Harbour Grace.
MS BURKE: Joan Burke, St. Georgeís-Stephenville East.
MS JONES: Yvonne Jones, Cartwright-LíAnse au Clair.
MR. KELVIN PARSONS: Kelvin Parsons, Burgeo & LaPoile.
MS MICHAEL: Lorraine Michael, Signal Hill-Quidi Vidi.
MS KEEFE: Marie Keefe, Clerkís Office.
MR. MACKENZIE: Bill MacKenzie, Clerk.
MS LAMBE: Marlene Lambe, Chief Financial Officer.
MR. SPEAKER: My name is Roger Fitzgerald, the Member for Bonavista South, in my capacity as Speaker, being the Chair of the Commission.
The Commission met in an in camera session and have made certain decisions. Two of those decisions will now be read into the record.
One of the items discussed was the position classifications and reclassifications, and it was confirmed in a private session, an in camera session of the Commission, and I will now read into the minutes the recommendations that were unanimously passed.
The Commission confirms as permanent the nine positions of: Assistant Payroll Administrator; Committee Researcher; Policy Planning and Research Analyst; Information Management Analyst; Financial Management Analyst; Access to Information and Protection of Privacy Co-ordinator/Privacy Analyst; Sessional Broadcast Technologist; Advocacy Services Specialist; and, Access and Privacy Analyst. Those positions are to be effective April 1, 2009.
The Commission also confirms the position classifications recommended by the Classification Review Committee for the four permanent positions of: Assistant Payroll Administrator; Committee Researcher; Policy Planning and Research Analyst; and Information Management Analyst as noted in Appendix A which accompanies the manual that has been made known.
The Commission confirms the position classifications recommended by the Classification Review Committee for the two temporary positions of: Records Technician and Records Clerk.
The Commission confirms the position reclassification recommended by the Classification Review Committee for the position of Executive Administrative Assistant/Office Manager, Office of the Information and Privacy Commissioner, to be effective January 16, 2009, and confirms the change in title from Executive Administrative Assistant/Office Manager to Business Manager as recommended by the Classification Review Committee.
The Commission also confirms the position reclassification recommended by the Classification Review Committee for the position of Administrative Officer in the Office of the Citizensí Representative effective February 11, 2009, and confirms the change in title from Administrative Officer to Office Manager as recommended by the Classification Review Committee.
The Commission also confirms the position reclassification recommended by the Classification Review Committee for the position of Payroll Administrator to be effective February 13, 2009.
The Commission also confirms the position reclassification recommended by the Classification Review Committee for the position of Policy and Communications Officer to be effective April 9, 2009.
The Commission also confirms the current classification of the position of Clerk Assistant/Assistant of Committees as recommended by the Classification Review Committee.
Also in our in camera meeting there was some discussion regarding engaging outside legal counsel for the Legislature, and the method of payment, and how the Commission is made aware of what those costs are and how we engage legal counsel. The Commission made a decision that they would consult with the Department of Justice and bring some recommendations back for another meeting of the Management Commission to be approved at a later meeting.
The next item on the agenda would be the approval of the minutes from the March 18, 2009, meeting. Members have had an opportunity to review the minutes of the March 18, 2009, meeting which took place from 9:00 a.m. to 3:15 p.m. The minutes are written and have been clearly distributed to members. If there are no errors or omissions, a motion is in order to accept the minutes as distributed.
Moved by Ms Michael and seconded by Ms Burke that the minutes of the March 18 meeting be approved.
All those in favour, 'aye'.
SOME HON. MEMBERS: Aye.
MR. SPEAKER: All those against, 'nay'.
The minutes are accepted.
On motion, minutes adopted as circulated.
MR. SPEAKER: The next item on the agenda will be the authorization under section 43 from the Membersí Resources and Allowance Rules and it is for travel. This is for reporting purposes only, which meets the test of the legislation, and it is for the hon. the Member for the District of Torngat Mountains. It is where flight schedules required the hon. member to overnight in Goose Bay en route to the memberís home in Hopedale. This has to do with flight scheduling, and many times for weather as well. The total cost is for meals and accommodations for April 2 and April 3, at a total cost of $144.47.
The next item on the agenda will be, again, reporting, and it is Delegated Authority Respecting Financial Matters. The Commission, at an earlier meeting, agreed that should some financial matters arise and the Commission was not meeting, it did not have a meeting scheduled, that the Speaker would consult with the Opposition House Leader, the leader of the House of Assembly for the government, and also for Ms Michael of the New Democratic Party.
This has been done. The consultation took place, and I hereby report that four claims certainly met the test to be paid, such that the claims were over the sixty-day deadline, which we have made a rule on here at the Commission. Because of that we had to have consultation in order to pay the bill; and, with another one of our rules, where those bills had to paid before the end of April, because it was done in the last fiscal year, it had to paid before that date.
The hon. the Member for the District of Carbonear-Harbour Grace, for meals and accommodations, a total claim of $875, and the reason again was that it was past the sixty-day deadline; the hon. the Member for Cartwright-LíAnse au Clair, $708.48, constituency allowance event; the hon. the Member for Humber West, which was communications and a payment of Christmas cards, for $1,935.87; and, the hon. the Member for St. Johnís South for communications, Christmas cards and constituency allowance event for $907.54.
Those four claims are certainly eligible to be paid under the membersí allowances rules and I hereby report them. Having reported them, maybe we should advise members and probably send out another note to members, because members should try to make an effort to get their claims submitted within the sixty-day time frame and that way it will not have to be brought back to the Management Commission. It could be paid by the regular way that we pay our fees. That is for reporting purposes only.
MR. KENNEDY: Mr. Speaker, could I just ask something?
MR. SPEAKER: Yes.
MR. KENNEDY: Just where I happen to be new to the Commission, I am wondering if, for example, when I look at first Torngat Mountains, Ms Patty Pottle, Minister Pottle was on her way back, if I understand correctly, and she had to stay in Happy Valley-Goose Bay, is there a section of the rules - because I am reading up on all of this as we go along - that governs this, or does she have to come back to the Management Commission every time for $144?
MR. SPEAKER: The way it is written now is that a member - in this case we are talking about the hon. Member for the District of Torngat Mountains - any member, whether it is the Member for Cartwright-LíAnse au Clair who clearly represents an area that is not easy to access for quite a time, the hon. Member for the District of Burgeo & LaPoile, Fortune Bay-Cape la Hune - I can name a number of them Ė it is stated quite clearly in the House of Assembly Accountability and Integrity Act that should a member have to overnight en route to their home or their district then they have to phone either the Clerk or the Speaker in order to get authorization to stay overnight and get accommodations to be submitted on their constituency allowance.
We have talked about this and I am hopefully going to see either some policy developed here, or maybe again it might be an opportunity for the Membersí Compensation Review Committee to look at it. I do not see any reason - and I spoke about it here at another meeting - where I as Speaker, or Mr. MacKenzie as Clerk, are going to refuse anybody an opportunity to stay if there is bad weather or somebody is tired. It seems awkward to have to come and ask somebody permission to stay when they feel that, number one, they cannot make it for no reason of their own, or that they are putting their life in jeopardy, so it is an issue.
MR. KENNEDY: A second question, Mr. Speaker. I see, when we go to the next page, these claims are submitted past the sixty-day deadline. When I look at it, you have, both with the Member for Cartwright-LíAnse au Clair and the Member for St. Johnís South, constituency allowance events. Do we have to come to the Management Commission if it is an event or simply because it is outside the sixty days? And, is there a section of the rules -
MR. SPEAKER: No, it is strictly because it is outside of the sixty days. What they have charged is certainly an eligible expense, and it has been deemed to be eligible. It is just that the submission of the claims was over the sixty days.
Any other questions?
The next item on the agenda, and I am going to refer this one to the Clerk, is an item that has been on the agenda for a number of weeks now, or a number of meetings, and at the last meeting there was a fair amount of discussion that took place, and a vote as well. It is about recreating the 1999-2000 and 2000-2001 financial statements for those two fiscal years.
We have gone outside. We have talked to the Auditor General, we have talked to Comptroller General, and clear direction has been given as to how anybody could recreate financial statements where the information they are being provided with is by no means considered accurate and have no way to test what they are approving.
The Auditor General has stated in the past that there is nothing to be found - he has done those years - as far as implicating anybody of doing something wrong. He has reviewed those years in his determination of what has happened in the past, and he has dealt with what has happened in those particular years. We have gone outside, and they have indicated as well that they might take a couple of weeks to look at and report back whether it is something that they would want to do and if it is something that would be acceptable according to the accounting practices that they are supposed to live by.
At the last meeting there was a vote took place, and I voted to keep the matter alive and to find out from the Comptroller General what the cost would be of recreating those particular books. The Clerk has done a fair amount of work on this and has gone back to the Auditor General, and he has determined that the figures that he has brought forward are certainly very conservative figures and probably realistic up to the point of what the costs are for each item here that needs to be reviewed, but feels that the cost would even be much more than what he has put forward here.
So, while we are looking at a cost of $612,600, conceivably this could be closer to $750,000 to do a piece of work that nobody, in the end, would probably sign their name to as being accurate.
I am going to open it up for discussion again, and I think we will probably have another vote on this particular issue again at this meeting. If there are other questions that need to be asked, or comments made, I open the floor now.
MR. KENNEDY: I have had a look at this and, in reading the agreement for it last week, I was struck by the reference to those couple of years that are referred to here. What I would like is the opportunity, where this is my first meeting and I am new to this - I know that it has been ongoing for a while Ė I would not mind having another week or so to have a look at this because there is quite a significant cost here. If there is any way of looking into this I think it is something that we certainly should do, but I think we are going to have to balance the cost against the expected results. I wouldnít mind an opportunity to go back to the Green Report and compare it to what is said here, before I get put into a position to vote in relation to what we should do on this matter.
MR. SPEAKER: Further comments?
MS MICHAEL: Thank you, Mr. Chair.
I respect what Mr. Kennedy is saying, and I can understand that he wants to know what came before, but I do not know if it is enough to give him the information of what came before.
Maybe this will be helpful for him to hear. One of the reasons why it came to the point that it has come to, in terms of asking for the costing of it to be done, is because one of the things that was presented to us, and presented very clearly in the report that was done, was that it is almost, I will not say 100 per cent, but highly, highly, highly unlikely that there would be a letter of representation by management that one could ever get to go with the audit. Without that, an auditor is not going to take on doing the audit.
I was ready to vote, then, to say no. As much as I am concerned about those two years, the fact that even if we spend three-quarters of a million dollars it is highly unlikely that we would actually get an auditor to take it on. That was one of the major reasons why I was ready to vote at the last meeting.
I just feel it necessary to say that, so Mr. Kennedy will know why we have gotten to where we have gotten here tonight.
MR. SPEAKER: Further comments?
MS BURKE: Considering that this is an issue that has taken considerable time - we did have the Auditor General in - there has been a fair amount of analysis gone in to come up with some of these numbers, and this is what we asked for, to have a look at it. If we did extend it for one week, I am okay with that, but I am also of the opinion that we have got to deal with this; but I would be okay if it was the wish of the Commission that it be extended for one more week to allow the new member to get up to speed. There has been a fair amount of work gone into it. With the Auditor General coming here addressing us, there is a significant amount of work gone into this note. I acknowledge that, and I am anxious to deal with it as well.
MR. SPEAKER: Any further comments?
MR. KENNEDY: Mr. Speaker, I was not here. Obviously, I was not aware the Auditor General was in. I do know, in my reading of the Green Report in the last week, that some of the most serious criticisms of Chief Justice Green in his report, related to what had occurred in these couple of years Ė the seriousness of the matter is something that is obvious. We have had one man who has gone to jail. We have a number of other people who were charged and we have a couple of missing years, certainly. I would like the opportunity to familiarize myself before I vote on anything as serious as this, to determine in my own mind whether or not the cost can be balanced against the expected result. I am sorry, I am just not there at this point.
MR. SPEAKER: Okay. The chair will take guidance from the Commission. Is the Commission happy to, or satisfied to, extend it for another week? I think, again, it is a matter that cannot be kept being postponed. If we delay it till next week I think that should be the maximum that we delay it to, and the members should be able to make themselves familiar with the situation.
The hon. the Member for BurgeoĖLaPoile, Mr. Parsons.
MR. KELVIN PARSONS: Mr. Chair, I have no problem with extending it for a week. The only comment I would make is, I think we have done all the due diligence on this, going back some months. We had the comments from the Comptroller General and the Auditor General; we had them in here. I think the decision was made as to whether or not there was any point in going back to do it. I think the only issue that was raised, I do believe, by the Government House Leader, possibly, and the Member for Topsail the last day was: What would it cost to get it done?
I certainly have no problem. I think every member of the Commission deserves the right and the opportunity to be totally informed when they vote. I just want to make it clear, it is my understanding that that is what this is about here now, whether or not the cost of doing it was the issue, not whether we should or should not do it.
MR. SPEAKER: What I am hearing is that we will delay a decision on reviewing those two fiscal years until the next meeting, to allow the new member to come up to speed on what has happened in the past.
The next item on the agenda would be the Management Certification Internal Audit Report. This, again, was brought up at another meeting and it was a review of the Management Certification Contract and Related Documents. The Clerk played a big role in this, so I am going to ask the Clerk if he would make comments and lead us through this particular report.
CLERK: Yes. Well, I will not go through all the history of this. There were overruns in the Management Certification Contract that we had with a public accounting firm. That went through last summer. When we brought it to the Commission to approve the cost overruns, the Commission asked that the matter be reviewed by the Office of the Comptroller General, Professional Services and Internal Audit. The documentation was sent over to the Comptroller Generalís office and he began a review. They needed some responses from Grant Thornton to complete the work, so we actually only received this April 17, about two weeks ago. The report itself has March on the cover but you will notice with the covering letter that was April 17. We have had it for two weeks.
The Commission minute, as is pointed out in the briefing note, said to bring the results of the report back to the Commission. They are simply back to the Commission now for the Commissionís decision on where to go with the matter.
MR. SPEAKER: Any comments?
This has been discussed before and direction was given. Now the report is back from the Comptroller Generalís office. Do members need to make comments?
MS E. MARSHALL: I would like to speak to that, Mr. Speaker.
There are a couple of ways we can go with this. We could refer it to the Audit Committee because it is an audit report. I think that it is fairly straightforward, so the Commission could also decide to accept the recommendations and direct the staff to implement the recommendations, so it is really up to the Commission. Regardless of which way we go, I would like for it to end up with the Audit Committee whether before the decisions are made by the Commission or after.
MR. SPEAKER: Are you suggesting we refer it back to the Audit Committee for further direction, Ms Marshall?
MS E. MARSHALL: Not necessarily. It is up to the other members. I think the recommendations are fairly straightforward, but I would like to hear Mr. Parsonsí, who also sits on the Audit Committee with me, to hear his views on it. Either way, it would be acceptable to me.
MR. SPEAKER: Ms Michael.
MS MICHAEL: Thank you, Mr. Speaker.
I agree with Ms Marshall, that the recommendations are all very straightforward. I think the recommendations that are being suggested here, if put in place, will guard against this kind of incident happening again and that is what recommendations should do. They are not complicated. They are straightforward.
I certainly agree that if we are willing to accept the recommendations tonight, which I personally am - if the Commission is not and wants it to go to the Audit Committee first, fine. In either case, I certainly can see the reason for it going to the Audit Committee. Ultimately, the Commission has to approve it. I think that is enough. As I said, I think the recommendations do the work and I am ready to approve them. Either way it does not matter to me.
MR. SPEAKER: Any further comments?
MR. KELVIN PARSONS: The comment I would make, not that I do not feel comfortable with the Commission making the decision, I certainly would if that is the course of action that they follow, my only comment would be that we do have a specific Audit Committee which is intended, as per the Green legislation, to deal with issues of accountability, the Financial Administration Act, and so on. I just think, as a prudent course of action - because it is not just Ms Marshall and myself who sit on the Audit Committee, there are two outside lay persons who sit there. I think, rather than be perceived that we might have gotten this report from the Comptroller General and made our decision on the Management Commission, I think because we do have an Audit Committee, which this should be within their realm, I think as a prudent thing to do to ensure that we do have the oversight and guidance of those outside auditors on the Audit Committee, I think it would be prudent just to refer them to them.
I think we are going to end up with the same - it is going to come back here and I do not think there is any doubt that the Commission will recommend that the recommendations be implemented and followed. I just think as a prudent course of action we should refer it to the Audit Committee.
MR. SPEAKER: Ms Marshall.
MS E. MARSHALL: I would like to make a further comment to that. The Audit Committee is scheduled to meet I think it is May 20. So I can place this on the agenda for that meeting.
MR. SPEAKER: Okay, so the Commission will not deal with the recommendations now. There is no point in dealing with the recommendations if we are going to refer them to the Audit Committee. So a motion is in order that we refer the recommendations to the Audit Committee and have the Audit Committee submit back to the Commission their recommendations for acceptance or denial.
Does somebody want to make that a motion, that we refer the Management Certification Internal Audit Report to the Audit Committee?
MS BURKE: Yes.
MR. SPEAKER: Made by Ms Burke, seconded by Ms Michael.
All those in favour, 'aye'.
SOME HON. MEMBERS: Aye.
MR. SPEAKER: All those against, 'nay'.
The motion is carried.
I just jumped ahead of one particular topic there; I was following my binder instead of my agenda. The next item is the Membersí Compensation Review Committee update. At the last particular meeting, and in many meetings I guess, members of the public have heard us refer to the Membersí Compensation Review Committee, and that again provides authority to have a commission appointed to look at membersí allowances, membersí pensions, membersí severance pay and other benefits. It is to be struck during every Assembly. This is clearly written in the Green report where we have a fair amount of work already put forward even from this Commission for this compensation review commission to look at.
Ms Burke was going to bring back and give us a report on getting this commission appointed because it has to be done by resolution of the House and it has to be brought back to the House. Consultation is supposed to take place between me, as Speaker, between the Government House Leader, the Opposition House Leader and the Leader of the New Democratic Party. A resolution will be brought to the House, a commission will be appointed, and that particular commission has 120 days to report; brings it back to me, as Speaker, and I bring the report back to the Commission. The Commission plays no role in the appointment of this particular commission. It is all done by the four individuals that I just referred to.
Ms Burke, if I have not stole any thunder, you can go and give us a further update on what your thoughts are.
MS BURKE: Well, I guess - trying to put this in a logical format as to what is going to happen is, as Speaker, as you said, you will consult with the Government House Leader, the Opposition House Leader and Leader of a Third Party, but the appointments are actually made upon resolution in the House. So there will be a resolution that will come into the House that will do the appointment. Certainly, there are some opinions, I am sure, here on the Management Commission as to how that committee should be structured, and I am sure we all have some suggestions as to the way we could set this up that would be effective, that would restore some public confidence and do a piece of work that is certainly necessary.
I do not know if I should throw out some recommendations or if the others would like to speak as to how we would like to have this committee structured or Ė
MR. SPEAKER: No, I do not think you should because it does not involve the Management Commission as such. Even though it has always been raised here as a concern, because so many things have been coming to us in order to change the act, and we have been reluctant to do anything that is going to go outside the act at all. So my suggestion is, Ms Burke, if you do not mind, before we get the Commission involved in it, myself and you and the Opposition House Leader and Ms Michael can probably arrange a time to meet before the next Commission meeting. We will not be reporting back to the Commission but we will be taking it forward then, and maybe we would like to have some idea of the time line when you are looking at maybe this resolution could be brought to the House and that sort of thing.
MS BURKE: Well, okay, that is fine. Where there is indication that the Speaker will have to meet with the Government House Leader, the Opposition House Leader and the Leader of the Third Party, what I would recommend, if the others are inclined to support this, is that we meet as a group to have this discussion with the Speaker as opposed to doing it in individual meetings because I think there is probably going to be a fair amount of consensus as to how we may move forward here. If we could meet during this week, looking at the legislative agenda and where we are, I would certainly like to ensure that the resolution comes before the House in this sitting.
I do want to make one comment for the record, because as we bring the resolution forward we may need to address this as well. The first section 4 here says: The persons appointed shall complete their inquiry and deliver their report containing recommendations to the Speaker within 120 days of the committeeís appointment. I think that is a very reasonable time frame, that is four months, but when we look at it right now, that we are into the month of May, and it will be much later into the month of May before this is a resolution that comes to the floor, that we then have June, July, August, September to bring us to 120 days, which may not be an opportune time to do this piece of work. Because it is summer, we are going to have people appointed, they may have plans already for the summer. Members may not be as readily available if there is a need for consultation.
So, I do not know as we come forward, if Ė because this is the law, basically, this 120 days. So I do not know if that is something that we would be willing to address in the resolution or otherwise, and I do not know if we feel that is necessary. I think it may be, because this is an important piece of work that needs to be done. The time frames are there, obviously to ensure that it is not something that is dragged out over a whole mandate, four-year period, that we slip in at the end of a mandate or at the beginning of one, or whatever. So I see that as a concern, and I would just like to bring that to the Management Commissionís attention this evening.
MR. SPEAKER: Mr. Parsons.
MR. KELVIN PARSONS: Yes, Mr. Chair, as one of the persons who would be consulted, I would concur with the Government House Leader that we should do this as a group, herself, myself, and Ms Michael and yourself, ASAP, whenever you are ready and can convene everybody.
I would also agree with the comments made concerning the 120 days. Now, I realize we can change the legislation I suppose, to get around the 120 days. Maybe a more practical consideration would be, rather than do it in April or May, and you are looking at asking these commissioners to work July and August on this issue, maybe it would be best, once all of the decisions are made as to who the appointees would be, maybe it is just best to hold off on the actual appointment until September. Then that will run the clock from the first of September; that will give them September, October, November and December.
So, rather than get into the hassle of trying to amend the legislation to get around the 120 days, simply postpone the actual appointment of those persons until September. That would be my recommendation.
MR. SPEAKER: Okay, this is something that I think we should debate and talk about when we meet, because it is an issue for many members. So I will reserve my comments until the meeting.
Maybe we can arrange to arrange a meeting. If you do not mind, I will see and make contact with everybody for sometime next week, so at least we can deal with this sitting of the House of Assembly to put forward the names and the mandate of the commission.
MR. KENNEDY: Yes, I noticed in reviewing the previous minutes of the Management Commission meetings, that a number of times it was referred to that something would be referred to. If a member brought forward an issue it would be referred to the Compensation Ė
MR. SPEAKER: Review Commission.
MR. KENNEDY: Yes, the Compensation Review Commission.
Now, has there been any discussion in the Commission, or would it be appropriate to have any discussion, as to the process? For example, was it contemplated that any members who wished to come before this particular Commission would be allowed to do that? Because I see here in the act - and Mr. Parsons might have some comment - that they are given the privileges, the powers, under the Public Inquiries Act.
I am just wondering: Has there been any discussion as to process, or is that something that you would think it more appropriate to discuss once the Commission is appointed? I am quite comfortable also if it is discussed among the people.
MR. SPEAKER: Sure. My suggestion, if you do not mind, would be, if you have some suggestions to pass them along to the representative that represents your particular party and have it brought to the meeting and have an open discussion about it at that time. We can set the mandate and the parameters of what needs to be done here and I would hope that everybody would have an opportunity to have input. If you have some suggestions, or any other member Ė
MR. KENNEDY: No. I just wondered if there had been any discussion in the Management Commission.
MR. SPEAKER: No, there has not been.
MR. KENNEDY: Okay.
MR. SPEAKER: Any further comments?
MR. KELVIN PARSONS: Just to clarify there, I think it is quite clear in section 16(1) that we would appoint the Commission. The resolution would not only say who the Commissioners are. It actually says what the terms and conditions are. That would allow an opportunity to take all the thoughts into consideration and put that into the terms and conditions as to what the process might be.
MR. SPEAKER: That is my understanding as well.
The next item would be under Tab 4 and it is the Ministerial Expense Policy. I guess, since this concerns myself, the Leader of the Opposition, and the Leader of the New Democratic Party, I will ask the Clerk to take us through so I will not be accused of being a bit biased in what I have to say because there might be some benefit in it for me. So I will ask the Clerk.
CLERK: Thank you, Mr. Chair.
I think I will keep on organizing this. Let us go through the briefing note. I will not read it at you but try to just cover off, use that as speaking points.
The Commission adopted the same Ministerial Expense Policy that ministers adopted and the Commission did this in early 2008, I think. The Ministerial Expense Policy was released in December 2007.
In the fall of 2008 the Comptroller General had reason to be examining the application of the Ministerial Expense Policy to the three office holders of the Legislature who were eligible for it. That is the Speaker, the Leader of the Official Opposition, and the Leader of the Third Party. The issue arose because we had advised those three individuals that irrespective of any policy that Cabinet might have adopted, forty-eight members of the House of Assembly, by law, are eligible to receive mileage reimbursement for their duties as members. That is supported legislation. That is the law of the land. If ministers choose not to avail of it, in keeping with the policy, that is their business, but it doesnít reflect the right of forty-eight members to receive mileage for doing constituency business as members of the House.
MS BURKE: That is not correct. What you are saying is not correct.
CLERK: I believe it is.
MR. SPEAKER: Ms Burke.
MS BURKE: We were advised that if we accept a car allowance that we are not allowed to claim mileage, constituency wise, district wise, or otherwise.
MS JONES: That is what we were told; the same rule.
CLERK: What I am saying is Ė
MS JONES: (Inaudible) counteracted the other one.
MR. SPEAKER: Maybe we can listen to the Clerk and then we can have input after.
CLERK: That is a policy decision that Cabinet made, and Cabinet is free to do that. It doesnít change the legal rights each of you, as forty-eight, have. That is simply what ministers decided to do, but the legal right to claim mileage has always continued to exist. It is just as a policy decision ministers have chosen not to avail of it, and have instead chosen Ė
AN HON. MEMBER: (Inaudible).
CLERK: Still, but it is not the same as the supported legislation of the membersí resource allowance rules. It was a decision of Cabinet for ministers. It is not really the issue that is germane here. The only reason I brought it up is, that claiming of mileage by three individuals who are also availing of the automobile allowance under the municipal expense policy caused the Comptroller General to examine the whole issue. When he did, he discovered section 15(1) of our act which speaks to non-accountable allowances.
He asked for a legal opinion from the Department of Justice, whether those non-accountable allowances would mean things like the annual automobile allowance under Option A of the Ministerial Expense Policy. The law clerk and I had meetings with the Comptroller General and meetings with his lawyer. We donít believe it does, because we believe the accountability act is dealing with members as members. Section 15(1) should not be applied to those three office holders. It is to be applied to the forty-eight members generally.
That, however, did not convince the Department of Justice. They feel that the restriction against creating non-accountable allowance, 15(1), applies to the office holders of the Legislature. There is a list of those office holders in 12(1) where the various salaries for Speaker, Leader of the Opposition, Whip and so on, are itemized.
The long and the short of it is, the Comptroller General has a legal opinion that the three individuals who formally had the option of selecting the annual automobile allowance no longer have that option in the Comptroller Generalís eyes because it would violate 15(1) in that non-accountable allowance. I do not think that was intended and, indeed, you will see from the letter from the Comptroller General appended here, he acknowledged that we do not believe it. In fact, I do not know that anyone believes this was intended. The Speaker has traditionally availed of the same expense regime as ministers, the Leader of the Official Opposition has for many years, and the same and so on.
So it may be inadvertent, it may be ambiguous in 15(1) but what is germane I guess is that the Comptroller General has the final say on these expense regimes. If he does not choose to honour a claim that the House submits then that sort of settles the matter. We have discussed with each of you individually, the three people affected by this, so it is just a matter I guess for the Commission to decide where it wants to go. We could seek another legal opinion that may or may not convince the Comptroller General. We could seek to have section 15(1) amended so that the ambiguity, which is I think the only problem is removed, or we could do what the Comptroller General says has to be done, is that to avail of these non-accountable allowances it would have to be the result of a recommendation from a Membersí Compensation Review Committee and then following through that process we are talking about next fall. So there are sort of three options, I guess, that we could see to pursue here but the Comptroller General will have to be convinced, since ultimately he is the one responsible for the disbursement.
MR. SPEAKER: Comments?
MS JONES: I will speak to it only because I guess I have been living with it and going through it over the past year and a half, but certainly I will reserve the right to have any decision in what the Commission does.
As the Leader of the Party, we were informed that we were able to avail of the same benefits that ministers could. In fact, everything in my office, every policy I follow is the same as what is in the ministerial handbook. That is the policies that we follow governing all of our expenses, all of our travel, all of those things. The only one I am learning now that is different is the one regarding this vehicle allowance.
Initially, when I took over the position and I was granted the allowance, I was also claiming mileage as an MHA. There was some dispute around whether you could do both. So the House of Assembly did go for a ruling based on our own act and how it pertained to us, as MHAs. The ruling was yes, as an MHA we were entitled to claim mileage for the work we did in our district, but because we were following the rules of the ministerial act, we were not because it counteracted that recommendation. So that meant that even though I had a district where I was driving several thousand kilometres to get from one end to the other, I was not entitled to claim any mileage to do my job as an MHA. In the process of all that changing, I ended up with a lot of mileage claims that I could not get paid for.
Then I was told I could keep gas receipts as an MHA. So if I am in my district and I am driving 900 kilometres from one part of the district to the other, then if I have gas receipts for doing that trip, when I come back I can file and claim that gas receipt under my MHA claim. That was fine with me; I had no problem with that. Then recently, I have been informed that I am no longer allowed to do that, nor am I allowed to be claiming a vehicle allowance as a Leader because of a clause that is in our act under the Accountability and Integrity Act of the House of Assembly. So it has become a mass confusion. Now I am back with all these gas receipts that I have had since January, and I do not know if I will be reimbursed for those. So it is completely up in the air and I think it needs to get sorted out.
There has been conflicting rulings from the Comptroller General on this situation. In fact, he was the one who informed me I could not claim mileage; then he was the one who informed me and told me I had to claim gas; then he was the one who informed me that I cannot claim gas and is not going to reimburse me for any more gas receipts, that now I am back to having to claim mileage. So it is a really cumbersome process. It is one that I think we should not have to deal with really as an MHA. My only concern should be that I am able to do the work in my district and be reimbursed appropriately for it. I do not think I should have to be coming back every other week with a change in rules, a change in regulations, not knowing how I am supposed to be accounting for my expenses. It has become an absolute mess.
I do not know how the Commission wants to resolve this, but just to tell you in the meantime, we are in the position right now where everything is outstanding. As the Leader, we will not receive a car allowance for this year. I guess we will be able to document our mileage. Those are things that we have to explore. As an MHA, I guess we document our mileage as opposed to the gas receipts, but it is very confusing. I think if there are going to be standard rules, they have to be standard. If we are going to be treated and have to follow the same rules that are proclaimed in the act that is used by ministers, then I think we should follow all those rules and not have an exemption under one rule, or we do not follow any of them. So, there has to be more consistency than exists there right now.
I guess the Comptroller General outlined a couple of options, and the Clerk just outlined what they are. For myself, as one member that is impacted by this, I would appreciate that the Commission would give consideration to what would be the most expedient route to fix the problem. I know that referring it out to the review commission is probably a desirable option, but we do not even have a commission at this stage. We do not have a board or a commission set up to even do that work. We could be, in essence - anything they do or study would have to come back to the House of Assembly to be voted on, which means, based on the timelines I just heard discussed amongst this table, it could be, in essence, a year from now. So that means we are in limbo for a whole year in terms of knowing what the appropriate policies are that we should be following or not following and so on.
So I ask that the Commission keep those things in mind. I hope I have not confused anyone, because it has been a confusing process for me on any given month as a member, in terms of trying to do my work and make claims, but I think it needs to get sorted out. There is no doubt about that.
MR. SPEAKER: Ms Michael.
MS MICHAEL: Thank you, Mr. Chair.
It has not been as confusing for me. One of the reasons, of course, being because Ė or one of the reasons that contributes to it is the fact that I basically live in my district, on the edge of it, one kilometre outside of the border, and the district is in St. Johnís. So I have not charged any kilometrage for constituency work since I have received the car allowance. I made that choice because there is too much of a headache to be worrying about it. I just did not bother. So I took my allowance and I submitted my gas claims, which is what is under the ministerial allowance. What the note does not say, which I think is important for the public to know, is not just the $8,000 that is taxable, so is our gas. When we submit our gas, income tax is taken off. So we pay income tax on everything that we receive under this.
It has been very convenient, because I just do not have to worry about when I am driving as Leader and when I am driving as MHA. I have found that really, really convenient. I just have not had to worry about kilometrage because, like I said, it does not matter to me whether I am in the district or not. It is a bit different for me than Ms Jones because when she goes to her district it is very clear it is a huge district and she is very clear that she is doing MHA work.
From that perspective, I would just like to share that with the Commission. The convenience of not having to separate out when I am doing Leaderís travel and when I am doing MHA travel, for me it was just simpler.
When it comes to the situation that we are in, I guess what I was assuming was, if things do not get resolved now I revert to MHA kilometrage and when I travel as a Leader - that is the problem. When I travel as a Leader, then am I using the same thing because when I traveled as Leader before it did not matter, I was getting the Leaderís allowance. I guess now it would be, that even when I am travelling as Leader Ė because when I travel outside of St. Johnís I am not the MHA I am the Leader. For example, I just did a trip last week to Grand Falls-Windsor and the mileage on that, the kilometres, is eight hundred and something kilometres. If I put in the kilometrage just for that trip alone it is over $400. I paid gas and if I do not get the kilometrage, where do I go? I did not realize I was in limo until I listened to Ms Jones. I am being asked now, that even when I am travelling around the Province, which I do as Leader of my Party, I am now being told that I have to use my MHA allowance to pay for that. That is what I am being told and that is the problem I see.
If I am wrong, I need that clarified. We all would need to hear what the reality is of what we will deal with while we wait for a decision. Mr. MacKenzie has his hand up. I would be happy to listen to what he has to say.
MR. SPEAKER: What you are saying is what I have been experiencing as well because the three of us have gone through that. I am certainly not going to repeat what Ms Jones said or what Ms Michael said because it all relates to me.
The only thing is, I would make one correction. When Ms Jones is traveling as the Leader of the Opposition, or Ms Michael is traveling as the Leader of the New Democratic Party, it does not come from your constituency allowance. You get your mileage. Your mileage is submitted and that is charged out to your role as the Leader, the same as me traveling as Speaker.
I am not going to repeat everything that has been said but it is an issue. It is an issue for me and the frustration is there as well. What I am going to do is look for guidance and direction from the Commission as to how we move on this particular situation and what we do to bring about some correction to it and treat everybody in fairness.
MR. KENNEDY: Perhaps, Mr. Speaker, I could just outline for you how it works from a ministerial perspective. There is no act I think, Ms Jones. There was a policy that was outlined that I guess the Cabinet would have adopted. Essentially, we were told - and I am sure that Minister Burke will tell you the same thing - that there are two options you have as a minister. There is the $8,000 car allowance which is taxable. If you chose that, whether you travel as an MHA or as a minister, you cannot claim mileage but you can put in gas receipts and be reimbursed for your gas. Essentially, if you chose the $8,000, the taxable allowance, then your gas receipts, you would be reimbursed for that.
The second option for a minister - and I think we have ministers who have done both. I know that I have chosen the allowance and gas reimbursements so that when I travel to my district I am reimbursed for gas alone. The other option is you simply choose mileage and you are reimbursed Ė
AN HON. MEMBER: Or rental issues.
MR. KENNEDY: Yes, there is also the issue of rentals, but in terms of choosing mileage you would be reimbursed. It became a question of where your district was and you made a decision based on your district. I know we were told clearly that in no circumstances could a minister receive the allowance and mileage. That is my understanding. I do not know if Minister Burke has any comment on that.
MR. SPEAKER: Ms. Burke.
MS BURKE: That is exactly what we were told: If we accepted the car allowance that we could not claim mileage or rent cars. I guess you are paid so much for a car and you can claim your fuel and that is it.
A couple of meetings back I mentioned it at this table. I said, there is a policy out there that really does not make a whole lot of sense right now, because if I am out in my district doing strictly district work and I am travelling around and I have put fuel in my car, the Department of Child Youth and Family Services pays for my fuel to do district work. That is the rule we are following. I did say here at this table that there was something wrong with that, it does not sit right, but that is the rule and we all have to follow it.
In saying that, we are all out money if we can take a car allowance plus claim our mileage, because we did not claim our mileage. It is not just that there are three people here at the table who are out money or effected, because I have had mileage since 2007, that, if this is the case, I should have been claiming.
I feel for what Ms Jones is saying in that the Compensation Commission is not struck and she is out money because the sand is shifting under her feet for nothing that she is doing, other than being told to do it. You do it and then are being told, that is not acceptable, do it this way, do it that way. The clarity is needed, but in fairness this has to go to that review committee, because there are a lot of us affected by this, and it is a matter of compensation and how we are compensated.
We have taken other issues that people have brought here that they feel are urgent. I will give an example of the MHA for Fortune Bay-Cape La Hune. She wants to get to her district on Fridays, and she has been, since 2007, told that she can stay in a hotel in St. Johnís on Thursday night, but she cannot get half way to her district and have a hotel in Gander on the way home. Since 2007, we have insisted that that individual stay in St. Johnís on Thursday nights and drive the full way down to the Connaigre Peninsula on Friday to get her district work done, and get herself back on Sunday for the House on Monday. The hotel that she would probably use en route would probably be less expensive than the hotel we are making her use here in St. Johnís.
The rules, unfortunately, that may need to be looked at, have not treated people fairly, but we did pass the legislation, we are bound by the legislation, we are having a review commission set up, we just discussed it, we are going to move that forward in the next few days, we are going to meet and we are going to review it.
This is another example of where the policies, although probably with the best intentions and the spirit of the policies will have to continue, have anomalies within them that we have to deal with. I do not know how else we can deal with it right now. I cannot see us going into the Legislature and changing the rules somehow, so that all of a sudden all the ministers are bringing it in: Now give us our car allowance, we can get our fuel, but, you know what, we are getting mileage too. Like, we are going to go in and then pad our own pockets in front of the public with a review commissioner coming up to make these rules.
MR. SPEAKER: The only difference with that is, and the point that I want to make here, when the Leader of the Opposition, the Leader of the third party, and the Speaker were told that they had the option of claiming mileage and gas and then it was stopped, nobody had any problem with it. We said, that is fine, we will go by the ministerial expenses. What has happened since that, is now the Leader of the Opposition does not have the option of doing what ministers have to do.
Mr. Kennedy and Ms Burke can choose an option; they can choose a car allowance and gas or they can claim mileage. That was always carried over to the Leader of the Opposition and the Speaker. Now, the Leader of the Opposition and the Speaker do not have any choices to chose A or B; it is clearly stated that you can only claim mileage. The question that Ms Jones is asking is: How about all the gas bills that I have had and I have not kept track of my mileage? How do I go about claiming it and, if I can claim it, how about the gas money that we have already submitted and were paid for? Do we have to pay that back?
MS BURKE: I cannot answer that but I see the dilemma, there is no doubt.
MR. SPEAKER: I want to make everybody sure of the difference here, that nobody is asking to be able to do something different than what the ministerial policy is, but what people are asking is to be included to be able to do the same.
CLERK: Just with respect to Ms Jones, as a result of the confusion around the issue, yes, there was some discussion about mileage; if mileage could not be covered then it would be gas receipts. Now I think the Comptroller General has acknowledged that he has to cover the mileage claims paid under the Membersí Resources and Allowances rules, but this is a transitional issue these last few months. That will be established and straightened out. The crux of the matter is that you no longer have the option ministers have. You must do mileage in the future. This gas versus mileage matter will ultimately be resolved, but the three individuals have lost the choice that ministers have. That is the heart of the matter.
MR. SPEAKER: Mr. Parsons.
MR. KELVIN PARSONS: I would make the following comments. I do not think we are going to resolve it here today. I appreciate the fact that the three parties impacted - the Speaker, the Leader of the Official Opposition and the Leader of the NDP Ė and I have no problem with you making the comments, but ultimately, I guess, the other remaining members of the Commission have to make a decision as to where this is going to go.
My thoughts on it are as follows: I think we should refer the issue to the Membersí Compensation Review Committee, and I say that for the following reasons Ė and, by the way, we have heard that is going to delay things. That is unfortunate, but we have had the issue as alluded to by the Member for Fortune Bay-Cape la Hune. We have had other delays, as well. For example, we have had MHAs elected since October 2007 who do not know what their pension plan is. That is a pretty serious issue, too, that we have delayed based upon the appointment of the review commission, so I do not think that is a good reason not to put it over to them, which brings me to the point of, what do we do in the interim? because this is a transitional issue. If the committee that we appoint for review does its work, as we talked about and contemplated here today, that should be done by yearís end. One of the issues we have is: What do they do from here on in?
I think, as a Commission, we can agree and can say: Okay, until this is resolved and a final decision is made by that review committee, why donít we instruct the three persons impacted as follows: Number one, we tell them that there is no $8,000 car allowance, because right now that is based upon the advice that we are getting from the Comptroller General, so we say that is frozen for now. We will not make any decision on the $8,000; leave it there until the committee reports back with a recommendation on that issue. In the meantime, they all have two avenues as to where they claim from. They either have a travel budget - the Speaker has a travel budget, the Leader of the Opposition has a travel budget, and the NDP have a travel budget, in their capacities in each of their respective offices.
I think it is a simple case of, for example, if Ms Jones is on business as Leader of the Opposition she claims her travel, her mileage, as the Leader of the Opposition, from that budget. Likewise, Ms Michael, if she is doing some travel as the Leader of the NDP, from now until that decision comes down, she would do the claim for her mileage, or if she rents a car and she gets gas receipts she would do the claim on her leaderís budget.
In the meantime, if you are in your district, no matter - you can get into all of the fancy stuff and say, well, I am in the district and I am doing some leader business. It does not matter. It is not coming out of your pocket and you are getting reimbursed for your expenses. If you are in your district, make your claim for mileage based upon your consistency allowance. If you are doing a leaderís work claim it under your leaderís budget. Donít touch the $8,000 in the interim because we would be going contrary to the recommendation of the Comptroller General. Refer the matter to the compensation review commission and await their ruling. That would be my view on it.
If we make any decisions here, by the way, there is a public perception piece to this, and the question is: We have three members of this Commission who are impacted. I think, for no other reason than the perceptions alone, we have to be seen as not making this decision on our own that might benefit our members or whatever else, one way or another. Letís have the benefit of the independent review commission make the decision.
The other comment I would make as well, and that is the notes that I got today talked about the principle of estoppel and what happens. We might as well deal with this here now. There is the issue of what happened to the money that has been claimed and paid out because of all of this confusion. By the way, there is no doubt there is confusion here, and it needs to be straightened out, but the notes that I read here point out that there may be some monies that someone might say they have to repay. For example, is it obligatory if the Comptroller General, now that he has made that ruling, must he go recover that money from these members?
I think that issue, as well, should be referred to the review commission, because it is not the fault of any of these members, intentionally or whatever else, that this happened. It is already known based upon the Justice legal opinion that the principle of estoppel may apply so that there would be no recovery. Again, you cannot expect these members to run off and use the principle of estoppel. That is going to make it look as if they are trying to use some fancy legal defence to having to repay it. I think the principle is there. I think it will be applied, but again, for perception purposes, put it over to the committee and ask them to make that decision on the repayment as well.
MR. SPEAKER: Just for information, I would just like to say that this is what the three members have been doing since April 1, exactly what you stated. That is what we are doing now, so that is already in effect, but the estoppel situation needs to be addressed.
CLERK: Thank you, Mr. Speaker.
Just to respond to two matters that Mr. Parsons has brought up, using the mileage as minister or leader or Speaker, when you are doing that, when you are on those duties, separate from the mileage as member, it was exactly what Green contemplated.
If you read rule 6.(5) he says: If you are subject to the mileage regime as a member doing constituency business and another expense reimbursement regime as minister, parliamentary assistant - he does not say secretary - or other officer - and the other officers are those listed in 12.(1)of the act, including these three - then you prorate the claim.
Green contemplated a ministerial expense reimbursement regime which meshed with the Membersí Resources and Allowances Rules. The reason we have a problem is that the ministerial expense policy does not mesh with the Membersí Resources and Allowances Rules, which is what Green contemplated in Rule 6.(5). So Mr. Parsons is quite right; you just divide out the mileage as it comes up.
On the estoppel issue, I think, as that is a legal matter, it may be better if within the House administration we address the estoppel issue for the three affected individuals rather than the Membersí Compensation Review Committee. They will be advising on salary, pension, allowances, and so on, but, as a legal matter, I know Lorna Proudfoot has already begun some work on it and I suspect, from discussions with the Comptroller General and the Department of Justice, they see this as applying; there is no fault with any of the three individuals who received that auto allowance.
I suspect if, as the Legislature, we say we cannot take steps to recover this, this was received in good faith, based on best advice, I do not think the Comptroller General would pursue it. So it may well be just a matter of us getting some legal advice and making a determination here at the Commission rather than the Membersí Compensation Review Committee.
MR. SPEAKER: Ms Marshall.
MS E. MARSHALL: Mr. Speaker, I am not really going to say anything much different from what the other members have said but it would seem to me that the third option, referring it to the Membersí Compensation Review Committee would be the best option.
The first option, when you are talking about the Comptroller General obtaining an additional legal opinion to see if we can convince the Comptroller General, I do not really think that that is an option, and I do have concerns about being perceived as interfering with the Comptroller General. He has made a decision and we are going to proceed, we are going to seek a court ruling. We just had a discussion of legal costs at our in-camera session, so I do not think that that is practical. I think also that the Comptroller General, this issue about recovering what has been paid out already. I think that is really an issue also for the Comptroller General. I am sure he is going to express an opinion on that.
I see the Clerk is shaking his head, but I would have thought that the Comptroller General would have expressed an opinion on that. In any case, I would expect if not the Auditor General maybe expressing an opinion on that. So you may wish to give us some comments on that.
MR. SPEAKER: The final comment, the Clerk.
CLERK: Well, you will see in the Comptroller Generalís letter he very clearly does not express an opinion on the estoppel issue. He expresses a firm opinion on the non-accountable allowance, question of 15(1) but all he does with the estoppel issue is raise it. The Department of Justice opinion obviously commented on it, and you will notice that he says that in the very last sentence of his letter but he does not provide that legal advice.
Ordinarily, what the Comptroller General will do, referring to the FAA and its sections 30, 31, 32, somewhere along there, it is the departmentís responsibility to see if there are receivables.
MS E. MARSHALL: Okay.
CLERK: I guess he has an ultimate authority, he could overrule. Essentially, I think his practice is to expect departments to make determinations and go to him. I have the sense in this case from the discussions that if this - and you will see from his letter, if the Commission were to confirm that there is no need for repayment, I suspect he would not pursue it. He would leave it as a Commission decision.
MS E. MARSHALL: Which would leave us - you know, if the Comptroller General is not going to make a decision or a recommendation on that, then that leaves us with the issue of whether the Auditor General would see this as a debt as owing to the Crown.
MR. SPEAKER: The Clerk.
CLERK: Well, I guess we would have to get - it is a legal matter, not an accounting one. If there is legal advice that there is no obligation to repay, I think the Auditor General would accept that, that legal advice.
MR. SPEAKER: Ms Michael.
MS MICHAEL: Just two points, Mr. Speaker, just for the record.
Number one, I do not have a vote. If I had a vote I would go for the option that has been put forward, putting everything in the hands of Ė well, putting the main issue in the hands of the committee, the Membersí Review Committee. I definitely would do that and I would vote that way if I had a vote because of what Ms Burke put forward, with regard to fair and just treatment, treating all the same.
The second point I want to make, we are not going to make any decisions tonight about estoppel, and that is for certain, but I would assume that if I had to pay back the $8,000 I then would have the right to calculate all the travel that I did according to kilometrage and go through that exercise, and I would have the right to claim that.
So I just want to put that out, and that is all I have to say, but I would vote (inaudible).
MR. SPEAKER: I ask members now to make this their final comments on the issue.
MR. KELVIN PARSONS: The final few comments I would make, is I think, as pointed out by the Clerk, the Comptroller General is very clear in his last two sentences, when he says, "you may wish to seek legal advice to explain this doctrine and its impact. Any adoption of this doctrine as a reason not to collect prior amounts should be confirmed at a meeting of the Management Commission."
Now, I think he is very clear there that we are getting our opinion, as I understand it, from the Clerk. We have a legal officer here in the House who is compiling some advice. So that will come back to us from her. We will read it, and I guess we will make a decision then as a commission. I mean, any common sense reading of that comment by the Comptroller General suggests that if we get our legal opinion, if we confirm as a commission that you do not want to collect, based upon that doctrine, I would assume he is going to live by that, but that is another decision.
As to Ms Marshallís comment about the Auditor General, I do not think there is any role in this right now as to the Auditor Generalís opinion. My understanding is the Auditor General comes in after the fact, after we make a decision, with all the evidence and whatever, following or dis-following the advice of the Comptroller General. If the Auditor General has any problem with this he is going to tell us at the end of the day anyway, regardless of what we do. So, I do not think he is going give pre-advice as to whether we should or should not do this.
MR. SPEAKER: Final comment, Ms Jones.
MS JONES: Thank you.
I just want to clarify a couple of things and make a request for some information. First of all, to clarify for the record, we operated under the direction of the Comptroller General. He was the one who set out the rules, told us how we could claim, what we could claim, and how those claims should go through for processing. So we were following his rulings, in which he has now changed his mind or changed his ruling regarding. I would like to have any correspondence that the Clerkís office has pertaining to those discussions, tabled with the Commission, so that they are aware of the information and the advisement that we were given.
The other thing I want to point out is that any monies that we receive for travel, car allowances and gas, was also taxable. We pay taxes on that and filed our income taxes based on that information. So we need to know what the situation is. If we have to make amendments to our taxes, if there are things like this that we have to do. The other side of it is that every bit of travel I did in my district, that gas was claimed as part of my Leaderís claim. It did not go in under my constituency because that was what the Comptrollerís office advised me to do. So all of that gas as well, I paid taxes on it and was taxable under the income tax laws.
So I think that while there is an issue here in terms of how we get paid in the future, I am not so concerned about, refer it out to a committee, do what the Commission wants to do. I do not have a problem with that, but there are other issues in terms of how we were directed and guided, the way we did things and the fact that those decisions have now changed that I do think need to get dealt with.
MR. SPEAKER: Ms Burke.
MS BURKE: Just assuming that we are going to refer this further and not make any decisions, all the comments I would have made have been made here this evening.
MR. SPEAKER: Ms Marshall.
MS E. MARSHALL: Just one final comment, I just want to respond to Mr. Parsons and the role of the Auditor General. No, I can assure him, I would be very surprised if the Auditor General would give us an advanced ruling, but I just want everyone to be conscious that when we are deciding on this matter, even though it is all being done in an open forum, that also, after the fact, the Auditor General does come in. So we want to make sure that we do follow due process and we have our legal opinions because there is somebody coming behind us checking every step that we follow.
MR. SPEAKER: The Clerk for the second time, the final comment.
CLERK: They cannot stop.
Just in defence of the Comptroller General, in reference to Ms Jonesí comments. Part of the direction you would have received, Ms Jones, was the Comptroller General, but a lot of it would have been us within the House staff because the Comptroller General always resisted our interpretation of being able to pay mileage under the Membersí Resources and Allowances Rules in addition to the option A, auto allowance of the ministerial expense policy. In his defence, he resisted that all along. He did not agree that you should have been able to do both. He felt the decision of the ministerial expense policy, either option A, in its entirety, or option B in its entirety should have been the one. So part of your advice would have been from us in the House, as well as the Comptroller Generalís office.
AN HON. MEMBER: (Inaudible).
MR. SPEAKER: What I am hearing is a motion made by Mr. Parsons that we refer the non-accountable allowance for the member, the Speakerís Office, the Leader of the Opposition and the Leader of the Third Party to the Membersí Compensation and Review Commission for their recommendations.
Can somebody second that motion?
Seconded by Ms Burke.
All those in favour, 'aye'.
SOME HON. MEMBERS: Aye.
MR. SPEAKER: All those against, 'nay'.
The motion is carried.
As a further clarification - and correct me if I am wrong - we will refer the estoppel principle to Ms Lorna Proudfoot, the Law Clerk, to bring back her interpretation and her understanding for a further decision by the Commission.
With that, I see people nodding their heads.
MS BURKE: Will we refer the matter to Lorna Proudfoot as opposed to the estoppel principle?
MR. SPEAKER: We would refer her to bring back an opinion, is my understanding, of the estoppel principle.
MS BURKE: Just on that.
MR. SPEAKER: Just on the matter of the estoppel principle of gas versus mileage, and what has been already received by myself, the Leader of the Third Party, and the Leader of the Opposition, by following directions that were provided to us as an eligible expense.
MS BURKE: Okay.
MR. SPEAKER: Mr. Clerk.
CLERK: I am just not sure if we all have a complete understanding.
If we accept that 15.(1) means you were never entitled - the three individuals were never entitled - to receive that non-accountable allowance, then at first blush there is money owed. You have received this since October 2007. If you were never entitled to it, then at first blush you must repay it.
The principle of estoppel would be, given the circumstances around it - it was done in good faith, all the best of advice, and so on and so forth Ė those are mitigating elements so that you do not have to repay. That is sort of where we are, so Lorna would just provide us advice on that.
MR. SPEAKER: That is my understanding. Is that everybodyís understanding?
MR. KELVIN PARSONS: My understanding of what Ms Proudfoot is going to do as the legal officer for the House and for the Commission would be exactly that - for example, explain to us what the principle of the doctrine of estoppel is about - and it is up to the Commission, after we understand that - and some of us here understand it because we are lawyers, but some do not, and I think that is what the Comptroller General was saying, that nobody has explained this doctrine to anybody, so he said you need legal advice to explain this doctrine and its impact.
All we are getting from Ms Proudfoot is an explanation of what the doctrine is so the Commission members can all understand what it is and what impact it might or might not have on this issue. Then we, as Commission members, have to decide what we want to do with it once we have that.
MR. SPEAKER: That is my understanding as well.
MR. KENNEDY: The point I want to make is that we would not be bound automatically by anything Ms Proudfoot says. It is simply to inform us as to where we are going.
MR. SPEAKER: That is my understanding as well, and I think if we continue to talk about this we are going to disagree on something that we already agreed to.
Having said that, an adjournment motion is in order. I thank members of the Commission and I thank staff of the House of Assembly for meeting after the dayís work is concluded, so an adjournment motion is in order.
The adjournment motion is moved by Ms Michael and seconded by Ms Burke.
All those in favour, 'aye'.
SOME HON. MEMBERS: Aye.
MR. SPEAKER: All those against, 'nay'.
The next meeting of the Management Commission will be at 5:30 p.m. next Wednesday, May 13, 2009.