October 20, 2009       HOUSE OF ASSEMBLY MANAGEMENT COMMISSION       No. 20


The Commission met at 9:00 a.m. in the Chamber.

MR. SPEAKER (Fitzgerald): Good morning.

I would like to welcome members and staff of the House of Assembly to a special meeting of the Management Commission to discuss one item actually, shown on the agenda, but before we do that I would ask members to again introduce themselves for the benefit of those people that are viewing us by television. I will start with the Deputy Speaker to my extreme left.

MR. T. OSBORNE: Tom Osborne, MHA, St. John’s South.

MR. KENNEDY: Jerome Kennedy, Minister of Health, MHA, Carbonear-Harbour Grace.

MS E. MARSHALL: Beth Marshall, MHA, Topsail.

MS MICHAEL: Lorraine Michael, MHA, Signal Hill-Quidi Vidi.

MS KEEFE: Marie Keefe, Clerk’s Office.

MR. MACKENZIE: Bill MacKenzie, Clerk.

MR. SPEAKER: Roger Fitzgerald, Member of the House of Assembly for Bonavista South, and being the Speaker of the House, Chair of the Commission.

I would like to thank members and staff for making themselves available for this special meeting this morning. We thought that it should be done and the issue at hand could not be delayed until the next regular meeting, which we are trying to get by November 4.

I will just, very quickly, go through the reason why we are meeting this morning. Back on January 22, the Minister of Justice announced that he would be requesting the House of Assembly Management Commission to endorse the introduction of a resolution into the House of Assembly regarding an independent review of the case of Mr. Fraser March. The Government House Leader introduced that particular resolution on behalf of the Minister of Justice at the Commission’s January 27, 2009 meeting. On May 13, 2009 meeting the Commission voted to endorse the introduction of the resolution to the House of Assembly to appoint a retired Supreme Court Justice to conduct an impartial and independent review in the circumstances of Mr. Fraser March’s removal from the Office of the Citizens’ Representative. On May 28, 2009 the House of Assembly voted to adopt a resolution to establish the review, and the terms of reference for this review directed that it would include the opportunity for Mr. March to be heard by a retired Justice.

Mr. March has written the Clerk in an October 12 correspondence requesting that the House of Assembly pay for legal services that will reasonably be required on his part in order to properly participate in the House of Assembly review.

Retired Justice John O’Neill started the review on October 1. Within the resolution, it states that the work must be completed within two months, which would lead us up to November 30 of this year. Justice O’Neill is of the view that Mr. March’s request for legal services should be attended to expeditiously and not delayed, hence the reason for our meeting this morning.

So that is the gist of why we are meeting here this morning, and we would need the Commission’s recommendations in order to carry out the request of Mr. Fraser March to receive legal representation to be paid for by the House of Assembly. So I will open up the request for members’ comments, and we will take your comments and make a decision before the meeting ends this morning.

Commentary?

Mr. Kennedy.

MR. KENNEDY: Yes, thank you, Mr. Speaker.

There are a number of issues that are involved here in terms of the request by Mr. March. I am not satisfied at this point that there is significant information here as to why we should cover his legal expenses. I do not think it is enough to simply say that based on fairness and judicial equity – I am not quite certain what that term means. Secondly, that Mr. March’s request appears to be based on the issue of his needing legal counsel in order to properly participate.

I would like to see a little bit more information from Mr. March outlining why taxpayers’ money should be utilized to pay legal fees for him in this capacity. I am not necessarily opposed to it, but I would like to see more information.

The bigger issue that concerns me at this present time is that we have no estimate here as to what this cost would be. I would suggest, Mr. Speaker, in order to be able to proceed, it would be appropriate to know the name of the lawyer involved, have the lawyer or Mr. March outline an estimate of the cost. In other words, that the lawyer should be able to outline an approximate number of hours required, and also the hourly rate.

I am not inclined simply to write a blank cheque for legal counsel here in a review like this. I would suggest, Mr. Speaker, after that information is received then we can make a more informed decision. Mr. March may come back looking for a certain amount of legal fees; we may decide that there could be a contribution. There is nothing, Mr. Speaker, that says that we would have to pay the full amount. In fact, what I see in the background here is that historically it appears - other than I think one case - that legal fees are generally not paid.

So, that is the information that I would like to have before making a decision, Mr. Speaker. As I have indicated, I have not made any decision on this. I am not necessarily opposed to it, but I would like more information, and I would be willing to meet again next week, Mr. Speaker, considering the issue of time here in order to make this decision.

MR. SPEAKER: Thank you.

Further commentary?

Ms Michael.

MS MICHAEL: Thank you, Mr. Speaker.

With regard to the request, I do think that the request is a reasonable request, the general request that is with regard to the legal services. The reason I believe that is because the current situation that we are in began with the Minister of Justice; it did not begin with Mr. March, at least publicly. It was the Minister of Justice, who, on January 22, as you have already said, made a request of the House Leader. The House Leader brought that request to the Management Commission looking for support from us for the resolution and then the resolution went to the House, as we know, and the House agreed that there would be a judicial inquiry, an external inquiry.

So, for that reason in general, I think that we should pay the legal fees. However, I do agree with Mr. Kennedy that I would want to know the specifics of the request when Mr. March says that he is requesting "…the House of Assembly pay for legal services that will be reasonably required on my part in order to properly participate in this House of Assembly review."

I think we should be able to get, it may not be precise to an hour, but a ballpark figure for what would be reasonably required. I think that information can come both from Mr. March’s legal firm, which is named in his letter, by the way. He says, "I will be represented by the law firm of O’Dea Earle in this matter", in his October 12 letter. Both from his lawyers as well as from the judge who is covering this case, we should be able to figure out what would be reasonably required.

So, I agree with Mr. Kennedy, I would like to have a sense of how much this is going to cost, just know what is reasonably required. As I said, I do not think that information should just come from Mr. March’s side. I think we should get some sense from retired Justice O’Neill with regard to what he sees being required of Mr. March in relationship to communication with him.

MR. SPEAKER: Further commentary?

Ms. Marshall.

MS E. MARSHALL: Yes, Mr. Speaker.

I would also like to know what the government policy is with regard to paying legal fees for individuals, because we are supposed to be following government policy on various issues unless we have our own policies, but I would be interested in seeing exactly what government’s policy is on the paying of legal fees. I had understood that the Department of Justice had something on it.

Further to the comments of Minister Kennedy and Ms Michael, I agree, Mr. March has written requesting that the House of Assembly pay for legal services that will be, and the term he uses, reasonably be required. I would like to have some definition of that term reasonably and put some parameters around it and possibly an estimate. So I would like more information on that.

The final comment I have, Mr. Speaker, is with regard to the format of the briefing notes. Quite often our briefing notes come out and it says action required. The Commission’s direction is requested and quite often we are left at the meeting - I feel we are scrambling to put some wording around our decisions. So when the options are defined for us in black and white, I think that that would make it easier for us to put forward a motion. So I would ask that a section of the briefing note be expanded to provide some more wording, some verbiage.

MR. SPEAKER: Just for clarification, are you asking that the briefing note would provide wording in the affirmative and the negative?

MS E. MARSHALL: Yes.

MR. SPEAKER: Because not knowing where this would - where the Commission would want to remedy a decision -

MS E. MARSHALL: Yes, there might be two or three options -

MR. SPEAKER: Okay.

MS E. MARSHALL: - put forward. I find that sometimes when we get our briefing notes the action required is just the Commission’s direction is requested and I feel like we are trying to make a decision almost in a vacuum, and I would like to see something more definitive in the briefing notes.

MR. SPEAKER: Yes, that is fine. We have had, not to engage in debate here, but in the past we have had members expressing quite the opposite of that, saying that they thought by the Clerk including a directive that it was almost asking members to carry out the directive rather than allow them to make up their own minds independently. So there has been weigh-in on both sides of that, Ms Marshall, whether it should or should not be done.

MS E. MARSHALL: Well, I would be interested in having a debate on it. I personally feel that I would like more information in the briefing notes.

MR. SPEAKER: Okay.

MS E. MARSHALL: So, you know, I am willing to listen to the comments of my colleagues but I do feel sometimes that the briefing notes are not developed enough for us.

MR. SPEAKER: The Clerk.

CLERK: Yes, thank you, Mr. Speaker.

The only government policy, with respect to the provision of legal services, addresses employee liability. That is not germane to the situation we are facing. So the government policy on employee liability is the government will defend, negotiate or settle if employees have acted in good faith and within the scope of their employment. That is the only policy that exists. There is no policy for the situation we face, in which there had been an investigation, let’s say, of Mr. March, decision was made and now the Management Commission and the House have decided to review that investigation. So this is not, in a sense, the original investigation. It is more of an appeal nature. So there is simply no government policy on that. That would have to be case by case, by Cabinet or a given minister.

With respect to the notes, while the bullets in the background might suggest a certain course of action, there is no logical causal relationship between the facts as we know it and a certain decision. So, as the Speaker said, we treaded lightly on a recommendation here. This is a judgement call by the Commission on a specific case. While I have personal view, I did not put it in the recommendation, and it might be – I do not know if it is presumptuous or not to do that. There is a not a clear, logical flow of argument to an inescapable conclusion, it seems to me, on this matter. It is simply a judgement call from the Commission’s perspective and there is no precedent or policy to guide it. So that is why, and we will try to do a better job in the notes but if it is coming to the recommendation, that is always a little bit difficult for officials to make a recommendation.

The way the Commission functions, it is not quite like Cabinet, where a minister will take responsibility for a recommendation and the minister is bringing that forward to his colleagues for discussion. With officials doing the notes, it is not quite the same matter as a minister bringing a matter to Cabinet.

MR. SPEAKER: Further commentary?

Mr. Kennedy.

MR. KENNEDY: Yes. I note, Mr. Speaker, that in the briefing note it says that: The Commission, historically, has required that approval for payment be sought in advance in a matter related directly to the duties of a Member of the House of Assembly. So I think that that is a very good statement. Whether or not we will actually – there probably should be a policy developed at some point but I agree that there should be, unless it is an exceptional case, payment should be sought in advance. That allows us to make a decision then based on what we can expect as opposed to simply someone sending us, at the end of the day, a bill for whatever amount of money and expecting to be paid. So I think it being sought in advance, unless there is an exceptional case, is the crucial piece of all of this and is one that lawyers generally follow, Mr. Speaker.

I can tell you, for example, that when I would do a case for legal aid, even something as complicated as a lengthy Supreme Court trial, legal aid would want an estimate of the number of hours I was going to expect. It was not carved in stone as Ms Michael said, and then also the hourly rate will be set. The difference in terms of knowing a – I would like to see an hourly rate. Different lawyers have different hourly rates. So if you are using a junior member of a firm, the rate could be as much as $100 or $200 less per hour than a senior member of a firm. It does not mean that simply because a lawyer requests $300 or $400 an hour that we have to pay $300 or $400 an hour. We can make an offer to Mr. March. If he is looking for 300 hours at $400 an hour, we could say we will give you 100 hours at $200 an hour; so, something like that. I think the key though, is that Mr. March has come in, in advance of – I assume, as of hiring the lawyer and incurring legal fees. That is really, I think, a crucial point unless there are exceptional circumstances and, obviously, there can be.

That would be - I think that the process, I understand, as Ms Michael said, the general nature of his request but that issue of related directly to the duties of a Member of the House of Assembly, I think that that is also important and that is something that we can discuss when we get to that stage.

MR. SPEAKER: Ms Michael.

MS MICHAEL: Thank you.

I agree that we obviously have to have a second meeting and we will deal with the details, but it seems to me - and I am not sure if I got it clear from Mr. Kennedy - because of the nature of what we are dealing with and the timeline of the decision making, and I do not know exactly when Mr. March was notified with regard to the review, he says it came in a letter from the Tobias F. McDonald Law Offices when the appointment was made. It seems to me that his requesting us now is a request in advance of his using legal –

MR. KENNEDY: Yes, yes.

MS MICHAEL: So, you are seeing it that way?

MR. KENNEDY: I am agreeing that this is an advance, yes.

MS MICHAEL: Yes, okay. I just wanted to make sure of that, that we see it that way because I think he is doing the proper thing.

MR. KENNEDY: Yes, I do too.

MS MICHAEL: Yes, because it seems to me he has not done anything until he knows and he will make his decisions, I would think, according to that.

MR. KENNEDY: Yes.

MS MICHAEL: So, I just wanted to be sure we were on the same -

MR. KENNEDY: We both agree on the issues.

MS MICHAEL: Good. Okay.

MR. SPEAKER: Okay, any further debate?

If not, what I am hearing is that while members agree that this is done in the proper fashion and that the request is done in advance of incurring the cost, members of the Commission would like to have further information regarding the number of hours required, the hourly rate and the solicitor, the lawyer who will looking after the affairs of Mr. March and have it brought back to another meeting for approval or recommendations at that time.

Mr. Kennedy.

MR. KENNEDY: I am not as concerned, Mr. Speaker, in terms of the name of the lawyer as I am the status of the lawyer within a firm because that can relate to the hourly rate. If you have a senior member - because I know most of the lawyers at O’Dea, Earle - if you have the senior member of the firm, well the hourly rate could be - that is all I am looking for.

MR. SPEAKER: Okay.

MR. KENNEDY: And there is nothing to prevent him seeking the senior counsel also.

MR. SPEAKER: Is the Clerk clear on what information is being sought?

CLERK: Yes, I think so. I guess the minute will be something like: we will defer decision on the request pending receipt of further information respecting an estimate of number of hours, hourly rates and similar matters, something like that.

If I could say, I am meeting Justice O’Neill this afternoon on various administrative matters, nothing to do with this, but I could have a discussion with him then. He may be the better one to talk to O’Dea, Earle, well discuss, perhaps he will think I should do it. In the interest of time, if we could have an estimate. This is Tuesday; would we try to meet by the end of this week? Is that feasible?

MR. SPEAKER: Ms Michael.

MS MICHAEL: I leave St. John’s at 12:00 o’clock because of political reasons on the Northern Peninsula. I will be back in my office Monday and I would be available Monday, Tuesday or Wednesday next week and then I travel every day.

MR. KENNEDY: Monday is the earliest I would be available.

MR. SPEAKER: So, can we try to probably frame a meeting around sometime on Monday? Would that be agreeable with those that are present?

MR. KENNEDY: That is fine, yes.

MR. SPEAKER: Okay. What will happen is, when we get the information we will get back to members with a time and we are flexible, if at 9:00 o’clock in the morning or 3:00 o’clock in the afternoon sometime when we can get a quorum and meet and debate and settle this particular issue.

That is the only item on the agenda. I thank members for their presence. I thank staff, and this meeting is now adjourned.

On motion, meeting adjourned.