Recommended B.C. legislature reforms still lacking after three years

In the wake of the 2018 legislature spending scandal, “significant changes” to the Legislative Assembly’s operations were made to ensure the fraud and breach of trust committed by ex-clerk Craig James “never happen again,” according to government house leader Mike Farnworth.

But recommended reforms put forward by independent officers of the legislature are still outstanding, despite Farnworth committing to implement them in 2019.

“The three of us proposed what we thought were [three] common sense and practical legislative changes to apply to … the operating side of the legislature that we believed — and still believe today — would significantly improve accountability and transparency,” B.C. ombudsperson Jay Chalke told BC Today. “The house leaders of the day publicly and clearly indicated their intention to enact change.”

Chalke called it “surprising and disappointing” that those changes haven’t been made three years later.

Together with information and privacy commissioner Michael McEvoy and merit commissioner Fiona Spencer, Chalke made a trio of recommendations in January 2019:

• Make the assembly subject to the Freedom of Information and Protection of Privacy Act (FIPPA);
• Extend whistleblower protections provided under the Public Interest Disclosure Act (PIDA) to employees of the legislative assembly; and
• Provide the merit commissioner with the authority to review appointments made within the assembly.

The officers followed up on their still-unheeded recommendations in January 2021, noting that the legislature’s “improved internal administration is not a reason to not proceed with establishing independent oversight.”

The lack of action on the recommendations is “mystifying” to McEvoy.

While the policy changes and proactive disclosures — including periodic public posting of expenses claimed by the offices of the clerk and the Speaker — undertaken so far are positive, McEvoy notes that the public must still “rely on the good graces of the Legislative Assembly or government” when it comes to accessing information with no recourse available should an issue arise.

“If you’ve got a question or want to get additional information …  you would not have a right to that, it would be totally dependent on what they wanted to give you,” McEvoy told BC Today. “There is a hesitancy to making themselves subject to the legislation which every other public body in this province is subject to. If you want to set an example, you need to start at the top.”

It’s not just about access to information. Exempt from FIPPA, the legislative assembly is not subject to the same privacy protection, management and disclosure requirements as other public bodies in the province, including mandatory breach reporting requirements recently introduced via legislative amendments.

“That’s something that ought to apply to the assembly’s business as well as every other public body,” McEvoy said. “When there is a breach, and for example, it involves potential harm to individuals, there should be a requirement that that be made known to the individuals and reported to my office as well, because we can help in managing the breach.”

In November 2020, “suspicious activity” was detected on the Legislative Assembly’s servers and “a small number” were breached. The clerk’s office conducted a review and provided an update on the server breach and “ensuing IT challenges” to the Legislative Assembly Management Committee (LAMC), but the information was never made public despite requests from reporters.

Clerk Kate Ryan-Lloyd told The Breaker News the report will “not be made public.”

Farnworth told BC Today the “attempted breach” was “fully investigated,” but would not comment on whether the results of that investigation should be made public.

“What I can tell you is that any issues in there were addressed,” he said.

Public access to information held by public bodies is “the very core of our democratic system,” according to McEvoy.

“It ought to be part of a system which allows for the public to ask for information, which is really theirs,” he said. “It’s got to be more and better than simply, ‘We said, you’re not getting it and that’s the end of the story.’”

McEvoy noted Farnworth “hasn’t entirely closed the door” on eventually enacting the recommended reforms.

While the government house leader told BC Today he is “quite happy” to consider further changes to legislative assembly policy, he suggested the changes made to date have addressed “many of the recommendations that the privacy commissioner had.”

“There is still work to be done on whistleblower protection, that through LAMC, we can work on,” he said.

But Chalke would rather see assembly employees protected under PIDA than by an in-house policy.

“It’s positive that there have been management improvements with respect to the administrative operations of the legislature, but that’s not a reason not to adopt legislative oversight,” he said. “We have oversight to provide public assurance of good management and to ensure that there’s a safety valve if there is a problem.”

The act, passed in 2018, protects public sector employees who make internal complaints or report concerns to the ombusdperson from retaliation — including disciplinary measures, demotion or termination.

One former legislature employee believes whistleblower protections are sorely needed. Alan Mullen, who served as ex-speaker Darryl Plecas’ chief of staff, said the treatment he and Plecas experienced in the wake of their reporting on James’ activities is likely to deter other employees with concerns about the assembly’s operations from coming forward.

“We got dragged through the mud, politically, professionally, personally,” Mullen told The Pique. “Unless a lot of things change, I don’t blame people for not coming forward, for not putting their hand in the air and saying, ‘Hey, there’s something wrong here.’ They’re terrified.”

PIDA’s coverage is being rolled out to public sector organizations in stages and will cover “hundreds of thousands” of public sector employees by the end of 2024, Chalke said.

“If it can apply to hundreds of thousands of people elsewhere, the question becomes: why should employees in the legislature not have the same rights that other public employees in the province either currently have or soon will have?”

Liberal Leader Kevin Falcon said he supports increasing “openness and transparency” at the legislature.

“When you shine the bright light of accountability on governments, governments tend to operate better,” he said.

However, the official Opposition leader is skeptical the government is actually interested in the proposed reforms, saying the NDP has done “everything they can to try and not be transparent,” such as implementing a $10 charge for filing Freedom of Information requests.

“This is not a government where we are ever going to see transparency,” he said.