OMBUDSMAN’S CREDIBILITY ON LINE

Health firings: Interviews will be private, but that has some benefits, ombudsman notes

When Ombudsman Jay Chalke was handed the job of investigating those botched firings in the health ministry this week, he offered multiple assurances to the public that his office would do its best to get to the bottom of the murky affair.

“I am committed to a diligent and professional investigation into this matter,” he vowed in a statement issued by his office after a legislature committee referred the matter to him.

Still, there was no disguising a concern that the assignment came his way via a split vote, five Liberals on the committee overriding four New Democrats.

“My advice to the committee was that a decision about the referral ought to be unanimous,” Chalke acknowledged. “While that was not the case, and would have been my strong preference, I respect the legal obligation conferred on me and will carry out a rigorous investigation.”

He also made a point of praising the committee, New Democrats and Liberals alike, for their assistance in addressing his concerns about access to documents and witnesses.

“The committee was ultimately successful in removing a number of legal obstacles we might encounter,” he told Rob Shaw of The Vancouver Sun, adding he was “not aware of any (further) concerns that exist in that regard.”

But can he get the answers that eluded Victoria lawyer Marcia McNeil in her report on this affair late last year, namely “who effectively made the dismissal decisions and what factors were considered?”

Challenged on that score Friday by Jon McComb on CKNW radio, Chalke began by noting his marching orders from the committee specifically direct him to address the whodunnit and why of the firings: “Be it resolved that this committee refer the ministry of health termination file to the ombudsperson for investigation and report as he sees fit, including events leading up to the decision to terminate the employees; the decision to terminate itself; the actions taken by government following the terminations; and any other matters he may deem worthy of investigation.”

How could he be sure he could get answers where McNeil could not? Chalke responded by citing the “very good information-collection powers” of his office, including the ability to access documents, summon witnesses and take testimony under oath. The Liberals included none of those powers in the watered-down terms of reference for the McNeil review.

Chalke said his investigation would probably interview the fired health employees as “the logical starting point.”

The employees, all of them involved in independent vetting of drugs, have questioned whether they and their publicly funded research programs were targeted by the private pharmaceutical companies.

Would the Ombudsperson be able to investigate that possibility? McComb asked. Chalke replied that as a lawyer, his approach will be to “let the facts take you where the facts take you.” If there’s any evidence on that score (as opposed to idle speculation), his office would follow it up, he vowed.

The fired employees preferred a public inquiry as a way of forcing accountability on the government and politicians. But Chalke noted an inquiry can no more fire anyone or impose other penalties than his office can do.

“The power of our reports in our regular work is the ability to make public our findings and our recommendations and that has the power of persuasion in a manner not dissimilar to the sort of outcome that would occur in a public inquiry,” he told Rick Cluff on the CBC Early Edition. “Public inquiries make findings, they make recommendations and that’s similar to the kind of work or the kind of outcome in a report that would occur from our office.”

Public inquiries do their work in public, whereas the ombudsman, with rare exceptions, conducts interviews in private. But that has advantages, as Chalke noted:

“Certainly it’s the view of our experienced investigative staff that being able to interview in private assists in getting complete candour from witnesses. Thus, the statements that individuals make to our investigators are private, except as we may decide to include in a public report. So while the process is conducted in private, we can make those statements public as part of our reporting.”

Public inquiries tend to take longer, often years. Investigations by the ombudsman and other independent officers of the legislature usually wrap up in months, though Chalke did voice a note of caution on calls for “timely” reporting on the affair.

“We understand the wish that we complete this report in a timely manner,” he said. “However, speed is not our first goal — a thorough, highquality investigation is our primary objective.”

Chalke is adamant this investigation not curtail the usual workload of his office. He’ll doubtless need a top-up to the $6-million annual budget and has already received assurances via the committee he will get it.

Having taken on the assignment from the government, he has the leverage to get what he needs in the way of access and resources. But it also means he is assuming front-line responsibility for an exercise that meets the test of public confidence.

“People will have to assess that question when they see our final report,” he told The Vancouver Sun, confirming that however reluctant he was to take on this assignment, his credibility and that of his office are now very much on the line.