Kroeger versus Franks on Gomery/accountability

On February 7th in The Globe and Mail, Arthur Kroeger (former deputy minister of almost every department in Ottawa) had the following to say about the second Gomery report:

"In his first report, Judge Gomery did what judges are supposed to be good at: evaluating testimony, deciding whom to believe and not believe, and rendering a verdict. His report was widely praised, and rightly so.

"In his second report, while he made some useful recommendations on things such as regulating lobbyists more effectively, he was required to pronounce on a complicated subject of which he had little previous experience. And some of the professors advising him, who themselves had no experience working in government, probably did more harm than good. Whatever the explanation, parts of his report suggest he was at times out of his depth.

"Judge Gomery acknowledges that the sponsorship scandal was an aberration. This being the case, it is not in itself an adequate reason for calling into question our system of representative government -- in which elected people have the last word."

On February 13th in the Globe and Mail ,Professor Ned Franks defended Gomery and criticized Arthur Kroeger's view:

"According to the governments under which he served, Mr. Kroeger is mistaken in his belief that he was accountable before parliamentary committees. The Privy Council Office insists that when senior officials appear before parliamentary committees they do so on behalf of their ministers, and that deputy ministers do not have direct accountability to Parliament. In the PCO's terminology, when Mr. Kroeger appeared before parliamentary committees he was "answerable" on behalf of his minister, not "accountable" as the holder of responsibilities in his own right. There is a vast difference between the two….

"The Gomery commission found the PCO's views on accountability unsatisfactory. Deputy ministers possess important managerial responsibilities in their own right. These powers do not belong to ministers. Despite the PCO's assertions, ministers cannot be held accountable for matters for which they are not responsible. To resolve this confusion, the commission proposed that deputy ministers should be accountable before the public accounts committee for the statutory powers they possess in their own right….

"The PCO's insistence that the accountability of deputy ministers lies solely within government risks giving the foxes the keys to the chicken coop, as happened in the sponsorship affair. Each scandal, from cost overruns in gun control, to HRDC grants, sponsorship, and the recent frauds in DND contracting, leads to loss of public trust in government. Responsibility for preventing each of these abuses belonged to deputy ministers, not ministers. Each was a management failure. Deputy ministers did not fulfill their statutory duties.

"This harmful cycle of recurring scandals can be stopped. Parliament gave deputy ministers management responsibilities, and Parliament is entitled to satisfy itself that deputy ministers use their powers properly. There is nothing undemocratic in this. Quite the opposite."

On February 14th Arthur Kroeger responded as follows:

"I agree with Ned Franks that deputy ministers should be fully accountable for departmental management before the Parliament's public accounts committee (It's Right To Hold Deputy Ministers To Account -- Feb. 13). The point I made in this newspaper last week was simply that they already are (The Elected Should Have The Last Word -- Feb. 7).

"Deputy ministers are always at the call of parliamentary committees, notably including the public accounts committee. During their appearances, they are regularly required to respond to questions about whether proper financial procedures are being followed, and whether public funds are being well-managed.

"The only limitation, which the committee itself endorses, is that it may not instruct, punish or reward officials (these being matters for the ministers to whom officials are ultimately accountable). Prof. Franks objects that, when officials appear before committees, they do so on behalf of their ministers, but he does not explain what difference it would make if officials were to appear in their own right, as he urges.

"My experience suggests that, in practice, there would be no difference. And, in his report, Mr. Justice John acknowledges that "little will change" if his recommendation that officials appear in their own right is accepted.

"Prof. Franks says "the harmful cycle of recurring scandals can be stopped" by making the change he advocates. If this were so, I would immediately be on his side. Unfortunately, malfeasance can occur in many ways. It is not easy to see how dispensing with the formality that officials appear on behalf of their ministers could have such a sweeping effect -- or indeed any effect at all."

Having served as an Assistant Deputy Minister and testified before many parliamentary committees, I have to agree with Arthur Kroeger. Judge Gomery in his second report got his analysis of the problem wrong. He was advised by "experts" with little practical experience of how the government really operates. This is reflected in his recommendation which, if implemented, would not be helpful. An aberration is not a reason to change the governance system.