Thank you, Mr. Chairman. The opinion is a bit lengthy, so I will ask Members to bear with me in it.

RE: Interpretation of Section 16 of the Public Service Act and Section 23 of the Interpretation Act

Members in committee of the whole March 8, 2002 requested a legal opinion regarding the interpretation of two statutory provisions.

Background

The facts surrounding the issue relate to Supplementary Appropriation, No. 3 and in particular the appropriation requested under the Department of the Executive. These issues relate to a special warrant undertaken, among other things, to effect termination payouts of officials of that department, namely the chief of staff, principal secretary and two secretaries as well as other transition and legal costs. The discussion of the committee of the whole on March 8, 2002 concerned both the initial negotiation of the employment contracts for the chief of staff and principal secretary and the negotiation of terminations of those positions. Finance Minister Handley, who was appearing before committee of the whole respecting the supplementary appropriation bill, is also the Minister responsible for the public service.

With respect to the initial negotiation of these contracts, the Minister was asked who had the authority on the part of the Executive to agree to or negotiate the initial employment contracts. I refer to unedited Hansard at page 1131:

MR. BELL: Thank you. Can the Minister please tell me who had the authority on the part of the Executive to agree to these terms, or in fact negotiate them in the first place?

CHAIRMAN (Mr. Delorey): Thank you, Mr. Bell. Mr. Handley.

HON. JOE HANDLEY: Mr. Chairman, the employment contract for the chief of staff was entered into pursuant to the general employment provision of the Public Service Act. In the case of the principal secretary, it would be the same arrangement. Thank you.

When questioned as to whether Cabinet approved these contracts in detail and whether that detail was negotiated by the Premier, the honourable Mr. Handley responded at page 1131 of the unedited Hansard:

HON. JOE HANDLEY: Thank you, Mr. Chairman. Mr. Chairman, the general contract, the boilerplate contract, would have been approved by Cabinet. The negotiations of the contract would be done by the secretary to Cabinet and approved by the Premier in this case.

When asked by Mr. Dent whether these contracts in fact fell under the provisions of the Public Service Act, the honourable Minister responded at page 1135 of the unedited Hansard:

HON. JOE HANDLEY: Thank you, Mr. Chairman. Mr. Chairman, yes. I would still take that position. She was in the public service. She had an at pleasure contract. She was not a restricted employee. I would still hold the same position.

As to the negotiation of the details of termination of these positions, the honourable Minister stated at page 1138 of the unedited Hansard:

HON. JOE HANDLEY: Mr. Chairman, normally what happens is that the secretary to Cabinet would be the person responsible, and in doing that that individual would consult with FMBS because of their labour relations responsibilities and potentially the Department of Justice if there are legal issues to be considered. There is no reason to believe that these were not done in the standard way that this would be handled in any case. Thank you.

The discussion further established that Mr. Handley, as Minister responsible for the public service, has withdrawn himself from matters concerning the termination of these positions. At page 1141 of the unedited Hansard:

MR. BELL: Thank you. I would like to ask this Minister something he is very familiar about and that is as Minister responsible for the public service I believe that he withdrew himself from these matters because he felt he was in a conflict having been a member of the conflict committee. I would like to ask the Minister when specifically he withdrew himself as Minister responsible for the public service?

HON. JOE HANDLEY: Mr. Chairman, I withdrew myself from any Cabinet discussion on anything to do with the conflict process and related matters very early. I do not remember the exact month, but it was certainly at the time probably before the conflict committee was set up. It may have been earlier because of my involvement on the Board of Management, but I withdrew myself from all matters on this very early in the process. Thank you.

The issue then arose due to the wording of the Public Service Act and Interpretation Act whether the authority of the Minister responsible for the public service could be assumed by another Member of the Executive. It had been confirmed by the honourable Minister that no formal process had been adopted for this delegation of authority.

Statutes in Question

The two statutes in question are:

Public Service Act, R.S.N.W.T. 1988, c. P-16, as amended, section 16, 17 and 18 which state as follows:

16. Subject to subsections 16.1(1) and 17(2) and (3), the Minister has the exclusive right and authority to appoint persons to positions in the public service. R.S.N.W.T. 1988, c. 124(Supp.), s.9.

16.1(1) The Commissioner in Executive Council, on the recommendation of the Premier, has the exclusive right and authority to appoint persons to the position of deputy minister in the public service.

(2) Sections 17, 18 and 20 do not apply to a person appointed under subsection (1).

(3) In sections 21, 29 and 29.1, "employee" does not include a deputy minister. R.S.N.W.T. 1988, c.124(Supp.). s.9; S.N.W.T. 1994, c.30,s.3.

17(1) The Minister may make appointments by competition to positions in the public service.

(2) Pursuant to the regulations, the staffing appeals committee may hear an appeal of an appointment by competition under subsection (1).

(3) Where the staffing appeals committee grants an appeal the appointment made under subsection (1) shall be revoked by the Minister. R.S.N.W.T. 1988.

18. Where, in the opinion of the Minister, it is necessary, the Minister may, in the recommendation of the Executive Council, make appointments without competition to positions within the public service.

19. (1) The Minister may, in relation to a position, establish the qualifications that, in the opinion of the Minister, are necessary or desirable having regard to the nature of the duties to be performed.

(3) The termination of appointment of a person to an office on a specified day takes effect:

1. (a) on the expiration of that day, where the day is specified in the appointment; or
2. (b) on the commencement of that day, where the day is specified in a revocation of the appointment.

(4) Where a revocation of the appointment of a person to an office specifies a day on which the revocation takes effect, the specified day must not be more than 60 days before the day on which the revocation is made. S.N.W.T. 1997,c.8,s.16(2).

The Interpretation Act, R.S.N.W.T. 1988, c.I-18, as amended.

23(1) A power or duty given by an enactment to a particular Minister may be exercised or performed by any member of the Executive Council acting as or for the Minister.

(2) Where a power is conferred or a duty imposed on a Minister, the power may be exercised or the duty performed by the Commissioner.

Also of significance are sections 20 and 21 of the Interpretation Act which state as follows:

20(1) Every public officer appointed before or after the commencement of this Act by or under the authority of an enactment or otherwise, holds office during pleasure only, unless it is otherwise expressed in the enactment or in his or her commission or appointment.

(2) Subject to subsection (2.1), the appointment of a person to an office

1. (a) may be expressed to be effective on or after the day on which the person commenced the performance of the duties of the office; and
2. (b) takes effect on the commencement of the day specified in the appointment.

(2.1) Where an appointment of a person to an office specifies a day on which the appointment takes effect, the specified day must not be more than 60 days before the day on which the appointment is made.

21. Words in an enactment authorizing the appointment of a public officer include the power of:

1. (a) fixing the term of office of the public officer;
2. (b) terminating the appointment of the public officer or removing or suspending the public officer;
3. (c) reappointing or reinstating the public officer;
4. (d) fixing the remuneration of the public officer and varying or terminating it;
5. (e) appointing another in the stead or to act in the stead of the public officer whether or not the office is vacant; and
6. (f) appointing a person as the deputy of the public officer to perform and exercise some or all of the duties and powers of the public officer in the manner and under the circumstances specified in the instrument appointing him or her.

Opinion

From the provisions of both statutes, it is clear that the Minister responsible for the public service has the authority to:

• • Appoint persons to the public service, and assuming that the chief of staff position and principal secretary position are positions in the public service, to make those appointments;
• • If the Minister for the public service is of the view that the appointments should be made without competition and the Executive Council so recommends, he may make direct appointments to these positions;
• • If a general interpretation of the Public Service Act is adopted such that it is understood to be an enactment authorizing the appointment of these positions although the positions themselves are not specified in this or any other enactment, the Minister responsible for the public service may establish the responsibilities of those positions, the term of the positions, the remuneration, the termination or removal of the persons in those positions.

The question then is whether the authority to effect termination of these individuals, by virtue of section 23 of the Interpretation Act, can be assumed by another member of the Executive Council acting as or for the Minister.

In my opinion the words "... the Minister has the exclusive right and authority to appoint persons to positions in the public service." refer to the office or position of the Minister responsible for the public service and not the particular individual occupying that office. This is to distinguish it from authority that may be exercised under this legislation by other than a Minister, such as a deputy head (section 29 in suspension and demotion) or authorities that relate to a collective bargaining unit.

Thus, the authority to make appointments must be exercised by the position of Minister, but is not restricted to the particular Minister with the original portfolio. The authority may be exercised by another member of Executive Council pursuant to section 23 of the Interpretation Act.

Were this to be read to mean that the authority may only be exercised by the person who actually holds that portfolio, in every instance where that person was away or unable to act, a ministerial appointment would have to be made to fulfill the responsibilities under the act.

This interpretation on the interaction of these two provisions is reinforced by the wording of section 23 of the Interpretation Act, which states "A power or duty given by an enactment to a particular Minister." This is consistent with the view the authority given particularly to the Minister responsible for the public service may be exercised by another member of the Executive Council.

It also appears from the wording of both the Interpretation Act and the provisions of the Legislative Assembly and Executive Council Act that no particular process is required regarding the delegation of ministerial authority. In an earlier version of the Legislative Assembly and Executive Council Act the then section 62 stated:

S.62(1) A Minister who is or expects to be temporarily absent, incapacitated or unable to act may request the Government Leader to designate another Minister to act in the Minister's stead.

(2) Where a Minister has requested the Government Leader to designate another Minister to act in the Minister's stead or where a Minister is unable to make such a request but is temporarily absent, incapacitated or unable to act, the Government Leader may designate another Minister to act during the temporary absence, incapacity or inability of that Minister.

These sections are no longer present in the current and governing version of this legislation and there are no sections which speak specifically to the assumption of ministerial responsibility by another member of the Executive Council in this Act. There is therefore no process specified in present legislation that outlines the procedure required for transfer, delegation or assumption of ministerial authority by another member of the Executive Council.

Agreed.