Review of the White Paper on the Independence and Accountability of Election Administration in the Northwest Territories

The White Paper is the first document of its kind in the Northwest Territories to comprehensively review election administration. It was prepared by Lorne Gibson, an electoral management consultant and former CEO in Alberta. Mr. Gibson was commissioned by our CEO to provide an independent review of our legislation and the autonomy of Elections NWT. The report includes 60 recommendations that lead our CEO, Ms. Nicole Latour, to conclude that Elections NWT is "an agency bound to government and not truly independent as intended." In her opening remarks at the committee's public hearing in September, 2016, Ms. Latour stressed that "the overarching requirement…is allowing Elections NWT to make its own decisions and act in its best interest, free from government policies, systems and administrative interference."

After further research and much discussion, the committee does not share that view. Some of the White Paper's recommendations and comparisons with other jurisdictions overlook important conventions of the NWT's Assembly, our system of approval for appropriations, the role of the Commissioner, other legislation, and practical operation of our consensus government. Other recommendations address authorities already present in the current Elections and Plebiscites Act.

However, the committee considered the implications of all the recommendations and found that many would codify or clarify current practices and potentially improve our legislation.

The CEO is one of several officers of the Legislative Assembly who are appointed to provide an independent service, oversight and/or advice, free of political influence. This independence is critical to the integrity of their work, which is also subject to considerable public scrutiny. The various statutory officers of the Assembly are established by respective legislation setting out their terms and authorities. Their funding is provided by the Legislative Assembly; administrative support is provided by staff in the Office of the Clerk. These arrangements are reviewed by the Board of Management and ultimately included in the public review and vote on the Legislative Assembly's budget.

This system clearly meets Mr. Gibson's standards that "independence exists when there is no political consequence for the actions of a Legislative Officer who is fulfilling the mandate of his or her office," and that "independence is usually less complete with respect to such administrative matters as budgeting and staffing, where an election management body is often required to negotiate with other parts of the governmental system and follow established merit-based hiring practices, classification systems, and compensation formulas applicable to other public servants." These comments assisted the committee in assessing the appropriate degree of independence and accountability to recommend for the CEO and Elections NWT.

The committee was also mindful of the Elections and Plebiscites Act's flexibility and adaptability to circumstances. It is not desirable to shift the balance toward a prescriptive act, an outcome that could be the result of over-codification of current practices. In short, the committee is reluctant to fix things that are not broken.

To start, it is essential that the establishment of the CEO's position, office and major duties are clear in their intent and practice. As mentioned earlier, the act provides the CEO with great latitude in conducting elections and managing Elections NWT. Over time, previous CEOs have developed sound practices. Conventions have evolved under the broad umbrella of what is permitted under the act. The White Paper includes recommendations that many of these practices be codified or clarified, for the benefit of both consistent election management and public understanding of the CEO's role. The committee agrees to the extent outlined in the following recommendation.

The Standing Committee on Rules and Procedures recommends that the Elections and Plebiscites Act be amended as needed to provide that:

• The CEO is an independent officer of the Legislative Assembly;

• That the CEO shall take an oath affirming that she or he will impartially and faithfully exercise the powers of the CEO and perform all duties fairly, objectively, and with due care;

• That no proceeding may be commenced against the CEO, or a person acting for or under the direction of the CEO, for anything done or omitted in good faith in the exercise, intended exercise, or performance of a duty, responsibility or power under the act;

• The Office of the CEO (OCEO or Elections NWT) is established to ensure impartial administration and conduct of elections and plebiscites;

• The CEO administers and manages the business of Elections NWT;

• The CEO shall examine all statements, reports, forms and other information filed with the CEO;

• The CEO shall publish reports filed pursuant to this act on Elections NWT's website, or in such a manner determined to be effective by the CEO;

• The CEO shall formulate policies regarding the conduct of elections;

• The CEO may prescribe forms for use under this act;

• The CEO may engage the services of professionals or experts such as counsel or accountants as necessary to carry out the CEO's duties under this act, within the appropriation for Elections NWT; and,

• The CEO shall submit annual estimates of the funds required to operate Elections NWT to the Board of Management via the Speaker.

The White Paper proposes a significant increase of the powers of the CEO and autonomy of Elections NWT. This includes elevating the CEO to the classification, authority, salary and benefits of a senior deputy minister; the power to establish human resource policies, job classifications, and pay scales; and an exemption from the Human Resources job evaluation process. Implementation of these recommendations would require expansion of staff, duplication of available services, and increase the operating costs of Elections NWT. The committee considers these measures ultimately counter-productive, with high risk of unintended consequences. In some cases, these are powers the Legislative Assembly itself has not exercised, due in part to the lack of scale required for efficiency. Not only is Elections NWT very much smaller, but its operation is strongly cyclical, with needs that are often short in duration.

Several recommendations (including some referred to previously) address the relationship of the CEO to the Assembly's Board of Management (BOM), chaired by the Speaker. This relationship is established by the act and BOM's mandate. The committee wishes to be clear that the views it expresses should not be interpreted as infringements of BOM's jurisdiction or decision-making processes. Such views will therefore not be accompanied by official recommendations to the Assembly.

The White Paper suggests that the act should require the Board of Management to consult with the CEO respecting Election NWT's annual budget, and, should BOM recommend a lower appropriation than requested, the act should enable the CEO to submit a written objection to the Speaker. It is normal practice for the Board of Management to meet with the CEO to discuss Elections NWT's annual budget. This is BOM's practice, and control of its own practice should not be fettered by the Elections and Plebiscites Act. The act is silent on the issue of a written objection to the Speaker; it is not prohibited. Anecdotally, the committee has heard that such objections have occurred in the past. It is common sense that the CEO may correspond with the Speaker or BOM about Election NWT's annual budget. Moreover, this budget is reviewed by the Assembly Chamber, in public, as part of the Legislative Assembly's proposed appropriation. Members may question any item. The committee is satisfied that the current system is effective. Similarly, the White Paper recommends that the act be amended to require the CEO to submit an annual business plan and subsequent performance report to BOM. This office is part of the Legislative Assembly's annual business plan development, and a budget proposal is submitted to BOM annually, in preparation for the budget discussed above. The committee is not convinced that this proposed amendment is necessary, but the Board of Management may determine otherwise. In the same category is the White Paper's recommendation that BOM conduct an annual performance review of the CEO, with constructive feedback concerning expectations and achievements. We repeat our caution against creating an overly prescriptive act.

The act provides that the CEO is appointed by the Commissioner of the Northwest Territories, on the recommendation of the Legislative Assembly (as is the case for other Assembly officers). The Board of Management is responsible for the selection process, and ultimately recommends a candidate for the Assembly's consideration. The White Paper recommends that the act be amended to require that another selection committee be established to conduct a merit-based competition for candidates it would recommend to the Board of Management. Such a decision rests with the Board of Management, which currently employs the same practice to recruit and recommend all officers of the Assembly for appointment.

It is also proposed that the ultimate appointment of the CEO be made directly by the Assembly, without the Commissioner's involvement. It should be noted that the Commissioner's role is not political and should not be confused with executive government. In the case of the CEO's appointment, the Commissioner acts on the Assembly's recommendation and lends the prestige of her or his office to the occasion. The committee sees no need to remove the Commissioner from the traditional appointment process, which is in legislation for all statutory officers of the Assembly.

Mr. Speaker, I would like to turn this over to the Member from Tu Nedhe-Wiilideh. Thank you.