Last Wednesday Premier Redford defended herself against the Opposition’s allegation of conflict of interest with this bold statement: “I was not the Justice minister at the time that the government made that decision.”*
Some of us are wondering whether Ms Redford just painted herself into the same corner that Bill Clinton found himself in after his dalliance with Monica Lewinsky.
It took less than 10 minutes for Ms Smith to set up the conflict of interest allegation and for Mr Anderson to spike it across the aisle. It took less than 2 minutes for the Premier to explode.
Her display of righteous indignation did nothing to assuage the Opposition who’ve demanded an ethics investigation (with the NDP insisting that the Premier step down until it is completed).
What the heck happened? Did the Wildrose fabricate a crisis or is there something seriously amiss with Ms Redford judgment?
Two Allegations of Misconduct
The conflict of interest allegation rests on the argument that Ms Redford made the decision to award the Tobacco litigation case (legal fees expected to be $2 billion if the lawyers win or settle) to the JSS Barristers consortium. JSS Barristers is a Calgary law firm that includes her ex-husband and political advisor, Robert Hawkes.
This allegation morphed into something more serious—that Ms Redford “misled” the House when she insisted that she did not make the decision to award the Tobacco litigation to JSS Barristers and that the decision was made by Verlyn Olson six months later.
A Litigator’s Perspective
This mess will be hashed out in the court of public opinion long before the Ethics Commissioner makes his ruling, so let’s analyse from a litigator’s perspective. (Just give me a moment to slip into my barrister’s robe and charming horsehair wig.)
A litigator would ask the two questions: Did Ms Redford make the decision to award the contract to JSS Barristers? If the answer is yes we can move on to the second question—was her decision a conflict of interest?
Note: If the answer to the first question is yes, the Premier has a serious credibility problem. But if the answer is no, her credibility is intact, the allegation of conflict of interest is irrelevant and we can all go home.
A “Smoking Gun” memo
The Opposition is relying on a Dec 14, 2010 memo from Ms Redford, then Justice Minister, in which she refers to a committee’s assessment that all three of the law firms bidding for the Tobacco litigation contract would be up to the task.
Ms Redford says: “Considering the perceived conflicts of interest, actual conflicts of interest, the structure of the contingency arrangement and the importance of a “made in Alberta” litigation plan, the best choice for Alberta will be the International Tobacco Recovery Lawyers.” The International Tobacco Recovery Lawyers consortium includes her ex-husband’s firm, JSS Barristers.
The Opposition says the memo is evidence that Ms Redford made the decision to award the contract on Dec 14, 2010.
Ms Redford vehemently disagrees, both in the House (see above) and in the media: “I did not select any law firm…There was no decision…until well into June…I stand by what I said”.**
Unfortunately for Ms Redford the Justice Department disagrees:
- A Justice Department briefing note from Jan 2011 says: “Shortly before Christmas, Minister Redford selected the International Tobacco Recovery Lawyers”***
- Last Wednesday Justice Minister Denis said “There was a rigorous process it went through. She did make the final sign-off on it.”****He later back-tracked: “[Ms Redford] agreed to begin negotiations, [Justice Minister Olson] finalized the contract after months of negotiations…”***
In true Clintonesque fashion we can now start squabbling over what the words “the best choice will be”, “Redford selected” and “final sign-off” mean, and whether commencing negotiations on a formal contract comes before or after the decision is made to award the contract.
Or we can use our common sense. Did Ms Redford make the decision to award the tobacco contract to the JSS Barristers consortium? Yes. Does she have a serious credibility problem? Yes.
Conflict of Interest?
Forget the ex-spouse angle; nothing prevents Ms Redford from sending work to an ex-spouse. However the Conflicts of Interest Act does prohibit her from “improperly” furthering his “private interest”.
The Tobacco litigation contract could further Mr Hawkes’ private interest as a partner at JSS Barristers because all partners will get a share of the $2 billion Tobacco litigation fee (assuming that JSS Barristers compensates its partners the same way as other law firms). Further Mr Hawkes could be up for an additional bonus if the firm views him as a “rainmaker” for bringing in the file.
However, Ms Redford’s conduct would only be “improper” if Mr Hawkes was her political advisor on Dec 14, 2010–the day she decided to award the contract to his firm. Given that Ed Stelmach did not announce his resignation until Jan 25, 2011 it looks like Ms Redford is in the clear.
The Redford’s Clintonesque predicament
The evidence so far supports the allegation that Ms Redford was indeed the “decider” (to borrow a phrase from George Bush Jr) notwithstanding her protestations to the contrary. The evidence does not support the allegation that Ms Redford put herself in a conflict of interest when she awarded the Tobacco litigation to Mr Hawkes firm, JSS Barristers.
Regrettably Ms Redford was so focused on clearing herself of the conflict charges that she painted herself into a corner by denying that she’d made the decision to award the litigation contract to JSS Barristers.
Ms Redford has no recourse now but to follow in Bill Clinton’s footsteps and argue that what she said is not what she said and the meaning of plain English words are not what they seem. This will be a tough slog because while she might have Mr Clinton’s chutzpah, she certainly doesn’t have his charm.
*Hansard, Nov 28, p1109
** Calgary Herald, Nov 30, 2012, A4
***Calgary Herald Nov 29, 2012, A4
****Calgary Herald Nov 28, 2012, A4