Saturday, November 15, 2008

Enterprise Saskatchewan: Agency refuses to disclose board minutes; Sask. Chamber of Commerce doesn’t see group as independent of government

Premier Brad Wall (center right) posing with the
“independent” Enterprise Saskatchewan Board of Directors

The former Ministry of Enterprise and Innovation (EI), which recently changed its name to Enterprise Saskatchewan (ES), is denying public access to the minutes of ES board of director meetings. It also appears that the province’s main business lobby group, the Saskatchewan Chamber of Commerce, doesn’t view the board as being independent of government.

An access to information request dated Apr. 25, 2008, was submitted to EI for “copies of the complete agenda package, including any attachments, for the Mar. 31, 2008, and Apr. 24, 2008, Enterprise Saskatchewan Board of Directors meetings, and also a copy of the minutes for both meetings.” The ministry received the request on Apr. 29, 2008. It was finalized on Oct. 27, 2008, taking a total of 182 days to process.

According to The Freedom of Information and Protection of Privacy Act it appears that a government institution has, at most, 60 days to respond in writing stating that access to the record or part of it will be given or refused, setting out the reason for the refusal and identifying the specific provision of the Act on which the refusal is based.

The ministry is refusing access to five records totaling 35 pages in their entirety. These include:

– The minutes to the Mar. 31, 2008 ES board meeting
– Contact information for ES Board of Directors
– Presentation by Dale Botting: Board Priorities for Discussion
– Tax Flow Financing – Discussion Document
– The minutes to the Apr. 24, 2008, ES board meeting

The ministry cites the following sections of the Act as the reason for denial:

Sec. 14 – Information injurious to intergovernmental relations
Sec. 17 – Advice from officials
Sec. 18 – Economic and other interests
Sec. 22 – Solicitor-client privilege
Sec. 29 – Disclosure of personal information

According to the ministry a portion of the request has been transferred to the Ministry of Advanced Education, Employment and Labour (AEEL). AEEL Minister Rob Norris gave a presentation to the ES board at its Mar. 31 meeting. A copy of the minister’s presentation is the record in question. AEEL will make the determination whether the document gets released or not.

ES granted full or partial access to a number of other records. Where access was denied Section 17 – Advice from officials was the reason most often cited.

The following records released pertain to the ES board meeting held Mar. 31 in Room 25 at the Legislative Building:

– Agenda (2 pages)

– Briefing Note – Background History and The Enterprise Saskatchewan Act (5 pages)

– Draft Board of Directors Policy Manual – Consolidated Board Governance Policies and Practices (35 pages)

– General information on per diem rates for boards, commissions and committees and travel expense/rate claims (7 pages)

– Presentation by Dale Botting: Fulfilling the Promise: Introducing Enterprise Saskatchewan’s Proposed Operations and Design (14 pages)

Enterprise Saskatchewan Draft Business Plan: Fulfilling the Promise of Saskatchewan (23 pages)

– Enterprise Saskatchewan Enhanced Business and Regulatory Services Strategic Issues Council: Terms of Reference and Backgrounder (6 pages)

Enterprise Saskatchewan – Frequently Asked Questions (8 pages)

The agenda shows that board members also received copies of the Saskatchewan Party’s 2007 election platform Securing the Future – New Ideas for Saskatchewan and leader Brad Wall’s economic paper The Promise of Saskatchewan – A New Vision for Saskatchewan’s Economy (Sept. 2004), which is part of the official Saskatchewan Party Policy Book.

The following records released pertain to the ES board meeting held Apr. 24 in the Brandt Industries Boardroom located on Highway #1 East in Regina:

– Agenda (2 pages)

– Enterprise Saskatchewan Communications Protocol (1 page)

– Sector Teams Update (2 pages most of which are blacked out)

– Presentation by Byron Burnett: Enterprise Saskatchewan Marketing and Investment Attraction Division (12 pages)

– Outline of Phase One of the Saskatchewan Chamber of Commerce Growth Strategy Task Force, April 15, 2008 (5 pages)

– Presentation by Minister of AEEL: Marketing Saskatchewan (6 pages)

– Presentation by Angela Schmidt: New Growth Tax Incentives (20 pages of which 8 slides from a 27 slide PowerPoint presentation are blacked out)

– ES Functional Organizational Chart (6 pages)

– Key Items for The Enterprise Saskatchewan Regulations and Orders in Council (2 pages)

One item dealt with by the board on Apr. 24 was related to the Mar. 31 meeting. Board members were provided with a copy of a presentation given by Angela Schmidt on the Proposed Business Services and Red Tape Reduction Council. The 9-page record contains an 18 slide PowerPoint presentation of which 5 of the slides are blacked out. This record names the Canadian Federation of Independent Business (CFIB) and the Saskatchewan Chamber of Commerce as possible members of the proposed council. In the end the CFIB was named part of the Regulatory Modernization Council (RMC) that was announced on Sept. 17, 2008. This could be one reason why ES violated the Act in delaying the release of the information. It would have preempted the roll out of the RMC.

It is disturbing that the agency is refusing to release the minutes of its meetings and also a discussion paper on board priorities.

Minutes are an official and legal record of the proceedings of a meeting. They show the kind of meeting, regular or special. They include the date and place of the meeting and those in attendance as well as those that weren’t, or in their absence the names of their substitutes. All main motions and points of order and appeals, whether sustained or lost, and all other motions that were not lost or withdrawn and usually the hours of meeting and adjournment are recorded. Generally the name is recorded of the member who introduced a main motion, and in many instances the seconder. When voting the tally may be included recording the number of people voting for and against a motion (or abstaining), but requests by participants to note their votes by name may be allowed. If a decision is made by roll call vote, then all of the individual votes are often recorded by name. If it is made by consensus without a formal vote, then this fact may be recorded. Minutes can also include a list of the speakers on each side of every question, with an abstract of all addresses, if not the addresses in full. Without access to the minutes the public will see none of this.

In Oct. 2008 ES released the Enterprise Saskatchewan Progress Report (Sept. 30, 2008). The 20-page document contains a summary of the agency’s highlights and accomplishments in its first six months.

In a message from the deputy chair, Gavin Semple said “An important role for ES is to increase transparency and accountability through public reporting. At our first meeting, the ES Interim Advisory Board made the decision to be pro-active in communicating to Saskatchewan residents. I am honoured to present the first of what will be regular updates on the progress of the future ES Board.”

Unfortunately, the progress report is little more than a selective, sanitized version of events created and approved for public consumption. Unlike the minutes it is not the official record of the board’s proceedings.

Equally disturbing is the political meddling that occurred at the board’s inaugural meeting on Mar. 31, 2008.

According to the ES progress report and meeting agenda Premier Brad Wall showed up during the lunch break, addressed the board and participated in a photo shoot. He “stressed the importance of its work to the province’s growth agenda” and “asked the ES Board to oversee three priorities during the coming months.” These include: closing the labour supply and demand gap, identifying uranium value-added opportunities, and hosting a New West Summit in Saskatchewan in 2009.

The agenda also indicates that AEEL Minister Rob Norris addressed the board and that board chair Lyle Stewart, the Minister of Enterprise and Innovation, requested that the board establish a “Business Services and Red Tape Reduction Council (with new reform agenda).”

Norris, according to the ES progress report, “spoke to the Board about his Ministry’s three main priorities to support economic growth.” These include: immigration, training and workforce development, and balancing labour legislation.

As for Stewart’s request, “The Board passed a motion to establish a strategic issues council to make recommendations on ways to improve business services including one-stop services and to reduce regulatory red tape.” The resulting Regulatory Modernization Council was announced on Sept. 17, 2008, and held its first meeting that day.

The briefing note in the board’s Mar. 31 agenda package describes ES as “a guiding coalition of Saskatchewan leaders that transcend the political interests of the day.”

The ES draft business plan, written by CEO Dale Botting, notes that “Enterprise Saskatchewan will be formed as a more independent, arms’ length agency of government…Its main purpose will be to bring the process of economic development closer to the grassroots input and prioritization of key partners in the Saskatchewan economy.”

And yet at the agency’s very first meeting the premier and two of his cabinet ministers take centre stage making requests and giving the board direction.

Furthermore, board members were provided with copies of Wall’s 2004 economic paper and the Saskatchewan Party’s 2007 election platform. No explanation is given why, but the suspicion is board members are expected to follow them.

When Wall’s economic plan was announced on Sept. 21, 2004, the Saskatchewan Party news release quoted the then leader of the Opposition as saying “The goal of our Enterprise Saskatchewan plan is to create an aggressive, agile and entrepreneurial economy within a stable and positive business environment that removes the politics from economic development and can survive Saskatchewan’s volatile election cycle.”

Wall’s report noted that the chairperson of the board would come “from the non-government members of the board.”

Wall states, on page eleven, that “Rather than taking direction from government, Enterprise Saskatchewan will establish provincial economic development goals and strategies for endorsement by Cabinet and the Legislature.”

These two fundamental elements asserting the board’s independence from government never happened. In fact, the exact opposite has occurred.

The Enterprise Saskatchewan Board of Directors Policy Manual (March 2008) provides some interesting insight into the way the board functions:

Enterprise Saskatchewan is subject to the terms and conditions of: The Enterprise Saskatchewan Act; The Financial Administration Act; The Freedom of Information and Protection of Privacy Act; and The Interpretation Act.

– Board members must represent unconflicted loyalty to the interests of the ES mandate. This accountability supersedes any conflicting loyalties to advocacy, special interest groups, any membership on other boards or staffs.

– Board members must not allow the judgment and advice that they are expected to provide to the Organization to be impacted by extraneous factors – whether those to be the financial interests of the Board member or the interests of the members that nominated the Board member.

– In order for there to be a valid contract between a Board Member and the Organization, the Board member must make a disclosure to the Organization to be recorded in the minutes of a Board meeting prior to the contract coming into existence or as soon as the Board member is aware of the contract. This rule applies to contracts to which the Board member is a party and to situations in which the Board member is also a director of or has a shareholding of significance in, the other contracting party. If the contract is one that would not, in normal practice, come to the Board of the Organization for approval, the Board member is nonetheless required to make a disclosure to be entered into the minutes of a Board meeting. With limited exceptions, a Board member must abstain from voting in respect of any contract in which the Board member has an interest.

[Without access to the minutes of board meetings the public will not know if this is being adhered to.]

– In order to be able to make well-informed decisions, each director must…Maintain an understanding of the regulatory, business, social and political environments in which ES operates.

[What is meant by “political environment” and why must board members “maintain an understanding” of it? After all, isn’t ES supposed to be independent and arms length from government?]

– Every meeting of Directors shall provide an opportunity for meeting In Camera. The In Camera session may be conducted with or without staff personnel present as determined by the Chair of the Board of Directors or the Committee Chair as appropriate.

– A record of In Camera meetings of the Board shall be kept that includes the date, time, place and attendees of each meeting. Minutes of In Camera meetings will be recorded at the discretion of the Chair of the Board of Directors or the Committee Chair as appropriate.

[Without access to the minutes of board meetings the public will never know how many In Camera meetings have been held.]

– To ensure open and frank deliberation among Board members, all matters discussed at Board meetings and individual positions on any subject matter will be held in strict confidence.

– Minutes of Board meetings are exempt from public release under The Freedom of Information and Protection of Privacy Act. The Board has decided that it will review any Freedom of Information requests for Board minutes on a case by case basis.

[The above paragraph is from Page 8 of the ES board of director’s policy manual dated March 2008. The board’s first meeting was held Mar. 31, 2008. The policy manual was on the board’s agenda for that meeting. How can the manual say the board “decided” that it would review any requests for board minutes on a case by case basis when it hadn’t met yet? Did the board meet prior to Mar. 31 and the public not notified? Did someone in the ministry make this decision for the board?

This issue appears to fall under Section 17 of the Act which is a discretionary exemption. There is absolutely nothing stopping the board from disclosing the minutes of its meetings. Ironically, if someone requests minutes they will never know when and where the board decided to either grant or deny the request.]

– The Chair shall be an ex-officio member of all committees of the Board.

[The ES board currently has three committees: audit and finance, governance, and human resources and compensation. Committees will maintain minutes of its meetings and report at Board meetings.]

– The Chair shall…set the agenda of the Board and members’ meetings in consultation with the CEO.

– Where possible, decisions will be made through consensus. In the event that a vote is required, the following shall apply.

– All Directors named as Board members by the current Order in Council are eligible to vote. A quorum of voting members must be present in order to call a vote on any motion before the Board. A motion is deemed to have been carried and becomes effective if the majority of the votes cast are in favour of the motion. The outcome of the vote is recorded in the minutes of the meeting.

– An Abstention is not counted as a vote of either “in favour” or “not in favour”. Where less than a quorum participates in voting, as a result of abstention, the results of the vote are valid as long as a quorum of voting members is present.

– The Chair may instigate a Return Fax Ballot where the Chair is satisfied that it is important to convene a regular Board meeting to address an urgent issue.

– The Chair shall vote on all matters and has a second vote in the event of a tie.

[Not having access to the minutes of board meetings means the public will likely never know when or how often voting takes place or on what issues.

On the matter of the ES board chair being allowed to vote twice it is interesting to note that Robert’s Rules of Order states: “If a member of the assembly, [the chair] is entitled to vote when the vote is by ballot (but not after the tellers have commenced to count the ballots), and in all other cases where the vote would change the result. Thus, in a case where a two-thirds vote is necessary, and his vote thrown with the minority would prevent the adoption of the question, he can cast his vote; so, also, he can vote with the minority when it will produce a tie vote and thus cause the motion to fail; but he cannot vote twice, first to make a tie, and then to give the casting vote.”

Meanwhile, Bourinot’s Rules of Order (Fourth Edition) notes that in formal meetings “The chair must remain objective and impartial, acting strictly as an umpire of proceedings. Removing the chair from active participation is necessary in view of the chair’s role in regulating the conduct of the gathering and in ensuring that conflicting opinion receives equal expression. In these circumstances the chair has no vote, but may exercise a deciding or casting vote if the vote is tied.” In less formal gatherings and committees the chair “enjoys the same right as any other member to participate in discussion and to vote on any issue.” Either way it would appear that what the ES board is doing might not be appropriate, or advisable, given that the chair is a cabinet minister.]

Finally, at the Apr. 24, 2008, ES board meeting former Saskatchewan Chamber of Commerce president Dave Dutchak, vice-president Holly Hetherington, and CEO Steve McLellan presented the Chamber’s New Growth Strategy to the board. The business lobby group has set 20 growth targets related to population, labour market, and economic activity, with the key target being a population of 1.5 million people by 2030. A Chamber-led, task force is being established to make recommendations focusing on infrastructure, education, immigration, innovation, and growing Aboriginal businesses.

According to the outline of phase one provided to the ES board it seems the Chamber’s task force will be dominated by business interests:

Sask. Chamber board member

Sask. Chamber board representative
Labour representative
Federation of Saskatchewan Indian Nations
Metis Nation of Saskatchewan
Aboriginal business leader
Saskatoon Chamber of Commerce
Regina Chamber of Commerce
Representatives of local Chambers (4)
Sask. Construction Association
Universities Representative (2)
Sask. Indian Institute of Technologies
Business Representatives At Large (4)

The task force appears to mirror Enterprise Saskatchewan but the Chamber claims there are differences between the two.

“It is different in many ways including its ability to clearly target the key issues limiting growth which will allow this Task Force to get to the barriers faster and to identify breakthroughs sooner,” the report notes.

“Also, this group will be independent and not have to ‘couch’ recommendations because of political considerations.”

The Chamber’s confidence level in Enterprise Saskatchewan doesn’t appear to be very high. It certainly doesn’t see it as being independent of government which has got to hurt since it was one of the organizations that nominated Brandt Group of Companies president Gavin Semple as the business representative on the board.


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