New document puts Selinger Tiger Dam story into question

New evidence Selinger was warned of possible legal and ethical concerns: Goertzen

New evidence suggests Premier Greg Selinger has again misled Manitobans and possibly provided false information in the investigation into the ordering of an untendered contract involving flood control equipment for the Interlake Reserves Tribal Council (IRTC) dating back to 2014.

“New documents raise serious questions about Mr. Selinger’s earlier claims as to when he ordered the Tiger Dam contract put to tender,” said PC candidate for Steinbach Kelvin Goertzen. “Mr. Selinger told media and the legislature he personally intervened on October 8, 2014. New documents now show that weeks later senior officials were still urgently seeking the premier’s direction to establish an open tender, and raising alarms about the legal and ethical risks involved in continuing to pursue an untendered contract.”

In statements to media and in the legislature, and in testimony to the Ombudsman, the NDP claims Selinger personally instructed public officials to put the Tiger Dam contract to tender on October 8, 2014. But new evidence calls into question this account. An “Advisory Note for the Premier” from senior officials dated October 23, 2014 urgently requests necessary direction, writing “attempts continue to advance the original untendered IRTC owned proposal without addressing any of the identified financial, ethical, legal, political and accountability risks.”

Mr. Selinger received advice from senior officials specifically warning him of “a serious risk of a real or perceived conflict of interest, if not possible legal issues” given the “long-standing relationship” between minister Steve Ashton and the Tiger Dam vendor.

“This new evidence puts Mr. Selinger back at the centre of this scandal,” said Goertzen. “He needs to answer why the new evidence contradicts his previous claims on when he really acted. This strongly suggests he ignored serious ethical and potential legal concerns until the very last minute.”

 

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BACKGROUNDER

Timeline

Additional Background

Applicable Legislation

Full Text of the “Advisory Note for the Premier”

 

Timeline: 

October 6, 2014: Treasury Board refuses to approve the $5M untendered contract for Tiger Dams submitted by Minister Ashton.

October 8, 2014: NDP Cabinet meets to discuss Treasury Board minutes regarding the untendered $5 million Tiger Dam purchase. Cabinet disagrees with Treasury Board and does not ratify the Treasury Board recommendation the contract be required to go to tender.

October 8, 2014: The date given to media and others as to when Selinger to direct the contract go to tender, despite his Cabinet’s decision earlier that same day.

October 9, 2014: NDP claims Selinger met with senior officials in Manitoba Infrastructure and Transportation (MIT) and Treasury Board Secretariat to direct the contract go to tender. 

October 21, 2014: Media reports Selinger cancelled his participation in a Canadian trade mission to China. It is later learned by media he was forced to cancel so he could address growing unrest in this Cabinet and Caucus led by three Members of Treasury Board, including the Chair and Finance Minister, Jennifer Howard.

October 23, 2014: “Advisory Note for the Premier” indicates “MIT has since been pursuing Treasury Board approval for this expenditure,” that “attempts continue to advance the original untendered IRTC-owned proposal without addressing any of the identified financial, ethical, legal, political and accountability risks” and concludes by stating that “Direction is urgently required to resolve this matter.”

October 27-28, 2014: Five Cabinet Ministers including the Chair of Treasury Board and two other members of Treasury Board call on Selinger to resign. Finance Minister Jennifer Howard tells media “I think our advice to him is between us and him. I think the advice that I would give him is to think carefully about everything that you’re hearing. When you’re hearing senior party members express the concerns that have been expressed you have to pay attention to that. At the end of the day we all took an oath to serve the best interests of Manitobans. And that is what has got to guide our decisions."                                                 

November 3, 2014: Five Cabinet Ministers resign in protest. Treasury Board Chair, Jennifer Howard tells media: “In recent weeks and months, it has become clear to us that he is increasingly being driven by his desire to hold on to his leadership, rather than by the best interests of Manitobans. To do their jobs, ministers need to be able to speak up honestly in Cabinet and disagree with the Premier at times, without fear that speaking their mind on some points will mean their voices are ignored on the things that are important to Manitobans”.  She also says “remaining in cabinet with integrity is no longer an option.”

November 7, 2014: Access to information documents and media reports confirm that the main supporters of the untendered contract, Deputy Premier Robinson and Minister Ashton, met with the new Chair of Treasury Board, Greg Dewar, to discuss the $5 million untendered contract for Tiger Dams.

November 10, 2014: The Manitoba Ombudsman’s office receives a whistleblower disclosure from a public servant that alleges wrongdoing by Minister Ashton in his pursuit of the $5 million untendered contract for Tiger Dams. Sometime shortly after, informal communication between the Ombudsman and NDP government takes place as part of due diligence to explore validity of the disclosure.

November 13, 2014: Manitoba Infrastructure and Transportation (MIT) deputy minister withdraws the Treasury Board submission that proposed the $5 million untendered contract for Tiger Dams. 

November 17, 2014: The Ombudsman provides formal notice, through a letter to the NDP Government, confirming that his office had received a disclosure under the Public Interest Disclosure Act that met the test for wrongdoing under the Act. Shortly after receiving this letter the NDP Government indicates to the Ombudsman the contract will go to tender. Based on this information, the Ombudsman ceases his investigation.

December 5, 2014: An internal email received in response to an access to information request refers to a meeting regarding a draft Request for Proposals (RFP) for the Emergency Operation Centre equipment that took place on December 5, 2014. This is the earliest documented indication of the NDP government’s intention to move to a tender process rather than proceed with the $5 million untendered contract for Tiger Dams.

December 19, 2014: The province issues the Request for Proposals for the flood mitigation equipment formerly proposed as an untendered contract for Tiger Dams.

 

Additional Background:

  • The PC Team has been working with confidential sources internal to government to get to the bottom of the NDP Tiger Dam scandal. Over time this work has uncovered documents that may have otherwise been withheld from the public.
  • A copy of the actual “Advisory Note for the Premier” is provided at the end of the backgrounder.  To summarize, the note includes:
    • “Financial concerns” – related to there being “no existing funding source” and an “already-strained deficit budget target”.
    • “Ethical/legal concerns” – highlighting that “Due to a long-standing relationship between the MIT Minister and the proposed vendor (including past political contributions), there is a serious risk of a real or perceived conflict of interest, if not possible legal issues”.
    • “Accountability/value-for-money concerns” – noting that “Because the province is outside of an immediate emergency of flood threat, a competitive tender would be required to be compliant”, and that “Bypassing a tender following the recent OAG audit into untendered contracts adds another dimension of risk.”
  • The “Advisory Note for the Premier” is dated October 23, 2014.  It notes relevant background, that “MIT has since been pursuing Treasury Board approval for this expenditure”, and ongoing “attempts continue to advance the original untendered IRTC-owned proposal without addressing any of the identified financial, ethical, legal, political and accountability risks”, and concludes with express recommendation that “Direction is urgently required to resolve this matter.”
  • This document adds to the growing list of evidence that contradicts statements made by Selinger and others acting on his behalf:
    • On June 18, 2015 the NDP told media “Selinger met Oct. 9 with senior officials in Manitoba Infrastructure and the Treasury Board secretariat to discuss the contract. Selinger decided at that meeting to send the entire contract to a formal public tender.” (Winnipeg Free Press, June 18, 2015) 
    • On June 22, 2015 Selinger stated in the House: “Mr. Speaker, I supported Treasury Board having a fulsome review of this matter. They did their job. They made recommendations. They were discussed in Cabinet, and directly after that discussion, we–I directed that we move towards the tendering process, which was the recommendation that we had, and that would be early October.”
    • Selinger refused to give the Ombudsman special permission to compel ministerial or Treasury Board documents while conducting her investigation. As a result, the Ombudsman was forced to rely on a verbal descriptions of who said what to whom, why and on what date. The January 2016 Ombudsman report into the Tiger Dam contract provides the following account of that verbal testimony: “The former clerk of the executive council indicates that on October 8, 2014, he was directed by the premier to work with MIT and Treasury Board to ensure that proper procurement procedures were followed. On October 9, the clerk met with the secretary to Treasury Board and the MIT deputy minister to discuss the implementation of the premier’s direction. We were advised that at this meeting they discussed the parameters of a fair tendering process to procure equipment for IRTC.”

Applicable Legislation:

If proven, providing false information to the Legislature or to the Ombudsman or in anyway interfering with or obstructing the Ombudsman in the course of an investigation are serious offences under the following provincial statutes:

The Legislative Assembly Act

Judicial powers of assembly in certain matters

40(1) The Legislative Assembly has the rights, powers, and privileges, of a court for the purpose of summarily inquiring into and punishing, as breaches of privilege or as contempt of court, the acts, matters, and things, following:

(d) assaults upon, or interference with, officers of the assembly, while in the execution of their duty;

(h) giving false evidence, or prevaricating or otherwise misbehaving in giving or refusing to give evidence or produce papers, before the assembly or any of its committees;

Penalty for breach of section 40

41 Every person who, upon such an inquiry, appears to have committed or done any of the acts, matters, or things, mentioned in section 40, in addition to any other penalty or punishment to which he is by law subject, is liable to an imprisonment for such time as is determined by the assembly.

Ombudsman Act

Powers under Part V of The Evidence Act

13 The Ombudsman has the protection and powers of a commissioner appointed under Part V of The Manitoba Evidence Act; but section 85 of The Manitoba Evidence Act does not apply to the Ombudsman and no notice of appointment, of the purpose and scope of inquiries to be made by the Ombudsman, or of the time and place of the holding of any hearing or inquiry by the Ombudsman, need be published as required under section 86 of The Manitoba Evidence Act. 

Offence and penalty

45 Every person who

(a) without lawful justification or excuse wilfully obstructs, hinders, or resists the Ombudsman or any other person in the exercise or performance of his functions and duties under this Act; or

(b) without lawful justification or excuse refuses or wilfully fails to comply with any lawful requirement of the Ombudsman or any other person under this Act; or

(c) wilfully makes any false statement to or misleads or attempts to mislead the Ombudsman or any other person in the exercise or performance of his functions and duties under this Act;

is guilty of an offence and liable, on summary conviction, to a fine of not more than $500. or to imprisonment for a term not exceeding three months, or to both.

Full Text of the “Advisory Note for the Premier”: