Le­gal opin­ion in re­spect of the con­duct of the Ho­n­ourable Min­is­ter of Plan­ning Eco­nom­ic and So­cial Re­struc­tur­ing and Gen­der Af­fairs Sen­a­tor Mary King in the award of a con­tract for the de­vel­op­ment and host­ing of a Web site for the Min­istry of Plan­ning Eco­nom­ic and So­cial Re­struc­tur­ing and Gen­der Af­fairs in re­la­tion to the In­tegri­ty In Pub­lic Life Act Chap 22.01 of the Laws of Trinidad and To­ba­go

In­struc­tions:

1. I have been asked to re­view the facts and cir­cum­stances sur­round­ing the award of the cap­tioned con­tract by the Min­istry of Plan­ning, Eco­nom­ic and So­cial re­struc­tur­ing and Gen­der Af­fairs to de­ter­mine whether there is suf­fi­cient ev­i­dence to es­tab­lish a pri­ma fa­cie breach on the part of the min­is­ter in re­spect of her oblig­a­tions un­der the In­tegri­ty in Pub­lic Life Act, Chap 22.01 of the Laws of Trinidad and To­ba­go.

Doc­u­men­ta­tion:

2. I have been pro­vid­ed with sev­er­al sources of in­for­ma­tion in­clud­ing:

A bun­dle of doc­u­ments sub­mit­ted by the Of­fice of the Prime Min­is­ter sub­se­quent to the award of the said con­tract.

The Dai­ly Ex­press news ar­ti­cle, ti­tled 'Mary Quite Con­trary', writ­ten by Cami­ni Mara­jh, dat­ed May 7, 2011.

A bun­dle of doc­u­ments sub­mit­ted to the At­tor­ney Gen­er­al by the Per­ma­nent Sec­re­tary on May 9, 2011.

A bun­dle of doc­u­ments sub­mit­ted to the At­tor­ney Gen­er­al by the Ho­n­ourable Min­is­ter of Plan­ning Eco­nom­ic and So­cial Re­struc­tur­ing and Gen­der Af­fairs Sen­a­tor Mary King on May 9, 2011.

A state­ment from the Per­ma­nent Sec­re­tary in the Min­istry of Plan­ning Eco­nom­ic and So­cial Re­struc­tur­ing and Gen­der Af­fairs, Ms Ju­liana Boodram, dat­ed May 9, 2011 re­ceived on May 10, 2011.

Search re­ports from the com­pa­ny's reg­istry in re­spect of Ix­anos Ltd and Caelum Hold­ings Ltd.

Facts:

3. On Sep­tem­ber 25, 2010, the Min­istry of Plan­ning Eco­nom­ic and So­cial Re­struc­tur­ing and Gen­der Af­fairs is­sued a ten­der no­tice for the pro­vi­sion of ser­vices in re­spect of the de­vel­op­ment and host­ing of the web­site for the min­istry. The clos­ing date for these ten­ders was 01/10/2010 at 1 pm and the ven­dors were in­vit­ed to wit­ness the open­ing of the ten­ders box, which was to take place at the Min­istry on the 01/10/2010 at 1.10 pm.

On Sep­tem­ber 28, 2010 Ix­anos Ltd sub­mit­ted a bid, signed by Stephen King the son of the min­is­ter.

That com­pa­ny has its reg­is­tered ad­dress as the cor­ner of Smart and Fran­cis Streets, St Au­gus­tine. This is the same ad­dress as the firm reg­is­tered as Mary King and As­so­ciates, a pri­vate con­sult­ing firm owned by the min­is­ter.

The ma­jor­i­ty in­ter­est (1,163,000 shares) in Ix­anos Ltd is held by a com­pa­ny called Caelum Hold­ings Ltd, al­so reg­is­tered at the cor­ner of Fran­cis and Smart Streets, St Au­gus­tine, and Neal and Massy ICT Group Ltd have just over half a mil­lion in pref­er­ence shares.

A search of Caelum Hold­ings Ltd records lists a joint con­trol­ling in­ter­est of 1,023,000 or­di­nary shares by Dr St Clair King and Sen­a­tor Mary King, the Min­is­ter of Plan­ning Eco­nom­ic and So­cial Re­struc­tur­ing and Gen­der Af­fairs.

There are sev­en oth­er share­hold­ers in the com­pa­ny, all en­gi­neers, and all hav­ing mi­nor­i­ty share­hold­ings of 20,000 each.

Mary King is named as the cor­po­rate sec­re­tary of Ix­anos Ltd on the last an­nu­al re­turn which ac­cord­ing to the com­pa­ny search­es, was filed the Ju­ly 20, 2009. In ad­di­tion, Mary King is al­so named as the cor­po­rate sec­re­tary of Caelum Hold­ings Ltd on the last date of the an­nu­al re­turn which was filed on No­vem­ber 3, 2009.

The bid eval­u­a­tion team con­sid­ered the bids dur­ing the pe­ri­od Oc­to­ber 4 to 8 2010.

On Oc­to­ber 8 2010 the bids were nar­rowed down to two com­pa­nies and the high­est ranked bid came from Ix­anos Ltd.

They were du­ly award­ed the con­tract on No­vem­ber 2, 2010 and the con­tract was signed on No­vem­ber 3, 2010.

4. Views ex­pressed by Sen­a­tor King in an in­ter­view with the Ex­press News­pa­per and the let­ters pro­vid­ed by Sen­a­tor King her­self to the Ho­n­ourable Prime Min­is­ter;

In a let­ter to the Ho­n­ourable Prime Min­is­ter dat­ed the May 9, 2011 Min­is­ter King took the po­si­tion that there was nev­er a con­flict of in­ter­est as she could and did not par­tic­i­pate in the eval­u­a­tion process.

She in­di­cat­ed that she had all but re­cused her­self from the mat­ter and had no role to play in the award of the con­tract. Sen­a­tor King, in an­oth­er let­ter to the Ho­n­ourable Prime Min­is­ter, al­so dat­ed May 9, 2011 refers to a let­ter sent to the Prime Min­is­ter on No­vem­ber 25, 2010 ex­plain­ing the eval­u­a­tion award and oth­er process­es en­gaged up­on for the ten­der of the min­istry's Web site. In that let­ter she al­so rais­es the de­fence that in dis­as­so­ci­at­ing her­self from the eval­u­a­tion and award process that she had act­ed fair­ly and with in­tegri­ty.

In an in­ter­view with the Sun­day Ex­press News­pa­per Sen­a­tor King de­nied any wrong do­ing and in­sist­ed that the award of the con­tract was open and trans­par­ent and did not "at all" rep­re­sent a con­flict of in­ter­est.

She said she had no in­volve­ment with the ten­der process, nor did she know the fam­i­ly-owned busi­ness was bid­ding for work in her min­istry un­til the ac­tu­al open­ing of the bids on Oc­to­ber 1 last year. n Sen­a­tor King con­firmed to the re­porter that she did not de­clare her in­ter­est at that time and did not in­form the per­ma­nent sec­re­tary or any­one else that her im­me­di­ate fam­i­ly (hus­band, St Clair, and son, Stephen) were as­so­ci­at­ed with the com­pa­ny. Sen­a­tor King con­firmed that she did not dis­close her fa­mil­ial and /or pro­fes­sion­al re­la­tion­ship with Ix­anos Ltd.

The sen­a­tor went on to state that she did not think it nec­es­sary to dis­close her in­ter­est at that point of dis­cov­ery to avoid a con­flict of in­ter­est, as she felt she could have bi­ased them one way or the oth­er.

Sen­a­tor King con­firmed she did not be­lieve her pres­ence at the open­ing of the ten­ders and her in­volve­ment in the se­lec­tion process of the bid-eval­u­a­tion team or hav­ing her peo­ple in­volved in the trans­ac­tion was a di­rect con­flict of in­ter­est.

When asked if she had rec­om­mend­ed her per­son­al sec­re­tary to sit on the eval­u­a­tion pan­el she con­firmed that ""be­cause she was an en­gi­neer, of course."

She how­ev­er main­tained that all the process­es were con­duct­ed "out­side her realm."

The sen­a­tor has not re­fut­ed any of the al­le­ga­tions made

Per­ma­nent sec­re­tary Ju­liana Boodram's state­ment

5. PS Ju­liana Boodram is the per­ma­nent sec­re­tary in the Min­istry of Plan­ning Eco­nom­ic and So­cial Re­struc­tur­ing and Gen­der Af­fairs. She states that the es­tab­lish­ment of a Web site for the min­istry was a pri­or­i­ty.

The min­istry in­vit­ed ten­ders for the es­tab­lish­ment of the Web site in Sep­tem­ber 2010.

Be­fore the bids came in the min­is­ter in­di­cat­ed to her that she want­ed to be the chair of the Ten­ders Com­mit­tee to eval­u­ate the bids. PS Boodram told her that was not the pro­to­col and the min­is­ter on hear­ing this be­came very an­gry and de­mand­ed to know why that could not be done and asked for the reg­u­la­tions that would de­bar her from be­ing chair.

She con­sult­ed with the per­ma­nent sec­re­tary of the Min­istry of Fi­nance, Al­li­son Lewis, to find out if there were any reg­u­la­tions, to pre­vent the min­is­ter from per­form­ing this role. She as­sured the min­is­ter that the process would be fair and that se­nior per­son­nel would be put on the eval­u­a­tion team. The ini­tial team com­prised the deputy per­ma­nent sec­re­tary, Joseph Howard, the se­nior le­gal of­fi­cer, An­drea Julien, the IT man­ag­er, De­osaran Bis­nath and Ephraim Ser­rette, an au­di­tor. She felt that team pos­sessed the nec­es­sary skills and com­pe­ten­cy as well as au­thor­i­ty to han­dle that ex­er­cise.

The min­is­ter agreed to the team but in­sist­ed that PS Boodram al­so in­clude as part of the team her per­son­al as­sis­tant who is an en­gi­neer by train­ing.

The min­is­ter was present when the bids were opened

The min­is­ter did not in­di­cate that she had any in­ter­est in any com­pa­ny bid­ding. The min­is­ter there­after held reg­u­lar meet­ings with the eval­u­a­tion team to find out their progress.

Some­time in Jan­u­ary 2011 a cler­i­cal of­fi­cer, of the ac­counts de­part­ment, in­formed PS Boodram that the con­tract was award­ed to a com­pa­ny owned by the min­is­ter's hus­band and son.

The proof of that was that the min­is­ter's hus­band name was in her tele­phone bills and he had writ­ten to au­tho­rise pay­ment of the bill in her name. He had al­so writ­ten to re­quest, Gopaul to sign on be­half of the com­pa­ny and they had seen the sig­na­ture and recog­nised it as the same.

PS Boodram there­after re­quest­ed the file and met with the deputy per­ma­nent sec­re­tary (DPS) , Mr Howard and the Se­nior Le­gal Of­fi­cer, Ms Julien to en­quire if they knew of this. Howard in­di­cat­ed he knew but af­ter the sign­ing, and Julien in­di­cat­ed she did not know at that point.

When the con­tract with Ix­anos Ltd was com­plet­ed Bis­nath was re­quest­ed to do a check­list to ver­i­fy that all that was sup­posed to be done was ac­tu­al­ly done.

He con­firmed that this was so but in­di­cat­ed that we should get in­to a Ser­vice Lev­el Agree­ment with Ix­anos Ltd to main­tain the site.

PS Ju­liana Boodram re­fused to do this in light of what had come to the sur­face.

6. Ad­di­tion­al In­for­ma­tion tak­en from the cor­re­spon­dence pro­vid­ed:

Worth not­ing is a piece of cor­re­spon­dence be­tween the min­is­ter and DPS Howard. On the No­vem­ber 24, 2010 the min­is­ter wrote to DPS Howard re­quest­ing cer­tain in­for­ma­tion in­clud­ing, the ad­ver­tise­ment for the bid, the list of com­pa­nies re­spond­ed..

DPS Howard re­spond­ed by let­ter dat­ed the No­vem­ber 25, 2010, ini­tial­ly point­ing out that "On Tues­day Oc­to­ber 5, 2010 at 10.00 am the ho­n­ourable min­is­ter and the per­ma­nent sec­re­tary met with the pro­posed com­mit­tee to eval­u­ate the ten­ders."

This high­lights in a con­fus­ing way the role of the min­is­ter and casts doubt on whether she adopt­ed a hands-off ap­proach and was a mere by­stander.

Cor­re­spon­dence sub­mit­ted re­vealed a clear line of com­mu­ni­ca­tion be­tween the eval­u­a­tion com­mit­tee and the min­is­ter. The com­mit­tee re­port­ed to the min­is­ter on the process (see for ex­am­ple let­ter dat­ed No­vem­ber 25, 2010 from Mr Bis­nath IT man­ag­er).

Rel­e­vant law:

7. The In­tegri­ty in Pub­lic Life Act (in the Act) es­tab­lish­es the frame­work up­on which per­sons in pub­lic life are reg­u­lat­ed.

In­deed the act pro­vides for the es­tab­lish­ment of the In­tegri­ty Com­mis­sion to make new pro­vi­sions for the pre­ven­tion of cor­rup­tion of per­sons in pub­lic life by pro­vid­ing for pub­lic dis­clo­sure; to reg­u­late the con­duct of per­sons ex­er­cis­ing pub­lic func­tions and to pre­serve and pro­mote the in­tegri­ty of pub­lic of­fi­cials.

8. Sec­tion 24 (1) of the Act, un­der the head­ing, Code of Con­duct, states:

"A per­son to whom this part ap­plies shall en­sure that he per­forms his func­tions and ad­min­is­ters the pub­lic re­sources for which he is re­spon­si­ble in an ef­fec­tive and ef­fi­cient man­ner and shall... arrange his pri­vate in­ter­ests, whether pe­cu­niary or oth­er­wise, in such a man­ner as to main­tain pub­lic con­fi­dence and trust in his in­tegri­ty."

9. Sec­tion 24 (2)(a) makes it clear that a pub­lic of­fi­cial shall not:

"Use his of­fice for the im­prop­er ad­vance­ment of his own or his fam­i­ly's per­son­al or fi­nan­cial in­ter­ests or the in­ter­ests of any per­son."

10. Sec­tion 24 (2)(b) fur­ther­more states that a pub­lic of­fi­cial shall not:

"En­gage in any trans­ac­tion, ac­quire any po­si­tion or have any com­mer­cial or oth­er in­ter­est that is in­com­pat­i­ble with his of­fice, func­tion and du­ty or the dis­charge there­of."

11. The le­gal is­sue raise in this case is whether the min­is­ter should have dis­qual­i­fied or re­cused her self from the process.

12. It is an es­tab­lished prin­ci­ple in ad­min­is­tra­tive law that where a de­ci­sion-mak­er is a par­ty to the mat­ter or has a di­rect in­ter­est (pe­cu­niary or not) in its out­come, he should dis­qual­i­fy him­self. This pre­sumed bias is an au­to­mat­ic dis­qual­i­fi­ca­tion.

13. The prin­ci­ple was fur­ther de­vel­oped in the case of R v Sec­re­tary of State for the En­vi­ron­ment ex, p Kirk­stall Val­ley Cam­paign Ltd [1996]3 All ER 304 where it was stat­ed at 325b-c: "The prin­ci­ple that a per­son is dis­qual­i­fied from par­tic­i­pa­tion in a de­ci­sion if there is a re­al dan­ger that he or she will be in­flu­enced by a pe­cu­niary or per­son­al in­ter­est in the out­come, is of gen­er­al ap­pli­ca­tion in pub­lic law and is not lim­it­ed to ju­di­cial or qua­si-ju­di­cial bod­ies or pro­ceed­ings."

14. Fur­ther­more, the law on ap­par­ent bias asks whether the as­cer­tained rel­e­vant cir­cum­stances would lead a fair- mind­ed and in­formed ob­serv­er to con­clude that there was a re­al pos­si­bil­i­ty that the de­ci­sion mak­er was bi­ased. Ap­pear­ances mat­ter and jus­tice must be seen to be done: Ben Ray­ment [1996]JR102, [1997]JR 107. and [2001] JR 93.

15. There are sev­er­al is­sues that must be con­sid­ered here. These are:

The fact that the min­is­ter and her hus­band were in­deed con­trol­ling share­hold­ers in the par­ent com­pa­ny of Ix­anos Ltd;

the min­is­ter con­firmed that she ap­point­ed her per­son­al sec­re­tary to the Eval­u­a­tion Com­mit­tee;

the state­ment of the per­ma­nent sec­re­tary cer­tain­ly sug­gests very strong­ly that the min­is­ter was ac­tive­ly in­volved in the process;

the fail­ure to dis­close her in­ter­est; and,

the let­ter of DPS Howard to the min­is­ter, dat­ed the No­vem­ber 25, 2010, which states open­ly that "on Tues­day Oc­to­ber 5, 2010 at 10 am the ho­n­ourable min­is­ter and the per­ma­nent sec­re­tary met with the pro­posed com­mit­tee to eval­u­ate the ten­ders."

16. The con­flict of in­ter­est sec­tion of the act is set out at sec­tion 29 (1) and states:

"For the pur­pos­es of this act, a con­flict of in­ter­est is deemed to arise if a per­son in pub­lic life or any per­son ex­er­cis­ing a pub­lic func­tion were to make or par­tic­i­pate in the mak­ing of a de­ci­sion in the ex­e­cu­tion of his of­fice, and at the time knows or ought rea­son­ably to have known that in the mak­ing of the de­ci­sion, there is an op­por­tu­ni­ty, ei­ther di­rect­ly or in­di­rect­ly, to fur­ther his pri­vate in­ter­ests or that of a mem­ber of his fam­i­ly or any oth­er per­son."

17. Sec­tion 29 (2) of the In­tegri­ty Act goes fur­ther to say:

"Where there is a pos­si­ble or per­ceived con­flict of in­ter­est, a per­son to whom this part ap­plies, shall dis­close his in­ter­est in ac­cor­dance with pre­scribed pro­ce­dures and dis­qual­i­fy him­self from any de­ci­sion-mak­ing process."

18. The min­ster claims to have on­ly dis­cov­ered the fact that her com­pa­ny was in­volved when the bids were opened on the Oc­to­ber 1, 2010.

19. The is­sue then is this: The min­is­ter was a con­trol­ling share­hold­er in a com­pa­ny that owned one of the ven­dor com­pa­nies that ten­dered a bid. The ven­dor com­pa­nies were man­aged and op­er­at­ed by her hus­band and son. She claims she dis­cov­ered this on­ly on the Oc­to­ber 1, 2010 and the ques­tion to be an­swered is did she take the ap­pro­pri­ate steps to dis­charge her oblig­a­tion as pre­scribed and re­quired un­der Sec­tion 29 of the Act .

20. The min­is­ter has of­fered the ex­pla­na­tion that she opt­ed to say noth­ing for fear that iden­ti­fy­ing her con­nec­tion to the ven­dor com­pa­ny would re­sult in bias ei­ther for or against the said ven­dor com­pa­ny.

In her own words: "No, and you know why I didn't, I thought the very fact that I am say­ing that-that they could be bi­ased for or against. So I did noth­ing."

21. This is new in­for­ma­tion which has on­ly come to light in the ar­ti­cle pub­lished in the Dai­ly Ex­press on May 8, 2010.

22. To sug­gest that tak­ing non-dis­clo­sure of one's in­ter­est in the cir­cum­stances some­how ful­filled the af­fir­ma­tive oblig­a­tions un­der sec­tions 29 of the act demon­strates a fun­da­men­tal and alarm­ing lack of un­der­stand­ing or knowl­edge of the statu­to­ry oblig­a­tions im­posed on all by ho­n­ourable gov­ern­ment min­is­ters by the act.

23. I add to this the ap­par­ent­ly con­flict­ing state­ment in­clud­ed in the let­ter of DPS Howard that "on Tues­day Oc­to­ber 5, 2010 at 10 am the ho­n­ourable min­is­ter and the per­ma­nent sec­re­tary met with the pro­posed com­mit­tee to eval­u­ate the ten­ders."

Con­clu­sion:

I am of the view that a prim&aa­cute; fa­cie case is made out on the facts and doc­u­ments be­fore me to war­rant a re­fer­ral of this mat­ter to the In­tegri­ty Com­mis­sion for fur­ther in­ves­ti­ga­tion. The fail­ure of the min­is­ter to dis­close her in­ter­est is in con­flict with the manda­to­ry du­ty of full and frank dis­clo­sure im­posed by S 29 of the act. The prob­lem is com­pound­ed by the fact that the min­is­ter ap­point­ed her per­son­al sec­re­tary to serve on the eval­u­a­tion com­mit­tee. The min­is­ter ought to have dis­qual­i­fied her­self from the en­tire process. She should not have made any ap­point­ment or rec­om­men­da­tion in this re­gard. The al­le­ga­tions made by PS Boodram and DPS Howard re­gard­ing th ac­tive role of the min­is­ter in the process lead­ing to the award of this con­tract is cause for se­ri­ous con­cern. It casts doubt on the im­pres­sion giv­en by the min­is­ter's state­ment that she adopt­ed an "arm's length" ap­proach to this trans­ac­tion and was noth­ing more than a mere by­stander to it. The min­is­ter act­ed im­prop­er­ly in fail­ing to dis­close her in­ter­est and dis­qual­i­fy her­self from the en­tire process.

I so ad­vise.

Anand Ram­lo­gan

At­tor­ney Gen­er­al