Mischief and more over public-service rules

BY Gordon Robinson

Yesterday's Gleaner's lead story ('Step aside now') is, in my opinion, unnecessarily damaging to the characters and reputations of two hard-working national contributors.

Suddenly, both Joan Gordon-Webley, National Solid Waste Management Authority (NSWMA) executive director, and Camile Buchanan, acting Caymanas Track Limited (CTL) CEO, are being publicly vilified for doing their jobs while being considered for JLP candidacy in the next general election. Since nomination day hasn't been announced, neither has been confirmed as candidates.

Misconceived concerns by the Jamaica Civil Service Association (JCSA), through its president, O'Neil Grant, were regurgitated in the Gleaner report without any editorial comment as to their reliability. According to Grant, as reported in The Gleaner, the regulations and the Staff Orders for public servants are "very, very clear".

Grant is quoted as saying, "They can no way work in the public service and launch a campaign for political office." But Mr Grant has yet to explain the source or applicability of that "regulation" or "staff order".

Since neither Mrs Gordon-Webley nor Ms Buchanan works in the public service or are on staff in any ministry, I can only wonder as to how so much mischief can be generated by such a vague allegation. As NSWMA executive director, Mrs Gordon-Webley is employed by a statutory body governed by the rules laid down in the statute that created it. Ms Buchanan is employed to a government-owned limited-liability company; was employed as CEO by the duly appointed board of directors; and is bound by CTL's Articles of Association and the terms of her contract.

Clarity amid the fog

Let me be as clear as I can. The 'public service', properly so called, is of very narrow scope and persons who work for statutory boards are not working in the 'public service', as the law knows that venerable institution. To begin with, public servants are appointed by the governor general.

Chapter 9 of the Constitution deals with the public service and Section 123 is, in Mr Grant's words, very, very clear.

"For the purposes of this chapter of this Constitution, 'public office' does not include office as a member of any board, panel, committee or other similar body (whether incorporated or not) established by any law for the time being in force in Jamaica."

The NSWMA is established by The National Solid Waste Management Act, which provides for NSWMA employees to be appointed by the NSWMA board. The only time the governor general becomes involved is if an employee, already a public officer, is seconded or transferred from his public-service post.

Buchanan's case

Ms Buchanan was a sitting councillor for the Portmore Municipal Council when she was appointed, by the minister of finance, to the board of CTL. When the post of CEO became vacant, the board unanimously appointed her acting CEO. Nothing had changed. She actively continued her dual role as politician/ corporate executive without a murmur from a living soul. In fact, her performance as CTL acting CEO, and Mrs Gordon-Webley's as head of NSWMA, have been widely praised.

I'd expect that, if and when either lady is nominated, they'll both step aside for no other reason than that the job for which they'll be actively campaigning (MP) comes with a constitutional bar from becoming "a party to any contract with the Government of Jamaica or on account of the public service ... ." (See Section 41(1)(f) of the Constitution).

The Court of Appeal put this argument to rest in a 2005 decision in the matter of Eugennie Ebanks v Betting, Gaming and Lotteries Commission (BGLC), where it ruled that "the BGLC enjoys all the rights and [is] subject to liabilities of an ordinary company. The Betting, Gaming and Lotteries Act (BGLA) demonstrates that it was established by the Government reserving some amount of ministerial supervision. It is a separate entity from the government department. The intention of the framers of the BGLA was to bestow on the (commission) an existence of its own. It cannot be denied that it carries with it some public character. However, it cannot be recognised as operating as a government department." Ms Ebanks, BGLC senior officer, was found not to be a public servant and the public-service regulations found not to apply to her.

Both CTL and the NSWMA have this same "separate" character, intent and legal effect. The constitutional bar applies to sitting MPs only and the public-service regulations are irrelevant to these two organisations. I hope 'politricks' will not prematurely deprive us of the services of these hard-working ladies.

Peace and love.

Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com.