Editorial | IC role creates conflict for auditor general
Everald Warmington’s case for why the auditor general, Pamela Monroe Ellis, shouldn’t be a member of the Integrity Commission (IC) deserves serious attention and a response from policymakers and legal drafters of its merit, and whether a critical issue was overlooked when the law to establish the commission was being crafted.
Whatever the conclusion on this issue, there are new questions of the logic of the auditor general being a member of the IC, which people who should know better, and expected to bring a deeper and intellectual sound analysis of such matters, disingenuously interpreted to be attacks on Mrs Monroe Ellis’ integrity.
Unfortunately, Mr Warmington’s observation, perhaps because of his reputation for boorishness, didn’t elicit much traction with his colleagues who sit on the commission’s parliamentary oversight committee at their meeting last week. His concern didn’t arise from conflict of interest that would be inherent in Mrs Monroe Ellis exercising her constitutional authority and auditing a body of which she is a member, which was the hypothetical question that so greatly – but wrongly, in our view – exercised committee members. For, contrary to their apparent belief, it does not require legal gymnastics or special work-arounds for the auditor general to have someone else audit government institutions. That’s allowable in law.
Neither did Mr Warmington’s argument directly relate to the potential for conflicts of interest – of which this newspaper has warned several times – in circumstances where the findings of audits done by the auditor general provide the basis for further investigation by the Integrity Commission, as is likely to be the case with her recent probe of the Joint Committee for Tertiary Education (JCTE). Mrs Monroe Ellis specifically recommended that that report be forwarded to the police “or a designated anti-corruption agency”. Jamaica’s premier anti-corruption agency is the Integrity Commission.
Mr Warmington’s argument is simple: that Mrs Monroe Ellis is barred by Jamaica’s Constitution, at Section 120 (3) from serving at any other institution. The section says: “A person who has held the office of Auditor General shall not be eligible for appointment to any other public office”.
The interpretation of this section will be important. The implication, at initial reading, is that the bar on the auditor general holding other public office applies only after the person has demitted the post. But it is not illogical for Mr Warmington to question whether the framers would have thought it fit that someone vested with the power and authority of the auditor general should simultaneously hold other public roles where there is the potential to presume conflicts of interest.
And if the residual influence was thought to be so great as to make an ex-auditor ineligible for other public offices, wouldn’t that leverage, and potential for conflict, be even greater if the person straddles multiple public offices while holding the primary one?
But the debate of the merit of the auditor general’s place on the Integrity Commission rests not only on the specific declaration of the Constitution, or as some might wish to argue, the specific rulings by courts of what constitutes conflict of interest. There are other principles relating to governance that are also at play here – perception of fairness, trust in public institutions.
Jamaicans are rightfully concerned about corruption; they believe that public institutions are highly corrupt. They wish that to change. But they also expect that the institutions that police corruption must be deemed not only to be fair, but apply Lord Chief Justice Hewart’s maxim about justice not only being done but “manifestly and undoubtedly be seen to be done”.
NO NEED FOR NEW LAW
Whoever the person is, the auditor general is, by law, one of the five commissioners of the IC. Mrs Monroe Ellis had no role in crafting the legislation or discretion in her appointment. Nonetheless, her office sometimes undertakes investigations that lead to Integrity Commission follow-ups, in which she has to rule. An auditor general, therefore, may be placed in the invidious position of appearing to defend the findings of that office in the face of contrary interpretations of the same facts or information by Integrity Commission investigators.
Even if the auditor general recuses himself or herself from specific cases, or otherwise acts with the utmost integrity, there is still the possibility for the perception of conflict of interest, a position which is best avoided.
This, we believe, is a far more important issue than the matter of whether the Integrity Commission, because of the auditor general’s recusal, has to use outside auditors to verify the appropriations accounts of its legacy agencies, over which the oversight committee made an issue. There is, it seems, no need for special dispensation or a new law for this to happen.
According to the Public Bodies Management and Accountability Act, “the auditor general may authorise any person registered under the Public Accountancy Act to inspect, examine or audit the books and accounts of any public body which the auditor general may be required to examine or audit and that person shall report his findings to the auditor general”.