Gordon Robinson | Always market me!

There has been much public discussion, most of it uninformed, about a recent report from Integrity Commission’s (IC’s) Director of Investigation (DI).

IC began by recording what it investigated:

“DI commenced an investigation into allegations of procurement irregularities and conflict of interest in the award of contracts to Market Me, by MoHW in respect of the development and implementation of a social marketing campaign, during January 2016-December 2020.”

Two investigations:

1. Procurement irregularities

2. Conflict of interest

With due respect to Jamaican toxic masculinity, let’s deal with number 2 first. What were the “conflict of interest concerns” eventually found by IC (Paragraph 1.1 of its report)? I hope IC began this aspect of the investigation by identifying “interests” that might’ve conflicted.

My research at Companies Registry discloses Market Me Consulting Limited (“Market Me”) was incorporated on February 20, 2013. Its directors and shareholders have always been Lyndsey McDonnough and Kristina Kerr. Christopher Tufton isn’t registered as Director or Shareholder. There’s no evidence he’s related to Lyndsey or Kristina. So I’m baffled as to what legal interest he’s thought to have in Market Me.

There’s general muddle regarding the legal meaning of “conflict of interest”. In order to have a conflict of interest you must have a legal interest in two conflicting entities or persons. There can also be “conflict of duty and interest” where there’s a public or private duty to one and a legal interest in the other. There’s also conflict of duties. For example, a lawyer representing both sides of a transaction has duties to and a financial interest in both. Any transaction can result in dispute so the conflicts are apparent.

A Minister has no legal interest in a Ministry’s operations. The Minister has a public duty imposed by the Constitution section 69(2):

“The Cabinet shall be the principal instrument of policy…. and shall be charged with the general direction and control of the Government of Jamaica and… collectively responsible therefore to Parliament.”

This is a Minister’s duty. It’s owed to Parliament which is, in theory, representative of We, the People. Once he discharges this duty he has no vested interest in outcomes. Of course, like any citizen he’d prefer his ministry to effectively implement Government policy for Jamaica’s benefit.

But he has no personal interest.

If he had an interest in Market Me there would be a potential conflict of duty and interest. But he has none. So, there’s no conflict (or potential conflict) of any kind. That “investigation” was always a non-starter. IC quoted GOJ’s Code of conduct for civil servants that include “relationships that are actually or potentially detrimental to the best interests of the Government.”

Civil service is politically insulated (e.g. civil servants can’t be candidates). So these rules, of questionable validity anyway, don’t apply to Ministers. Also it’s highly unlikely that, without more, a friendship, however close, could be detrimental to Government’s best interests. We all recommend friends for jobs. So what? Potential employers then assess suitability.

We’re ALL “interested” in our friends succeeding. Most of us are “interested” in many other happenings (e.g. intimate details of public officials’ or entertainers’ relationships). Legally, that does NOT make them matters of public interest. In other words there’s “interest” and then there’s Interest! Don’t confuse the two.

IC’s investigation into possible “procurement irregularities” is more relevant. It’s important to note IC found “irregularities” not corrupt practice. IC wasn’t investigating any alleged corruption but is empowered to examine procurement practices in order to make recommendations to reduce possible future corruption.

In investigating circumstances surrounding contracts awarded to Market Me and Tufton’s involvement, IC found;

• Fifteen contracts, valued almost $80 million were awarded to Market Me; fourteen were awarded by MOHW;

• In all instances direct contracting procurement methodology was used;

• Two contracts, totaling $50+ million, weren’t reported to IC’s Quarterly Contract Award Database - a running compilation of all contracts reported by Public Bodies;

• Multiple contracts were awarded to Market Me on the same date thus avoiding (not necessarily evading) requirements for public tender;

• Evidence collected by DI reveal Tufton introduced Market Me and the concept “Jamaica Moves” to MOHW then had face to face meetings with Stephanie Shaw-Smith, former MOHW Director, Communication and Public Relations, after Shaw-Smith rejected a perfunctory power-point proposal. Shaw-Smith, whose tenure ended in September 2016, said Tufton seemed, at those meetings, to actively promote the award of contracts to Market Me;

• IC reports Tufton stated he didn’t recall (shades of Tweety-Bird) giving specific directions and/or instructions after the presentation. However, he did “…express interest in what was presented as it was in keeping with the lifestyle and wellness approach that I wished to embark upon as a policy direction and I asked the Permanent Secretary to do follow-up work in that regard.”

Bob? Or Weave?

Asked about the unsolicited nature of Market Me’s proposal, Tufton told IC:

“I did not engage in discussions relating to the details and/or material proposed by Market Me…. I however had previous discussions with Miss Lyndsey McDonnough of a general nature over a period of time on health and wellness issues and how those should be promoted and marketed.”

Hi Bob!

Asked specifically whether he gave any directions, instructions or recommendations regarding MOH’s treatment of the proposal, Tufton replied:

“The Proposal appeared to fit in with my view on lifestyle and wellness issues and this would have been perceived by the Ministry staff involved in the process. I however gave no directions, instructions or recommendations concerning the treatment of the said Proposal but I was entitled, as Minister, to express my views on policy issues and the officers would no doubt have taken into account that fact when treating with the proposal.”

Heeeeeeeeeere’s Weave!

Lyndsey McDonnough told IC:

“Market Me….approached the newly appointed Minister of Health and Wellness, Dr. the Honourable Christopher Tufton, to discuss a fitness concept we had been implementing within Kingston through our running club…”

Oopsie. How did she get from there to MOHW? Why start there? Was the initial approach written? Or Oral? Where? When? And what about Naomi?

Former MOHW permanent secretary, Kevin Harvey, whose tenure ended before the contracts were awarded, told IC he “first became aware of Market Me…around March 2016. The Minister of Health, Dr. Christopher Tufton introduced the company to the senior management team and asked that they participate in all PR matters relating to the office of the Minister... They were not contracted by MOHW at this time.”

Less than a month after the new Government was elected!

So, Lindsey went to Chris; Chris introduced Market Me to MOHW and “asked” (not “instructed”) that it “participate” in all PR matters related to him; an unsolicited proposal followed; face-to-face meetings with all concerned; then Bingo! Give the lady a stuffed toy.

My horseracing pal would say “sump’n inna sump’n!”

There is, in my opinion, nothing wrong with a Minister recommending a friend for a government contract. And what kind of friend is nobody’s business. But if a Minister should unduly influence the Ministry’s staff to award Government contracts to a friend or his/her company that would be an abuse of power. Recommend fine. Then leave staff alone to do due diligence. In this case nobody seemed able to recall details of any due diligence that might’ve been conducted.

Here’s where this issue becomes another of good governance. Government is determined to “reform” the procurement process but is once again on a wild goose chase. Any procurement process must have oversight to guard against corruption AND undue influence. If Government and Parliament remain indistinguishable, who will oversee?

If a Minister pressures Ministry staff, even indirectly, to award contracts to friends based solely on friendship that’s the sort of “political crime” that should be subject to impeachment procedures in Parliament based on recommendations from procurement reform’s Oversight Body.

But Parliament is swarming with Ministers and Junior Ministers so who’ll act on the recommendations? If we separate Parliament from Government, impeachment proceedings against Government Officials can be brought and debated in parliament. If successful an impeached Minister can be tried in the Senate and convicted by a two-thirds majority which eliminates political convictions. MPs should be subject to recall elections.

We are NOT serious about good governance. Only focused constitutional reform unrelated to King Charles can create a seriously reconstructed system capable of serious results.

Peace and Love.

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