Govt’s lease of Town Centre Mall from Brent Symonette: constitutional, legal and ethical issues
On July 2, 2019, St. Anne’s MP Brent Symonette appeared on the radio talk show “The Conversation” with host Shenique Miller, during which Symonette disclosed, amongst other things, the circumstances relating to the government’s leasing of the Town Centre Mall, which is owned by his brother and himself. He stated (as transcribed) that:
“I figured there’s no way they are going to rent from my brother and myself, so I left it alone. The phone rang one morning in whenever, I was in Mexico. It was early in the morning; PM and I get up early and PM said ‘we are going to go ahead with the lease’.
“I said, ‘PM, I can deliver it by Christmas if it’s no Rolls Royce and we have to reduce the size of the building. It can’t be 70, 80,000 square feet. It has to be a Volkswagen not a Rolls Royce.’ We had that discussion.
“I said, ‘You have to deal with the whole question of conflict of interest.’ He said, ‘We will do a resolution in the House of Assembly.’ He said, ‘What will the rent be?’, I said, ‘$12 per square foot’ and I came back; my partners dealt with the Ministry of Works everything else.
“We pretty well did the plan that was left in place by the PLP government except for the cafeteria upstairs and some other space and the building was opened after some massive changes in the plans at the rent of $12 per square foot for some 56,000 square feet at $12 as opposed to $25 at 56,000 so the people who quote the wrong number it’s $56,000 a month which is $700,000 per year not $900,000 that I see in the press. There is no CAM charge. The landlord put in some $500,000 worth of extras for the government like furniture and everything else which the government did not buy and that will be charged back over 60 months at an interest rate of prime, not prime plus prime.”
Alleged unauthorized disclosure
Ministers in the Cabinet take an Oath of Allegiance and Oath for the Due Execution of their office, pursuant to the Official Oaths Act, 1973, and swear they will “not on any account, at any time whatsoever, disclose the counsel, advice, opinion or vote of any particular minister. . .except with the authority of the Cabinet and to such extent as may be required for the good management of the affairs of The Bahamas, directly or indirectly reveal the business of proceedings of the Cabinet or the nature or contents of any documents communicated to me as minister or any matter coming to my knowledge. . .”
The prohibition against disclosing discussions between ministers is also contained in the Manual of Cabinet and Ministry Procedure, which at Clause 17 provides, in part, that: “Discussion between ministers under a common obligation of secrecy about subjects to which that obligation applies, should always be so conducted that there is no reasonable likelihood of a breach of that obligation.”
Further, Clause 21 of the Cabinet Manual provides: “If a minister resigns and, in stating the reason for his resignation, wishes to refer to discussion in Cabinet, he must through the prime minister obtain the consent of the governor general before doing so.”
The disclosure by Symonette of his conversation with the prime minister and the contents thereof relating to the Cabinet’s decision to lease Town Centre Mall and to seek the approval of the House of Assembly was characterized by the Office of the Prime Minister as a breach of confidentiality according to the report of Rashad Rolle of The Tribune.
In The Tribune of Friday, July 12, 2019, Rolle reports that, “The Office of the Prime Minister has declined to confirm the date of that call, and further suggested that the admission made by the former minister represented a breach of confidentiality.”
It is, therefore, an open question whether Symonette indirectly revealed Cabinet’s business and, if so, whether he had obtained the permission of the Cabinet, pursuant to the Official Oaths Act and the Cabinet Manual, prior to making his July 2, 2019 disclosures about his conversation with the prime minister.
Alleged misrepresentations to Parliament
On October 24, 2018, the House of Assembly passed a resolution approving the government entering into a five-year leasehold agreement with the landlord of the Town Centre Mall for the relocation of all functions of the General Post Office, pending the construction of the new General Post Office by the government by way of public-private partnership.
In the two paragraphs before the last of the resolution, the Cabinet represented to the House of Assembly that:
“AND WHEREAS the government has worked assiduously to identify a suitable alternative site to relocate the General Post Office and, in particular, acquired the old Phil’s Food Services building on Gladstone Road, but only recently discovered that the latent (hidden) structural defects and other technical issues would require a massive expenditure of taxpayer dollars in conducting extensive renovations to the entire building which would take at least a year or more; and so would not provide the timely relief for customers and staff of the General Post Office, who suffered for so many years.
“AND WHEREAS one of the beneficial owners of the said Town Centre Mall is a serving Cabinet minister, who did not take part in the discussions leading to the decision to accept the offer to lease portions of the building, which will be made suitable for the operations of the General Post Office at the expense of the landlord; which minister has nonetheless declared his interest; . . .”
The representation, contained in the resolution, that it was “recently discovered that the latent (hidden) structural defects and other technical issues would require a massive expenditure of taxpayers in conducting extensive renovations to the entire building” was apparently disputed by Basil McIntosh, of McACE Technical Services Ltd. The Ministry of Works had hired McACE to carry out a comprehensive assessment of the old Phil’s Food Services building in August 2018 prior to the presentation of the resolution to the House of Assembly.
According to the report prepared by McIntosh (as quoted in The Tribune of July 12, 2019), “Our investigations reveal that there are no structural concerns. Therefore, we have concluded that the existing structure is in no imminent danger of structural comprises or collapse. . .throughout this exercise, it was discovered that there are no major repairs to be done. During our examinations and assessment, we have discovered that the entire structure is in very good condition.”
Symonette’s disclosures on July 2, 2019 to Miller seem to contradict the representation contained in the penultimate paragraph of the resolution to the effect that Symonette “did not take part in the discussions leading up to the decision” to lease the Town Centre Mall, although it is unclear whether these discussions occurred before or after the Cabinet’s decision to lease the Town Centre Mall.
Therefore, there is an issue of whether the Cabinet made misrepresentations to the House of Assembly in seeking the approval of the House of Assembly for the lease of the Town Centre Mall. The Powers and Privileges (Senate and House of Assembly) Act makes it clear that the presentation of a false or misleading submission to the House of Assembly is a contempt against the House liable to be disciplined by Parliament. The Cabinet Manual, at Clause 33, provides that the Cabinet has “the duty to give Parliament, (including its select committees), and the public as full information as possible about the policies, decisions and actions of the government, and not to deceive or mislead Parliament and the public”.
Alleged conflict between public duty and personal interest
The constitution, at Article 49 (1) (f), provides that every member of the House of Assembly shall vacate his seat in the House if he becomes interested in any government contract: “If in the circumstances it appears to the House of Assembly to be just to do so, the House of Assembly may exempt any member of the House from vacating his seat under the provisions of this subparagraph, if that member, before becoming interested in such contract as aforesaid or as soon as practicable after becoming so interested, discloses to the House the nature of such contract and his business therein.”
Under this constitutional provision, it appears that Symonette had an obligation to disclose to the House of Assembly his interest in the leasehold contract with the government before the tabling of the resolution. While the resolution does not explicitly state the constitutional provision under which it was brought, presumably, it was brought under Article 49 of the constitution. However, the constitution, under Article 49 (1)(f)(iii), also confers locus standi on current senators and members of the House of Assembly to initiate judicial review or Election Court review proceedings, under Article 51 (1)(b) and under Section 7 of the Parliamentary Elections Act, to determine whether a member of the House of Assembly is required to cease to perform his functions as a member.
Further, Clause 36 of the Cabinet Manual provides: “A minister must avoid situations in which his private interest, whether pecuniary or otherwise, conflicts or might reasonably be thought to conflict with his public duties.”
Clause 43 provides: “A minister must not engage in nepotism, i.e., the use of his office and power to secure advantages for himself, his relatives or associates to the disadvantage of others who would otherwise have received the advantage.”
Clause 44 provides: “A minister who violates these rules (34-43) leaves himself open to discipline and, depending on the seriousness of the breach, may be relieved of his ministerial appointment.”
The conflict between public duty and personal interest in this situation is clearly manifested and also admitted by both the government and Symonette; thus, the tabling in the House of Assembly of the resolution for a waiver of the conflict of interest.
The question is whether, in the instant circumstances, the waiver given by the House of Assembly is vulnerable to challenge, in light of Symonette’s failure to disclose the conflict to the House himself, Symonette’s subsequent disclosures on July 2, 2019 and the reported statements by McIntosh relating to the Phil’s Food Services building.
Would the House of Assembly have considered it just to grant an exemption to Symonette had the House of Assembly been informed of Symonette’s prior discussion with the prime minister relating to the terms of the lease and the findings of McIntosh relating to the condition of the Phil’s Food Services building?
Therefore, the disclosures by Symonette and by McIntosh have raised the following constitutional, legal and ethical issues: (a) whether Symonette’s disclosures breached his ministerial oath and the prudential rules contained in the Cabinet Manual; (b) whether Symonette was required to disclose the leasehold contract himself to the House of Assembly before the presentation of the resolution for exemption; (c) whether the House of Assembly was misled by the certain representations, amongst other things, contained in the resolution and, if so, the effect of any alleged misrepresentations; and (d) whether the speaker of the House of Assembly, a senator or any member of the House has the legal standing to make a constitutional claim, under Article 49, for the Supreme Court to declare the aforesaid resolution null and void and order Symonette to vacate his seat as a member of the House of Assembly.
While these constitutional, legal and ethical issues must be addressed, there are also public policy measures which should be undertaken immediately to restore public confidence in the proper governance of The Bahamas.
I, therefore, recommend, in the context of this current crisis, that the following public policy measures be undertaken to strengthen the systems of accountability, transparency and sound public administration.
Firstly, there should be the immediate debate and passage of the Integrity (Commission) Bill, with robust criminal sanctions for abuse of public office and the public goods of The Bahamas. Secondly, an independent Contractor General Office, with constitutional security of tenure and independence, should be established to superintend all public procurements.
Thirdly, all public corporations should be required, by a certain date, to establish fair and transparent procurement policies for the competitive, fair and transparent conduct, use and management of Bahamian public goods. These measures can stem the rapidly eroding public trust in the government and better secure the Bahamian democracy.
• Alfred Sears is a former member of Cabinet and a Queen’s Counsel.