National Review

Veil of secrecy

Taxpayers have a right to settlement disclosures

A debate has arisen in the public domain over whether lawsuit settlements reached between the government and certain individuals ought to be made public.

These settlements included the recent settlements arrived at with the now Commissioner of Police Clayton Fernander and Deputy Commissioner of Police Leamond Deleveaux, not long before those men took up their recent appointments.

As has been widely reported by The Nassau Guardian and other media, Fernander and Deleveaux were among eight senior police officers forced on leave by the Minnis administration in 2019, and later reassigned to areas within the public service that were an insult to their stature as senior officers.

The men sued the government after they were sent on leave.

The decision to instruct those officers to take their many weeks of accumulated vacation and the decision to send them to various government departments to do what essentially would have amounted to security work raised eyebrows, and understandably so, especially given that other senior officers who had substantial amounts of vacation leave were not made to take it.

We are no legal scholars, but the situation seemed ripe for legal action.

Politically, it was clearly damaging for the Minnis administration.

In an unrelated matter, we reported just yesterday that the government has reached a tentative agreement with former Bahamas Power and Light (BPL) Executive Chairperson Darnell Osborne and two other former board members, Nick Dean and Nicola Thompson, who sued BPL and the government for unfair and wrongful dismissal after they were fired from the BPL board in 2018.

It was a nasty affair with then-Minister of Public Works Desmond Bannister making wild and damning claims against Osborne in particular.

He accused her of abusive behavior while she served on the board and claimed she had used BPL money for private matters.

Again, it was a lawsuit waiting to happen, especially since Osborne, as a certified public accountant, trades on her good name.

Dean also said statements Bannister made about him damaged his reputation and negatively impacted his business and undermined an untarnished record of over 20 years of service to the Bahamian construction market.

Damian Gomez, QC, who represents Osborne, Dean and Thompson, confirmed to us that the tentative settlements were arrived at last week.

The trio were previously represented by Alfred Sears, QC, who is now a Cabinet minister and as such cannot practice law.

Interestingly, Wayne Munroe, QC, who is also now a Cabinet minister, had provided legal advice for Fernander and the other senior officers who sued the government.

He was the lawyer for Assistant Commissioner of Police Ken Strachan who also sued the government and whose case is pending.

We would not be surprised if the government also settles that matter soon.

The Office of the Attorney General also reached a confidential settlement with Financial Secretary Simon Wilson, who was sidelined by the Minnis administration, which had instructed him to take leave.

Wilson was back at the Ministry of Finance bright and early after the Progressive Liberal Party (PLP) was re-elected last September.

We probably will never know how much the former administration’s bad treatment of the financial secretary ended up costing Bahamian taxpayers.

In yet another matter, the government in March reached a settlement with former PLP Cabinet Minister Shane Gibson, who alleged that he was falsely imprisoned and maliciously prosecuted.

The government did not reveal the amount of that settlement, but Gibson’s lawyer, Anthony McKinney, QC, confirmed to us that the settlement was $2.5 million.

In November 2019, Gibson was acquitted of bribery in the high-profile case.

There is no doubt that the government would have kept that settlement secret, as if it is no business of the public.

Former PLP Senator Frank Smith has also sued the government for malicious prosecution.

Smith, former chairman of the Public Hospitals Authority, was acquitted in February 2019 on bribery and extortion charges.

We expect to soon learn that the Davis administration will also settle his case, and a similar case involving former PLP minister Kenred Dorsett.

The director of public prosecutions issued a nolle prosequi in Dorsett’s corruption case in March, after the key witness, Johnathan Ash, indicated his intention not to testify.

Unless there is some revelation by Smith’s and Dorsett’s attorneys, we do not expect the Office of the Attorney General to disclose any settlement amounts when they are reached.

The three former parliamentarians were taken to court in 2017 within months of the Free National Movement’s election.

The FNM’s campaign had been accompanied by claims of “they gern to jail” and a repeated commitment by then-Free National Movement (FNM) Leader Dr. Hubert Minnis to stamp out corruption.

Not surprisingly, the Progressive Liberal Party called those prosecutions “political prosecutions” though the then-government had insisted there was no political interference.

Gibson’s and Smith’s acquittals and the failure to try Dorsett’s case over the course of several years also did tremendous harm to the FNM’s brand.

The taxpayers have been left holding the bag.

No private matter

Gomez estimated that these various settlements under the Davis administration will amount to millions of dollars.

Given that we know what the settlement is in Gibson’s case, we know this is certainly true.

The government, it appears, has taken the view that the public does not have a right to know the amounts of the various awards, though the prime minister’s press secretary, Clint Watson, was noncommittal when asked about the government’s position on the matter of disclosure.

Watson did point to a position stated previously by Minister of State in the Office of the Prime Minister Myles LaRoda that revealing settlement amounts could make individuals a target.

“I have always been one that says transparency is important, and so I think this is a good example perhaps of discussion as to how do we marry both to satisfy the need for and importance of people having transparency versus people’s security being compromised and I think transparency is important,” Watson said.

This matter was recently raised in the House of Assembly by Opposition Leader Michael Pintard.

He said, “The prime minister is duty bound to explain what motivated his settlement of the financial secretary, what motivated his settlement as it relates to the [commissioner of police] and what is the amount given because what you may have is men of integrity who are in place but by treating what you do with the Bahamian people as a private matter, you then hang a cloud over these kinds of issues.

“We ought to know. If somebody has been removed and their feelings have been hurt and embarrassment has been caused and a settlement has been given, what is the amount? Because in this jurisdiction, there [is]nominal compensation.

“It isn’t hundreds of thousands of dollars. … Give the public an opportunity to not waste time with needless questions because we’ve been transparent in terms of what arrangement we have made with them.”

Responding to Pintard in the House, LaRoda raised the issue of the security of the individuals who received the settlements.

“I would like to just remind that we are talking about private citizens and their settlements,” he said.

“I head an organization the prime minister has bestowed upon me (the National Insurance Board) and we all know that in one of those organizations there was a settlement; the individual who I know very well, who was like a brother to me, when that matter was settled, I don’t remember any disclosure that was made, neither should it have been.”

We presume LaRoda was referencing the settlement reached in 2018 under the Minnis administration with former NIB Director Algernon Cargill, who was fired from NIB under the Christie administration.

Brensil Rolle, the minister who had responsibility for NIB, had refused to reveal the settlement amount, saying only it was a “fair” one.

LaRoda asked, “Why are we going to put private citizens who … filed claims against the government and make them even targets for individuals while we are talking about this crime spree that’s going on?

“Why would we want to target them or their children based on settlements they received legally, Madam Speaker?

“It cannot be right for certain settlements to remain secret in one case and then exposed in the other. It is my personal opinion that those matters should be a secret if only to protect the individuals who receive them legally.”

When he spoke with us on the matter of settlements on Monday, Gomez, the lawyer in the BPL matter, pointed to the FNM’s hypocrisy on this issue.

“The FNM, who are the ones who put the public purse in jeopardy, are now the ones calling for the publication of settlement terms, so as to exacerbate the experience of their victims. Something has to be wrong with that,” he said.

Gomez added, “The auditor general protects the integrity of the accounting of expenditures from the Consolidated Fund and has access to all of the files, so there’s no danger to the public purse in not knowing a specific amount.”

Right to know

While we believe that it is indeed bad decisions on the part of the Minnis administration that is costing the public dearly, that does not subtract from the right of the Bahamian people to know in all cases how the government is spending their money and how much of their money is being spent – unless we are talking about a revelation that would threaten national security.

Good governance, transparency and accountability dictate that the settlements be made public.

Presumably, this is the same principle that led Prime Minister Philip Davis to reveal in Parliament in March that Susan Holowesko Larson, who chaired the National Food Distribution Task Force under the Minnis administration, was paid $1,750 per week for her work.

It was in the public’s interest to know that.

It was also in the public’s interest to know that the Minnis administration spent $1.1 million on the failed prosecutions of Gibson and Smith – as revealed in the Senate by Attorney General Ryan Pinder.

The government ought not use its “security target concern” to hide from the public that which it legitimately has a right to know.

Davis, Pinder, LaRoda and others in the Cabinet are not spending money from their personal bank accounts to make these settlements, but the collective money of the Bahamian people.

Secrecy in how public money is expended leaves the door wide open for corruption and abuse.

Transparency does not just matter when revelations are being made about how predecessors in office spent money.

It matters in every instance.

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Candia Dames

Candia Dames is the executive editor of The Nassau Guardian.

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