Sunday Herald redeems itself (sort of)

In its editorial today (April 06, 2008), the Sunday Herald partially redeemed itself by challenging Ambassador Rainford's earlier denial that the PSC approved or rescinded the acting appointments of Nicole Foster-Pusey and Lackston Robinson. However, the Herald's editorial failed to take any responsibility for having previously accepted Amb. Rainford's version of events without question. The Sunday Herald actually went beyond a mere disclaimer, and apologized to Amb. Rainford for carrying the story about the cancellation of the acting appointments.

The editorial states that:

There is a widely held view that the current PSC, described by some as Prime Minister Golding’s Select Committee, has lost its independence. And recent developments in the commission and how they were handled have not done much to dispel that view.



The new PSC was conceived and delivered as an appendage of the political directorate. Congenitally, independence was never part of its institutional DNA. To suggest that the new PSC has "lost its independence", presupposes that it was independent ab initio, which is palpably not the case. The lack of independence is implicitly acknowledged in an earlier passage of the editorial which recounts the circumstances in which the new PSC was born.

In its lead story, Commission blunders, the Sunday Herald reports not only on the controversial cancellation of the acting appointments, but on the failure of the new PSC to short-list Hugh Wildman as a candidate for Director of Public Prosecutions. Hugh Wildman has publicly complained that he was not interviewed for the job. In this respect, the Sunday Herald sought answers from Amb. Rainford to the following questions:


• Were all the applicants interviewed? If not, what criteria were used in selecting the short list?

• Did all the applicants satisfy all the requirements in the advertisement? If not, why was there any exception?

• Did the PSC consider applications from Messrs Terrence Williams and Hugh Wildman? If not, was the PSC aware that the above-named submitted pplications? If yes, what factors informed the decision not to invite them for interviews?

• Were any persons with legal training (former members of the judiciary/attorneys) involved in the interviews? If no, what were the considerations for their exclusion?

• Could the PSC specify the nature of the test given to the interviewees prior to the interviews? Did the test involve legal questions? Did the test involve personnel issues or questions related to management?

• What, if any, were the legal issues pertaining to the office of DPP which were involved in the test?


However, according to the Sunday Herald, "Ambassador Rainford declined comment, saying under the Official Secrets Act, he was prohibited to comment on the matter."


This is beyond ridiculous, that in the 21st century, a public authority is invoking an antiquated Official Secrets Act to avoid accountability for its decisions. Has it not occurred to the new PSC that they would be obliged to disclose the reasons for excluding Hugh Wildman if the latter opted to challenge the PSC in a judicial review court? While I hold no brief for Hugh (he was my classmate in Law School), I cannot see any reasonable justification for not short-listing him. Unlike the other candidates, Hugh has had experience as a Director of Public Prosecutions in Grenada. Similarly, I am mystified by the exclusion of Terrence Williams from the short list of interviewees. Terrence is currently the DPP of the British Virgin Islands. The new PSC needs to explain how it could short-list relatively lawyers like Lisa Palmer and Marlene Malahoo-Forte, who have experience leading a prosecution department, but exclude Hugh and Terrence, who do. To be frank, neither Hugh nor Terrence would be my choice for DPP. However, they unquestionably had a legitimate expectation, if not a right, to be fairly considered for the job.

The news article also touched on the cancellation of the acting appointment of Nicole Foster-Pusey as acting Deputy Solicitor General. According to the Sunday Herald:


Ambassador Rainford said the appointment and later rescinding of Nicole Foster-Pusey as acting Solicitor General in February, without the knowledge of the commission was “puzzling and inexplicable”.

Continuing, Rainford said he found it “highly unusual” for the chief personnel officer, Jacqueline Hickson, to act on such a sensitive issue without consulting the commission.

According to the article, "The Sunday Herald tried unsuccessfully to ascertain if it was customary for appointments of this nature to be made without consultation with the chairman, or if the chief personnel officer was empowered to approve the appointments."


Ambassador Rainford is either woefully ignorant of standard civil service practice or is being blatantly disingenuous. There is nothing unusual about the Chief Personnel Officer acting in the name of the PSC with respect to acting appointments, as I have stated in previous posts. Now, I presume that the CPO will simply refer every minute decision to the PSC for its micro-management purview. I have no doubt that the CPO acted in good faith, based on delegated authority. There is hardly a doubt in my mind that PSC 'ketch it fraid' when the AG threw a tantrum over the acting appointments, and that it was the AG's objection to the appointments that determined the final outcome.


I hope that the Sunday Herald continues to pursue the story without allowing its investigation to be framed by any considerations other than the public interest. It would be great if the rest of the Jamaican media would follow suit, but I won't hold my breath, since they seem to prefer an orthodoxy of inertia and indifference.

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The Observer drops the ball on the Foster-Pusey/Robinson acting appointments

In today's Observer, March 29, 2008, there is a disclaimer that reads as follows:

THE Observer wishes to advise our readers that in a letter to the editor published in our March 26, 2008 edition the author, James W Smith, stated that:

“The most recent of these developments has been the rescinding of the promotion of a senior staff member by the Public Service Commission only days after the same PSC had approved the recommendation. The public has also learnt of the resignation of the acting solicitor general with over a year on his contract, and the non-renewal of the contract of the deputy solicitor-general, Professor Stephen Vasciannie.

It is of grave concern that the newly appointed PSC could approve a recommendation from the acting solicitor-general for the promotion of a senior staff member and then days later rescind the same appointment.

The PSC owes an explanation as to the “extenuating” circumstances that arose in those days that caused such a reversal. I hope that the new PSC, comprising individuals with the highest levels of integrity, did not bow to political pressure on this issue. Could this be the reason for the acting solicitor-general’s resignation? And what of the future of that staff member who must be highly embarrassed by the course of these events?”

The chairman of the PSC, Donald Rainford, categorically denies this accusation and accordingly advises that no such recommendation was sent to the PSC, no such appointment was made by the PSC and consequently no such appointment was rescinded by the PSC.

Except for the views expressed in the Editorial column, the articles published in our editorial section do not necessarily represent the views of the Jamaica Observer.


The disclaimer can be found at: http://activepaper.olivesoftware.com/Repository/ml.asp?Ref=Sk1PLzIwMDgvMDMvMjkjQXIwMDQwMw==&Mode=HTML&Locale=english-skin-custom




In issuing this disclaimer, the Observer appears to have simply took the PSC Chairman at his word, without any journalistic inquiry of the relevant players, namely, the acting Solicitor General and the Chief Personnel Officer. Had the Observer probed more deeply, or at all, it would have discovered two letters written by the CPO. I have posted these letters under the heading "Useful links". You can otherwise access them at:

http://www.scribd.com/doc/2402712/-letter-of-Chief-Personnel-Officer-approving-acting-appointments-270208

http://www.scribd.com/doc/2402711/-letter-of-Chief-Personnel-Officer-cancelling-appointments-030308


These letters plainly evidence the approval of the acting appointments of Nicole Foster-Pusey and Lackston Robinson (on February 27) and the later cancellation of the appointments less than a week later on March 3, 2008.

I am quite ashamed of the Observer for so abjectly accepting the PSC Chairman's denial without any further inquiry. It is all the more egregious, given that the correspondence between the acting Solicitor General and the CPO was openly discussed by Emily Crooks and Naomi Francis on their programme on NNN earlier this week. There really is no excuse for this shoddy and quite spineless journalism.

James W. Smith, the letter writer, has protested to the Observer, and I have supported him in this regard. I reproduce the relevant emails for your information:


James Smith's email of March 29, 2008

----- Original Message ----
From: James W. Smith
To: Vernon Davidson ; Desmond Allen ; Editorial Observer
Sent: Saturday, March 29, 2008 2:01:16 PM
Subject: Ja Observer: Correction & Disclaimer - PSC & Atty General's Dept


Dear Editor
I note with interest on Page 4 of the Daily Observer of Saturday, March 29, 2008 that you issued a disclaimer and apology with respect to a letter I sent you on issues at the Attorney General's Dept.
The disclaimer raises more questions than answers and I urge you to continue to pursue the matter.
Facts
1) The Chief Personnel Officer or Scty to the Public Services Commission (someone who has acted in this position for many years) wrote a letter under her signature to the acting Solicitor General Patrick Foster approving the recommendation for the appointment of Nicole Foster-Pusey.
Subsequent, the same person wrote another letter in which she stated that "she was directed" to inform that the recommendation was rescinded.

This letters can be obtained under the Access to Information Act.

Questions
1) On whose authority/instructions would the Scty to the PSC approve such a recommendation? Are we to understand that she acted on her own, without consultation with the chairman or any of the members of the PSC?
Is it standard procedure for the Scty to the PSC to do this without consultation as the chairman of the PSC is suggesting?
2) Is it merely coincidental that the same day the initial letter approving the recommendation of Mrs. Foster-Pusey was sent to the acting SG, that the Attorney General, Dorothy Lightbourne would call Patrick Foster - the acting SG and "cuss" him off for making that recommendation without her consultation or input?
Did the chairman of the PSC not know of this?
3) If as we are being made to believe, that the Scty to the PSC acted on her own, why then would she issue a letter of revocation of an appointment indicating that she was "directed to". Directed to by whom? Since the AG can't or better still shouldn't direct the Scty of the PSC, then who did.
4) Is it of any interest to the public that the acting SG Patrick Foster has resigned? Does anyone care why he has resigned?

I am afraid that a game is being played out here, where the Scty of the PSC is being made out to have acted on her own on this issue and will be used as a scapegoat to cover up the most blatant political interference that this country has ever seen by an Attorney General.
If anybody listened to Nationwide Radio over the last week on this issue, the "wicket is being prepared and rolled" for such an outcome.

These matters are of public interest and must be pursued.
I don't expect this letter to be published but I expect the Observer as an independent newspaper to pursue the truth on this issue.
Of note and interest, my letter was sent to all three newspapers (Gleaner, Observer and Herald) published by all three and the Observer is the only one that has issued a retraction and disclaimer.



Regards,
James


My email of support of March 29, 2008 (addressed to Vernon Davidson and Desmond Allen of the Observer)
Desmond & Vernon,

I must support James Smith on this issue. I take strong exception to your correction/disclaimer. Undoubtedly, there are serious questions to be asked about this issue. Given this, I am astonished that the Observer chose instead to issue a disclaimer, based solely on a denial by Amb. Rainford. Perhaps you are not aware of this, but Nationwide News Network 'published' the correspondence between the Chief Personnel Officer and the acting Solicitor General on this issue. For reference, here's my blog commentary on the issue: http://vasciannie-psc.blogspot.com/2008/03/nnn-this-morning-programme-and-ags.html. Essentially, if one is to follow your disclaimer, there was never any recommendation by the acting SG, and therefore nothing to be approved or rescinded. This cannot fly based on the facts that are already known and in the public. Any responsible newspaper has an obligation to do more than simply accept uncritically the assertions of the PSC chair.

If we cannot rely on the media to probe the questions raised by James Smith, we are in more serious trouble as a nation than I thought.

Best,

Hilaire

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NNN "This Morning" Programme and the AG's Chambers

Earlier this month, it was reported that the PSC cancelled the appointment of Nicole Foster-Pusey as acting Solicitor General, after the PSC's Chief Personnel Officer (CPO) had approved it at the request of the acting Solicitor General, Patrick Foster.

Emily Crooks and Naomi Francis, hosts of NNN's "This Morning" programme obtained copies of correspondence between Patrick Foster, Acting Solicitor General and the CPO, and discussed the issue at some length on Wednesday, March 26, 2008, and again on March 27, 2008. I appeared on the programme on March 27 in an attempt to clarify some of the misconceptions of the hosts, and indeed confusion on their part. It turns out that Patrick Foster had made two recomemndations: appoint Nicole Foster-Pusey as acting Solicitor General and Lackston Robinson as acting Director of Litigation in her stead. The hosts appeared to have little appreciation of the roles of the acting Solicitor General and the CPO. At one point they suggested that Patrick's recommendations were perhaps motivated by mischief, and that it might have been better for him to wait for the new SG to be installed. Both sought to read something possibly untoward in the CPO approving the recommendations, given the previous turbulence in the AG's Chambers. Incredibly, the hosts did not ask the most fundamental question: why did the PSC withdraw approval of the acting Solicitor General's recommendation? This deficiency, among others, prompted me to send the hosts a couple of emails, edited versions of are reproduced below.





My email of March 26, 2008
Subject: this morning's segment on the AG's Chambers (March 26, 2008)


Ladies,

Kudos for publicizing the correspondence between the acting Solicitor General and the Chief Personnel Officer of the PSC regarding the aborted acting appointments of Nicole Foster-Pusey and Lackston Robinson.

However, I must tell you that had I not known a thing or two about the civil service and the AG's Chambers, I would've been completely lost by your discussion this morning. To some extent I don't think either of you were clear on a few fundamentals of the civil service. For example:

1. Like all public authorities, the PSC has the power to delegate certain of its functions. In a bureaucracy of the size of Jamaica's, you really wouldn't expect the PSC to personally attend to every personnel decision, particularly acting appointments. The bureacracy would come to a grinding halt if every single personnel decision had to be made directly by the PSC. In this context, the Chief Personnel Officer (CPO) would presumably be authorized to take decisions on the PSC's behalf relating to the recommendations of acting appointments of the sort made by Patrick Foster, QC, acting Solicitor General. Invariably, bureacrats like the CPO preface their letter with "I am directed to.." That sentence is there for a good reason, to emphasize that the official in question is not acting on their own initiative, but at the behest of the relevant authority (in the case the PSC). You both seemed to think there was something mysterious or questionable about the CPO's letter approving the recommendations, when there really isn't. Obviously, the PSC has the power to override the CPO, which apparently occurred in this case, when the approval was withdrawn. The other thing to bear in mind, is that the PSC/CPO is almost invariably likely to act on the recommendations of permanent heads of government departments (acting or substantive), since those senior officials will be most familiar with the needs of their departments and with the capacity of the personnel that they manage on a daily basis.

2. There is no rational basis for arguing that Patrick Foster should've refrained from making recommendations pending the installation of the SG, or that he was somehow being mischievous in making those recommendations. Again, this betrays an ignorance of the way the civil service works. Patrick, as acting SG, exercises the same powers as if he were the substantive holder of the position. He is not merely a caretaker. As a responsible chief operating officer of the Chambers, he is obliged to promote the efficiency of the Chambers, which includes making recommendations for acting positions where, in his judgment, the need arises. Further, you will note that his recommendation was that the acting posts be approved 'pending further orders'. Clearly, this implies that the tenure of the acting positions could later be terminated or modified on the recommendation of the substantive SG, or anybody else who is appointed to act in his/her stead.

I really think that you should both consult with an expert on civil service practice, someone perhaps like retired Cabinet Secretary Carlton Davies. This, I believe, would enhance your presentation of this issue immensely.

Finally, I think that in all of the discussion this morning, the most critical issue was missed: why did the PSC withdraw its approval of Patrick's recommendations? I know the answer. I hope you do do.


Hilaire



My email of March 27, 2008

Dear Emily & Naomi,

Thanks for having me on this morning.

Patrick Foster's resignation occurred around the same time that his recommendations were ultimately rejected by the new PSC. There is little doubt in my mind that the PSC was politically strong-armed into cancelling the acting appointments.

The Attorney General has personal animosity towards Nicole Foster-Pusey, hence the objection to Patrick's recommendation. The AG has personally taken up Lackston Robinson's cause. This is evidenced by a number of things, including her personal intervention with the Ministry of the Public Service to have Lackston reinstated despite the fact that there was still litigation pending in the matter. She also instructed the AG's Chambers to withdraw from this litigation. As you know, the parties had agreed on asking Justice Jones to clarify his judgment as to whether it included an order of reinstatement or not. While this process was ongoing, the AG ordered her staff to withdraw from the litigation.

As you may know, the case of Lackston Robinson is front and centre of the PM's justification for firing the PSC. Nobody in the media has really explored why. Nobody has asked why the AG has taken such an active interest in Lackston Robinson and his treatment by the PSC. By contrast, the Police Service Commission was similarly hauled over the judicial coals for retiring Det. Insp. Donovan O'Connor in the public interest. The government has not sought to equate an averse judicial review of this Police Service Commission decision with "misbehaviour". Why not?

Further, what seems to have eluded the media is that Justice Jones had harsher words for the Permanent Secretary Carol Palmer that for the PSC. Mrs. Palmer was responsible for sending Lackston Robinson on leave pending his litigation challenging his retirement in the public interest. Mrs. Palmer remains the Permanent Secretary, to the best of my knowledge. If the PSC deserved to be fired, in the eyes of the government, why not the Permanent Secretary? I don't know if you have read Justice Jones judgment. If you haven't, I would suggest that you do.

Despite all the hoopla by the AG and her PM, Justice Jones never ordered Lackston's reinstatement, as I have explained to you before. This is clear from the judgment itself. In any event, the judge would've lacked the jurisdiction to do so, for reasons that I have previously explained.

Btw, Naomi, I heard you apply a corporate analogy to the relationship between the Ministry of Justice and the Attorney General's Chambers that is incorrect. You suggested that the Ministry of Justice is some sort of parent company for the AG's Chambers. This is not so. There is no such 'corporate relationship'. Under the constitution of Jamaica, the AG is a separate and independent functionary. In fact there is no mention of a Minister/Ministry of Justice in the Constitution While the roles of AG and Minister of Justice are frequently combined, they are legally quite disparate. Accordingly, as I have said to you before, the AG's Chambers is not subordinate to the Ministry of Justice. For certain adminstrative purposes only, the PS of the Ministry of Justice does handle certain matters pertaining to the AG's Department. However, this does not make the AG's Chambers legally subordinate to the Ministry. It perhaps would be easier to understand were the posts of AG and Minister of Justice held by separate individuals. You may or may not know that there is no legal requirement for the AG to be a cabinet minister or indeed a parliamentarian.

I honestly think that your attention with respect to this issue should be far more sharply focused on the issue of political interference, particularly by the AG. The pattern has clearly been demonstrated with the derailment of Stephen Vasciannie's selection as SG, and the subsequent firing of the PSC. Do you honestly believe that the new PSC can do anything other than toe the JLP line? That is why it acted with dispatch to reverse the CPO, once it realized that the AG objected to Nicole Foster-Pusey's acting appointment.

There is hardly a doubt about AG's agenda to eliminate so-called PNP lawyers and replace them with loyalist-lawyers. You mark my words. I am prepared to bet that Lackston Robinson will be installed as a Deputy Solicitor General before mid-year. Further, I prepared to bet that within two years or less, the entire civil service will be dominated by JLP loyalists. Check out what's been going on in the Ministry of National Security. Check out which Minister's daughter has recently gotten a plum job despite her complete lack of qualifications for it. I say no more.

Best regards,

Hilaire

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