The Board of EFCL was reported to have dismissed its CEO after he failed/refused to comply with their directions in a certain matter. There are allegations reported that the Cabinet attempted to direct the EFCL Board, which raises the perennial issue of the nature and extent of Cabinet authority over State Enterprises.
From both the Companies Act and the recent High Court/Appeal Court rulings in the eTECK matter, it seems clear to me that the Board of Directors have fundamental responsibility for the direction and control of the company. That is the legal position, but it seems that our fundamental political culture and conduct is in real conflict with notions of independent professional responsibility.
The State Enterprise sector is once again the subject of public concern on the good governance issues of accountability and transparency. Where does the power lie?
The Accountability and Transparency Deficit is the first issue and it needs to be put into a timeline to illustrate the reality. Continue reading “Board Games again”→
Afra Raymond is on ‘Time to Face the Facts‘ to discuss Corruption with host Jerry George…
This is a live telecast on Sunday 26th May 2013 – today being the 50th anniversary of the establishment of Africa Liberation Day, for those of us who still remember…- from 7pm to 9pm on Cable TV as CaribVision or streaming on the internet via their FaceBook page –https://www.facebook.com/timetofacethefactsshow?fref=ts
JCC President Afra Raymond speaks on Procurement revelations in the Parliamentary debate on No-Confidence in the Prime Minister on First Up with Paul Richards and Jessie-May Ventour.
As readers can see, this is exactly the document posted as part of the first story in this series, published in the Sunday Guardian on 9th July 2011. Which means that my essential assertions remain unanswered in that staff who are forbidden to disclose the existence of an agreement would be unable to get external advice on it, without being in breach. Which has the real effect of giving this document an oppressive flavour.
Of course it also puts into question the assertion in Lalla’s first letter to me, that this new EFCL policy was “…consistent with what obtains in many companies…” Literally unbelievable. Obviously.
I can only hope that this policy was not approved by our Ministry of Education.
But we will revert to EFCL after the budget season…readers can draw their own conclusions.
On Friday 2 September, the EFCL’s attorneys delivered to my office this letter dated 8 August 2011.
That letter was written by Larry N. Lalla who warned me in his opening paragraph that EFCL was concerned at the tenor of my articles on their Confidentiality Policy. (Parts 2 and 3 here.)
The letter ended by warning me that EFCL would meet any defamatory statements with legal action…seeing that he never said “…further defamatory statements…” or identified any such, this appears to be yet another waste of taxpayers’ money in an attempt to avoid answering my five original questions.
The intention here seems to be intimidation.
It is sad and ineffective, let me tell you why.
Sad, because, according to clause d. of EFCL’s Staff Confidentiality Policy Statement which was sent to me, employees are forbidden to reveal the terms of the policy or even its very existence. Lalla’s letter states at 2. that EFCL’s Confidentiality Policy is “…consistent with what obtains in many companies…”. Both of those cannot be true, since it is simply not the norm that a normal commercial company forbids its employees from even disclosing the existence of a policy. Those provisions are not at all consistent with what obtains.
The sad part is that the only way to settle this is for EFCL to release its Confidentiality Policy, as I have been requesting. They have been reluctant to do so, for whatever reason.
EFCL prefers to spend money to obfuscate and intimidate rather than just answer these simple questions, originally contained in my email of 1 July –
Is there a new EFCL Confidentiality policy?
When did that come into effect?
Would you please provide a copy of that policy?
Was that policy approved by the Board of Directors?
Is the Ministry of Education aware of this new policy?
There seems to be an attempt to change the reality that all these State Enterprises are spending public money and therefore ought to be responsive to our reasonable requests.
Earlier today I made a request under the provisions of the Freedom of Information Act and we will see what happens next.
A copy of EFCL’s attorneys’ letter dated 8th August was hand-delivered to my office earlier today and I will soon be replying to those points in public.
In particular, I noted the third point in that letter –
“3. EFCL remains at all times committed to the principles of transparency in all aspects of its operations.”
Accordingly, I am again requesting a copy of the EFCL’s Confidentiality Policy.
Of course I am publishing this, in keeping with our shared commitment to transparency.
As part of this pre-budget series, I am going to ‘take stock’ of some recent, significant happenings in relevant areas.
Given the unstable situation in relation to the State and its operations, many examples of which have been set out in previous ‘Property Matters’ columns, it is very important that a critical stance be maintained. That said, it is also important that any progress be properly recorded and acknowledged.
The notable items were –
Housing Development Corporation (HDC)
I was very pleased to read of the success HDC was having in collecting the serious rent arrears owed by its tenants, reportedly in excess of $240M. Of course this is not the first time there has been an effort to rectify this situation, so hopefully this will be a sustained program as it is vital that housing be treated with proper responsibility. That responsibility would extend from the quality of the designs and construction, the treatment of contractors and suppliers all the way to housing policies which respond to the needs of the needy.
Last week, there was a report in this newspaper that the Housing and Environment Minister, Dr. Roodal Moonilal, disclosed a new housing policy. According to that report, the new policy will favour distribution of serviced lots, with foundation slabs, over the provision of new homes. I have been calling for a review of our housing policy for some time now, so it was very disappointing to read that Cabinet had recently approved this important new policy without some formal process of dialogue or seeking wider views, much less a thorough examination of the shortcomings of the 2002 policy. Yes, a new housing policy was sorely needed, but there are solid benefits to wider dialogue.
Housing is too important an element of our Welfare State to ever become solely a creature of Cabinet, whatever the credentials of the current crop of Ministers.
This leads directly into my point about the poor flow of basic information, which can be detrimental to the best intentions. The 2002 housing policy disappeared from the internet about 6 months ago, but despite several written requests I have had no success in having those links restored, for whatever reason. The new housing policy is also not available online. In contrast, last month the Ministry of Finance issued a revised State Enterprises Performance Monitoring Manual and that is available online, together with the 2008 Manual it replaced.
Building code
Dr. the Honourable Roodal Moonilal, Minister of Housing and Environment
The impending new Building Code is to be welcomed, having been developed in collaboration with key stakeholders. There needs to be a solid commitment by all parties to establishing proper enforcement of those critical standards. The Building Code will cover important areas such as earthquake and fire hazards as well as other quality issues.
The initiative is being piloted by Dr. Roodal Moonilal, Minister of Housing and the Environment. UDECOTT and the HDC both form part of his responsibilities, so that is a good fit. We will have to be vigilant to ensure that all State construction conforms to the new standards.
I can scarcely believe that the very Minister who understands the importance of collaborating with stakeholders on the new National Building Code, would state a week earlier that the new Housing Policy had been agreed by Cabinet, with no visible attempt at consultation. Incredible, but true.
A Culture of Consequence
I have consistently stated that the absence of consequence is inimical to any development and that consequence has to be restored to a proper place if we are to progress. Up to last Thursday, 11 August, I stated at a public meeting that I was unaware of any government in this country taking decisive action against its own appointees in the State Enterprises. The pattern has been one of charging people from the last political administration in what almost always looks like revenge.
The Sunday Guardian headline of 14 August ‘Cabinet fires Chairman of School-feeding Programme’ was as welcome as it was surprising. It was reported that the Cabinet had taken decisive action to fire a Chairman who had been appointed about 6 months before and that is a positive step, the first time any government in this country has done that, as far as I am aware.
According to that exclusive story, the fired Chairwoman of the National Schools Dietary Services Ltd (NSDSL)—Dawn Annamunthodo – had obtained extensive and expensive security guards for herself, due to some alleged death threats. There were also details of what seemed to be deceptive attempts by that individual to become a signatory to the bank accounts of that State-owned company. If those reports are true, there are two serious implications –
Firstly, it is extremely unlikely that this is the first time that this individual was involved in acts of that kind. Grown people do not just change their behaviour in a few months’ time, we all know that. My point being that this episode calls into question the screening which is carried out in relation to these appointments. Whatever screening processes now exist, will definitely have to be made stronger, together with ongoing reviews of Board performance.
Given that the Prime Minister is widely reported to have approved the Chairpersons of State Boards, that screening process needs to be reviewed urgently so as to preserve the integrity of that office.
Secondly, this individual is reported to have attempted to convince Republic Bank’s Ellerslie Plaza branch to make her a signatory and that matter must be promptly investigated by the Fraud Squad, with charges to follow if those allegations are true. It is an echo of the point I made here last week about a dutiful police officer allowing a motorist with a defective vehicle to just drive-off after a ticket is issued. Not good enough, if we are serious about road-safety. We have to restore a Culture of Consequence if White-Collar Crime is to be challenged.
But, even though no money appears to have been stolen in that School-Feeding episode, the saddest part was the bold-faced question that individual asked the Guardian reporter, when invited to give a comment
How did you get hold of those documents? Those are state documents. These questions are state business.
It reminded me very much of the response of Jewan Ramcharitar, former PriceWaterhouseCoopers partner, who suddenly resigned as eTeck Chairman almost a month ago. That entire affair remains mysterious, with Stephen Cadiz, the line Minister, stating that it was due to a ‘difference of opinion’ and the departed Chairman reportedly stating –
I am actually working on a project in the public service arena on a full-time basis and my time at eTeck is eroding the time and attention I pay to that.
“Just what that project is, he won’t say.”
I wonder if Ramcharitar would have found that dismissive answer to be acceptable when he was a partner at PWC? Probably not, yet we are continually beset by these evasive attitudes in public affairs. We need to hold our leaders to a high standard.
The latest twist is the sudden resignation of George Nicholas as Chairman of Caribbean Airlines and the opaque statement by the Minister of Transport, Devant Maharaj – “…Yes. I can confirm this. I am in receipt of his letter but I cannot say anything more…”
In the three cases, bare-faced conflation of State Business with Business which is private, personal or confidential.
Good steps are to be recognized and applauded, but we must always strive for better. We need to continue onward and upward. It would be good to have a statement from the Minister of Foreign Affairs and Communications as to the governments’ commitment to a progressive policy in these important matters. The Housing policy needs to be published for comment and we also need to have a clear statement as to whether there can be any such thing as a confidential state policy.
Confidential State Policy may seem like an oxymoron, but readers will be aware of the reluctance of the Education Facilities Company Limited to publish its new Confidentiality Policy. I don’t want to say refusal, but when this budget season is over we will be continuing to examine those EFCL operations.
On Thursday 14th July, the EFCL published a full-page response to the first article in this series – it was also the same day that the second article in this EFCL Query was published. Although it was comforting to see the clear statements on EFCL’s ‘speak out’ component, Whistle-Blowing policy and procedure and Fraud Policy, the central concerns are greater, if anything.
I deliberately used the word response, since no reasonable person could consider that advertisement to be a reply to my emailed queries.
If EFCL were really replying to my query, it would have been no problem to provide a copy of the documents and answer the simple questions.
EFCL’s preferred course of action is to spend more taxpayers’ money on expensive artwork and advertising, so the further question is ‘Why?’.
Considering that all I was doing was questioning the existence and origin of an important policy of this State-owned company, it is perturbing to be having this level of challenge in getting a simple clarification.
What could be the delay or difficulty in providing a copy of the EFCL’s Confidentiality Policy, as requested?
In the first article in this series, I posted the documents which had been passed to me. The simple question is whether these are the genuine documents. There was no attempt by EFCL to even answer that important query.
It is important because the EFCL advertisement told readers that “…Employees were not asked to sign under threat of dismissal…”
The first sentence of the preamble of the Staff Confidentiality Agreement is –
“All new and existing employees will be given a copy of this confidentiality policy and will be required to sign a confidentiality agreement at the time of hiring or during their service to the company.”
The emphasis is mine – yes, it reads ‘required to sign’.
But there is more, because the EFCL advertisement also stated that –
“Staff who asked for time to get external advice, were allowed to.”
However, clause 1 d. of the Confidentiality Agreement states –
“The existence of this agreement and its terms are confidential and none of the parties to this agreement may disclose anything about this agreement or its subject matter or implementation to any person except if required by law to do so.”
It is clear that the EFCL advertisement and the documents sent to me cannot both be true.
So, which is true?
Why did EFCL not send or publish the documents?
Quite frankly, it appears that EFCL is making a great effort to conceal or obscure its true policy on confidentiality, for whatever reason.
If this is the kind of effort being put into obscuring the elementary policy of this State-owned company, I can scarcely imagine their reaction to queries on particular projects, Directors’ benefits or tender procedure.
The behaviour of the State and its agents must be exemplary. Public Officials have an obligation, in my view, to behave in a fashion which fosters trust and good order.
It is all starting to resemble a tangled web, sad to say.
Again, I hope that my doubts are misplaced.
SIDEBAR
Five simple questions for EFCL…
Is there a new EFCL Confidentiality policy?
When did that come into effect?
Would you please provide a copy of that policy?
Was that policy approved by the Board of Directors?
Is the Ministry of Education aware of this new policy?
Despite the first column in this series, I have had no direct reply or even acknowledgement from any of the EFCL officials to whom my initial queries were directed.
It seems that the people concerned would rather not write, on this matter at least. A meeting has been indirectly suggested, which of course would have to be properly recorded and minuted – no word on that meeting as I write again.
What could be the delay or difficulty in answering the five simple questions posed last week –
Is there a new EFCL Confidentiality policy?
When did that come into effect?
Would you please provide a copy of that policy?
Was that policy approved by the Board of Directors?
Is the Ministry of Education aware of this new policy?
Four of those questions require basic yes/no responses, while only one requires a date.
Expenditure of Public money – Accountability – Transparency = CORRUPTION
The elementary accountability of a public company having its policies available for the public to consider seems to be either lacking or of low priority in the case of EFCL. As we move along, it will be interesting to see how the Transparency part of the equation works out.
In researching this article, it emerged that our country is a signatory to two relevant international conventions. As I understand it, the effect of our State having become signatory to those agreements is that the country has adopted those standards.
The first one is the Inter-American Convention against corruption, which was signed by our country in April 1998. At that time, UNC was in power, under PM Basdeo Panday. At Article III, clause 8, we are obliged to
“…consider the applicability of measures to…create, maintain and strengthen…Systems for protecting public servants and private citizens who, in good faith, report acts of corruption, including protection of their identities, in accordance with their Constitutions and the basic principles of their domestic legal systems…”
The second convention is the United Nations’ Convention against Corruption, which was signed by our country in December 2003. At that time, PNM was in power, under PM Patrick Manning. At Article 8 – Codes of Conduct for Public Officials, clause 4 obliges us to
“…4. Each State Party shall also consider, in accordance with the fundamental principles of its domestic law, establishing measures and systems to facilitate the reporting by public officials of acts of corruption to appropriate authorities, when such acts come to their notice in the performance of their functions…”
So, what is the big secret?
I do understand that staff at companies like this can jeopardize the integrity and effective operations of the organisation by leaking certain confidential information. That would be a proper concern of management and a confidentiality policy is one of the ways that could be dealt with, just one.
During the Uff Enquiry, UDeCoTT claimed several times that this or that document was confidential and used its lawyers to protest strongly, sometimes even seeking the protection of the High Court. That was outrageous conduct by a state-owned company, which appeared to be trying to frustrate the Uff Commission, appointed by the State, by seeking to conceal documents. A case of ‘the tail wagging the dog’.
This situation is one in which it seems that the dangers of leaks in relation to tendering estimates, for example, has been conflated to cover all information in the company. It appears to be part of a new policy which does not conform to either good labour relations or our country’s international obligations with respect to Whistle-Blowers.
Given the electoral promises made by this government and the importance of the struggle to reduce the menace of corruption in our society, it is very important for us to be attentive to these matters.
UDeCoTT wanted to conceal certain documents and one had to wonder why, given that they are not involved in secret work. If it was not so serious it would be comical, they are not a spying, military or health institution. UDeCoTT is just a facilitator for erecting buildings, yet their chiefs were able to pretend to the public that a large part of what they did was confidential. That kind of secrecy could never be in the public interest. Not ever.
Similarly with EFCL, one has to ask – What is the secret? That organisation is responsible for the repair and maintenance of schools, using Public Money to do so.
I wonder if that document, which a number of EFCL staff have now been required to sign, is legal and binding? Could it withstand a challenge in the Courts? Did EFCL take proper legal advice in this matter? Was that advice followed?
The legitimate interests of taxpayers require that the management of State Enterprises take proper steps to handle these integrity challenges – Does the EFCL Confidentiality Agreement achieve this?
There is a certain kind of way in which this episode with EFCL is starting to remind me of the early UDeCoTT grappling, before Uff and so on, with tremendous difficulty in getting basic dialogue going, shadow-boxing and bizarre positions being taken.
I really hope that I am wrong, because the correct, encouraging attitude to Whistle-Blowers is essential for the success of the larger Public Procurement agenda.
Continuing the series of examinations into the purpose and performance of our State Enterprises, this week I am looking at an important issue which seems to be emerging at the Education Facilities Company Ltd. (EFCL).
EFCL is a state-owned company involved in the building and maintenance of schools. It consumes public money in the execution of its functions and that is why it is important to put these points now.
One of the biggest public concerns is the high level of white-collar crime, which means bribery, corruption, fraud, over-billing, ‘back-fitting’, tax-evasion, asset-stripping and so on. White Collar crime is a growth industry, since the rewards are very high, while the risk of being caught or punished is extremely remote.
Due to the size of the State, a great deal of that white collar crime can be found in State Institutions. Once Public Money is being spent, we must demand a high standard of accountability and transparency.
In terms of principles, there needs to be an appropriate balance between the long-established ‘Right of privacy‘ in commercial transactions and the growing ‘Right to know‘ which is part of the emerging social order. There will be different views as to where the correct balance exists and furthermore, the consensus position will shift as time passes.
It seems to me that the default position should be that, in doubtful cases, the right of the public to information should prevail, since we are the ones paying the costs. Indeed, that position forms part of the Freedom of Information Act, so that is substantial support.
In early 2009 we witnessed an attempt by the then PNM government to amend the Integrity in Public Life Act (IPLA) so that people reporting breaches of that Act would have been forced to give their names and addresses. That arrangement would have given even greater protection to corrupt officials, since virtually no-one would want to make a report. Of course people are strongly encouraged to report ‘normal’ crime like rape, robbery, murder and so on – further encouragement is offered by allowing them to make anonymous reports via 800-TIPS, for example. Those proposals to amend the IPLA would have encouraged corrupt behaviour by reducing the reports.
That Bill was piloted by then Attorney-General, Bridget Annissette-George. The proposals were strongly opposed in the Parliament and in the wider society, eventually being withdrawn. One of the strongest protestors in the Parliamentary debate was Dr. Tim Gopeesingh, who was reported to have accused the government of trying to intimidate people into not making reports. [Hansard, 1 May 2009 p.441] On that occasion, the Standing Orders were used by Colm Imbert, to curtail Gopeesingh’s presentation. [Hansard, 1 May 2009 p.455]
The normal good governance provisions for annual accounts, Board Meetings, minutes and so on are very important. But those provisions must be supplemented by an atmosphere and a series of institutional arrangements which facilitate Whistle-Blowers. There must be clear channels and protection for Whistle-Blowers if we are to have any chance of reducing corruption in our country.
Without the assistance of Whistle-Blowers, we would not have known of the Piarco Airport or UDeCoTT fiascos and we know for sure that somebody leaked the file on the Heights of Guanapo Church just prior to last year’s election. We need encouragement for Whistle-Blowers – in some countries they are even given big cash rewards. The JCC has been active with its partners – TTMA, the Chamber of Commerce and the Transparency Institute – in making Public Procurement proposals to the Joint Select Committee. An important element of those proposals is the creation of proper channels for Whistle-Blowers.
I recently received a copy of some EFCL documents, which were stated to be their new Confidentiality Policy Statement and a Staff Confidentiality Agreement for the signature of employees. I was also told, separately, that EFCL staff are being required to sign that Agreement, under threat of dismissal. What is more, the Agreement contains a specific clause which forbids revelation of either the existence or the terms of the agreement.
If those documents are genuine, there are serious grounds for concern, so I made a written query via email on Friday 1st July to the EFCL’s CEO, Paul Taylor, and its Chairman, Ronald Phillip. I outlined what had been reported to me and asked these questions –
I am reliably informed that EFCL staff were recently directed to sign a ‘Confidentiality Agreement’, the rationale being that it is the new Company policy.
Before taking this any further, I am requesting your written response to these questions –
Is there a new EFCL Confidentiality policy? When did that come into effect? Would you please provide a copy of that policy?
Assuming a new Confidentiality Policy is in place, these are my queries –
Was that policy approved by the Board of Directors?
Is the Ministry of Education aware of this new policy?
I would appreciate a timely response.
With best wishes. Afra Raymond
That email was also copied, purely for information, to the Minister of Education. At the time of writing, there has been no acknowledgment or reply.
This is a serious development for these reasons –
The Super-Confidentiality provisions mean that staff are forbidden to obtain any advice, which seems to be a breach of good labour relations, at the very least.
The unilateral imposition of this new document does violence to the proper meaning of the word ‘Agreement’.
The ‘Guiding Principles’ at page 2 refer to ‘privileged information‘ and ‘EFCL’s right to privacy‘, both of which seem to me to be leading away from greater transparency and improved procurement procedures – which leads into the final point
This administration promised, both on the campaign trail and post-election, to make new procurement legislation a priority. The Joint Select Committee on Public Procurement was Chaired by Dr. Tim Gopeesingh, Minister of Education. EFCL is the principal State Enterprise within the Ministry of Education, so what is Dr. Gopeesingh’s position on all this? Is this taking place with Dr. Gopeesingh’s knowledge and/or approval?
It is clear to me that this kind of stealthy restriction on the possibility of staff becoming whistle-blowers is incompatible with the high-profile public statements of support for a new, effective public procurement system. Those statements range from the promises at page 18 of the People’s Partnership Manifesto to numerous speeches by the present Prime Minister.
The reality is inescapable –
Expenditure of Public money – Accountability – Transparency = CORRUPTION
I am closing by wondering, aloud, if this is the shape of the new Information policy for our State Enterprises.
SIDEBAR: What is a Super Injunction?
It is possible for a prominent person to obtain a Court Order called an injunction to prevent the publication of material which is likely to be damaging to their reputation. That is a long-standing legal right and there has been a recent series of decisions in the UK in which super-sensitive, high profile people have been able to obtain ‘Super-injunctions’ from the High Court, which have the effect of prohibiting the publication and further prohibiting revealing the very existence of the injunction itself. Of course the media have been fighting that in Court and there are two investigations underway into whether the ‘Super-Injunction’ is itself an abusive instrument. The emerging thinking seems to be that these ‘Super-Injunctions’ are destroying the information balance I outlined earlier.
This EFCL Confidentiality Policy, if it is so, would seem to be a similar device, doing great violence to the information balance.
On Wednesday 21st September I received 
On Friday 2 September, the EFCL’s attorneys delivered to my office 
Yes, Readers, I received 
Despite 
AfraRaymond.net 