Legal opinion in respect of the conduct of the Honourable Minister of Planning Economic and Social Restructuring and Gender Affairs Senator Mary King in the award of a contract for the development and hosting of a Web site for the Ministry of Planning Economic and Social Restructuring and Gender Affairs in relation to the Integrity In Public Life Act Chap 22.01 of the Laws of Trinidad and Tobago
1. I have been asked to review the facts and circumstances surrounding the award of the captioned contract by the Ministry of Planning, Economic and Social restructuring and Gender Affairs to determine whether there is sufficient evidence to establish a prima facie breach on the part of the minister in respect of her obligations under the Integrity in Public Life Act, Chap 22.01 of the Laws of Trinidad and Tobago.
2. I have been provided with several sources of information including:
A bundle of documents submitted by the Office of the Prime Minister subsequent to the award of the said contract.
The Daily Express news article, titled 'Mary Quite Contrary', written by Camini Marajh, dated May 7, 2011.
A bundle of documents submitted to the Attorney General by the Permanent Secretary on May 9, 2011.
A bundle of documents submitted to the Attorney General by the Honourable Minister of Planning Economic and Social Restructuring and Gender Affairs Senator Mary King on May 9, 2011.
A statement from the Permanent Secretary in the Ministry of Planning Economic and Social Restructuring and Gender Affairs, Ms Juliana Boodram, dated May 9, 2011 received on May 10, 2011.
Search reports from the company's registry in respect of Ixanos Ltd and Caelum Holdings Ltd.
3. On September 25, 2010, the Ministry of Planning Economic and Social Restructuring and Gender Affairs issued a tender notice for the provision of services in respect of the development and hosting of the website for the ministry. The closing date for these tenders was 01/10/2010 at 1 pm and the vendors were invited to witness the opening of the tenders box, which was to take place at the Ministry on the 01/10/2010 at 1.10 pm.
On September 28, 2010 Ixanos Ltd submitted a bid, signed by Stephen King the son of the minister.
That company has its registered address as the corner of Smart and Francis Streets, St Augustine. This is the same address as the firm registered as Mary King and Associates, a private consulting firm owned by the minister.
The majority interest (1,163,000 shares) in Ixanos Ltd is held by a company called Caelum Holdings Ltd, also registered at the corner of Francis and Smart Streets, St Augustine, and Neal and Massy ICT Group Ltd have just over half a million in preference shares.
A search of Caelum Holdings Ltd records lists a joint controlling interest of 1,023,000 ordinary shares by Dr St Clair King and Senator Mary King, the Minister of Planning Economic and Social Restructuring and Gender Affairs.
There are seven other shareholders in the company, all engineers, and all having minority shareholdings of 20,000 each.
Mary King is named as the corporate secretary of Ixanos Ltd on the last annual return which according to the company searches, was filed the July 20, 2009. In addition, Mary King is also named as the corporate secretary of Caelum Holdings Ltd on the last date of the annual return which was filed on November 3, 2009.
The bid evaluation team considered the bids during the period October 4 to 8 2010.
On October 8 2010 the bids were narrowed down to two companies and the highest ranked bid came from Ixanos Ltd.
They were duly awarded the contract on November 2, 2010 and the contract was signed on November 3, 2010.
4. Views expressed by Senator King in an interview with the Express Newspaper and the letters provided by Senator King herself to the Honourable Prime Minister;
In a letter to the Honourable Prime Minister dated the May 9, 2011 Minister King took the position that there was never a conflict of interest as she could and did not participate in the evaluation process.
She indicated that she had all but recused herself from the matter and had no role to play in the award of the contract. Senator King, in another letter to the Honourable Prime Minister, also dated May 9, 2011 refers to a letter sent to the Prime Minister on November 25, 2010 explaining the evaluation award and other processes engaged upon for the tender of the ministry's Web site. In that letter she also raises the defence that in disassociating herself from the evaluation and award process that she had acted fairly and with integrity.
In an interview with the Sunday Express Newspaper Senator King denied any wrong doing and insisted that the award of the contract was open and transparent and did not "at all" represent a conflict of interest.
She said she had no involvement with the tender process, nor did she know the family-owned business was bidding for work in her ministry until the actual opening of the bids on October 1 last year. n Senator King confirmed to the reporter that she did not declare her interest at that time and did not inform the permanent secretary or anyone else that her immediate family (husband, St Clair, and son, Stephen) were associated with the company. Senator King confirmed that she did not disclose her familial and /or professional relationship with Ixanos Ltd.
The senator went on to state that she did not think it necessary to disclose her interest at that point of discovery to avoid a conflict of interest, as she felt she could have biased them one way or the other.
Senator King confirmed she did not believe her presence at the opening of the tenders and her involvement in the selection process of the bid-evaluation team or having her people involved in the transaction was a direct conflict of interest.
When asked if she had recommended her personal secretary to sit on the evaluation panel she confirmed that ""because she was an engineer, of course."
She however maintained that all the processes were conducted "outside her realm."
The senator has not refuted any of the allegations made
Permanent secretary Juliana Boodram's statement
5. PS Juliana Boodram is the permanent secretary in the Ministry of Planning Economic and Social Restructuring and Gender Affairs. She states that the establishment of a Web site for the ministry was a priority.
The ministry invited tenders for the establishment of the Web site in September 2010.
Before the bids came in the minister indicated to her that she wanted to be the chair of the Tenders Committee to evaluate the bids. PS Boodram told her that was not the protocol and the minister on hearing this became very angry and demanded to know why that could not be done and asked for the regulations that would debar her from being chair.
She consulted with the permanent secretary of the Ministry of Finance, Allison Lewis, to find out if there were any regulations, to prevent the minister from performing this role. She assured the minister that the process would be fair and that senior personnel would be put on the evaluation team. The initial team comprised the deputy permanent secretary, Joseph Howard, the senior legal officer, Andrea Julien, the IT manager, Deosaran Bisnath and Ephraim Serrette, an auditor. She felt that team possessed the necessary skills and competency as well as authority to handle that exercise.
The minister agreed to the team but insisted that PS Boodram also include as part of the team her personal assistant who is an engineer by training.
The minister was present when the bids were opened
The minister did not indicate that she had any interest in any company bidding. The minister thereafter held regular meetings with the evaluation team to find out their progress.
Sometime in January 2011 a clerical officer, of the accounts department, informed PS Boodram that the contract was awarded to a company owned by the minister's husband and son.
The proof of that was that the minister's husband name was in her telephone bills and he had written to authorise payment of the bill in her name. He had also written to request, Gopaul to sign on behalf of the company and they had seen the signature and recognised it as the same.
PS Boodram thereafter requested the file and met with the deputy permanent secretary (DPS) , Mr Howard and the Senior Legal Officer, Ms Julien to enquire if they knew of this. Howard indicated he knew but after the signing, and Julien indicated she did not know at that point.
When the contract with Ixanos Ltd was completed Bisnath was requested to do a checklist to verify that all that was supposed to be done was actually done.
He confirmed that this was so but indicated that we should get into a Service Level Agreement with Ixanos Ltd to maintain the site.
PS Juliana Boodram refused to do this in light of what had come to the surface.
6. Additional Information taken from the correspondence provided:
Worth noting is a piece of correspondence between the minister and DPS Howard. On the November 24, 2010 the minister wrote to DPS Howard requesting certain information including, the advertisement for the bid, the list of companies responded..
DPS Howard responded by letter dated the November 25, 2010, initially pointing out that "On Tuesday October 5, 2010 at 10.00 am the honourable minister and the permanent secretary met with the proposed committee to evaluate the tenders."
This highlights in a confusing way the role of the minister and casts doubt on whether she adopted a hands-off approach and was a mere bystander.
Correspondence submitted revealed a clear line of communication between the evaluation committee and the minister. The committee reported to the minister on the process (see for example letter dated November 25, 2010 from Mr Bisnath IT manager).
7. The Integrity in Public Life Act (in the Act) establishes the framework upon which persons in public life are regulated.
Indeed the act provides for the establishment of the Integrity Commission to make new provisions for the prevention of corruption of persons in public life by providing for public disclosure; to regulate the conduct of persons exercising public functions and to preserve and promote the integrity of public officials.
8. Section 24 (1) of the Act, under the heading, Code of Conduct, states:
"A person to whom this part applies shall ensure that he performs his functions and administers the public resources for which he is responsible in an effective and efficient manner and shall... arrange his private interests, whether pecuniary or otherwise, in such a manner as to maintain public confidence and trust in his integrity."
9. Section 24 (2)(a) makes it clear that a public official shall not:
"Use his office for the improper advancement of his own or his family's personal or financial interests or the interests of any person."
10. Section 24 (2)(b) furthermore states that a public official shall not:
"Engage in any transaction, acquire any position or have any commercial or other interest that is incompatible with his office, function and duty or the discharge thereof."
11. The legal issue raise in this case is whether the minister should have disqualified or recused her self from the process.
12. It is an established principle in administrative law that where a decision-maker is a party to the matter or has a direct interest (pecuniary or not) in its outcome, he should disqualify himself. This presumed bias is an automatic disqualification.
13. The principle was further developed in the case of R v Secretary of State for the Environment ex, p Kirkstall Valley Campaign Ltd 3 All ER 304 where it was stated at 325b-c: "The principle that a person is disqualified from participation in a decision if there is a real danger that he or she will be influenced by a pecuniary or personal interest in the outcome, is of general application in public law and is not limited to judicial or quasi-judicial bodies or proceedings."
14. Furthermore, the law on apparent bias asks whether the ascertained relevant circumstances would lead a fair- minded and informed observer to conclude that there was a real possibility that the decision maker was biased. Appearances matter and justice must be seen to be done: Ben Rayment JR102, JR 107. and  JR 93.
15. There are several issues that must be considered here. These are:
The fact that the minister and her husband were indeed controlling shareholders in the parent company of Ixanos Ltd;
the minister confirmed that she appointed her personal secretary to the Evaluation Committee;
the statement of the permanent secretary certainly suggests very strongly that the minister was actively involved in the process;
the failure to disclose her interest; and,
the letter of DPS Howard to the minister, dated the November 25, 2010, which states openly that "on Tuesday October 5, 2010 at 10 am the honourable minister and the permanent secretary met with the proposed committee to evaluate the tenders."
16. The conflict of interest section of the act is set out at section 29 (1) and states:
"For the purposes of this act, a conflict of interest is deemed to arise if a person in public life or any person exercising a public function were to make or participate in the making of a decision in the execution of his office, and at the time knows or ought reasonably to have known that in the making of the decision, there is an opportunity, either directly or indirectly, to further his private interests or that of a member of his family or any other person."
17. Section 29 (2) of the Integrity Act goes further to say:
"Where there is a possible or perceived conflict of interest, a person to whom this part applies, shall disclose his interest in accordance with prescribed procedures and disqualify himself from any decision-making process."
18. The minster claims to have only discovered the fact that her company was involved when the bids were opened on the October 1, 2010.
19. The issue then is this: The minister was a controlling shareholder in a company that owned one of the vendor companies that tendered a bid. The vendor companies were managed and operated by her husband and son. She claims she discovered this only on the October 1, 2010 and the question to be answered is did she take the appropriate steps to discharge her obligation as prescribed and required under Section 29 of the Act .
20. The minister has offered the explanation that she opted to say nothing for fear that identifying her connection to the vendor company would result in bias either for or against the said vendor company.
In her own words: "No, and you know why I didn't, I thought the very fact that I am saying that-that they could be biased for or against. So I did nothing."
21. This is new information which has only come to light in the article published in the Daily Express on May 8, 2010.
22. To suggest that taking non-disclosure of one's interest in the circumstances somehow fulfilled the affirmative obligations under sections 29 of the act demonstrates a fundamental and alarming lack of understanding or knowledge of the statutory obligations imposed on all by honourable government ministers by the act.
23. I add to this the apparently conflicting statement included in the letter of DPS Howard that "on Tuesday October 5, 2010 at 10 am the honourable minister and the permanent secretary met with the proposed committee to evaluate the tenders."
I am of the view that a primá facie case is made out on the facts and documents before me to warrant a referral of this matter to the Integrity Commission for further investigation. The failure of the minister to disclose her interest is in conflict with the mandatory duty of full and frank disclosure imposed by S 29 of the act. The problem is compounded by the fact that the minister appointed her personal secretary to serve on the evaluation committee. The minister ought to have disqualified herself from the entire process. She should not have made any appointment or recommendation in this regard. The allegations made by PS Boodram and DPS Howard regarding th active role of the minister in the process leading to the award of this contract is cause for serious concern. It casts doubt on the impression given by the minister's statement that she adopted an "arm's length" approach to this transaction and was nothing more than a mere bystander to it. The minister acted improperly in failing to disclose her interest and disqualify herself from the entire process.
I so advise.