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High Court Judge delivers ruling in Veronica Charles matter

Justice Agnes Artie – delivered a ruling after hearing the case

Former Cabinet Secretary and current Head of the Public Service Commission (PSC), Beryl Isaac was taken to task in a ruling from a high court judge in a case brought by a former Acting Permanent Secretary, Veronica Charles who was reverted to her lower post in the service after she made allegations of “ghost payments” in the ministry of Social Services headed by Delma Thomas.

Female high court judge Agnes Actie found that Isaac issued instructions to Charles that she was not entitled to do.

The judge said: “The decisions of Ms Beryl Isaac, the then Secretary to the Cabinet to: (1) discuss with the Claimant about her performance as an acting Permanent Secretary in the Ministry of Social Development; (2) inform, direct and/or advise the Claimant that her acting appointment as Permanent Secretary in the Ministry of Social Development will be terminated and she will be reverted to her substantive post of Director in the Ministry of Social Development; (3) direct the Claimant to proceed on administrative leave on 29th October 2019; (4) request that the Claimant prepare a handover brief for her successor as Permanent Secretary; and (5) direct the Claimant to report for duty to the post of Institutional Strengthening Specialist in the Ministry of Climate Resilience, The Environment, Forestry, Fisheries and Disaster Management from 11th November 2019 were, in each instance, ultra vires and contrary to sections 84(1) and 85(2) of the Constitution of Grenada and therefore unconstitutional, null and void, and of no effect in law”.

Charles was represented in the case by former Finance Minister Nazim Burke who is a co-founder of the law firm Lex Fidelis.

Following is part II of Justice Actie judgement:-

(7) On 15th November 2019 she sates that she was provided with office accommodation and a list of duties by the Permanent Secretary. However, she was not given a job description. On 22nd November 2019, the Cabinet Secretary responded to her written correspondence concerning the written instructions to Mrs. Worme-Charles and informed her that the matter was submitted to the Public Service Commission.

During the period from 15th November 2019 to 29th November 2019, Ms. Charles received written correspondence from the Permanent Secretary in the Department of Public Administration concerning the creation of the post of Institutional Strengthening Specialist. She states that the correspondence on 29th November 2019 revealed that Cabinet had approved the post at its meeting on 7th October 2019 and that she was identified as the person who is to assume that role. Transfer, administrative leave and termination of acting appointment.

(8) On or about the month of June 2020, she received copies of three letters from the Public Service Commission concerning her previous acting appointment as Permanent Secretary; granting of administrative leave and her transfer to the Ministry of Climate Resilience as Institutional Strengthening Specialist. She states that when the Cabinet Secretary spoke with her on 22nd October 2019 that a decision was taken to terminate her acting appointment she was aware that the Governor General, acting on the advice of the Public Service Commission, had taken no such decision.

(9) Ms. Charles believes that the Cabinet Secretary acted outside of the scope of her authority and therefore Ms. Charles says her termination was unconstitutional pursuant to section 85(2) of the Constitution. Further, that the Public Service Commission abdicated its responsibility when it purported to transfer her to the post of Institutional Strengthening Specialist. Therefore, the granting of leave and her transfer were unconstitutional and in violation of sections 83(12) and 84(1) of the Constitution. Ms. Charles says that she was not given a reason for the termination of her acting appointment and that this treatment was in breach of the principles of natural justice pursuant to section 8(8) of the Constitution. Moreover, Ms. Charles states that the post of Institutional Strengthening Specialist is not an established post in the public service as at the date of her transfer on 11th November 2019. In light of the above, Ms. Charles is of the view that she was constructively dismissed or required to retire and is entitled to pensions and retirement benefits with effect from 11th November 2019.

[7] As Indicated before, the claimant has now abandoned her claim for constructive dismissal and legitimate expectation.

Evidence of Beryl Isaac
[8] On 16th November 2020, Ms. Beryl Isaac, former Secretary to the Cabinet, filed an affidavit in opposition to the originating motion. The salient points in Ms. Isaac’s affidavit are:

(1) During her tenure it was customary for her to have discussions with officers on the needs and demands of the public service, for example when the post of Permanent Secretary in the Ministry of Social Development became vacant, she invited Ms. Charles to her office and informed her that the Government was minded to recommend her to act as Permanent Secretary in the said Ministry.

(2) After the above conversation with Ms. Charles, Ms. Isaac states that the correspondence was submitted to the Public Service Commission which triggered the consideration, recommendation and appointment process to be undertaken. Notwithstanding that Ms. Charles commenced acting as Permanent Secretary prior to the receipt of her official correspondence. Ms. Isaac states that it was always within the discretion of the Public Service Commission whether or not to appoint Ms. Charles after considering the recommendation. Further, she states in June 2019, when Ms. Charles was on leave, the Public Service Commission appointed her to oversee the functioning of the Ministry of Social Development in the absence of Ms. Charles.

Meeting concerning budget of Ministry
(3) Ms. Isaac states that she met with Ms. Charles in relation to certain actions concerning the budget for the Ministry, which placed the Minister in an “acutely embarrassing position” and her insubordination. She alleges that Ms. Charles submitted the budget for the Ministry of Finance without her line Minister’s approval. She states that this omission by Ms. Charles was “egregious” and a “crucial” indication that she was not yet ready to continue on as a Permanent Secretary. Meeting to discuss Ms. Charles’ performance

(4) In the latter part of October 2019, Ms. Isaac avers that she invited Ms. Charles to her office to discuss Ms. Charles’ performance as acting Permanent Secretary and to advise her that a recommendation was going to be made for her not to continue on in her post.

Ms. Isaac acknowledges that she informed Ms. Charles that her appointment as Permanent Secretary will be terminated. Ms. Isaac, then explains what she meant was that a recommendation would be made and not that she was personally terminating Ms. Charles’ acting appointment on behalf of the Government.

(5) Ms. Isaac states that she informed Ms. Charles that her omission in relation the preparation of the supplementary budget, in particular failing to obtain the Minister’s approval was of major concern. Ms. Isaac states that she asked Ms. Charles to prepare a handover paper as a brief to whomever would be appointed to the post of Permanent Secretary, but did not name Ms. Charles’ successor to the post. Further, Ms. Isaac says that she was informed that Ms. Charles would be reverted to her substantive post as Director of Social Development and be transferred to the post of Institutional Strengthening Specialist in the Ministry of Climate Resilience. However, Ms. Isaac says she was not informed when the transfer was to take effect.

Transfer and administrative leave
(6) On 30th October 2019, Ms. Isaac says that Ms. Charles called her and informed that the handover brief was complete. Ms. Isaac requested Ms. Charles to personally deliver the brief to her and informed her that the office space as Institutional Strengthening Specialist was not yet ready and enquired whether she would be minded to go on leave for an addition week or so. Ms. Charles requested administrative leave and agreed to be placed on administration leave.

Ms. Isaac then recommended to the Public Service Commission that Ms. Charles is to proceed on administration leave from 31st October to 8th November 2019. The post of Institutional Strengthening Specialist was created in or about early October 2019.

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(7) While she was the Chairperson of the Public Service Commission, she was privy to the minutes of Public Service Commission, where it took the decision to accept the recommendations in relation to Ms. Charles to advise the Governor-General.

Evidence of Naomi Jeremiah on behalf of the Public Service Commission
[9] Ms. Naomi Jeremiah, Chief Personnel Officer of the Public Service Commission (acting), filed an affidavit on 16th November 2020 in opposition to the originating motion. With respect to the allegations contained in the originating motion Ms. Jeremiah tendered the following:

(1) In relation to the termination of Ms. Charles’ acting appointment, Ms. Jeremiah states that the Public Service Commission did receive submissions by Ms. Isaac, as Cabinet Secretary, on 4th November 2019 recommending the termination of Ms. Charles’ appointment and reversion to her substantive post on the basis that her appointment appeared to be inefficacious. There was also a recommendation for administrative leave to be granted to Ms. Charles from 31st October- 8th November 2019 to facilitate the readiness of an office space for her.

(2) Further, the Public Service Commission also received a request from the acting Permanent Secretary in the Ministry of Climate Resilience for the filling of the new post which was created by the Cabinet of Grenada at its meeting on or about 1st October 2019. The new post was to be paid in Grade K.

(3) Ms. Jeremiah states that upon receipt of those recommendations, the Public Service Commission considered them and took the decision to advise the Governor-General of the request for the termination of Ms. Charles’ appointment with effect from 31st October 2019. The Public Service Commission, then took the decision to revert Ms. Charles to her substantive post, grant the administrative leave and appoint and transfer her to the new post in the Ministry of Climate Resilience. These actions were taken in 18th November 2019 as stated in paragraph 18 of the affidavit of Ms. Beryl Isaac dated 16th November 2020.

(4) The Governor-General, acting on the request of the Public Service Commission, communicated her decision to retroactively terminate Ms. Charles’ acting appointment and revert Ms. Charles to her substantive post. Ms. Jeremiah states that by oversight these decisions were not promptly communicated and were only brought to the Commission’s attention because Ms. Charles was still being remunerated as an acting Permanent Secretary up to May 2020. Ms. Jeremiah states this oversight or delay is not novel and avers that official communication of decisions, including appointments from Public Service Commission have come after they have already taken effect.

(5) In relation to the matters concerning Ms. Charles’ claims of her being passed over for promotion, Ms. Jeremiah says that the Public Service Commission is guided by its regulations and it is not aware of any right as alleged by Ms. Charles.

Issues
[1O] In light of the above, the following issues are to be determined:

(1) Whether the decision by Her Excellency the Governor-General acting in accordance with the advice of the Public Service Commission to terminate the acting appointment of Ms. Charles, as Permanent Secretary and reverting her to the substantive office as Director of Social Development was irrational, arbitrary or unreasonable and/or amounted to an abdication of her discretion in contravention of section 85(2) of the Constitution of Grenada.

(2) Whether the Public Service Commission denied Ms. Charles an opportunity to be heard prior to its actions and decisions in breach of natural justice and right to due process of law under section 8(8) of the Constitution.

(3) Whether the Public Service Commission abdicated its duty or authority under sections 83 (12) and 84 (1) of the Constitution and was following the dictates of the Minister of Social Development, the Cabinet of Grenada or a third party when it decided to grant administrative leave to Ms. Charles from 31” October 2019 to 8th November 2019 and transferred her to the post of Institutional Strengthening Specialist within the Ministry of Climate Resilience.

(4) Whether Ms. Charles is entitled to damages.

Discussion

Actions of the Cabinet Secretary
[11] Although the Cabinet secretary was removed as a party, however her affidavit forms part of the evidence relied on by the Attorney General. It is important at this stage to discuss the actions of the Cabinet Secretary in communicating certain recommendations from the Cabinet to Ms. Charles.

[12] The Cabinet Secretary is a constitutional post. Section 68 of the Constitution provides:

Section 68

(1) There shall be a Secretary to the Cabinet whose office shall be a public office.

(2) The Secretary to the Cabinet, who shall have charge of the Cabinet Office, shall be responsible, in accordance with such instructions as may be given to him by the Prime Minister, for arranging the business for, and keeping the minutes of, the Cabinet and for conveying the decisions of the Cabinet to the appropriate person or authority and shall have such other functions as the Prime Minister may direct. (Bold emphasis mine)

[13] As provided by the said section, one the main duties of the Cabinet Secretary is to communicate the decisions of the Cabinet to the appropriate person or authority. The appropriate authority in this case being the Public Service Commission. It is the evidence that Ms. Beryl Isaac, the Cabinet Secretary, informed Ms. Charles that a recommendation was made for the termination of her acting appointment and for her to be reverted to her substantive post as Director of Social Development. Further, Ms. Beryl Isaac directed Ms. Charles to proceed on leave and report for duties for a new post in the Ministry of Climate Resilience, among other things.

[14] The court is of the view that Ms. Beryl Isaac, as Cabinet Secretary at the time, overstepped and exceeded her duties when she prematurely notified or directed Ms. Charles of the termination of her acting appointment. The authority to make those decisions to terminate the acting appointment and transfer were within the purview of the Public Service Commission which must properly deliberate and consider such recommendations before making any determination. Even if a recommendation had been made to the Commission it was not within the purview of Cabinet Secretary to request that Ms. Charles proceed on Administrative leave prior to the approval of Public Service Commission.

[15] Therefore, the fact that Ms. Beryl Isaac as the Cabinet Secretary informed Ms. Charles that a decision was taken to terminate her acting appointment and to proceed on administrative leave, even before the Public Service Commission considered the recommendation and rendered its decision, was unlawful. These actions were ultra vires Section 85 of the Constitution and therefore unconstitutional.

[16] However, the court notes that the on 18th November 2019, the Public Service Commission lawfully exercised its constitutional discretion to advise the Governor-General to terminate Ms. Charles’ acting appointment and revert her to the substantive post of Director of Social Development, albeit retroactively. The commission granted administrative leave to Ms. Charles and transferred her to the new post in the Ministry of Climate Resilience. The court notes the Commission’s admission that there was some oversight and delay in promptly communicating the above decisions to Ms. Charles. That oversight was brought to the fore and remedied when the Commission officially communicated its decision to Ms. Charles by letter dated 18th May 2020. However, these were in the court’s view issues that ought to have been raised in judicial review proceedings and not for constitutional redress.

Whether the decision by Her Excellency, the Governor-General acting in accordance with the advice of the Public Service Commission to terminate Ms. Charles’ acting appointment reverting her to the substantive was irrational, arbitrary or unreasonable and/or amounted to an abdication of her discretion in contravention of section 85(2) of the Constitution of Grenada.

Click here to read Part III.