No 'actionable breach' in Brac paving flap

Cayman’s top public sector attorney was unable to identify “any actionable breach of statutory duty” in connection with the government-funded paving of private parking lots in Cayman Brac between 2010 and 2012.  

That was the response from Cayman Islands Attorney General Sam Bulgin in June following the findings of an auditor general’s office report that revealed some $521,000 was spent on paving privately owned parking lots in an island-wide road-paving project undertaken in Cayman Brac beginning June 2010.  

Auditor General Alastair Swarbrick wrote to Mr. Bulgin’s office on May 23, 2012, indicating his findings in a report titled Road Paving Expenditure in Cayman Brac.  

“Supported by an opinion I received from [attorney general’s chambers], I reported my view that these expenditures were made without the authority of the Legislative Assembly as the appropriation charged does not include authority to supply or install paving material on private lands,” Mr. Swarbrick’s letter read, asking the attorney general what steps he might want to take as a result of the audit report.  

In response to an open records request filed in May 2013, the auditor general indicated his office had received a response from Mr. Bulgin on the matter. The full text of the attorney general’s response was not able to be released due to exemptions under the Freedom of Information Law for legal advice privilege. 

“We can, however, inform you that the attorney general was unable to identify any actionable ‘breach of statutory duty’,” the auditor general’s office reply, penned on June 24, 2013, stated. “Accordingly, there was no basis on which he could take legal action.”  

A public uproar over the Brac paving project began in May 2011, when the Caymanian Compass reported that island residents were asking why public resources and equipment were used to pave private car parks while much of the island’s main roads remained unpaved.  

The newspaper took photographs that depicted signs placed in some Cayman Brac yards asking why their parking lots or roads had not been paved when other lots or roads right next door got a fresh coat of asphalt.  

About a year later, Mr. Swarbrick went public with his report questioning the legality of the expenditures for the road and parking lot paving, none of which – at that point – had been approved in the Legislative Assembly. The Assembly met in August to “regularize” a number of expenditures from the former United Democratic Party government that the House had not approved, including some funds for the Brac paving.  

In its review, the auditor general’s office considered the criteria for the disbursement of public money to private property and found there was “no clear, strong criteria used.” 

“[However], in my perspective … it is not the key message. The message is that all of it was not authorized,” he said. Mr. Swarbrick also noted in his report that there was a potential conflict of interest in hiring National Roads Authority Chairman Colford Scott as the project manager for the paving effort.  

“The NRA’s resources were diverted to Cayman Brac to do this,” he said. “There’s potential conflict of interest with his role as chairman of the NRA and project manager of this project.” 

According to a story reported by the Compass in Monday’s editions, NRA resources remain on the Brac from the paving effort. Mr. Swarbrick said he was generally disappointed in the government’s response to his report.  

“They see it as no problem in terms of paving the private parking lots,” he said in 2012. “If they say there’s nothing that specifically prevents them from doing that, there’s nothing that specifically prevents them from doing anything, from that perspective. 

“All expenditures of government have to be authorized by the Legislative Assembly. The Legislative Assembly authorizes for the maintenance and paving of public roads, not private parking lots. From my perspective, there’s no legal authority for doing that. From our perspective those issues are not covered … they’re not allowed under those laws.”  

The laws 

Section 15 of Cayman’s Anti-Corruption Law, 2008, makes it an offence to “negotiate appointments or dealing in offices”: “A person who receives, agrees to receive, gives or procures to be given, directly or indirectly, a loan, reward, advantage or other benefit as consideration for cooperation, assistance or exercise of influence to secure the appointment of any other person to a public office … commits an offence and is liable on conviction on indictment to imprisonment to a term of five years.”  

Section 17 of the law creates offences for “abuse of office”: “A public officer or member of the Legislative Assembly who does or directs to be done, in abuse of the authority of his office, any arbitrary act prejudicial to the rights of another commits an offence and is liable on summary conviction to imprisonment for a term of two years.  

“If the act … is done or directed to be done for purposes of a loan, reward, advantage or other benefit, such person commits an offence and is liable on summary conviction to imprisonment for a term of three years.”  

Section 19 of the law also addresses conflicts of interest of public officers or members of the Legislative Assembly. 

Cayman-Brac-Church-of-God

The parking lot of a Cayman Brac church freshly paved in May 2011. – Photo: File
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1 COMMENT

  1. So it is legal to use government resources to pave privately owned parking lots. It is good to know this as there are a number of privately owned parking lots in Grand Cayman that need to be paved.

    It would also be good to get a list of the other free services of a similar nature that are available from the government as this could represent significant cost savings for people across all three islands.

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