Independent bodies lack appointments, certainty

A number of agencies created over the past decade to ensure transparency and good governance in the Cayman Islands are operating without permanent leadership or any membership, a Cayman Compass review of the agencies has revealed.

There are essentially two groups of “independent” bodies within the Cayman Islands: Six are managed under the auspices of the Commissions Secretariat and another three whose managers are appointed by the governor and report to separate committees of the Legislative Assembly.

A potential 10th oversight body – a proposed police complaints authority – has never been appointed since amendments to the local Police Law were passed in 2010, mandating its creation.

According to various government officials, appointments to some of the oversight bodies are pending, while the future of others is uncertain.

Information and complaints

Both the Information Commissioner’s Office and the Complaints Commissioner’s Office lack permanent leadership, and there are lingering questions regarding whether either office will be given a full-time commissioner again.

Since the December 2013 retirement of Cayman’s first information commissioner, Jennifer Dilbert, the five-person office has been led by Acting Commissioner Jan Liebaers. The office is responsible for the administration and hearing of appeals when initial open records requests have been denied by government. It also seeks to inform and educate the civil service and the public about Freedom of Information Law and best practices in open records.

In recent years, it has been proposed that the information commissioner be made responsible for the administration and oversight of Cayman’s data protection regime. A Data Protection Bill seeking to protect individuals’ private information was made public last year and put out for consultation. It has not been revealed whether the office would receive any additional staff in undertaking these new responsibilities.

The complaints commissioner’s office has neither a full-time commissioner nor deputy commissioner. For now, Bridgette von Gerhardt, the complaints commissioner’s administrative and investigative officer, assumes the duties of acting complaints commissioner.

“This presents an inherent problem for succession planning in the civil service if … such a key gap at senior level remains,” former Commissioner Nicola Williams said during an exit interview earlier this month.

Police

One proposal to address the situation with the complaints and information offices involves a merger of the two, with the data protection duties and another function – involving public complaints about the police service – coming under the direction of a “super ombudsman.”

The amalgamation of police complaints oversight, currently not allowed under the Complaints Commissioner Law, would require some amendments in both that law and the Police Law [2010 Revision], as well as constitutional change. Whether the police complaints authority would be an independent body under such an arrangement or if it would be merged with the complaints commissioner’s office is undecided.

Both Acting Commissioner Liebaers and former Commissioner Williams opposed the consolidation plan.

“It will serve to weaken and diminish [the complaints commissioner’s office],” Ms. Williams said. “I am sure that is not the intention of the government or [the governor]. Splicing together disparate bodies with completely different functions whose only common thread is oversight is not, in my opinion, good governance.

“In addition, because the [complaints commissioner] is protected under the Cayman Islands Constitution, any such proposed merger will be unconstitutional without amendment.”

Speaking last year about the contemplated merger, Mr. Liebaers noted: “[The two offices] both do very different things. What I said to them – although I’m not American, I did an American quote – if it ain’t broke, don’t fix it. I think Freedom of Information right now in Cayman … works very, very well and I would hate to see anything interfere with that.”

Public standards

The bill that will regulate what financial interest disclosures will be required of politicians and higher-ranking government officials was passed by the Legislative Assembly in early 2014 but held in abeyance after a number of appointed board members complained about the stringent requirements.

Premier Alden McLaughlin said amendments to the Standards in Public Life Law that will clarify the financial reporting requirements for board members and civil servants will be brought to the assembly later this year.

Meanwhile, the constitutionally created Commission for Standards in Public Life has no members. Former chair Karin Thompson stepped down in February 2014 after complaining for years that the commission didn’t have the legal “teeth” it needed to police public standards.

An official with the commissions secretariat said the governor is expected to make new appointments to that board soon.

Anti-corruption

The Cayman Islands Anti-Corruption Commission, chaired by Police Commissioner David Baines, is fully appointed and functional.

However, it was revealed last year that the commission has only two full-time police investigators, and prior to the government’s 2013/14 fiscal year, it had no specific staff assigned.

As of June 30, 2014 – the latest data available – the Anti-Corruption Commission was actively investigating 23 cases, including allegations going back as far as 2011. Another 30 cases were listed as concluded. “Although in some cases, this was merely a change in status from pending to concluded on the basis that sufficient time had elapsed to indicate that no further information was likely to be gathered,” the commission’s annual report noted.

The annual report also noted: “A number of requests for rulings have been submitted to the office of the director of public prosecutions, however decisions have been made to not prosecute for a variety of reasons, such as a lack of evidence which the [director’s office] felt would not result in a conviction or complex legal interpretive issues with the Anti-Corruption Law.

“These complex legal interpretive issues continue to be of concern to the [commission],” the report stated. No one has elaborated regarding what those legal issues might entail.

Five cases were previously referred to the director of public prosecutions, who declined to press charges based on the offenses alleged. In one case, charges were accepted, but then altered, according to previous statements from the commission.

Other commissions

The Human Rights Commission, which was idle for several months in 2014 because of the expiry of several members’ tenure, now has four of five members appointed, including new chairman James Austin-Smith.

The Judicial and Legal Services Commission, which advises the governor on the appointment of judges and magistrates, has six of eight members appointed.

The Civil Service Appeals Commission has five members out of a potential seven, and the Constitutional Commission is fully appointed with three members.

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