EDITORIAL – Protect the public, not members of public boards

Lawmakers are considering a bill that would grant greater immunity to members of statutory authority boards, commissions, committees and tribunals for negligent actions taken by the entities they serve.

The proposed amendment to the Public Authorities Law, outlined in today’s front page article, would apply equally to appointed members of those boards and to civil servants working for those entities who are “exercising a regulatory, monetary, cooperative or advisory function or duty.”

If approved, the indemnity would apply to members of dozens of politically appointed bodies that handle much of the government’s business – from financial services regulation to the administration of health insurance and pensions … the list goes on.

The bill is a follow-up to the “emergency deeds of indemnity” the Legislative Assembly granted in March to members of the Cayman Islands Monetary Authority board of directors and the Liquor Licensing boards of Grand Cayman and the Sister Islands. That legislation protected individuals serving on those boards from being held personally liable for “good faith” actions taken in their official capacities.

Readers will well remember the scandal that erupted when it was revealed last fall that under the leadership of then-Acting Chairman Woody DaCosta (whose name was notably absent from March’s “emergency” legislation), official Liquor Board records were altered in an attempt to undo decisions made in relation to Sunday liquor sales at a Red Bay convenience store.

At that time, Commerce Minister Joey Hew said it had been “next to impossible” to find replacements for Mr. DaCosta, who was also the board’s deputy chairman, in the wake of the licensing scandal. (Premier Alden McLaughlin accused Mr. DaCosta of “very bad conduct” in that affair. Mr. DaCosta refutes the premier’s allegations.)

To our knowledge, neither Mr. DaCosta nor any other members of that board have suffered any legal consequences for their actions. In fact, many of them are still sitting in their seats (not including Mr. DaCosta, whose main seat appears to be that of a radio talk show host).

The bill’s backers say it will indemnify individuals but hold the body responsible for negligent acts, and that individuals will still be held responsible for “bad faith” actions – assurances we find to be little more than semantic sleight of hand.

Even less clear is the path of redress for parties who have been wronged by these public boards and their agents. How will they realistically get justice? If a board acts improperly, will innocent board members also suffer for the actions of their peers?

To our minds, a far better way to minimize liability for negligent board action is to minimize the potential for error – to slash the number of boards and dramatically raise standards for qualifications and professionalism of board members.

In the private sector, board membership is a serious responsibility, with highly qualified individuals serving as the ultimate authority for major companies. Cayman’s thicket of statutory boards – with broad powers, memberships rife with conflicts of interest and entanglements with the political establishment – is a poor simulacrum of this functioning system.

The bottom line is accountability; the endgame must be the protection of citizens, not agents of government.

1 COMMENT

  1. In the recorded testimony in Finance Committee on 03-Nov-2017, the Hon. Attorney General Samuel Bulgin outlined their efforts to ensure that there was an “appropriate balance” to allow “litigants, where appropriate, to bring a claim in negligence” against public officials.
    https://www.youtube.com/watch?v=tj9aknGwnBo

    However, it is unconscionable the influence that certain power players appear to be having in attempting to obstruct the course of justice for the very members of the public they are charged with protecting, particularly when the Attorney General stated that “what this means is in order to ensure consistency in immunity provisions in other laws, we are now undertaking a review of the various other laws to try and harmonise the similar sections in other laws to make sure, where appropriate Mr. Speaker, that persons might be able to bring actions in negligence.”

    With this complete reversal of position as previously testified to by the Attorney General, the pressing question now becomes “Who got to who in order to obstruct, prevent, pervert or defeat the course of justice for members of the public who suffer harm at the hands of public officials’ acts of negligence?”

    Two-minute Transcript Excerpt at 2:27:45 through 2:29:28 in the video from the Attorney General’s testimony about review efforts underway regarding public officials being sued for negligence and bad faith:
    Mr. Speaker, Members will recall the case of Donnette Thompson versus the HSA.

    That was a case that was described by the Courts as “sad” and “troubling”, and as a result, Mr. Speaker, the Legislative Assembly amended the HSA Law in June of last year to modify the scope of the immunity afforded to the Authority, Mr. Speaker.

    If you recall, it was a case of medical negligence was alleged in respect of a child who was born in very unfortunate circumstances.

    And I say “alleged”, Mr. Speaker, because no negligence has ever been proven against anybody at this stage, neither the hospital nor the doctors.

    But the problem there was that the way the Law was crafted, the parties were barred from even bringing the action to Court in the first place to allege negligence.

    So the Law has been changed, and it is now the position that the HSA Authority, directors and committee will not be liable for acts and omissions unless it can be shown that the act or omission was either negligent or in bad faith, Mr. Speaker.

    Prior to that, it was just you could only be sued if you could demonstrate “bad faith”, which is very difficult to prove which is tantamount to wilful intent.

    Mr. Speaker, what that means is in order to ensure consistency in immunity provisions in other laws, we are now undertaking a review of the various other laws to try and harmonise the similar sections in other laws to make sure where appropriate, Mr. Speaker, that persons might be able to bring actions in negligence.

    Now, Mr. Speaker, it is true that there are some statutory authorities where this might not be appropriate given the nature of the work that they are involved in.

    And so we will have to ensure that in doing so, we don’t invite what is called the “flood gate effect” allowing people to allege negligence in every action and every steps taken by some of these regulatory authorities.

    So we’re working on ensuring, Mr. Speaker, that there is an appropriate balance, Mr. Speaker, that is allowing litigants, where appropriate, to bring a claim in negligence.

    Of course, they will still have to prove negligence.

    And also ensuring that, in respect to some authorities, that they continue to enjoy a certain degree of protection from certain claims in negligence.

  2. I believe that if this Legislation is alowed to be made into Law , it could be the worse thing that government could do . Why should Board members /Civil Servants be so well protected ? That would take all the responsibility and accountability out of them and the Department, so that they can do whatever they wish to do without fear of anything or anyone . I believe that this amount of protection will also open the door wider for more corruption in these departments . I will say it again he needs to be watched closely .

    • I wholeheartedly agree with everything you are saying, Mr. Ebanks, especially when you conclude that “this amount of protection will also open the door wider for more corruption in these departments”.

      Our current laws already have ironclad safeguards to protect members of the public from rogue public officials who deliberately remain silent after obtaining knowledge of an offence being committed by their colleague.

      On page 117 of the Penal Code (2017 Revision), it appears that this is already a criminal offence in which BOTH public officials can be sued since Section 320 Neglect to Prevent Commission of Certain Offences states that “A person who, knowing that a person designs to commit an offence, fails to use all reasonable means to prevent the commission or completion thereof shall, if such offence is punishable with 2 years’ imprisonment or more, have committed an offence.”
      http://www.gov.ky/portal/pls/portal/docs/1/12420375.PDF

      If I understand this section of the law correctly, as a hypothetical example let’s say a Chief Officer or Minister was emailed about a persistent crime that another public official under their control was committing, and that Chief Officer or Minister then failed to intervene or act on that matter adequately to stop those allegedly illegal actions, and further obstructed justice with the influence their position carried, and as a direct result of that failure to act, subjected the complainant to suffer retaliation, defamation and harm.

      It appears to me that Section 320 Neglect to Prevent Commission of Certain Offences means that the negligent omission of that Chief Officer, Minister or public official to act also subjects them BOTH to the punishment of imprisonment for doing so.

      One step further, I believe that ANY Member of the Legislative Assembly, as well as ANY ex-Officio Member including the Attorney General, should be immediately removed from office and referred for prosecution if they declare their intent to facilitate the commission of breaking EXISTING laws by himself or another, which appears to me to be what this bill will be doing by making a NEW law that, if passed, would allow public officials to break these EXISTING laws since the Attorney General already declared that they are reviewing these other laws so there is no conflict with this new law.

      And if our EXISTING protections are repealed and replaced with these new immunity provisions, we already have safeguards in place for that, too, with Section 322(a)(f) Other Conspiracies which states that “A person who conspires with another or other to prevent or defeat the execution or enforcement of any law or regulation; or effect any unlawful purpose commits an offence.”
      http://www.gov.ky/portal/pls/portal/docs/1/12420375.PDF

      To me, this bill removes EXISTING protections for the broader general public and does not have any good purpose for us if the safeguards in place are repealed and replaced with immunity provisions.

  3. It is always troubling when people want to receive immunity for making mistakes.
    We had a similar issue with our condo board and the purchase of insurance to indemnify the board members.

    On the other hand, if people are giving up their time to serve on a board without compensation is it fair they should be penalized for making a mistake? You will note that one would not be protected if one acts in bad faith.

    Are smart people being deterred from serving on these boards because of the risk of being sued?

    • Mr. Linton, we all make mistakes so I can see with your question about penalising a public official for making a mistake.

      However, at what point does a mistake made by a public official become a crime?

      After their fellow board member or colleague has knowledge of that mistake and subsequently engages in a cover up to obstruct the law from being enforced after the complainant suffers retaliation, defamation and harm when seeking justice?

      According to existing laws, I believe it becomes illegal and actionable when the board members have KNOWLEDGE of the offence and then proceeds to facilitate the commission of said alleged offence by their colleague.

      Yes, everyone makes mistakes, but the intentional cover up or indifference in upholding binding laws on the Crown after the rest of the board members have knowledge of the offence make it a crime, which is the problem that I have with what this Unity Government is trying to facilitate by removing EXISTING laws that protect the public only to offer more immunity to their powerful civil service union for their negligent acts or omissions.

      On page 75 of the Penal Code (2017 Revision), Section 211 Other Negligent Acts Causing Harm already protects the public from errant public officials when it states that “A person who unlawfully does any act, or omits to do any act which it is his duty to do…by which act or omission harm is caused to any person, commits an offence and is liable to a fine of $2,000 and to imprisonment for 2 years.”
      http://www.gov.ky/portal/pls/portal/docs/1/12420375.PDF

      Remember, it appears that the Attorney Governor is now attempting to reverse his testimony when he previously stated in the Legislative Assembly last year that “the problem there was that the way the Law was crafted, the parties were barred from even bringing the action to Court in the first place to allege negligence.”

      So now attempting to craft more laws that put the public in a worse position and insulates public officials even more, without consulting the public to see if we agree to WAIVE OUR EXISTING RIGHTS AND PROTECTIONS that we now enjoy under the law?

      It seems to be a regressive step and way, way, all the way backwards.

      We all have heard that a nation is shaped by its laws, and passing a law which provides immunity for the negligent actions or omissions of public officials would effect an unlawful purpose and can only create further lawlessness in our public officials, added chaos in our civil service and more lawsuits against government while personally naming certain public officials in that litigation for their deliberate negligent actions or omissions.

  4. Marvel Ebanks , I completely agree with your opinion on this matter, and thinks that you can better serve the Islands by removing some of the Politicians that are now supposedly serving the Islands . If I was younger I would definitely join you in the effort .

    • Mr. Ebanks, most assuredly you don’t need to be younger to remove a wayward politician who is set on thinking that they can arbitrarily remove our existing rights, or members who act like they can conspire with others to break existing laws that puts the public at a greater disadvantage.

      I didn’t read anything like that in the Legislative Assembly (Immunities, Powers and Privileges) Law (2015 Revision).
      http://www.gov.ky/portal/pls/portal/docs/1/12022116.PDF

      As a matter of fact, the Public Service Management Law (2017 Revision) has very high Public Service Values and a Code of Conduct that public servants have the responsibility to adhere to.
      http://www.pocs.gov.ky/portal/pls/portal/docs/1/12276854.PDF

      I guess that’s why, after reading through these laws which are BINDING ON THE CROWN, it’s hard to beg them to do their job, because there’s a remedy already outlined if they don’t.

      It’s that simple. Not meaning to offend anyone, but you just have one job to do, and that’s all we the people expect.

      So, Mr. Ebanks, all you need to effect a Paradigm Shift is just a pen and 52 like-minded voters who are each willing to gather signatures from 100 other voters.

      That’s it. On any issue that we the people are so moved to submit to Cabinet.

      On page 41, our constitution states that we only need 25% of voters (currently that is 5,296 signed petitions from registered voters) to trigger a People-Initiated Referendum that our politicians are OBLIGATED to act on.
      http://www.legislation.gov.uk/uksi/2009/1379/pdfs/uksi_20091379_en.pdf

      So if you prefer real justice, law and order to be enforced, then you already have everything that’s needed…you.

      All ages welcomed. As a true patriot, welcome aboard, Mr. Ebanks!