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.