Ombudsman Sharon Roulstone is taking legal action against Governor Jane Owen to try to prevent being forced to retire before her seven-year contract is completed.
The normal retirement age for civil servants is 65. Roulstone will turn 65 on 10 July this year – two years and nine months before her contract term ends.
She is seeking a judicial review, and is asking the court to place a stay or injunction on the retirement condition being enforced on her until the case if heard. She is also asking for an expedited hearing following the grant of leave to stay the retirement condition, and a declaration that the retirement condition is unlawful.
This is the second application for judicial review Roulstone has filed in relation to legal action against the governor, following a submission in September last year, over a disciplinary investigation that she claims is unlawful and unfair. That application is still pending, the Compass understands.
Roulstone’s lawyers at Travers Thorp Alberga, who filed this latest application on Roulstone’s behalf, point out that the Ombudsman is not a civil servant, but rather a constitutional office-holder governed by a distinct legislative scheme that requires her to be appointed for a fixed term of seven years. They argue that she cannot, therefore, as a matter of law, be subjected to the “normal retirement age”, which would abbreviate her term, in the same manner as a civil servant.
In the application for judicial review, filed with the court late last month, the lawyers noted that a clause in Roulstone’s contract, which she signed in April 2022, stipulates that her contract remains valid and effective for seven years, until 2029.
The contract states that she may continue in her role until she reaches normal retirement age under the Public Service Pensions Law, or for a duration of seven years, whichever is sooner. The lawyers argue, however, that the governor had no power under the relevant statutes to include the retirement condition in the Ombudsman’s employment agreement. They added, “It makes no difference that the Ombudsman agreed to it. The condition was and is a legal nullity ….”
Roulstone’s attorneys wrote to the governor in January this year, seeking confirmation that Owen would not take any steps to end the Ombudsman’s tenure before the end of her contract, on the basis of her age. They received no confirmation, but noted that Roulstone’s accrued leave had been pro-rated for the year to 10 July rather than for the full leave year.
The submission noted that while the Public Service Pensions Law (2020 Revision) states that the normal retirement age is 65, the Public Service Management (Amendment) Bill 2026 proposes to increase the retirement age to 70.
The lawyers argue that the retirement condition is incompatible with section 3(2) of the Ombudsman Act, which states, “The Ombudsman shall be appointed for a period of seven years and shall not be eligible for re-appointment”. They also claim the condition “undermines the principle of independence of the Ombudsman, which is reflected in and protected by the Constitution and the Ombudsman Act”.
They noted that an Ombudsman’s seven-year tenure, which is longer than those of a governor or government, which is typically four years, is “plainly designed to entrench the Ombudsman’s independence and to give sufficient confidence to an incumbent in their longevity in office to build and develop robust institutional effectiveness”.
They added, “It is intended to be of sufficient length to outlast at least one political cycle, and the tenure of one or more Governors. … The length of the Ombudsman’s term represents a conscious and deliberate policy choice on the part of the Legislature. It is a critical safeguard of the independence and effectiveness of the Office of Ombudsman. It is expressed in mandatory and unqualified terms.”
In their submission, they noted, if the courts were to endorse the retirement condition, “it would fatally undermine the security of tenure that is critical to the institutional independence of the Ombudsman. It would enable the executive to circumvent and render nugatory the seven-year term and its important public policy purpose by choosing to appoint people who were already within seven years of normal retirement age.”
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