Archive for October, 2009

FCO backs investigations

(CNS): Following the unprecedented debate in the Legislative Assembly Thursday on Ezzard Miller’s motion proposing that government sue the UK and the governor, the FCO issued a statement on its website hours after it was rejected. Overseas Territories Minister Chris Bryant said he believed it was the right outcome. He said the governor had acted in the best interests of the Cayman people and the investigations should be seen through to the end.

Bryant, who was cited in the Daily Telegraph as one of the MPs who made questionable expense claims, said the investigations were important and should be paid for by Cayman.

“In order to address the allegations of corruption, it was right to undertake these investigations and it is important that they are seen through to a conclusion.  I also reject the suggestion that the UK Government should meet the costs of these investigations, which are entirely a matter for the Cayman Islands Government,” he said.

Bryant did not, however, explain how they were “entirely a matter for the Cayman Islands” when the Cayman Islands elected officials had begun callingfor them to stop over one year ago and those calls were ignored by the governor.

The minister, who has yet to visit the islands, indicated that the government’s rejection of Ezzard Miller’s motion was the right outcome for all concerned.  “It is in no-one’s interests to pursue such a case,” he added. “I absolutely reject any suggestion that the Governor has acted in any way other than in the best interests of the government and people of the Cayman Islands.  I am satisfied that he has at all times acted in accordance with the Constitution.”

During the debate in the House on Thursday, Ezzard Miller, Anthony Eden, Arden McLean, Alden McLaughlin and Moses Krikconnell joined the community at large in the growing support for taking some form of action against the UK. Despite the position of the FCO, a significant number of people in the Cayman Islands, as evidence by comments, blogs and calls to the radio talk-shows, do not believe these investigations were in their best interests.

Even the leader of government business and his party members, while rejecting the motion, have nevertheless expressed their outrage over the costs of Operation Tempura and Cealt and the disruption they have caused without producing any results. Moreover, when the government benches registered there vote of ‘no’ to the motion on Thursday evening, they did so with little enthusiasm.

Bush said the debate in the LA was an important one and it gave members the opportunity to have their say. Explaining why the government had chosen to reject Miller’s motion, Bush indicated that he had taken advice from Jeffery Jowell, the legal expert that worked with the previous government during the constitutional negotiations, and he had said it would be hard to win.

“I have already made a statement of disgust in regard to the expenditure,” he said. “But we don’t believe we can win this one.” Bush said. While the LoGB felt the member for North Side had made his case, it would not get the people of Cayman anywhere and he did not believe we would get the money back. “I know how the member feels as we all feel that way,” said Bush. “I don’t believe that it is time for that kind of fight.”

Speaking about the future, the LoGB made it clear that he expected there to be far more fights to come with the UK and said that he had never been afraid to stand up to the FCO in the past and would not be afraid in the future. Bush said he would not allow the governor to push the new government around but he warned that the UK still has the upper hand even in the new Constitution.

Meanwhile, on Friday Miller put out a statement clarifying an error in the print media that had misquoted him regarding the basis on which he brought the motion. “In my efforts to bring the Private Members Motion on this matter to the Legislative Assembly, I was at pains to point out to all the media that I was bringing the motion on the basis of ‘misfeasance’ on the part of the Governor.  I was equally at pains to point out the definition of ‘misfeasance’ – as the ‘wrongful exercise of a lawful authority’ – and that while I believed the Governor may have acted according to law, that he had wrongfully done so,” Miller said, adding that a print article had said he defined misfeasance as ‘the doing of an unlawful act in a wrongful manner’.

“I said no such thing – neither to their reporter, nor in any of my other public pronouncements on the matter,” he said. “I was notsuggesting that we take the FCO or Governor to court for doing anything unlawful. I wish to make it abundantly clear, once again, that my motion was brought on the basis of citing the Governor and the FCO for ‘misfeasance’ – that even though they may have acted legally, their actions could be seen as the wrong application of their authority.”

Miller said that, regardless ofthe outcome of the debate, he still maintained that the outcome of the several investigations and the reputation and financial damage to the Cayman Islands bear this out.

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Joey partied on public $$$

(CNS): Aside from the widely publicised advances totalling $50,000 paid to the former managing director of the Boatswain Beach Turtle Farm, the auditor general has also revealed that Joey Ebanks spent more than $6,500 in the farm’s on-site bar on alcohol, food and cigarettes, which has never been paid back. In a new report released to the public on Friday, DanDuguay confirms that Ebanks received 16 salary advances, or loans, during his tenure amounting to over $65,871 which the Turtle Farm board was unaware of until he resigned in order to run in the general elections.

Duguay explained his investigation was conducted as a result of stories in the local media about salary advances given to Ebanks that did not appear to be authorized and because of the wider implications for government departments about how salary advances or loans by government to employees are managed.

“This became an issue during the election campaign and it concerns me as to why loans were made to the Managing Director,” Duguay wrote in his report. “I believe this has broader implications for government as a whole how statutory authorities and government companies manage salary advances and staff loans.”

Duguay also noted that the farm had written off more than $6,500 that Ebanks had spent in the Schooner Bar and Grill at Boatswain Beach between July 2008 and March 2009. Duguay said that, while the MD did have a hospitality budget, the financial manager was unable to supply a breakdown of what these expenses were for and none of the bar tabs revealed who was at the meetings.

The report reveals that there were some 55 bar tabs for drinks, which included Appleton and cokes, cocktails, beers, soft drinks, food and even cigarettes, but there was no indication who Ebanks was hosting and why.

“I asked for expense claims that would document who attended at the various times when charges were incurred and what the purpose of the meeting would be. I was informed no such documentation existed,” Duguay wrote in the report. Although, the AG said that four names were mentioned as guests on some of the tabs, most just said “Mr Ebanks ”.

The AG said that, while it is appropriate for heads of government organisations to have small hospitality budgets, it is still public money and should therefore be documented. “I find the lack of documentation inappropriate, because of the discretionary nature of such transactions,” Duguay said. “The lack of such documentation on a consistent basis over such a long period of time would seem to treat the expenditure of such sums with less than the amount of care expected by residents of these Islands.”

In one example of a Friday night bar tab in January, Duguay states that there were 60 alcoholic drinks and two packs of cigarettes for a total of $289.86 that was charged to “Mr Ebanks tab”. The following weekend on a Saturday night tab the AG notes 63 alcoholic drinks and food totally $344.72. Duguay said he reviewed all of the bar tabs, whichrevealed 70% was spent on alcohol and cigarettes, and while he understood there is no government policy that restricts the use of government funds on such things, he questioned whether it was reasonable or appropriate.

Examining the salary advances given to Ebanks, which the AG indicated were loans because a salary advance in simple terms is generally paid back by the employee from their next pay cheque, Duguay was concerned that while these have been paid back the were never authorized and the board was entirely unaware of them

Ebanks was granted a series of loans between June 2007 and February 2009 from as little as $150 to as much as $11,319. During the period Ebanks borrowed more than $65,870 but made repayments of over $16,023. When he resigned from his post in March 2009 the outstanding sum was $49,847.87. Ebanks also owed $1,900 for turtle meat that he had purchased on credit.

In the subsequent weeks the board and Ebanks negotiated a way for the former MD to pay back the loans, interest free. Duguay also notes that no attempt to recover the $6,500 bar tab was made as it was perceived as ‘hospitality’.

The AG stated that one of his major concerns about the loans was that the board was never informed of the situation. Chair Joel Walton reported to the AG that members were unaware of any of the loans or the turtle meat until Ebanks resigned.  “I have reviewed the documents given to me by the chairman,” Duguay noted. “They support the statement made by the chairman that the Board had no prior knowledge of the loans provided to Mr Ebanks.” Duguay also said that the financial staff at the turtle farm confirmed that they had not informed the board of directors.

As with any government entity, Duguay said, that there should have been a policy in place at Boatswain Beach relating to salary advances and loans, but there was not. He also says the financial staff should have brought the situation to the attention of the board. “In my opinion senior financial management had an obligation to inform the Board of Directors,” he added.

Although the financial officials said there was no formal mechanism for them to report to the board and they claimed to be uncomfortable doing so as Ebanks attended the meetings, the AG stated it was still the responsibility of senior financial management to make the board aware of the loans.

Duguay also questions the fact that, because they were perceived by the Turtle Farm as advances and not loans, no interest was ever paid. “During this same period of time, Boatswain Beach had significant operational deficits and had to expand its lines of credit to ensure it could pay day to day bills, including salaries. In such an environment, I find it disconcerting that Boatswain Beach would borrow additional sums and pay interest on such sums then loan them out to a senior official at no interest.”

Acknowledging that the difference in the amounts of money which the farm was forced to borrow compared to Ebanks’ loans were wide and that this had little impact on the farm’s financial woes, he noted the principle was still an important one.

“This situation is the second time in recent history that this office has been made aware of substantial long term loans made to senior management of a government organisation,” Duguay said, referring to the loans given to Hassan Syed, the former president of UCCI who is now part of a police investigation concerning those loans and credit card fraud.

“I believe that any government employee … should not expect to borrow money from government,” Duguay added. He explained that employee assistance in the wake of hurricanes, for example, can be administered through specialist programmes, but outside of such parameters the AG said it was reckless to lend government funds to employees.

He recommended that all government organisations should have a clear and specific policy on salary advances or loans and open, transparent, disclosure policies for when they occur.

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Mac won’t sue Jack

(CNS): Despite impassioned pleas from the  opposition benches, the government has rejected a private member’s motion to take legal action against the UK andGovernor Stuart Jack to recoup almost $7million spent on Operations Tempura and Cealt. Brought by North Side’s independent representative Ezzard Miller, the motion asked government to consider a lawsuit in the UK courts on the basis of misfeasance on the part of the governor to try and get at least some of the Cayman Tax payers’ money back.

However, even before the motion had been debated, Leader of Government Business McKeeva Bush made a statement to the House that government had taken legal advice and had concluded it would be too difficult to win in the English courts, too costly to risk and the wrong battle to fight.

However, undeterred the North Side member presented his motion, which was seconded by Anthony Eden the second elected member for Bodden Town and member of the People’s Progressive Movement opposition.

Miller told the Legislative Assembly that he believed there was enough evidence of misfeasance on the part of the governor for a court to make the decision. He explained that while he was not a great believer in conspiracy theories, when one “followed the twists and turns” of the investigations it was hard not to believe the “colonial masters are trying to shut this country down.”

Miller said that over recent years there had been a seismic shift in the roll of the governor in the Cayman Islands from one where the governor represented the interests of the Cayman people to the UK to one where the governor represented the interest of the UK in Cayman.

Passions ran high during the long debate, which saw Miller and opposition members discuss their outrage over the impact the investigations had on the country but also revealed the disdain and contempt with which the governor had held the elected officials, almost from the time he arrived on island. In an almost cathartic exercise, the opposition, which had worked with the governor for the best part of the last three years, expressed its frustrations over how the investigation was handled and the governor’s attitude toward them as elected members.

Following the government’s rejection of his motion, Miller expressed his disappointment. Hs said that it would have sent a clear message to the UK and its representative, demonstrating that the representatives of the people were prepared to stand together and no longer accept the condescending attitude of the ‘governor knows best’.

“It is not just about recovering the costs; it is about getting the story told and taking a stand,” said Miller. adding that getting the $7million back would have been nice, but the fact that the people’s representatives had taken a stand and looked for justice and asked for justice in the right place would have counted for a lot. He also said he believed the government had a very good chance of winning based on the legal advice he had sought. Miller said the court was the right place to get this clean bill of health that everyone was asking for , and it would not have been such a costly exercise as government had insisted.

With the government’s rejection of his motion, he called on the local legal fraternity to take up the cause and sue Bridger, the FCO and the governor for damage to the reputation of the jurisdiction in which they worked and made their living.

Miller also took the opportunity to point out the very pressing need for Cayman to begin the conversation about independence, as it was clear that the UK would force the issue eventually. He said it was time to “debunk the myths surrounding the independence debate".

With only Ellio Solomon and the LoGB speaking for government and rejecting the motion during the day’s intense debate, it was the opposition members and Miller who expressed the outrage felt by the entire country. An outrage over how the investigations were conducted, the costs, the damage to Cayman, as well as the individuals directly involved, the attitude of the governor and the outrage over Jack’s continued insistence that there was corruption in the jurisdiction, as well as the constant veiled threats dressed up in comparisons to the Turks and Caicos Islands.

Moses Kirkconnell, the first elected member for the Sister Islands, put the situation in stark terms when he said that Cayman could never calculate the true cost of the damage these investigations had caused to the country and its economy. “These investigations made us lose our competitive edge and I don’t know how you can ever put a value on that,” he said. Supporting Miller’s motion, Kirkconnell said he could not see any other way of clearing the country’s name but by taking it to the courts.

Having been on the receiving end of what they said was the governor’s derision and contempt as members of the last cabinet, both Arden McLean and Alden McLaughlin implored the government to support Miller’s motion and demonstrate unity among elected officials against the unilateral power of the governor and his misplaced notion that all elected officials were crooked. McLaughlin said the motion was not really about whether the lawsuit would succeed or throwing good money after bad but it presented an opportunity for elected officials to voice their concerns about the unilateral action of successive governors and the idea that the UK’ s representative was free of all human failings because he was the UK’s appointee.

“Let us not lose the opportunity to send a collective message that we are all Caymanians standing up for what is right,” McLaughlin said as he implored the government to support the motion.

McLean, unable to hide his outrage at what had happened, took the opportunity to remind everyone of how the events had unfolded and how the governor had kept the Cabinet members, elected by the people, in the dark. But above all, McLean was outraged by the governor’s constant messages regarding good governance which clearly did not apply to him, he said. “If I say I heard the phrase ‘good governance’ 9000 t,imes I would not be lying,” he said, adding that for some reason the governor decided that elected officials were the biggest bunch of thieves going and did not know what was right for their own country. Wishing the governor on his way, McLean said, “He is the worst thing that ever happened to us since Columbus landed.”

The motion was rejected by all members of government but supported by all the opposition members as well as Miller.

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Legal aid row rolls on

(CNS): The two major bodies representing the wider legal profession, the Cayman Islands Law Society and the Cayman Bar Association, have now added their voices to the concerns being raised about the leader of government business’ decision to allow two local lawyers establish a legal aid office on a slashed budget. Charles Jennings and James Bergstrom have written to McKeeva Bush and asked him to revisit his decision. Welcoming any move to broaden access to justice, they state their concerns about the limited information available about the proposed scheme, but above all the proposed reduction in the budget.

The letter, sent to the LoGB on 21 October, follows in the wake of questions and queries first raised by the opposition, followed by the Criminal Defence Bar Association, and most recently the Human Rights Committee. In this letter the legal professionals also raise human rights concerns and the principles in both article 7 of Cayman’s own Bill of Rights within the new Constitution and article 6 of the European Convention of Human Rights that the primary purpose of legal aid is to provide a lawyer for those who can’t afford one to ensure fairness and justice for all.

Like most of those who have questioned the change in policy, the two legal bodies say they are not opposed in principle to a legal aid or public defenders office but note that the government’s own Law Reform Commission had concluded that it would be a more expensive approach, so question, as many already have, how the two lawyers, Steve McField and Theresa Pitcairn, will be able to do more for less.

“The right to be provided with legal representation means the right to be provided with genuine and effective representation not the mere presence of a lawyer,” Jennings and Bergstrom write.

The two legal presidents also tell the LoGB that they are also concerned about his recent comments on a radio talk show (Rooster’s Crosstalk) that government should not have to pay for “expensive lawyers” to get “criminals off the hook”.

“As Mr McField and Ms Pitcairn will doubtless also be able to confirm it is a fundamental principle of law in every civilized jurisdiction that a defendant has a right to a fair trial, and moreover, in common law jurisdictions, such as the Cayman Islands, thathe/she is innocent until proven guilty,” the letter states. “Your words imply that you believe otherwise on both counts. We expect you to clarify them before they are more widely picked up on and reported.”

However, speaking after his presentation in the Legislative Assembly this week about the problems with the existing legal aid system and his hopes for the benefits of the new legal aid office, Bush said that he still felt people across the country were uncomfortable when the government was footing the bill to enable people who were involved in crime to walk away from the courts scot-free.

Jennings and Bergstrom raise concerns about the costs of the office and make a comparison to the Legal Department that prosecutes crime. The two attorneys point out that the current budget for that department is $3,525, 513, almost more than three times the annual budget proposed forthe new legal aid office.

“Using the government department as the most reasonable like-for-like comparison and down-sizing very conservatively to two thirds of its size, the annual running costs of a comparable PDO/Legal Aid office will be $2,326,838,” the lawyers write. “To this base operating figure must be added the inevitable costs which will be involved when the PDO/Legal Aid office has to outsource work.”

The authors point out that in many criminal cases there are multiple defendants, which means the office will be forced to outsource to avoid conflict. They suggest that because the economics of the office have not been thought through, “the standard of representation for those accused of grave crime will suffer, scrutiny of the police and prosecution will be undermined and the innocent will be placed at greater risk.”

The writers also present their concerns that the transfer of legal aid funding away from the chief justice to the Executive undermines the independence of the judiciary, which they say is a cornerstone of democracy and civilised society.

“The provision of high-calibre representation for those accused of grave crime is a frontline service. This suggested ‘reform’ will damage the reputation of these Islands and the consequences naturally extend beyond those who are directly working in or are affected by our criminal justice system,” Jennings and Bergstrom write as they ask Bush to engage in dialogue about the reform.

The Law Society in particular, however, has been criticised for not offering to help address the growing legal aid problem over the years. Pitcairn has noted on several occasions that the Law Society does not believe it has to do pro-bono work as the provision of legal aid should be borne by the community at large – in other words through government funding and not just by the legal profession.

McField and Pitcairn (a former colleague of Jennings at Maples and Calder, who has since filed her own suit against the law firm) have yet to explain the details of their plan or answer any of the fundamental questions over how they will manage Cayman’s growing criminal defence costs or the transition period. There are wide concerns in the community, given the number of high profile criminal trials currently pending in the court system, including that of the men accused of murdering Estella Scott-Roberts, that there will be problems during the transition that could undermine the safety of any conviction.  

 A clear message from the two local lawyers, however, is that no one else in their profession has yet stepped up to the plate with ideas for addressing the many problems associated with the current legal aid system. CNS has persisted in asking questions and on Monday asked McField about the transitional issues, but he said he did not yet know the answer to any of the questions posed.

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Travers advises governor how to avoid embarrassment

(CNS): The chair of Cayman Finance has taken the governor to task in a letter addressing his recent public comments over the need for Cayman to implement direct taxes. As members of the Legislative Assembly were engaged in an unprecedented debate questioning the governor’s judgement, Anthony Travers also told Stuart Jack that while Cayman Finance was sympathetic to his need to redefine his legacy in his remaining days, the issue of direct taxation had been rejected by the local industry and he would avoid embarrassment if he stuck to the convention of not commenting before consulting.

In his correspondence Travers reminded the governor of the convention that statements concerning the revenue base of the Cayman Islands that impact on the financial services industry should only be made after full consultation with that sector.

“We do not anticipate that the independent views of those marginally involved will assist or provide any alternative meaningful advice to that which the Industry has developed. It should be noted that the Leader of Government Business, Mr Bush has fully engaged with Cayman Finance and has received detailed proposals as to revenue collection which have benefited from a proper process of consensus that engaged the leading bankers, lawyers and accountants on the Island.”

The letter comes in the wake of comments that Jack made on his FCO blog, in which he seemed to suggest that he agreed with the position that Tim Ridley, Travers’ former partner at Maples and Calder, had taken that Cayman could benefit from the introduction of a property tax.

Travers, however, wrote that Cayman Finance’s recommendations rejected outright the concept of property, payroll or other direct taxes as not being in the long term best interests of the Cayman Islands. “From whomsoever your views may have emanated, and regardless of the extent to which they may echo current sentiment in Whitehall, they are clearly inconsistent with the conclusions of the Financial Services Industry and having been rejected once are unlikely to be reconsidered,” the chair of the industry body said.

In the last few weeks Travers has spoken out in a variety of forums against the introduction of any form of direct taxation in Cayman and the need to resist the pressure from the UK, which he says is itself suffering from untold economic stresses as a result of its increasing taxes.

Never one to mince his words, Travers told the UK’s representative that the Cayman Islands financial services industry had developed to one of the most successful sectors in the world over a great many years by the process of consensus. “Recognition of the time honoured convention, to which I refer, should avoid any further embarrassment accruing to your office,” he added.

During the process of bringing the 2009/10 budget, the Cayman Islands government had toyed with the idea of introducing some form of income tax to address the problem created by the UK’s Overseas Territories Minister Chris Bryant’s refusal to give permission for it to borrow money to help meet this year’s capital costs. In the end, in consultation with the financial service sector, it came up with a range of fee increases and indirect taxes that would return a balanced budget and bring government back into compliance with the Public Management and Finance Law. However, the projected budget surplus of around $4-5 million is finely balanced on untested predictions which could easily turn the surplus into a deficit. Moreover, the CI government is still under pressure from the UK government as part of the recent permission to borrow some $275 million to undertake a review of the public sector to cut spending and an independent assessment of future sustainable revenue raising measures, in other words direct taxation.

The governor recently said on News 27 that many financial centres around the world, such as Bermuda and the Channel Islands, have forms of direct taxations so there was no reason to assume Cayman would suffer if it too were to adopt similar measures — a position which is not necessarily shared by either the elected government or the financial services sector.

Read full letter.

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