Gladden v Attorney General et Al
| Jurisdiction | Belize |
| Judge | Legall, J. |
| Judgment Date | 24 October 2011 |
| Court | Supreme Court (Belize) |
| Docket Number | 692 of 2010 |
| Date | 24 October 2011 |
Supreme Court
Legall, J.
692 of 2010
Mr. Dean R. Lindo SC for the claimant.
Mr. Andrew Bennett for the 1st, 2nd and 3rd defendants. Mr. Jose A. Cardona for the 4th defendant.
Judicial Review - Disciplinary Proceedings — Breach of natural justice — Whether claimant entitled to relief of certiorari — Nominal damages.
The claimant held, since 10111 October, 2006, the confirmed substantive post of Administrative Assistant in the Ministry of Housing. In May 2009, she was acting in the higher position of Administrative Officer; and carrying out the functions of finance officer in the said Ministry of Housing (M.O.H). An allegation was made by the M.O.H. against the claimant as finance officer, that on 30th April, 2009, she approved a payment of $2,800. to a Mr. Sean Gillett of Belmopan for repairs and maintenance of a motor vehicle, when the invoice authorizing the payment was not authorized by the required signatory of Noel Harvey, the Housing and Planning officer, who it was alleged neither requested nor authorized the payment. It was also alleged against the claimant that on three other occasions, in March and April, 2009, she made fraudulent payments in the amount of $5,760. without the required requisition. It was also alleged that a fraud was committed on the Government of Belize, and that the claimant was fully knowledgeable of it, and was the chief participant in the fraud.
The M.O.H. wrote a letter to the claimant dated 15th May, 2009, informing her of the allegations of fraud; and inviting her “to provide, in writing, an explanation as to why these payments are not fraudulent, if you so believe,” to use the words of the letter. The claimant admitted in evidence that she received this letter, and that it gave her the opportunity to explain her position. Moreover, her attorney-at-law by a letter, on the claimant's behalf, dated 28th May, 2009, to the M.O.H. denied the allegations of fraud made against the claimant. The M.O.H. then made a recommendation to the 3rd defendant (PSC) for suspension of the claimant on the basis of the allegations of fraud. As the allegations were being investigated, the P.S.C. ruled that the claimant be suspended from duty for a period of sixty days effective from 20th May, 2009, pending the outcome of the investigations. The P.S.C. ordered that during the period of the suspension, the claimant would receive fifty percent of her salary. Her salary as Administrative Assistant was $30,540 per annum, and she was also paid an acting allowance as Administrative Officer. The amount of the acting allowance was not given in evidence.
By letter dated 24th July, 2009, the P.S.C. wrote to the claimant outlining the allegations of fraud against her and informing her that she had a right to request to appear before the P.S.C. with, or without a lawyer, to be heard; and further informing her to let the P.S.C. know whether she wanted to exercise her right to appear, so that arrangements could be made for that purpose. The letter also informed her of her right to call and cross-examine witnesses; and her right to supply any documentary or other evidence that she may wish the P.S.C. to consider. The claimant was also invited to reply to the said letter by 10th August, 2009.
The P.S.C. began hearing the allegations against the claimant on 21st August, 2009, and the hearing continued on 3rd December, 2009. At the hearings, the claimant and her attorney-at-law were present and the claimant gave evidence and was cross-examined. A transcript of the hearings — a massive document containing about 150 pages giving a verbatim account of what was said by persons present at the hearings and also giving reasons for the decision of the P.S.C. — was tendered in evidence. The document showed that the claimant and her attorney-at-law participated actively in the hearings.
By letter dated 25th March, 2010, the P.S.C. at the conclusion of the hearings, communicated its decision to the claimant. The letter is important so I quote it in toto:
“Dear Mrs. Gladden,
This is to inform you that the Public Services Commission carefully considered the circumstances surrounding the disciplinary case against you and conclude that based on the weight of evidence, you are found to have contravened the following Regulations when you fraudulently made payment of invoices causing the Government of Belize a loss of Five Thousand Seven Hundred and Sixty Dollars ($5,760.00):
A. Public Services Regulation as follows:
“19. In accordance with section 121 of the Constitution, all Public Officers shall conduct themselves in such a way as not to:
(a) place themselves in positions in which they have or could have a conflict of interest:
(b) compromise the fair exercise of their official function and duties;
(c) use their office for private gain;
(d) demean their office or position;
(e) allow their integrity to be called into question; nor
(f) endanger or diminish respect for, or confidence in, the integrity of the Government.
B. Services Commissions Regulations as follows:
“26. A Public Officer who, without reasonable excuse does an act which:–
(a) amounts to failure to perform in a proper manner any duty assigned to him; including discourtesy to members of the public;
(c) is prejudicial to the efficient conduct of the Public Service or tends to bring the Public service into disrepute. Is liable to disciplinary proceedings for that misconduct in accordance with the provisions of these regulations.
In light of the above, the Public Services Commission approved:–
1. That the suspension from duty be lifted with effect from 28th March 2010.
2. That you be demoted to the post of Second Class Clerk on 29th March 2010.
3. That the fifty percent (50%) salary withheld during the period 20th May 2009 to 28th March 2010 be forfeited. Financial Orders 605 refers.
The post of Second Class Clerk id on Pay scale 4 of 10,104 x 624 - $21,960 and you will enter at the $21,960 per annum point. You are also informed that the Ministry of Finance will be advised to surcharge you the sum of Five Thousand Seven Hundred and Sixty Dollars ($5,760.00) being the total sum fraudulently paid out.
Sincerely,
Dona Mas Bethran (Mrs.)
For Secretary
Public Services Commission”
Apart from the phrase in the letter, “based on the weight of the evidence,” no specific reasons were given to the claimant by the P.S.C. for finding that the claimant contravened the above mentioned regulations, though reasons were stated in the 150 page document. Nor was the claimant informed by the P.S.C. of her right to appeal the decision of the P.S.C. to the Belize Advisory Council, and the time required for making such an appeal. Regulations 33 and 34 require that the record of the proceedings contain reasons for the findings, and that the claimant be informed of the right to appeal. Regulation 33 and 34 are as follows:
“33. In any disciplinary proceedings, a record of proceedings shall be made which shall contain statements of evidence, the findings of the Services Commission, together with reasons for the finding and the penalty imposed.
34. The Services Commission shall, as soon as possible, inform the officer in writing of its findings, the penalty imposed on him, of his right to appeal the determination of the Services Commission to the Belize Advisory Council and of the time required for making such application.
Though the claimant was not informed of her right to appeal as required by the above regulations, and was not personally given specific reasons for the findings by the Commission that she contravened the regulations, the claimant nevertheless appealed the decision of the Commission to the Belize Advisory Council (the Council) on 9th December, 2009. The Council met and heard the appeal on 23rd April, 2010 and upheld the decision of the Commission. The Council did not grant the claimant an oral hearing at the appeal, acting under Rule 8(1)(2) of the Belize Advisory Council Procedure Rules 1997, which states as follows:
“8. (1) The Council shall consider and determine every appeal on the basis of written submissions made by both parties but may call for additional information or evidence if it deems necessary.
(2) It shall not be incumbent on the Council to grant the appellant or the other party an oral hearing.”
It was therefore not mandatory for the Council to grant an oral hearing.
The Council did not give the claimant reasons for upholding the decision of the P.S.C. and for dismissing her Appeal. By letter dated 28th September, 2010, the Council communicated its decision to the claimant dismissing the appeal, but approved that the 50% salary withheld due to the claimant's suspension, be paid to her. More than two months later, the Council by letter dated 3rd December, 2010 reversed its decision to pay the 50% salary withheld. The letter reversing the decision to pay the 50% salary is as follows:
“Dear Sir,
Re: Ms Melanie Gladden — Ag Finance
Officer — Ministry of Housing & Urban Development
Please refer to our letter No. GEN/6/01/29/10(18) dated 28th September 2010 on the above subject.
It has been brought to the attention of the Belize Advisory Council that its decision to refund to Ms Melanie Gladden the fifty percent (50%) salary withheld during the period after suspension was contrary to Regulation 37(4) of the Services Commission (Amendment) Regulations 2007 (S.I. No 83 of 2007) which reads as follows:
“Provided that if proceedings against such officer do not result in disciplinary action that officer is entitled to the full amount of the emoluments which he would have received if he had not been suspended.”
A copy of this S.I. is enclosed.
As the council had dismissed Ms Gladden's appeal and upheld the decision of the Commission to demote her, she was not entitled to...
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