Lisa McKoy v Belize Advisory Council

• Jurisdiction: Belize
• Judge: Chabot, J.
• Judgment Date: 21 November 2023
• Court: Supreme Court (Belize)
• Year: 2023
• Docket Number: CLAIM No. CV 58 of 2023

Between:

Lisa McKoy

Claimant

and

Belize Advisory Council

Defendant

CLAIM No. CV 58 of 2023

IN THE HIGH COURT OF BELIZE

Appearances:

Anthony Sylvestre for the Claimant

Imani Burgess and Alea Gomez for the Defendant

Chabot, J.

1 Lisa McKoy was dismissed from her employment with the public service following disciplinary proceedings. In its decision, the Public Service Commission (“PSC”) concluded that Ms. McKoy violated the public service code of conduct in the Belize Constitution ( Public Service) Regulations, 2014. 1 Ms. McKoy appealed the PSC's decision to the Belize Advisory Council (“BAC”). Her appeal was dismissed by

the BAC. Ms. McKoy now seeks the judicial review of the BAC's decision dismissing her appeal of the PSC's decision

2 For the reasons set out in this judgment, the claim is granted. The PSC erred in its interpretation and application of the PSR. The PSC's decision to dismiss Ms. McKoy for a violation of the code of conduct exceeded the PSC's powers and was unlawful. Since the PSC's decision was unlawful, it follows that the BAC's decision upholding the PSC's decision is unlawful as well. An order of certiorari is issued quashing the BAC's decision. Ms. McKoy's appeal is granted, and she is reinstated in the public service with effect from 3 ^rd December 2018, with all salaries and benefits accruing from then.

Background

3 Ms. McKoy was a First Class Clerk in the public service. On 12 ^th October 2016, the Registrar of the Supreme Court wrote to Ms. McKoy alleging that she had committed major misconduct in the course of her duties as a public officer in contravention of Regulation 82(2)(b), (h), and (n), and Regulations 40(1) and (2), and 41(1) of the PSR. According to the information in the letter, in 2016 William Alexander Mason was found in possession of a birth certificate issued by the Vital Statistics Unit showing that he was a Belizean. However, other documentary evidence showed that Mr. Mason was in fact born in Guyana. The letter went on to allege that Ms. McKoy was involved in the unlawful issuance of one of two birth certificates issued to Mr. Mason in 2015. The Registrar advised Ms. McKoy that her alleged involvement in the matter constituted a criminal offence under section 51 of the Registration of Births and Deaths Act. 2

4 On 20 ^th October 2016, Ms. McKoy responded to the Registrar's letter, denying the allegations made against her. In her response, Ms. McKoy noted that in June 2015, she was a Second Class Clerk whose duties were that of a verifier in the application process for birth and marriage certificates. She explained that on 4 ^th June 2015, she received an entry bearing the information “William Alexander Mason”, which she

verified against the electronic log and confirmed that all the information was accurate. There was therefore no need to have any corrections done, and no need to check the date of entry against the physical register. Ms. McKoy further explained that the allegation that she verified two birth certificates was inaccurate because she only verified one sample print out

5 On 23 ^rd November 2016, the PSC wrote to Ms. McKoy informing her that she was suspended from active duties for 60 days in accordance with Regulation 84(5) of the PSR. On 20 ^th January 2017, the suspension was extended for another 30 days with effect from 22 ^nd January 2017. On 23 ^rd February 2017, Ms. McKoy was temporarily assigned to the Case Management Unit of the General Registry.

6 The PSC informed Ms. McKoy that it was contemplating disciplinary action by letter dated 6 ^th January 2017. Ms. McKoy was given an opportunity to respond to the allegations against her. On 19 ^th January 2017, the Public Service Union of Belize wrote to the PSC on behalf of Ms. McKoy, pointing out that disclosure was incomplete, and requesting additional time for Ms. McKoy to respond to the allegations given that the PSC's letter had been received only two days before the deadline to respond.

7 The disciplinary action commenced before the PSC on 17 ^th August 2017. A hearing was conducted on 3 ^rd April 2018. By letter dated 29 ^th November 2018, the PSC informed Ms. McKoy that it concluded that she had acted in contravention of Regulations 40(1) and 40(2)(a) of the PSR by willfully omitting to properly perform her duties as a First Class Clerk in the Vital Statistic Unit. Ms. McKoy was dismissed from the public service with effect from 3 ^rd December 2018.

8 Ms. McKoy appealed the decision to the BAC on 24 ^th December 2018. On 10 ^th January 2019, she filed a Notice of Grounds of Appeal and Skeleton Arguments. The grounds of Ms. McKoy's appeal were listed as being the following:

• 1. The Commission erred in fact and law when it ruled that they were satisfied that the Appellant failed to verify the requisite certificate against the electronic book and the register book.

• 2. The Commission erred in fact and law, when it failed to give the benefit of the doubt to the accused given the fact that no documentary evidence was produced on the contrary to indicate that the Appellant operated outside of the function of his ( sic) office.

• 3. The Commission erred in fact and law when it determined that the Appellant did not act according to the unwritten policy of the department.

9 On 29 ^th May 2020, Ms. McKoy informed the BAC of a change of attorney. On 19 ^th June 2020, the BAC forwarded the transcript of the proceedings before the PSC to Ms. McKoy's new attorney, Mr. Anthony Sylvestre, and requested their comments as soon as possible. On 29 ^th July 2020, the Secretary of the BAC wrote to Mr. Sylvestre again requesting comments as soon as possible. Mr. Sylvestre filed a document titled “Submissions on behalf of Appellants” on 24 ^th August 2020. In this document, Mr. Sylvester raised the issue of whether the proceedings before the PSC was a nullity given the failure to complete the disciplinary process within 90 days. Mr. Sylvester also argued that the PSC's decision was unreasonable and not supported by the evidence. The Solicitor General sent her comments to the BAC on 13 ^th November 2020.

10 The BAC dismissed Ms. McKoy's appeal on 19 ^th October 2022 via correspondence she received on 6 ^th December 2022. For ease of reference, the entirety of the BAC's decision is reproduced below:

The Belize Advisory Council met to consider the appeal for your client Ms. Lisa Mckoy, First Class Clerk.

By way of Notice of Appeal dated 10 ^th January, 2019, the Appellant filed three (3) grounds of appeal for consideration and determination by the Council along with supporting submissions (hereinafter referred to as “the Appeal”). On 24 ^th August, 2020, well outside the time for lodging her appeal and without any application to the Council, the Appellant filed what was misleadingly referred to as “Submissions on Behalf of the Appellant” (hereinafter referred to as “the Submissions”). The Submissions were not filed in support of the Appeal but, listed entirely new grounds and the arguments presented therein were in support of those new grounds. In accordance with Rules 3 and 4 of the Belize Advisory Council (Procedure) Rules, the new appeal guised as Submissions, having been filed out of time and without any application being made for an extension of time, could not and was not considered by the Council in arriving at its decision. Consequently, it was the considered view of the Belize Advisory Council that the Appeal is without merit and is hereby dismissed. The Council finds that based on the evidence before it, the Commission was entitled to find that the Appellant breached Public Service Regulations 40(1)(a) and 40(2).

11 On 26 ^th January 2023, Ms. McKoy applied for permission to apply for the judicial review of the BAC's decision. Permission was granted on paper on 2 ^nd February 2023. Ms. McKoy filed her fixed date claim form on 16 ^th February 2023. Ms. McKoy seeks the following reliefs:

• 1. Declaration that the decision of the defendant contained in a letter dated 19 ^th October 2022 and received 6 ^th December 2022 dismissing the claimant's appeal and upholding the Public Service Commission's decision purporting to dismiss the claimant from the public service with effect 3 ^rd December 2018 is unreasonable, irrational and erroneous in law.

• 2. An order of certiorari to remove into the High Court for the purposes of being quashed, the decision of the defendant contained in the letter dated 19 ^th October 2022.

• 3. An order that the decision of the defendant is invalid or a nullity.

• 4. An order that the decision of the Public Service Commission in dismissing the claimant from the public service with effect 3 ^rd December 2018 is overturned and the claimant's appeal of her dismissal is granted.

• 5. An order that the claimant be re-instated in the public service with effect 3 ^rd December 2018 with all salaries and benefits accruing from then.

• 6. Such further or other orders or reliefs as may be just.

• 7. Costs.

12 The BAC argues that its decision to uphold the PSC's decision was not unreasonable, irrational or erroneous in law. The PSC's failure to complete the disciplinary proceedings before the PSC within ninety days did not render the proceedings a nullity since Regulation 84(10) of the PSR provides for disciplinary proceedings to be conducted within that time only where practicable, and does not render the proceedings void where they are not conducted within the ninety days. In any event, the BAC argues that Ms. McKoy did not suffer any prejudice or injustice by the delay as she was reinstated and continued to receive her full salary until the disciplinary proceedings were concluded. The BAC further argues that the evidence buttressed the claim that Ms. McKoy willfully omitted to perform her duties as a First Class Clerk, failed to comply with the requisite process that was a part of her duty as a First Class Clerk, and contravened...