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by pltm
(PLTM) - The National Democratic Party (NDP) administration was worried about the political fallout, and initially delayed the decision to re-appoint Claude Skelton Cline as the Managing Director of the BVI Ports Authority (BVIPA), until after early elections in 2015. However, what caused his non-appointment is still not adding up, especially since Cabinet discussions are to be confidential.
In the end, Cline said he was told that his re-appointment would not be in the best interest of the Territory, months after being assured on several occasions by four Ministers of Government, in particular, Hon. Mark Vanterpool, Minister of Communications and Works, that his contract would be renewed.
For the first time, residents are getting a glimpse into what transpired that led to Cline's contract not being renewed, as a Judicial Review opened before Justice Vicki Ann Ellis on Thursday, May 18. Cline, a former NDP candidate, is suing the government for acting unfair and irrational by not renewing his contract.
Cline's three year contract came to an end on November 30th, 2015, but in January 2015, the Ports Board sent its recommendation to the Ministry of Communications and Works for Cline to get a renewal, subject to the approval of Cabinet. Cabinet rejected the recommendations on April 6, 2016, but not before attempts to bring the decision before Cabinet on December 2, 2015 was suspiciously halted.
Mrs. Tana'ania Small-Davis, who flew in from Jamaica to represent Cline, said the government ran the clock down until Cline's contract was expired, noting that he was told in March 2015 to hold off until after the early elections, which was held in June.
"The Minister told Mr. Cline that the Cabinet had received the resolution and that it was being favourably considered, and had questions about progress of the pier park project and the delivery date, in the context of them wishing to call general elections, and it was their opinion that the issue of the renewal of his contract would awake the outcome of the general elections, and so it was being deferred, pending the outcome of the general elections,” the lawyer explained.
She said that three other Ministers echoed this, according to her client in his affidavit, which has not been challenged by the government.
“So these four Ministers gave the claimant satisfaction and high praise of his performance of the job as Managing Director. Again, I say that none of this was disputed by the defendant.”
Following the elections, the four Ministers continued to praise Cline for the work he did at the Ports, including the pier project, and assured him that the renewal of his contract had been agreed. However, he was told that he did not get all that he wanted in terms of compensation, since it had been reduced.
Closer to the expiration of his contract, Hon. Vanterpool on November 26th, 2015 informed Cline that the contract would be renewed, and this was said in the presence of the Permanent Secretary, Mr. Anthony McMaster.
He was told that a Cabinet paper was prepared and ready to be placed before Cabinet on December 2nd, 2015. This meeting took place at the Ministry.
After this assurance, Cline continued to work beyond his contract expiration date, taking the word of Minister Vanterpool.
However, events took a turn on December 8th when Cline received a note from the Permanent Secretary that the Deputy Managing Director, Mr. Al Henley would have to act as Managing Director.
Premier Pulled Paper
Following the new developments, Cline contacted the Ministers, who said that the matter was not deliberated on December 2nd because Premier Hon. Dr. D. Orlando Smith, who was away from the Territory, had pulled the matter from Cabinet's agenda, unknown to them (Ministers).
However, Hon. Vanterpool assured Cline that he was not the reason for the withdrawal, as he did his part, and asked that Cline be patient.
On December 31st, Cline wrote to the Premier and other members of Cabinet about his concerns and intent to seek advice from his lawyer. Later that day, a Minister of government called him and asked if he thought that his contract would be renewed in the best interest of the Territory.
Small-Davis told the court that Cline was never provided with a reason for such comments.
"It goes to the irrationality of the decision, the lack of procedural fairness, that if there was a concern about the Territory’s interest, it ought to have been communicated to the claimant so that he could address it, if there was any such legitimate concerns. And it also goes to the question of bitterness,” Small-Davis stated.
The lawyer noted that the Ministers acted improper.
“It was said that it was the cruise pier park that won the election; that is why they had their reasons for deferring it (renewal) to awake the outcome of the elections. That is an improper purpose in Cabinet’s entire conduct. That is not what they are expected to do in carrying out their function.”
Cabinet's Confidentiality/After The Fact
Small-Davis lamented that due to Cabinet's confidentiality argument that they put forward, it hampers her reading out the full documents of Cabinet in relation to the matter.
She said their claim is that it was done in the interest of national security. “I do not see why background information is a secret and is of national security,” Small-Davies stated.
She argued that after Cline started to make legal steps, government rushed to provide a decision through Mr. McMaster to the Board, as to why they did not renew the contract.
It was cited by Cabinet that they needed to explore other applicants, since they needed someone to fill the post who has specialized management skills, strategic and training skills to run the Ports and the land side of the pier project.
She said that this is inconsistent with what Hon. Vanterpool told Cline, which meant that something changed between December 2015 and April 2016.
She argued that it was the duty of Cabinet to inform Cline, given the previous assurance. This, she said, would have given him the opportunity to address whatever concerns were raised in relation to the specialized skills.
Small-Davies said that it must be noted that the land side is ran by Tortola Pier Park Ltd, which has its own head. "So that in itself was disingenuous," the lawyer explained.
She added, "It is not rationale...It bears the hallmark of being post-dated reasons put forward in the context of litigation…So this is spreading the tablecloth on the table after everyone has eaten."
She said that there must have been some other considerations that were taken into account for not allowing the renewal that was not recorded, because the reasons do not pan out.
Small-Davis said that the government had a duty to put the matter before Cabinet before the date of expiration and to properly inform her client, given the words of those in Cabinet, as four out of the five Ministers continually assured him that his contract would be renewed.
"The fact would be that numerous conversations, including with the sponsoring Minister (Hon. Vanterpool), that in and of itself created circumstances where there was a duty to communicate the concerns to Mr. Cline and to allow him to make representations.”
She added, "When you think about the politicization of this matter, deferring the consideration until after the general election and then being told in December 2015 that its not the best interest of the Territory, there is nothing here (in the Cabinet document) having to do with the Territory’s interest.”
Uncertainty/Damage His Name
Small-Davis also argued that the entire matter put Cline's name in a bad light.
“They led him to believe that his job was safe…The public discussions, media attention, having persons asking what was going on with the (his) contract renewal and reasons...It affected his reputation.”
The lawyer noted that Cline is even facing many questions from his church congregation.
"The Minister (Hon. Vanterpool) led him down a path, created another level of obligation on their part and to not allow him to make representation about this new thing that they were talking about, legislation changes (to Ports Act) and specialized skills...”
She said that in all this, the PS McMaster sought to flesh out the reasons why Cabinet decided against the renewal, but asked the Judge to reject it.
Small-Davis said that McMaster trying to expound now cannot be accepted because it was made clear by Cabinet Secretary Ms. Sandra Ward that Cabinet's deliberations are confidential.
"…This is a matter in which the claimant, we have identified the errors in the decision made by Cabinet as set out in paragraph four of the Cabinet paper, and the process which Cabinet has said to have arrived at that is unreasonable; it does not add up and therefore without a clear finding of the rationality of arbitrary…And the Minister in this case has been making conflicting decisions.”
She said government seeking to rationalize their decision after Cline started legal proceedings, is merely to "judgment proof" themselves.
Small-Davis reiterated that Cabinet erred with failure to give reasons; a duty to give reasons; time taken to act; and allowing the time of his contract to lapse.
The lawyer said that everything put forward by Cline in his affidavit was not being disputed, as he provided names and dates of those comments and promises.
Not A Legitimate Claim
Meanwhile, Senior Crown Counsel in the Attorney General's Chambers, Giselle Jackman-Lumy, said that the claim by Cline is not legitimate. She said it must first be noted that this is not a case involving dismissal.
She said that the claimant is no different from any other applicant seeking the post and it mattered not if he held the post previously. Jackman-Lumy said that for there to be a fixed-term contract is unprecedented.
The Senior Crown Counsel indicated that the arguments would have been stronger if there was no Ports Authority and if Cabinet was the employer.
Citing cases and authorities, Jackman-Lumy said that while there are cases where someone may have felt that they were wronged, it does not lead to a valid course of action.
"…You may be disappointed that you are not appointed to a position, or may be disappointed that you were not promoted, but every disappointment in life leads to a valid course of action…And not every disappointment in a decision or lack of decision by government somehow entitles someone to damages or remedies or a course of action.”
Jackman-Lumy, who was only at page 3 of her 13 page argument, will continue to respond to Cline's claim on July 4, when the trial continues.
