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Appointment of Deputy Town Clerk - Luganville Municipal Council [2003] VUOM 1; 2003.01 (7 January 2003)

REPUBLIC OF VANUATU

OFFICE OF THE OMBUDSMAN

PMB 9081
Port Vila
Vanuatu

PUBLIC REPORT

ON THE

APPOINTMENT OF DEPUTY TOWN
CLERK - LUGANVILLE
MUNICIPAL COUNCIL

7 January 2003

1031/2003/01

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PUBLIC REPORT ON THE
APPOINTMENT OF DEPUTY TOWN CLERK -
LUGANVILLE MUNICIPAL COUNCIL

TABLE OF CONTENTS

1. JURISDICTION

2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED

3. RELEVANT LAWS, REGULATIONS AND RULES

4. OUTLINE OF EVENTS

5. RESPONSES BY THOSE WITH COMPLAINTS AGAINST THEM

6. FINDINGS

7. RECOMMENDATIONS

8. APPENDICES

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1. JURISDICTION

1.1 The Constitution, the Ombudsman Act and the Leadership Code Act allow the Ombudsman to look into the conduct of government, government agencies, related bodies, and Leaders. This includes Luganville Municipal Council, its committees and its councillor members

1.2 The Ombudsman can also look into defects in laws or administrative practices.

2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED

2.1 The purpose of this paper is to present the Ombudsman's finding as required by the Constitution, Ombudsman Act and Leadership Code Act.

2.2 The scope of this investigation is to establish the facts about the procedure followed by Luganville Municipal Council when it recruited Mr Leo Tamata as deputy Town Clerk in April 2002, determine whether procedures required by law were followed and whether there is evidence that councillors breached the Leadership Code Act.

2.3 This Office collects information and documents by informal request, summons, letters, interviews and research.

3. RELEVANT LAWS, REGULATIONS AND RULES

Relevant parts of the following laws are reproduced in Appendix E.

Ombudsman Act No.27 of 1998

Municipalities Act [CAP 126]

The Luganville Municipal Council (Staff Regulations) Order

Leadership Code Act No.2 of 1998

4. OUTLINE OF EVENTS

4.1 At some time prior to 11 April 2000, an informal decision was made by some of the then councillors to appoint Mr Leo Tamata to the position of deputy Town Clerk of Luganville Municipal Council. The then Town Clerk informed the Ombudsman, in a letter dated 1 February 2001, that it had been a "political decision" agreed to by the three running political parties and that the VP and UMP members of the previous Council had also decided to make the appointment (see Annexure A).

4.2 At a meeting of the Council's finance committee on 11 April 2000, the recruitment of Mr Leo Tamata as deputy Town Clerk was endorsed and approved (see Annexure B).

4.3 The members of the committee present at the 11 April 2000 meeting are listed in Annexure C.

4.4 The Town Clerk confirmed that the position had not been advertised before the appointment was made (see Annexure A).

5. RESPONSES BY THOSE WITH COMPLAINTS AGAINST THEM

5.1 Before starting this enquiry, the Ombudsman notified all people or bodies complained of and gave them the right to reply. Also, a working paper was provided prior to preparation of the public report to give the individuals mentioned in this report another opportunity to respond.

5.2 No responses were received to the working paper.

6. FINDINGS

6.1 Finding 1: The Council failed to follow the legal procedure set out in its own staff regulations when appointing Mr Leo Tamata as deputy Town Clerk.

6.1.1 The Council's staff regulations require that any recruitment notice must be advertised publicly on the Council's notice board, as well as in the Government's news media.

6.2 Finding 2: The procedure followed by the Council in appointing the deputy Town Clerk also showed poor administrative practices in general.

6.2.1 Other applicants were given no opportunity to apply.

6.2.2 There was no transparency in the selection process, which appears to have taken place informally and without objective selection criteria.

6.2.3 It seems that Mr Leo Tamata was selected for political reasons rather than on his experience, qualifications and or on merit.

6.3 Finding 3: The Ombudsman finds there is evidence that members of the Council's finance committee who formally endorsed the appointment breached the Leadership Code Act.

6.3.1 The Leadership Code Act required Leaders to obey the law, and not obeying the law is a breach of the Act punishable by a fine not exceeding VT5 million or imprisonment not exceeding 10 years.

6.3.2 Additional penalties such as dismissal, disqualification and loss of employment benefits may also be imposed by the Court on conviction.

7. RECOMMENDATIONS

7.1 Recommendation 1: Since the councillors of Luganville Municipality remain suspended at the date of this report - the Municipality being instead administered by a commissioner, - the Ombudsman recommends that the Commissioner should review current internal office administrative procedures for improvements to the administration of Luganville Council by its councillors, especially in relations to appointment of the Town Clerk.

7.2 Recommendation 2: The Ombudsman recommends that the Public Prosecutor consider whether charges under the Leadership Code Act should be laid against the councillors involved in the breaches of laws mentioned in this report.

Dated the 7th day of January 2003.

Hannington G. ALATOA
OMBUDSMAN OF THE REPUBLIC OF VANUATU

8. APPENDICES

1. Copy of letter from Luganville Municipal Council to Ombudsman dated 1 February 2001.
   
2. Copy of extract from minutes of Council's finance committee meeting held 11 April 2000.
   

100. Copy of extract from minutes of Council's finance committee meeting held 11 April 2000 showing attendees.
     

4. Copy of letter from Luganville Municipal Council to Ombudsman dated 18 July 2002.
   
5. Relevant laws
   

APPENDIX E

RELEVANT LAWS

OMBUDSMAN ACT NO. 27 OF 1998

DEFINITIONS

1. "government agency" means:

...

(c) a municipal council; or

(d) a department, agency or instrumentality of the Government or a local government council or a municipal council;

MUNICIPALITIES ACT [CAP 126]

STAFF REGULATIONS

23.(1) A council shall make internal regulations, to be known as staff regulations, which subject to the provisions of this Act, may make provisions for all or any of the following matters relating to persons in the service of the council:
...

(b) appointments, promotions, leaves, termination or appointments and dismissals;

THE LUGANVILLE MUNICIPAL COUNCIL (STAFF REGULATIONS) ORDER NO.3 OF 1989

CHAPTER 2 APPOINTMENTS - ELIGIBILITY

2.4 Any recruitment notice for any post in the service of the Council including temporary employment or any other employment shall be advertised publicly on the Council's notice board and also on the Government's news media.

LEADERSHIP CODE ACT NO.2 OF 1998

LEADER'S BEHAVIOUR

3 A leader holds a position of influence and authority in the community. A leader must behave fairly and honestly in all his or her official dealings with colleagues and other people, avoid personal gain, and avoid behaviour that is likely to bring his or her office into disrepute. A leader must ensure that he or she is familiar with and understands the law that affect the area or role of his or her leadership.

DUTIES OF LEADERS

13(1) A leader must:

(a) comply with and observe the law;

(b) comply with and observe the fundamental principles of leadership contained in Article 66 of the Constitution;

(c) comply with and observe the duties obligations and responsibilities established by this Code or any other enactment that affects the leader; and

(d) not influence or attempt to influence or exert pressure on or threaten or abuse persons carrying out their lawful duty.

BREACH OF LEADERSHIP CODE

19 A person who does not comply with Part 2, 3 or 4 is guilty of a breach of this code and is liable to punishment in accordance with Part 6.

OBEYING THE LAW

28 A leader acting in his or her capacity as a leader who fails to abide by an enactment that imposes on the leaders a duty, obligation, or responsibility is in breach of this Code.

SPECIFIC PROVISIONS

29 Without limiting the generality of section 28 a leader who fails to abide by the provisions of an Act that provides for:

(a) the public service; or

(b) public finance or economic management; or

(c) expenditure review committee or audit functions; or

(d) government contracts or tenders;
is in breach of this Code

FINE OR IMPRISONMENT

40(1) A leader who is convicted of a breach of section 19, or 20, or 21, or 22, or 23, or 24, or 26 or 27 is liable to-

(a) a fine not exceeding VT5,000,00; or

(b) imprisonment for a period not exceeding 10 years.

40(3) A leader who is convicted of a breach of this code for which no specific penalty is provided is liable to a fine not exceeding VT2,000,000.