Legal News & Views by Dionne Jackson Miller

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What constitutes misbehaviour in a public servant?


This is an issue that applies to Jamaican public servants, who can be removed from office by a finding of misbehavior. The Privy Council examined this issue in the case of Julia Lawrence v Attorney General of Grenada Privy Council Appeal No 14 of 2005.     

Lord Scott of Foscote delivered the Majority Judgment.

Background

Julia Lawrence was the Director of Audit of Grenada, an office established by the  Grenada Constitution. Section 87 (6) of the Constitution says that:

“A person holding the office of  Director of Audit may be removed from office only for inability to exercise the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour and shall not be so removed except in accordance with the provisions of this section.”

 

On 11 August 1999 the appellant, the Director of Audit, wrote to Dr Keith Mitchell, who was at the time both the Minister of Finance and Prime Minister of Grenada, what the Privy Council described as an “intemperate and abusive letter.”  This followed previous disagreements between the Director and the Finance Minister over her audit reports, which the Finance Minister had a constitutional duty to lay before Parliament within seven days of receiving them.

She submitted a report to him on the 1993 accounts on  31 December 1997 but he had not tabled  it up to 2 April 1998 when they met, at her request, to discuss the matter. At this meeting the Minister indicated that he had some concerns about criticisms made in the report of the Accountant General.

On 30 March 1999 she submitted to Dr. Mitchell two audit reports which she had prepared.  She wrote to him on 23 June 1999 to express concern about his delay in laying them before Parliament.    

When she wrote to him on 11 August 1999, neither the 1993 audit report nor her 1994 audit reports  had been laid before  the House.

The Director spoke to the Clerk of Parliament about this who told her, inter alia,

that that the copies he had received were not clean copies but had “lines” drawn through them and “side marks” on them.

The Director then wrote to the Finance Minister a letter that read, in part:

“I have been informed by the Clerk of Parliament that the reports submitted to him for laying were mutilated: they contained a number of scratches and insertions.  IN EFFECT THE REPORTS OF THE DIRECTOR OF AUDIT HAVE BEEN DOCTORED!  This is UNCONSTITUTIONAL!  It is UNETHICAL and is a TRAVESTY.  You also provided comments from the Accountant General to lay therewith. What is your authority for amending my reports?  The Constitution envisages you to act merely as a conduit for getting my reports to Parliament.”

She sent copies of the letter to the Clerk of Parliament and the Speaker of the House of Representatives.  The Minister reacted by activating the process to remove the Director.  A Tribunal was appointed:

to determine whether she ought not to be removed from office for misbehaviour”.

The Tribunal concluded that she had:

“…misbehaved.  She  acted recklessly; and she wrongly and improperly made unsubstantiated and unjustified accusations that  the Minister of Finance improperly interfered with, by altering or amending or mutilating (with scratches and insertions) her Reports Nos 1 and 2 of 1999 prior to their being laid in Parliament.  We are in no doubt that such conduct was unbecoming of anyone holding the position of Director of Audit.”

The Tribunal advised the Governor-General that the Director ought to be removed from office.   The Minister had not in any way altered or defaced or tampered with the appellant’s reports.

First Instance

Alleyne J. found in her favour and  set aside her removal from office.

Court of Appeal

The Court of Appeal allowed the appeal and re-instated the recommendation of the Tribunal and the removal of the appellant from office.

Privy Council

The Privy Council said that the words in the Director’s letter were “plain English” and could not be read:

as other than an accusation against the Minister of serious personal impropriety consisting of  the defacing and amending of her reports.”

Lord Scott made a point of stating that there were passages in the Tribunal’s report which suggested that the Tribunal regarded:

“the appellant’s indignation and remonstrations about the delay in the placing of  her reports before the House of Representatives as an impertinence on her part, an officious meddling in something that was none of her business.  Their Lordships are clear that that view of the matter was not justified as the Minister was in clear breach of his constitutional duty to lay the reports before Parliament.”

 

Misbehaviour

The Privy Council looked at the meaning of the word misbehaviour and approved the following statements by Grey J. in Clark v Vanstone [2004]  FCA 1105, in the Federal Court of Australia.  Justice Gray stated that:

 “…the meaning to be given to the word ‘misbehaviour’ will depend entirely upon the context of the legislative provision in which the term is used.  There is no universal meaning of misbehaviour when it is used in a statute or other legislative instrument.  When a statute provides for removal from office of a statutory officer on the ground of misbehaviour, it takes its meaning from the statutory context.”

 

He went on to say that:

“… to force misbehaviour into the mould of a rigid definition might preclude the word from extending to conduct that clearly calls for condemnation … but was not … could not have been foreseen when the mould was cast.”

 

“… to constitute misbehaviour by the holder of an office, the conduct concerned need not be criminal conduct and need not occur in the course of the  performance of the duties of the office. For present purposes, the important proposition to be drawn from these expressions of opinion is that, in a case in which the term ‘misbehaviour’ is used with reference to the holder of an office, the content of its meaning is to be determined by reference to the effect of the conduct on the capacity of the person to continue to hold the office. In turn, the capacity to continue to  hold an office has two aspects. The conduct of the person concerned might be such that it affects directly the person’s ability to carry  out the office. Alternatively, or in addition, it may affect the perceptions of others in relation to the office, so that any purported performance of the duties of  the office will be perceived widely as corrupt, improper or inimical to the interests of the persons, or the organisation, for whose benefit the functions of the office are performed. In either case, the danger is that the office itself will be brought into disrepute as a result of the conduct of its holder. If that is likely to be the case, then the conduct is properly characterised as misbehaviour for the purposes of the relevant legislation.”

 

The questions to be considered therefore are:

  1. Does the behaviour affect the person’s capacity to hold the office?
  2. Does the behavior affect the person’s ability to carry out the office?
  3. Does it affect the perceptions of others in relation to the office?
  4. Does it bring the office into disrepute?

The Privy Council answered the first question in favour of the appellant, given evidence that she was very capable. They, however, answered the other three unfavourably, citing, inter alia, the content and tone of her letter which would raise questions as to whether she possessed the “dispassionate and objective mind” needed for the job, and her failure to  promptly “withdraw her unfounded accusations against the Minister and to apologise for making them.”

Lord Scott said the Tribunal’s description of the appellant’s conduct as “unbecoming” was therefore an accurate assessment. They said since three of the four questions were answered unfavourably to the appellant, her conduct had been properly characterized as “misbehaviour” which warranted her removal from office. The appeal was dismissed with costs.

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2 comments on “What constitutes misbehaviour in a public servant?

  1. Charles Owens
    March 19, 2012

    It is easy to see why Ms. Lawrence was angered by the lengthy delay in having her report presented to Parliament. It is also easy to see why she was enraged that her report had been tampered with. My question is who could have been the culprit who tampered with the report? Could it indeed have been someone in the Minister of Finance’s office? If that were the case, Ms. Lawrence was unjustly dismissed, in my view.

    • djmillerja
      March 19, 2012

      The Privy Council said it appeared to have been someone in the Accountant General’s office who marked on the report. There does not appear to have been any intention to alter or amend it, and at the time she wrote the letter she hadn’t even seen the report.

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This entry was posted on March 13, 2012 by in Case Summaries and tagged , , , .
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