The Public Service Commission v Paula Drakes

• Jurisdiction: Trinidad & Tobago
• Judge: V. Kokaram J.A.
• Judgment Date: 30 July 2024
• Neutral Citation: TT 2024 CA 044
• Docket Number: Civil Appeal No. P133 of 2023
• Court: Court of Appeal (Trinidad and Tobago)

IN THE MATTER OF THE JUDICIAL REVIEW ACT CHAPTER 7:08 OF THE LAWS OF TRINIDAD AND TOBAGO

and

IN THE MATTER OF THE DECISIONS TAKEN BY THE PUBLIC SERVICE COMMISSION AGAINST PAULA DRAKES AS CONTAINED IN LETTERS DATED 9 ^TH AUGUST 2019, 26 ^TH SEPTEMBER 2019 AND 17 ^TH OCTOBER 2019

Between

The Public Service Commission

Appellant

and

Paula Drakes

Respondent

Panel:

M. Dean-Armorer J.A.

V. Kokaram J.A.

M. Holdip J.A.

Civil Appeal No. P133 of 2023

Claim No. CV2019-04407

IN THE COURT OF APPEAL

Appearances:

Mr. Russell Martineau S.C. leads Ms. Coreen Findley and Ms. Nicol Yee Fung instructed by Ms. Savitri Maharaj and Ms. Radha Sookdeo for the Appellant.

Mr. John Jeremie S.C. and Mr. Keith C. Scotland S.C. leads Ms. Jacqueline Chang instructed by Ms. Sarah Ramsingh and Ms. Laurina Ramkaran for the Respondent.

I have read the judgment of Kokaram J.A. I agree and have nothing further to add.

…………………………………………………

Mira Dean-Armorer

Justice of Appeal

I have read the judgment of Kokaram J.A. I too agree and have nothing further to add.

…………………………………………………

Malcolm Holdip

Justice of Appeal

Delivered by V. Kokaram J.A.

Introduction

1 This appeal examines another feature of the intra branch separation of powers within the executive in public sector employment in relation to disciplinary proceedings brought by the Public Service Commission (“the Commission”) against the Respondent, Ms. Paula Drakes, the Commissioner of State Lands (“COSL”).

2 Public officers such as the COSL are insulated from the direct control of the political directorate where their appointment and disciplinary control fall within the exclusive jurisdiction of independent service commissions. The philosophy behind this insulation serves to eliminate any remnant of the arbitrary concept of “dismissibility at pleasure” of a public servant by the State 1. It establishes a truism that the disciplinary process of public servants must be seen to be the antithesis of arbitrariness or unreasonableness or oppressiveness and be held to the high standards of transparency, fairness and faithful observance of the principles of administrative justice and constitutional law. In this appeal the process adopted by the Commission to discipline the COSL fell short of this high mark.

3 In this appeal the Commission challenges the trial judge's findings that the Commission's disciplinary proceedings commenced against the COSL were not only unfair and unconstitutional but that it had no jurisdiction to lay any charges against this officer at all.

4 Those proceedings concerned six charges of misconduct relating to several

infractions of the Civil Service Regulations that were “re-laid” against Ms. Drakes after similar charges were withdrawn. The Commission indicated that as it had no power to amend charges of misconduct, it had no option but to withdraw the original charges and institute new ones which it contended were substantially the same as the withdrawn charges. During the course of those proceedings Ms. Drakes was interdicted with one-half of her salary being paid to her, pending the outcome of the disciplinary proceedings pursuant to regulation 89(3) of the Public Service Commission Regulations (“PSCR”). She was also prohibited from attending an overseas conference as a result of these pending charges pursuant to regulation 97 of the PSCR

5 The Commission failed to provide a substantive response to her pre-action letter in which she complained of various breaches of her rights in public law. Instead the Commission set a date for the hearing of her charges before a disciplinary tribunal. Unsurprisingly, she then instituted her claim for judicial review inviting the court to quash the disciplinary proceedings on the grounds of irrationality, breach of natural justice and bad faith.

6 There are five main issues to be determined on this appeal arising out of that disciplinary process. They are:

• (i) Jurisdiction of the Commission: Whether the COSL is an officer over which the Commission can exercise disciplinary powers given that the COSL is not included in the schedule to the Civil Service Act Chap 23:01 (“ CSA”) and whether the COSL is subject to the provisions of the CSA in any event. If so, whether and in what manner, can reliance be placed on the penalties or offences or codes of conduct under the CSA which apply to civil servants.

• (ii) The relaying of charges: Whether the decision to withdraw the charges laid in December 2018 and to simultaneously prefer a new though similar set of charges was reasonable and lawful and whether the failure to provide reasons for same was fair.

• (iii) Interdiction:

  • (a) Whether regulation 89 of the PSCR is constitutional.

  • (b) Whether the withholding of one half of Ms. Drakes' salary from 28 ^th December 2018 and continuing pursuant to regulation 89(3) of the PSCR is unlawful.

• (iv) Conference: Whether the refusal to allow Ms. Drakes permission to attend the Bahamas Conference scheduled for 29 ^th October 2019 to 5 ^th November 2019 pursuant to regulation 97 of the PSCR was lawful.

• (v) Damages: Whether the trial judge was plainly wrong to order damages to the Respondent.

7 In our view the trial judge was not wrong to have quashed the proceedings and to have made an order for damages to be assessed. While we have concluded that the Commission has jurisdiction to discipline the COSL and has the power to interdict the officer pending the determination of the disciplinary proceedings, we have also found that the Commission did not in these proceedings justify why an interdiction was necessary nor afforded her an opportunity to be heard on whether she should be interdicted. We are also of the view that the Commission acted irrationally and unfairly in withdrawing the initial charges and instituting fresh charges against her without providing a rational basis for doing so.

8 As a consequence for the reasons set out in this judgment, the decision of the trial judge, save for the findings of the constitutionality of the actions of the Commission, are confirmed.

Factual Background

9 Context is everything. Especially in public law challenges on the ground of a failure to observe the principles of a fair hearing, it is important to appreciate the factual context of the disciplinary proceedings.

10 Ms. Drakes assumed the post of the Commissioner of State Lands (“COSL), Land Management Division, Ministry of Agriculture, Land and Fisheries on 10 ^th October 2016. She has been involved in the field of geomatics and land management since 1991. She is a chartered geomatics surveyor and was a lecturer in photogrammetry at the University of the West Indies. As the COSL, she is responsible for the management of all State lands and her duties and responsible are set out in the State Lands Act Chap. 57:01.

11 In February 2018, the then Permanent Secretary to the Prime Minister sent a copy of a report dated 1 ^st February 2018 from the Minister of Agriculture, Land and Fisheries entitled “Report on the conduct of Mrs. Paula Drakes, Commissioner of State Lands, Ministry of Agriculture, Land and Fisheries” to the Prime Minister. Several allegations of misconduct were made against her in that report. Within days, on 20 ^th February 2018 the Commission directed that Ms. Drakes cease to report for duty in accordance with regulation 88 of the PSCR pending the outcome of an investigation into the allegations contained in the report. The Commission appointed Ms. Jennifer Daniel, Permanent Secretary, Ministry of Foreign and CARICOM Affairs as the Investigating Officer to investigate the allegations of misconduct.

12 On 5 ^th March 2018, Ms. Drakes received a letter dated 28 ^th February 2018 from the Ag. Director Personnel Administration (“Ag. DPA”) on behalf of the Commission informing her of allegations of misconduct made against her. By letter dated 9 ^th March 2018, Ms. Drakes denied those allegations in a comprehensive report comprising some 134 pages with exhibits. Some two months later on 8 ^th May 2019, at the meeting of the Commission, the report of the Investigating Officer was considered and the Commission decided to take no further action in the matter. As a result on 18 ^th May 2018, the Ag. DPA wrote to Ms. Drakes informing her that no further action would be taken by the Commission with respect to those allegations and her order of suspension was lifted.

13 I pause here to note that suspending an employee is no trivial matter. There is a great degree of anxiety over the future of the employee's employment. In the public sector and for the post of COSL, the stakes are much higher. The level of scrutiny by one's peers and members of the public so much greater. Indeed the COSL would depose in these proceedings of an “especially adverse perception by the public, my peers and colleagues in respect of my capacity to aptly and efficaciously function in my role as COSL”. 2 I would have expected a much more humane letter to be issued to someone in the position of COSL than simply the bald letter directing her to report to duty as though it was business as usual.

14 Two months later on 9 ^th July 2018, Ms. Drakes received a letter from the Commission dated 5 ^th June 2018 detailing this time six new allegations of misconduct against her and directed her yet again to cease reporting for duty pursuant to regulation 88 of the PSCR. These allegations arose out of her allegedly fraudulently preparing tenancy documents in favour of a sports club she was affiliated with and causing a tenancy agreement to be executed to an individual and a letter of consent concerning a parcel of land to be given without Cabinet's approval. Another investigating officer was appointed to investigate those charges. Ms. Drakes denied the charges and by letter dated 16 ^th July 2018, again provided a comprehensive defence to the six allegations

made against her

15 Almost 4 months...