Acting in good faith and in the public interest (Part II)

Protecting whistleblowers

This column has been following closely the deliberations of the just concluded symposium at the Guyana Pegasus on “Public Corruption and the Oil Curse”. There was a statement that Guyana lacks the capacity to deal with an expected huge influx of invoices from ExxonMobil in the run-up to 2020 when production is set to begin, followed by the suggestion that the Government hire accountants who have experience in the oil and gas industry. While it appears appropriate to do so as a short-term measure, we must not lose sight of the fact that these accountants have been exposed to the systems and procedures of oil and gas companies that best serve the interest of those companies, as opposed to that of the countries in which the companies operate.

A preferred option is to recruit experienced Guyanese accountants, residing both locally and overseas, with proven integrity, willingness and ability to protect, defend and serve the national interest. Strictly speaking, this is the role of the National Audit Office, but ours is too weak, lacking in capacity and overwhelmed with work, to be able it to play any meaningful role. In the longer term, we need to build capacity among our local accountants. The Institute of Chartered Accountants of Guyana (ICAG) and/or the University of Guyana should therefore offer specialized courses in accounting and financial reporting of oil and gas companies, with the active support from the Government. Not to mention, there is an abundance of literature on the subject on the Internet which this columnist has drawn on in putting together two recent articles on the subject.

The symposium also considered the need to strengthen our Procurement Act and to promulgate whistleblower protection legislation. The latter was the subject of last week’s article, following the retaliatory action against Nurse Sheryl Marks of the Fort Wellington Hospital for her exposure of the abuse by a Region 5 Councillor in relation to accessing a prescription drug in unusual quantities. Since November 2015, Guyana has drafted legislation in the form of Protected Disclosures (Whistle-blower) Bill 2015. Consultations with civil society, however, did not take place until eleven months later in October 2016. Eight months have since passed and it is not clear why the authorities are taking so long to have the legislation passed in the National Assembly and assented to by the President.

It is worth emphasizing that the draft legislation identified the following three key objectives:

(a)          to assist in combating corruption and other wrongdoings both in the public and private sectors by encouraging and facilitating the making by employees of specified disclosures of improper conduct in good faith and in the public interest;

(b)         to regulate the receiving, investigating or otherwise dealing with disclosures of improper conduct; and

(c)           to protect employees who make specified disclosures from being subjected to occupational detriment.

According to the Explanatory Memorandum to the Bill, the proposed legislation marks another step towards full compliance with the Inter-American Convention Against Corruption that came into effect in 1996 and to which Guyana is a signatory. The convention requires member states to consider creating, maintaining and strengthening the system to protect public servants and private citizens who in good faith report acts of corruption to the relevant authorities.

The Bill contains six parts, namely (i) Preliminary; (ii) Disclosures qualifying for protection; (iii) Provisions against occupational detriment; (iv) Receiving, investigating and otherwise dealing with disclosures; (v) Oversight functions; and (vi) Miscellaneous. Each of these parts is considered below:

 

Part I – Preliminary

There are a number of important definitions in the Interpretation Section. Perhaps the most important of these is the meaning of “disclosure” which is the disclosure of information made by an employee, regarding the conduct of an employer of that employee or another employee of the employer, where the employee has a reasonable belief that the information disclosed shows or tends to show that improper conduct has occurred, is occurring or is likely to occur. Disclosure does not qualify for protection under the Act unless it is made in good faith and in the public interest. Nor is protection offered if an employee making the disclosure commits an offence in doing so.

 

Improper conduct is defined as any one or more of the following conduct that tends to show that:

 

(a)          a criminal offence has been committed, is being committed or is likely to be committed;

(b)          a person has failed, is failing or is likely to fail to comply with any legal obligation to which he/she is subject;

(c)           a miscarriage of justice has occurred, is occurring or is likely to occur;

(d)          the health and safety of any individual has been, is being or is likely to be endangered;

(e)          the environment has been, is being or is likely to be damaged;

(f)           gross mismanagement, impropriety or misconduct in the carrying out of any activity that involves the use of public funds or any financial resources, has occurred, is occurring or is likely to occur;

(g)          an act of reprisal or victimization of an employee has occurred, is occurring or is likely to occur;

(h)          unfair discrimination on the grounds set out in Section 4(2) of the Prevention of Discrimination Act has occurred, is occurring or is likely to occur; and

(i)            information tending to show that any of the above has been, is being or is likely to be deliberately concealed.

 

A protected disclosure is to be made in writing and must contain as a minimum requirement, and as far as is practicable, the information prescribed in the Second Schedule as follows: (i) name, address and occupation of the person making the disclosure; (ii) the nature of the improper conduct; (iii) the name of the person alleged to have committed the improper conduct; (iv) the time and place the alleged misconduct took place, is taking place or is likely to take place; (v) details of the person (if any) who witnessed the commission of the improper conduct; and (vi) details of any previous disclosure of improper conduct.

 

The Act permits disclosure to be made orally. However, the person receiving the disclosure has within 24 hours of receiving it to cause the disclosure to be reduced to writing and signed by the person making the disclosure.

 

Part II – Disclosures qualifying for protection

 

Disclosure made by an employee to an employer qualifies for protection if it is made to the employer where no procedure is in place for making disclosures. Disclosure can also be made to a Minister if the employer is appointed by the Minister, a body corporate any of whose members is appointed by the Minister, or a body corporate falling within the jurisdiction of the Minister.

Where an employee makes a disclosure, in accordance with the procedure established or authorised by the employer or the Minister or otherwise prescribed, to a person other than his/her employer or the Minister, the employee is deemed to be making a disclosure to his employer or the Minister. The First Schedule to the Act lists the following to whom disclosures may be made: (i) Auditor General; (ii) Bank of Guyana; (iii) Guyana National Bureau of Standards; (iv) Rights of Child Commission; (v) Commissioner of Police; (vi) Public Procurement Commission; (vii) Director of Public Prosecutions; (viii) Guyana Elections Commission; (ix) Competition and Consumer Affairs Commission; (x) Integrity Commission; (xi) Guyana Revenue Authority; (xii) Environmental Protection Agency; (xiii) Public Utilities Commission; and (xiv) the Ombudsman.

The Act defines a “Designated Authority” as the individual or entity so designated by the Minister for monitoring compliance with the Act. It also defines “occupational detriment” as any act or omission that results in an employee being: (i) subjected to disciplinary action; (ii) terminated, suspended, or demoted; (iii) harassed, intimidated or victimised; (iv) transferred against his/her will; (v) refused transfer or promotion; (vi) denied access to internship, training, or scholarship for professional advancement; (vii) subjected to a term or condition of employment or retirement from employment, that is altered to his/her disadvantage; (viii) provided with an adverse reference; (ix) denied appointment to any employment, profession or office; (x) threatened with any of the above actions; or (xi) otherwise adversely affected in respect of his/her employment.

 

A disclosure can be made to a Designated Authority in the following circumstances:

(a)          at the time of the disclosure, the employee reasonably believed that he/she would be subject to an occupational detriment by his/her employer if the disclosure is made to his/her employer, the Minister or to a prescribed person contained in the First Schedule;

(b)          there is no prescribed person in relation to the relevant improper conduct, and the employee making the disclosure has reason to believe that it is likely that evidence relating to the improper conduct will be concealed or destroyed if he/she makes the disclosure to his/her employer or the Minister; and

(c)           the employee making the disclosure has made a disclosure on a previous occasion to his/her employer, the Minister or a prescribed person in respect of which no action was taken within 30 days;

However, such disclosure should take into account, among others: (i) the seriousness of the improper conduct disclosed; (ii) whether the improper conduct is continuing or is likely to occur in the future; (iii) whether disclosure is made in breach of a duty of confidentiality owed by the employer to any other person; (iv) whether the employee has been subjected to or threatened with injury to his/her person, his/her immediate family or his/her property; and (v) the public interest.

A disclosure made by an employee to an attorney-at-law with the object of obtaining, or during the process of obtaining, legal advice is a protected disclosure.

To be continued –

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