City Councillor Sherod Duncan today failed in his quest to have the council argue a motion of no- confidence against Town Clerk Royston King.
Duncan’s motion was disallowed when a majority of councillors voted to accept legal advice which declared that the policy-making body has no right to declare a lack of confidence in its chief administrative officer.
The decision was made after Mayor Patricia Chase-Green read the advice procured by King from former Magistrate Maxwell Edwards. Duncan has since indicated that he will be seeking his own independent legal opinion. The motion was thrown out despite the fact that previous councils that Chase-Green sat on had moved six motions of no confidence against former Town Clerk, Carol Sooba.
Edwards argued that a vote of no confidence amounts to a disciplinary action against the Town Clerk, a function which is outside the powers of the Council.
“I advise that if the motion was passed in its current form it would be… ineffectual, of no legal effect. The motion for a vote of no confidence in the Town Clerk is in substance the legal test as to what it amounts to in law and in intent. The disciplinary measure or action connoting as it does inter alia some reprimand or adverse consequences,” Chase-Green read for those present.
The advice repeatedly noted that the power to discipline the Town Clerk lies with the recently constituted Local Government Commission (LGC). The LGC is under the Local Government Commission Act of 2013 “responsible for employment, transfer, discipline and dismissal of staff and approval of remuneration, superannuation, training, leave and promotion of staff”.
The advice further argued that if the motion were to be passed it would not be binding on the LGC and recommended that the resolve clause which called for Council to move and declare a vote of no confidence in King be removed. Following this removal the issues raised within the motion could then be ‘discussed’
Chase-Green asked Duncan if he would be willing to amend the motion so that its contents could be discussed.
“I will not change a line, a word or a full stop. I will not amend it,” Duncan declared in response.
At this point the meeting devolved into customary bedlam with the Mayor demanding of Duncan several times if he would be willing to reconsider his position. Councillors vocally objected to these repeated requests with Councillor Monica Thomas declaring that the discussion had become a circus.
Chase-Green then disallowed the motion and Duncan along with co-sponsor, Deputy Mayor Lionel Jaikarran walked out of the meeting.
Speaking with members of the media, Duncan registered his disgust with what had transpired.
“Before I can speak on a motion I have moved the Town Clerk is heard through his legal advice. When do you ever hear from a respondent without hearing the complaint?” Duncan asked. He added that the motion never called for council to exercise powers it did not have.
“The motion never called for his dismissal, never called for his suspension. It clearly states that you have no confidence because of his performance. The motion goes on to the Local Government Commission for them to look at the matter,” he stressed.
Describing the events of the afternoon as “bizarre”, Duncan noted that “the Town Clerk procured the legal advice because the matter concerns him. The advice was later accepted by Council ahead of my tabled motion. I believe this legal advice biased and against natural justice as it was procured from the husband of a sitting Councillor. It is clearly against any sanctioning of the Town Clerk.”
“Also, what I find frightening and against the law of natural justice and democratic norms is the fact the Town Clerk was allowed to guide the house from his chair even though the matter concerns him centrally. Natural justice is clear, “nemo iudex in causa sua”, no-one should be a judge in his own cause,” he added.
Process undermined
Duncan’s concerns were reiterated by veteran Trade Unionist Lincoln Lewis. Lewis told Stabroek News in an invited comment that “the process was undermined.”
“Since the no confidence focused on the Town Clerk he had no authority to seek Legal Advice on behalf of the council in his own defence,” Lewis said.
Lewis also noted that a declaration of no confidence is not synonymous with disciplinary action in the context of labour laws.
“Disciplinary actions arise when you are charged under the rules that exist and are assigned penalties if found culpable. A declaration of no confidence is just that a declaration,” Lewis explained.
Stabroek News also reached out to several local jurists for their opinions on the matter with the two attorneys who responded positing similar arguments as Lewis’.
The first explained that “one is punitive while the other has persuasive authority.”
“Disciplinary action has attendant punitive measures crystalizing immediately. These actions can’t come from nowhere, they have to come from source usually legislative in nature while a no confidence motion usual has persuasive authority. The effect of a no confidence motion does not mean that those who institute it have any authority to effect disciplinary action,” He explained.
Another legal mind explained that his reading of the Municipals and District Councils Act leads him to “off the top of [his] head” opine that “he can’t see that the Council has no power to express its opinion on the conduct of the Town Clerk, which is what it seems to be trying to do.”
Further a clear precedent exists with the previous council having moved six no-confidence motions against former Town Clerk Sooba.
Sooba who was installed as Town Clerk in 2012 by the Former Minister of Local Government consistently clashed with the Hamilton Green-led council which tabled and passed motion after motion. Each motion was forwarded to the Minister of Local Government since the council does not hold disciplinary powers but at no time did the council declare itself unable to complain.
In fact Chairman of the LGC Mortimer Mingo told Stabroek News last month that the commission has received more than a dozen complaints from various Local Government Authorities (LGA) though he did not indicate how these complaints were framed he seemed prepared to entertain Georgetown’s complaint.
“Once council would’ve taken initiative and followed procedure leading up to the motion, then in keeping with the LGC Act, council will then send it to us. Once it comes to us, we will have to examine the issues which led to the motion. Council will be asked to present its case to the commission and the other aggrieved party will also be given a chance to present their case and the commission will then deliberate and come to a decision,” Mingo had explained.
