If the standards for assessing conflict of interest lead reasonable persons to conclude that such a risk exists despite safeguards then Minister of Public Telecommunications, Cathy Hughes should take the honourable course of action and demit office, according to former Auditor General, Anand Goolsarran.
In his accountability column in today’s Stabroek News, Goolsarran revisited the issue of conflict of interest in light of questions that have arisen about the position of the minister after her spouse, Nigel Hughes inaugurated a law office in Houston, Texas, USA on September 28 this year with the intention of attracting oil and gas business.
Goolsarran, who adverted to an earlier matter where questions had been raised about the roles of both Hughes in connection with the Amaila Falls Hydropower Project and two associated companies, said that “in deciding whether there is a conflict of interest, the overriding consideration, indeed the standard test, is whether a reasonable, unconnected and uninformed person, weighing all the specific facts and circumstances available at the time, would be likely to conclude that the risk of conflict of interest exists, despite safeguards that may be put place to mitigate the effects of such a risk”.
Both Nigel Hughes and Cathy Hughes have rejected assertions of a conflict and have said that the relevant declarations have been made to Cabinet and the Integrity Commission. Minister Hughes has said that she has also asked for independent legal advice and will in the interim not participate in oil and gas discussions at Cabinet.
Goolsarran said that there are a number of ways of mitigating conflicts of interest. These include: removing the conflict of interest in its entirety; disclosure of the facts to the appropriate authorities; recusal from any deliberations of the matter giving rise to the conflict; third party evaluation; and adherence of codes of ethics.
“For elected public officials, the options are, however, very limited by virtue of the fact that they hold positions of public trust, and the first and foremost consideration is the public interest. As such, the highest standards of integrity, ethics and probity are expected of them. Elected public officials should at all times avoid conflicts of interest, and where such conflicts are likely to exist, elimination by removal from the setting is perhaps the best option”, he said.
He added that disclosure does not eliminate or remove the existence of a conflict of interest but serves to inform stakeholders of the existence of competing interests. It is then the responsibility, he said, of those in authority to decide whether there are enough safeguards to prevent private interests from taking precedence over the public interest, and advise accordingly.
Recusal, he added, relates to one-off events and not continuing situations. That practice is common among members of the legal profession. For example, judges and magistrates routinely recuse themselves from presiding over cases where, because of an association with the plaintiff or the defendant. However, in an organizational setting, Goolsarran said that recusal presents its own difficulties, especially if the person involved is the head of the organisation.
“One recalls when the Sanata Textiles Ltd. was sold, a former President insisted that he had recused himself from the Cabinet’s deliberations and decision-making regarding the sale because the potential buyer was his close friend. The Cabinet approved of the sale to the President’s friend. While there might have been justifiable grounds for doing so, it is difficult for an ordinary person to conclude that the Cabinet could have done otherwise”, Goolsarran said. This matter involved former President Bharrat Jagdeo and the Head of the Ramroop Group, Dr Ranjisinghi Ramroop.
Goolsarran said that while in principle conflicts of interest should be eliminated in their entirety, it is recognized that in certain cases this can present difficulties. As a result, he said that many organisations and professional bodies have therefore developed codes of ethics or conduct which members are
obliged to follow, and the failure to do so can result in disciplinary action being taken against the person involved. In Guyana, he noted that the code of conduct for senior public officials, Ministers of the Government and other Members of Parliament, is contained in Schedule II to the Integrity Commission Act.
Goolsarran noted that in response to the concerns raised Minister Hughes issued a statement saying that she had notified the Integrity Commission on 10 October 2018 as well as the Cabinet and was awaiting further legal advice on the matter.
“Up to the time of writing, neither the Integrity Commission nor the Cabinet has issued any statement on the matter. There was also no indication if the Minister is in receipt of the requested legal advice. The Minister further stated that until such advice is provided, she would refrain from attending any oil and gas discussions at Cabinet meetings.
“Given that oil revenues are expected to flow in early 2020 – mere months away – it is very likely that oil and gas matters will be a standing item on Cabinet’s agenda for its weekly meetings. This implies that, unless there is a resolution of the conflict, the Minister will be absent from aspects of all Cabinet meetings for the foreseeable future, which will be a most undesirous situation for a Minister to be placed in. Besides, the Minister is likely to have access to all Cabinet papers and other related material, notwithstanding her absence from Cabinet discussions on oil and gas”, Goolsarran said.
On the way forward, Goolsarran said the question remains as to whether a reasonable, unconnected and uninformed person is likely to conclude that a conflict of interest still remains.
“If the answer is yes, then the Minister, regardless of how difficult and painful it would be for her, should take the honourable course of action and demit office. The failure to do so is likely to leave a cloud of suspicion of her involvement or influence in any decision by the Government in relation to oil and gas matters, especially if such a decision is viewed as favourable to the oil companies operating in Guyana”, Goolsarran said.
Transparency Institute Guyana Inc. (TIGI), the local chapter of Transparency International, has said that it considers that a potential conflict of interest exists, and that enough assurances had not given that such an interest is not real.
“Just the fact that Nigel Hughes is the husband of Minister Cathy Hughes means that there is a potential conflict of interest. I hasten to reiterate that I am not, neither is TIGI, attempting to attack or make accusations against anyone,” Head of TIGI Dr Troy Thomas told Stabroek News earlier this month.
“A new code of conduct for public officers have been implemented…the code speaks of conflicts of interest. I would like to know whether any declaration about the new business venture was made to the Integrity Commission (it was later stated by Hughes that such a declaration was made), which, I believe, should handle matters involving ministers of government. If such a declaration was made, what steps were prescribed for the minister to take, and perhaps the firm as well to guarantee that no conflict of interest will be acted upon? What continuing efforts do the minister and the firm have to make to keep conflict of interest at bay in the future,” he questioned.
“TIGI is not satisfied that conflict of interest is ruled out or adequately dealt with,” he added.
Thomas reiterated that neither he nor TIGI was, in any way, attempting to attack or make accusations against anyone but emphasised that they believe that Guyana’s citizenry needs more than word-of-mouth assurances from its politicians.
“We don’t want to take away any legitimate economic engagements from anyone, we expect them to be smart in business and when they do well, the country also benefits. But the problem here is that there is a major conflict of interest in Mr Hughes playing an integral role in linking people who might get into the oil industry in Guyana, given that his wife is a current minister of government,” Thomas said.
“We want to know that there is insulation of the government, or the business is insulated from her and will not draw on any privileged information that she may obtain due to her position. People in these positions try to impress upon us that they won’t act on these privileges and we are asked to trust their integrity. And while I am saying there is nothing I can point to that warns unequivocally against trusting them, we need more than individual proclamations of individuals. If we accept this, then (we) have to be willing to accept and rely (on) such verbal assurances from everyone else. This is not the way we want to do state business going forward,” he emphasised.