The Town Clerk has the right to interpret Cap 28:01 for himself

Dear Editor,

City Councillor Sherod Avery Duncan has arrogated to himself the right of the Town Clerk to interpret for himself (subject of course to any contrary authoritative ruling by a court of law) the Municipal and District Councils Act Chapter 28:01 by which the Town Clerk has been vested with the general administration of the Georgetown City Council. Nothing can be more commonsensical and established in jurisprudence than the proposition that he who has the statutory duty of administration, has by necessary implication the right and duty to firstly interpret the relevant enabling statutes as to the scope, nature or limits of the rights, duties, powers vested in him for the purposes of such administration. It is not the right or business of any Councillor to undertake such interpretation. I certainly have never requested it of Mr Duncan, nor do I desire his assistance or advice in the discharge of my duty to interpret and apply the statute. So Mr Duncan can put whatever interpretation he perceives to be convenient in his sinister scheme to undermine my administration of the Georgetown City Council; it is simply not binding on me. And in any event, I dispute entirely the correctness and credibility of his misguided and incompetent misinterpretation (‘Profoundly concerned about Town Clerk’s understanding of… Cap 28:01…’  SN, Feb 19;  ‘As Town Clerk I only act on the basis of legal authority’ SN, Feb 16).

Editor, I have been advised by a very knowledgeable attorney-at-law that Mr Duncan’s interpretation as to my locus standi as Town Clerk in court matters or litigation under Section 6 of Chapter 28:01, has absolutely no credence in either statute law or case law. It is palpably misconceived and wrong. If the right, and/or duty to sue (as the case may be), is exclusively that of the Town Clerk, then inherent in such exclusivity, is the decision whether to sue in any particular matter (subject of course to the availability of finances to retain counsel to undertake such suit). It must be that of the Town Clerk; that is the statutory intendment.

As Town Clerk I have been entrusted by parliament to make decisions and act only in the Georgetown City Council’s best interest. That statutory trust cannot be a matter of mere representative capacity only. (In passing, section 315 which is differently worded from section 6, under which prosecutors engage in litigation in the magistrate’s court to enforce the by-laws has absolutely no relevance in this context, but  the difference in wording is instructive). I am no mere “… object of legal proceedings” (whatever Mr Duncan means by that phrase) in his letter. If the Town Clerk is not the party sued, or suing (as the case may be) the lawyer has advised me that the action would be improperly constituted, and the judge would strike it out on that preliminary point. I was informed of an important 1961 reported appellate court case precedent (Insanally v Georgetown Town Clerk) which demonstrates how technical and fatal this locus standi issue that Mr Duncan is seeking to trivialize, can be.

Turning to the matter of not calling a meeting to elect a councillor to perform the duties of Mayor in her coincidental absence and that of the Deputy Mayor, and Mr Duncan’s criticism that I “deliberately waited for the regular statutory meeting” to have that election happen, I do not dispute or challenge at all Minister Bulkan’s resort to “common sense” in these types of matters. I say resort, because I note, and pay particular attention to the fact that the Act (ie Chapter 28:01) does not prescribe any time limit for an election (contrast section 12). I interpret this to mean that the Act has left this matter to the judgment call of the Town Clerk based on the particular facts and circumstances of each absence (which would be known to the Town Clerk) and the application of common sense. It is for this reason that based on the facts and circumstances (including but not limited to the relatively short duration of the Mayor’s absence) to which, obviously, Mr Duncan was not privy, that I adjudged that common sense would be better served by me leaving that particular election to the then impending regular statutory meeting. After all, for reasons that seem beyond the apprehension of Mr Duncan, the case is arguable since councillors are not full time employees of the council, readily available to meet all exigencies, and there were not exceptional circumstances requiring a special meeting as Mr Duncan is suggesting. An election prior to that regular statutory meeting was therefore not of the essence, and more relevantly, such a meeting would in all probability have been most inconvenient and inexpedient to all other councilliors except, perhaps Mr Duncan. It was my discretionary judgment call ‘shall’ can mean ‘may’ and ‘may’ can mean ‘shall’.

What if the Mayor’s absence is projected to last one or two days? Is a meeting to have an election in those circumstances obligatory? Plainly not. What dysfunctionality in the operations of the City Council would be occasioned by such non-election? That is the test of the imperativeness, or not, of a meeting.

It is Mr Duncan’s constitutional right to express his opinion (however, misconceived) as to my capacity, qualification for and performance in the office of Town Clerk. But he is mischievously seeking, by innuendo and insinuation to create a false impression that the subject Minister (with all good intentions towards the Georgetown City Council) shares his views.

And as to Mr Duncan’s closing reference to the Keith Burrowes’ CoI recommendation, I would only say this: if it was the intent of Parliament that a Town Clerk must be a qualified lawyer, nothing would have been easier and simpler than for parliament in Chapter 28:01 to have so expressly provided. Parliament did not. And by the way, a legal matter is not even the predominant feature of a Town Clerk’s statutory duties and responsibilities ‒ administration is. And for such administration, even Mr Duncan would have to admit that I am both experientially and technically sufficiently qualified.

As to his other arguments, they have no merit; they do not warrant any rebuttal from me.

This is my final letter on this matter.

Yours faithfully,

Royston King

Town Clerk

City of Georgetown

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