Anyone who hoped that local government elections would usher in a new era of democracy at the community level, releasing the energies and innovativeness of citizens so they could address the problems in their neighbourhoods more effectively, should not hold their breath. This is despite the eventual setting up of a Local Government Commission under the coalition government that had followed the passage of a bill in 2013 whose purpose was to give local authorities more breathing space than they had enjoyed previously.
While a Commission was required under the Constitution and had been provided for in earlier legislation which was already on the statute books, the body had not materialised. By default, therefore, the Minister of Local Government was the one who for many years took on the discharge of the Commission’s functions. This was an arrangement which appealed to Freedom House, for whom autonomy at any government level had no allure.
When the new Commission was eventually set up, it was not exactly an independent body in the sense that the balance of its membership was heavily weighted in favour of government appointees, a structure which no doubt suited the APNU+AFC government when in office as much as it does the PPP/C today. The Commission has extensive powers, but for present purposes the one relating to the appointment and dismissal of officers is the issue of current concern.
The current contretemps with the Georgetown municipality has its origins in the fact that Chairman of the Commission Julius Faerber, on his own authority and in consultation with his deputy Mr Norman Whittaker last month appointed Ms Candace Nelson the interim Town Clerk for the city. The Commission act gives the eight-member body the right to appoint, promote, dismiss and discipline staff, and for a decision to be binding there has to be a quorum, in this case of three members.
What is strange about all of this is that there was a statutory meeting of the Commission on July 27th, when the Commissioners agreed that Ms Sherry Jerrick, who was then acting as Town Clerk, should revert to her substantive position as Deputy Town Clerk, but there was no discussion about who should fill the Town Clerk’s position. According to Mr Faerber, hours later in consultation with Mr Whittaker he decided to appoint Ms Nelson as the M&CC could not be left without a Town Clerk. So it was that the letter to Ms Nelson carried the same date as the one on which the statutory meeting had been held.
Anyone with even a smidgeon of common sense would want to know why it was the Commission meeting did not consider the matter of someone to replace Ms Jerrick if she was to be returned to her former post. Apparently someone did. Opposition nominated Commissioner Nicola Trotman has said that her requests for information on who the replacement would be were dismissed by Commissioner Carvil Duncan, who declared that the matter of a replacement was not on the table for discussion, and would be considered at a later date.
The response of Messrs Faerber and Whittaker to this was to deny that the issue had been raised: “Whoever is telling you all is misleading you all,” asserted Mr Whittaker, “we did not discuss replacement of Ms Jerrick …” They may be playing with words here: there is no disagreement that the matter was not discussed if the word ‘raised’ is being used in that sense. But is it really the case that no one asked such an obvious question? If no one did, it says nothing for the competence of the Commissioners.
So what was Mr Faerber’s excuse for bypassing the Commission? He claimed he had the authority to make the appointment, and that as Chairman he would normally make decisions between meetings which would be ratified at the next statutory meeting. If this appointment is opposed, he said, it would be rescinded at the meeting at the end of this month. Pressed further on why he took the decision after the meeting rather than during the meeting, we quoted him as saying, “Because we had a few names we had to look at and we could not have been discussing that at the meeting because there was no concrete information for us to discuss it at that meeting.” He went on to say that the meeting lasted for over four hours.
The question which then arises is why did he not postpone the discussion of Ms Jerrick reverting to her substantive post until the August meeting, when the matter of her replacement could have been dealt with at the same time. In addition, there would have been time to undertake the research necessary to present to the Commissioners. As it is, Messrs Faerber and Whittaker will have to do that in any case for the benefit of the next statutory meeting.
Mr Whittaker lent support to the Chairman by saying that in all the local authorities where he had served the Chairman of the authority was authorised to make decisions between meetings. He cited the example of when he had served as Regional Chairman, and the law permitted him to take decisions on behalf of the council in between meetings.
As we pointed out in our report, there is a distinction between a local authority and a regulatory body, and the Local Government Commission falls in the latter category. There is nothing in the law as far as those knowledgeable in the field are concerned, which says anything about the Chairman having the authority to act in lieu of the Commission between meetings.
However, in a more legalistic argument Mr Faerber made reference to Section 30 of the Local Government Commission Act which states the Commission may make rules and regulations to give effect to the law, specifically allowing it to do so in relation to its procedures. “So that is the part of the Act that has given me that authority to prescribe,” he said, “and this did not only happen in this Commission it took place at the last Commission …” So when was this particular proposed rule put before the Commission, and in any case, is the Chairman taking decisions on behalf of the Commission in between meetings really a procedural matter?
As for how Ms Nelson was identified to replace Ms Jerrick, when she was the Assistant Human Resources Manager, it was said that her name had been among those presented for recommendation and it was noted that she had previously acted as Town Clerk, and that her position at present was that of Assistant Town Clerk. When she had acted she had been recommended by the Council to do so.
It might be mentioned that in the first instance the Chairman was not entirely forthcoming about how Ms Nelson had been appointed, indicating that the decision had been made by the Commission. However, when pressed subsequently by this newspaper, he admitted it was he and not the Commission who had made the appointment.
Not surprisingly Mayor Narine rejected the appointment maintaining that Mr Faerber’s actions were unlawful. As we reported, he accused the Commission of failing in its mandate to fill municipal vacancies while selectively appointing someone to act as Town Clerk ad interim. “This act can only be seen as another attempt to deliberately stymie the work of the city council at the behest of some elements of the political directorate,” he said.
There are two issues here. One is whether the Chairman has acted within the boundaries of the law, and other is whether, even if he has, his actions make any sense. As already stated, the government controls the Commission, so it would have no difficulty in having Ms Nelson appointed if that is what it wants. Why the urgency? Why not just wait until the August statutory meeting when it can have her appointed no matter what the opposition nominated members say? Even as it stands the issue would have to be discussed at the next meeting, unless the plan is to use the government majority to sledge-hammer the decision through without any discussion. But then again, why would they be afraid of discussion?
This odd behaviour raises the temptation for Georgetowners to suspect that the government might be seeking to set a precedent, which eventually might not be challenged on more critical matters later down the line. In that hypothetical scenario Mr Faerber would come to substitute for the role Mr Whittaker once filled as acting Minister of Local Government when he made decisions for the local authorities. In the case of the city he effectively ensured (with the help of government installed Town Clerk Carol Sooba, who is now a government nominated Commissioner) that the capital would be deprived of rational administration.
Whatever nonsense is going on what is clear is that the Local Government Commission is not a huge improvement on what obtained previously. It is not autonomous, and it appears that most of its members are not independent minded. It is a vehicle for national politics to continue to infect local government.
