Muzzle puzzle - Public-sector board veterans clueless about gag order claim
Two experienced professionals who have served on multiple boards, Howard Mitchell and Dennis Chung, have declared that they have never signed non-disclosure agreements as members of public boards or directors of private companies. They also told The Gleaner that if asked to sign any such accords, those requests would be flatly rejected.
The declarations come against the background of an assertion by acting permanent secretary in the Ministry of Education, Youth and Information, Dr Grace McLean, that non-disclosure agreements were established components of the governance framework in the ministry.
Since the permanent secretary’s utterance, Prime Minister Andrew Holness, who is also the de jure portfolio minister for education, said he was “shocked” at a Sunday Gleaner exposé detailing how the former 23-member council of the scandal-scarred Caribbean Maritime University (CMU) was made to comply with gag orders.
The agreements were signed by the council members after meeting for the first time in eight months. During the period when the board had not met, the university executed contracts totalling $200 million.
“It is most unusual, and I would have to take advice as to whether that is permissible, and I will be doing so on Monday,” said Holness when quizzed about the issue on Sunday.
IS IT LEGAL?
In a Gleaner interview, Chung said he had an issue with the notion that because members of the CMU Council signed a non-disclosure agreement, they could not “say anything”.
He said that under the Public Bodies Management and Accountability Act and the Corporate Governance Procedures, “you can’t sign and be bound by something that is not legal.
“If you see that something is wrong within a company, as a director, you have a responsibility to your minister, you’re really supposed to report that. If you report something to the board and it is not carrying out its functions, then you have a responsibility to report it to the minister,” he said.
Chung, a chartered accountant and also chairman of the National Solid Waste Management Authority (NSWMA), said that he has pushed for a whistle-blower policy at the agency, encouraging members of staff to out wrongdoing at any level.
He insisted that whistle-blowing should be endorsed in all public bodies and departments of government.
“This is why I couldn’t understand when someone said they signed an NDA – that’s not a reason not to disclose something that is wrong.”
Chung said that the only agreement he had signed in the past was a disclosure of any conflict of interest.
Mitchell, former PSOJ president and businessman, said that he had never been asked to sign an NDA.
“I have never heard of that governance procedure and quite frankly I would be unwilling to do it,” he told The Gleaner.
He cited circumstances where NDAs could appropriately be signed to secure proprietary information regarding business deals.
“Not just for the purpose of being a board member, I couldn’t agree with that, especially a public board where you have a responsibility to other stakeholders whose money you are managing. I have not heard of it, and I personally would not accept that as a condition for being appointed to a board,” he maintained.
THE RAMHARRACK RULE
Under Holness’ stewardship as portfolio minister of science, technology and energy, at a time when the Petrojam scandal forced then Minister Andrew Wheatley to resign, the controversial non-disclosure agreement signed by then human resources manager Yolande Ramharrack also triggered widespread debate that eventually was ventilated in Parliament.
Responding to questions from Julian Robinson, member of parliament for St Andrew South East, on the Ramharrack non-disclosure agreement, Holness said that the position of the Government was that there should not be the type of non-disclosure agreement as was entered into with the former HR manager at Petrojam.
Ministry Paper No. 10 in 2019 was also tabled dealing with use of non-disclosure/confidentiality clauses by public-sector boards in settlement agreements relating to human resource and personnel matters.
Mark Golding, chairman of Parliament’s Public Accounts Committee (PAC), is questioning claims by Holness that he did not have a clue about a non-disclosure agreement signed by former members of the CMU in May last year. Holness became the portfolio minister of education in May 2019 following the sacking of Minister Ruel Reid.
Karl Samuda has been placed by Holness as the minister without portfolio in the Ministry of Education. However, Golding said that Samuda could not sign any legal instrument as minister of education because he was not the gazetted minister.
“I have never heard of board members asked to sign a non-disclosure agreement, so I think that is a very peculiar policy initiative. Any policy as far-reaching and peculiar as requiring board members of a public body within the ministry’s portfolio to sign non-disclosure agreement must have been something that the prime minister was aware of. The buck stops with him. If he was not aware of it, he should have been aware of it. So I do not accept his statement that he was never aware of it,” Golding said.
Further, he said that if Holness was unaware of the NDA signing by the CMU Council, it would be a “shocking lack of fiduciary responsibility on his part as the minister of education”.
While not pre-empting how the PAC would carry out its deliberations on the CMU report, Golding suggested that the CMU Council would be made to give an account on the litany of breaches at the institution. He said that there was precedent under his chairmanship in relation to the Ramharrack separation agreement that had a confidentiality clause.
“That matter was squarely before the PAC when we were looking at the auditor general’s report on Petrojam and we found a way in which we were able to get to the bottom of what was in the contents of the separation agreement,” he said.