‘UNFAIR!’

The former head of enforcement at the National Environment and Planning Agency (NEPA) is pushing for the Supreme Court to strike out an Integrity Commission (IC) finding that “gross dereliction” on her part facilitated alleged construction breaches by the National Water Commission (NWC) president.

Morjorn Wallock, who was director of the legal and enforcement division at the state regulator from April 2015 to February 28, 2023, alleges that the commission was “unfair” in its report on the St Andrew apartment complex owned by Mark Barnett.

She applied to the court a month ago for permission to apply for judicial review of the scathing 90-page report that was released in October last year. A judicial review allows the court to determine whether the processes used by an authority were fair.

“I believe that the findings, conclusions and/or recommendations were made in circumstances which were unfair to me and in a manner that was procedurally irregular as I was not afforded the opportunity to justify my actions in this matter,” she asserted.

Wallock, an attorney, is being represented by King’s Counsel Symone Mayhew of the firm Mayhewlaw.

Justice Tania Mott Tulloch-Reid was due to consider the application for permission on paper last Wednesday, but the matter is set to continue at a later date.

Up to press time, the Integrity Commission did not respond to Sunday Gleaner questions on the matter.

News of Wallock’s actions come amid public anger after Director of Public Prosecutions (DPP) Paula Lewellyn ruled that Barnett and his wife cannot be charged for breaches of an environmental permit because NEPA did not initiate prosecution within 12 months after learning of the alleged breaches in 2020 as per Section 37 of the Natural Resources and Conservation Authority (NRCA) Act.

IC Director of Investigations Kevon Stephenson slammed Barnett for his “egregious” actions in the construction of the development at 11 Charlemont Drive in Hope Pastures, St Andrew.

The environmental permit was granted by NEPA first in 2019 but that was superseded by another that was approved in 2020. The Kingston and St Andrew Municipal Corporation (KSAMC) issued building approval in 2019.

The permits were for the construction of two three-storey blocks consisting of 12 one-bedroom units.

However, the IC said that in 2022, it found the development with six two-bedroom units and six three-bedroom units “in breach of the permits issued”.

Stephenson said Wallock issued a warning letter dated February 10, 2021 to the Barnetts. However, he said that she “failed to execute any further enforcement measures to ensure compliance with the permit issued in relation to the development”.

“The foregoing omission on Morjorn Wallock’s part amounts to gross dereliction of duty and significantly contributed to the creation of the environment/opportunity which facilitated the breaches,” he concluded.

Recommended a warning letter

According to the report, a NEPA inspector recommended a warning letter after observing deviations from the permit on a seventh site visit on December 17, 2020. The letter was issued February 10, 2021, and included a breach that the inspector flagged from July 2020.

Another NEPA inspector observed breaches on October 8, 2021 and recommended an amendment to the permit.

Wallock, the report added, wrote to Barnett on November 8, 2021 regarding the amendment and advised that documents to deal with it were required two days later. On the same date, Barnett’s wife, Annette, who is also an attorney, acknowledged the letter and requested until November 22, 2021 to address the issues.

There was no further correspondence and the DPP said that under the NRCA law, which NEPA enforces, the period for the prosecution to be initiated was between December 17, 2020 and December 17, 2021.

On his final inspection, a senior building officer at the KSAMC reported on December 10, 2020 that all the requirements with the permits were in order. In a statement dated November 2022, he told the commission that the building structure was “compliant with the approved building plans”.

Stephenson said a recommendation for disciplinary action against her “would be futile” because she was no longer at the regulator.

An excerpt of the transcript from Wallock’s hearing with the IC was included in the report. Wallock said after learning that an application for amendment was made by the Barnetts, she did not confirm whether that was related to the breaches in her letter.

“Now that I am thinking about it, yes. I should have gone, checked the amendment from top to bottom to make sure that it is in accordance with the letter that I had written, yes,” the commission quoted from a hearing on February 13, 2023. A hearing was also held February 1.

But Wallock is now contending that the IC was “unfair” because based on the final report, she was treated as a person under investigation and not as a witness as the summons from the commission indicated.

“At no time prior to being summoned before the respondent (Integrity Commission) or during the judicial hearings that were conducted was I informed that I was a person under investigation. I merely thought that I was attending as a witness to assist with an investigation,” she said in her affidavit dated December 21, 2023.

Wallock said she has been advised by her lawyer that if she had been under investigation, the commission would have had to inform her in writing and, further, that if she refused to participate as a witness without a reasonable excuse, she risked committing an offence and could be fined or imprisoned.

She said she was not given any background to the alleged irregularities and as a witness, she was “compelled to give evidence and ... only answered the questions ... asked”.

“During the questioning by the Integrity Commission, it was never put to me that my handling of the matter amounted to gross dereliction of duty. Nor was I asked whether or not enforcement action could be pursued, given the legislative framework,” she said.

The comprehensiveness of the probe was further challenged through Wallock’s assertion that the director of investigations failed to properly consider several issues in arriving at his conclusions, including statements and procedures submitted to him by other NEPA officials who were questioned.

Wallock claimed that the Integrity Commission’s director of investigations failed to consider a post-permit monitoring report which indicated that “the building was completed at the time the matter was brought to my attention and that as of December 10, 2020, the building was 90% complete”.

The commission also did not properly investigate explanations from the NEPA officials, including Chief Executive Officer Peter Knight, on the impact of COVID-19 on the monitoring of developments, Wallock contended. Jamaica recorded its first COVID-19 case in March 2020.

Serious reputational harm

“The findings, conclusions and/or recommendations, especially of gross dereliction of duty on my part, have caused me serious reputational harm, especially in my profession, embarrassment and distress and have caused me to suffer loss and damage,” she asserted.

Among other things, Wallock wants the Supreme Court to quash the findings against her; to declare that they were made in breach of the principles of natural justice, and to compel the director of investigations to recommend to the commission that she be “exonerated of any culpability” in relation to the investigation.

The attorney also wants a declaration that the director of investigations acted outside of his legal powers in making adverse findings, conclusions or recommendations against her, “who was a mere witness and not a person under investigation” and that the process he used to arrive at his conclusions was “unreasonable and irrational”.

Wallock is also claiming damages as well as what is known as ‘stigma damages’, generally a compensation to a person whose employment fortunes have been adversely impacted by an action against them.

Barnett has been on administrative leave since October 13. The commission reported his wife to the General Legal Council, the body that regulates the legal profession.

NEPA and the KSAMC are conducting internal reviews arising from the report and the deepening public concerns over how the entities carry out their duties.

jovan.johnson@gleanerjm.com