The process for appointing members to the two statutory boards within the Ministry of Health and Social Development lacks transparency, as ministry officials do not advertise for the positions and make their deliberations internally, Commission of Inquiry Counsel Bilal Rawat suggested during a Tuesday hearing.
The claims were among a set of criticisms that he put to HSD Minister Carvin Malone and acting HSD Permanent Secretary Tasha Bertie on Tuesday, when they answered broad questions on how appointments are made and specific ones about an instance in which Mr. Malone revoked five members from a board in May 2019 only to reappoint two of them a month later.
In the first hearing on Tuesday morning, Mr. Rawat asked Ms. Bertie about the process by which candidates are chosen to be screened for membership on the Public Assistance Committee — one of two statutory bodies, along with the BVI Health Services Authority board, that the commissioners addressed that day.
Candidates for committee membership are first recommended by the PS, the “desk officer assigned to that subject,” or the minister himself, Mr. Rawat said, reading from one of Ms. Bertie’s affidavits.
A ministry staff member then contacts the recommended individuals to see if they are interested in serving on the board, and, if so, the individuals are asked to submit a resume, Mr. Rawat added.
Ms. Bertie answered in the affirmative when asked if that accurately describes the first step in the appointment process.
Once the resumes of the recommended candidates are reviewed, ministry officials prepare a paper that is circulated to the financial secretary and the attorney general, and then is given to the minister for a final review before being submitted to Cabinet for approval, Mr. Rawat said, reading from the affidavit.
“That is correct,” said Ms. Bertie.
Asked if the ministry solicits reference letters for the potential board members, Ms. Bertie said it does not.
Mr. Rawat then asked “what due diligence do you actually carry out” when appointing new members to the board.
Ms. Bertie explained that when someone is likely to be reappointed to the committee “the social development officer” provides feedback on their past performance as a committee member.
Mr. Rawat then asked if there is any due diligence specifically for first-time appointments to the board.
“The due diligence … from my perspective would be carried out with the assessment of the curriculum details that are provided,” Ms. Bertie said, referring to candidates’ curriculum vitae. Saying that Ms. Bertie’s evidence seemed to suggest that the resumes are requested “quite late in the process when you’re preparing the Cabinet paper,” Commissioner Sir Gary Hickinbottom asked her to clarify when exactly the CVs are requested.
“It would be during that process, yes,” Ms. Bertie replied.
Individuals are asked to provide their resumes only after being recommended by a ministry official, Ms. Bertie added.
Going back to his previous question, Mr. Rawat asked how ministry officials decide who they should recommend for the role given that they haven’t requested a resume at that stage.
Reading from a document included in her bundle, Ms. Bertie said, “Recommended persons are selected from a cadre of known and established professionals.”
She added that the Public Assistance Act of 2013 states that PAC members must include representatives from different sectors including teachers, psychologists and religious leaders, which further narrows the pool from which officials make recommendations.
But Mr. Rawat further pressed Ms. Bertie on how ministry officials decide who belongs to this “cadre of known professionals.”
“What is meant by ‘known?’ Who knows them?” Mr. Rawat asked.
“You’re aware of them,” said Ms. Bertie.
“But who is the ‘you?’” asked Mr. Rawat.
Ms. Bertie replied that she was referring to the minister, the permanent secretary, and the office of the ministry in general.
Then COI counsel also asked Ms. Bertie if there is a written set of criteria that officials use to decide if someone is fit to serve on the board.
“There’s no written policy outlining that information,” Ms. Bertie replied.
Declarations of interest
Mr. Rawat then asked Ms. Bertie about the rules governing how members of the BVIHSA board have to declare their financial interests.
Summarising what she wrote in one of her affidavits, Ms. Rawat said that there is no written guidance to board members concerning their declaration of interests except for what is stated in the BVIHSA Act.
But when asked what the act includes in terms of guidance, Ms. Bertie said that she “is not certain what specific sections may speak to that.”
Continuing with this line of questioning, Mr. Rawat said that in Ms. Bertie’s affidavit she goes on to state that there are no written standards for monitoring board members’ performance.
“Are they monitored in anyway?” Mr. Rawat asked.
Ms. Bertie replied that the meeting minutes kept by the board could serve as a “measuring tool” for reviewing board members’ participation and attendance.
Mr. Rawat said this answer seemed to indicate that the BVIHSA board monitors its members differently than the PAC.
In regards to the PAC, when a board member is being considered for reappointment an ex-officio member gives the ministry feedback on their performance, Mr. Rawat said.
With the BVIHSA board, however, there doesn’t seem to be any mechanism for ministry officials to monitor the board’s functioning, Mr. Rawat said.
“In this instance, not to my knowledge,” Ms. Bertie replied.
Later, Mr. Rawat brought Ms. Bertie’s attention to a document showing that in June 2019, two individuals were reappointed to the BVIHSA board after they and three other members had been revoked the previous month.
This led into the line of “potential criticisms” to which Ms. Bertie and Mr. Malone were allowed to respond in writing.
Mr. Rawat clarified that the criticisms were directed at the position of the permanent secretary and not at Ms. Bertie, and Ms. Bertie added that at the time of the revocation she had not been made permanent secretary but was the deputy secretary in the ministry.
Mr. Rawat then asked Ms. Bertie if it is accurate that there is no “independent process” by which ministry officials identify and select candidates for the board.
Ms. Bertie responded in the affirmative.
Mr. Rawat then said that “because it’s internal, it’s not a transparent process, is it?” Ms. Bertie replied, “That becomes relative based on an individual’s interpretation.”
The process could be deemed to lack transparency, Mr. Rawat said, because it is largely made up of informal discussions within the ministry; the details are not recorded; and “members of the public don’t know what’s going on,” hesaid.
Ms. Bertie replied, “By that definition, yes.”
She added that as far as she is aware, none of the candidates who were appointed to the BVIHSA board in June 2019 had been interviewed.
The COI counsel then asked Ms. Bertie if she would like to say anything else about due diligence measures ministry officials take when appointing board members, and she responded that the consideration of their CVs “is a form of due diligence.”
Referring to one of Ms. Bertie’s written responses, Sir Gary read that under the “due dilligence” heading, Ms. Bertie wrote that the requirements of the act have been followed, and that the CVs were collected and considered.
“Anything else?” he asked.
“That is it,” Ms. Bertie responded.
Once Sir Gary and Mr. Rawat had concluded questioning Ms. Bertie, Mr. Malone was called before the COI after a recess.
As with Ms. Bertie, Mr. Rawat began Mr. Malone’s testimony by broadly asking the minister about the appointment process for the two statutory bodies’ board members.
Like his colleague, Mr. Malone confirmed that it is accurate to say that there is first an “internal discussion” between the PS, the minister, and the desk officer about potential candidates.
Mr. Malone also confirmed that the recommended individuals are then contacted by ministry officials, who ask if they want to serve and to submit a CV if so.
The minister then reviews a list of candidates for the final time before it is sent to Cabinet for approval, Mr. Malone said.
The line of questioning then changed, as Mr. Rawat asked the minister about his reason for revoking five BVIHSA board members in May 2019, only to reappoint two of them a month later.
Reading from the BVI Health Services Authority Act, Mr. Rawat said that it sets out four instances in which a board member can be removed by the minister: if the board member has poor attendance; if they go bankrupt; if they are convicted of an offence, including one involving dishonesty; or if they are deemed “mentally unfit,” Mr. Rawat said.
The COI counsel asked Mr. Malone if he understands this section of the act to mean that these are the only valid reasons for revoking someone’s membership from the board.
“This is the realm of interpretation, yes?” Mr. Malone replied.
Mr. Rawat put it to Mr. Malone another way.
“It does seem clear, doesn’t it, that unless you can put someone into one of those four categories you cannot remove them?” Mr. Rawat asked.
Mr. Malone replied, “Based on [that section of the act], …yes, there are four distinct areas.”
After then asking Mr. Malone to turn to a section in the bundle about the BVIHSA board coming up for review in April 2019, the COI counsel asked the minister if he was, at that time, familiar with the “statutory basis” with which he could remove a board member with Cabinet’s approval. “Yes, and further advice was sought,” Mr. Malone said.
Mr. Rawat then read from the minutes of a March 27, 2019 Cabinet meeting, in which Mr. Malone, commenting on the deliberations to remove members from the BVI Tourist Board, said, “Given its national mandate that tourism is an economic pillar, it should be deemed reasonable that the tourism minister be comfortable with the membership of the BVITB to move the sector forward, and therefore should be mindful to appoint aboard that reflects his administration’s mandate.”
The COI counsel said Mr. Malone’s point seemed to be that if a minister isn’t comfortable with the composition of a board, or he doesn’t feel it reflects the minister’s or the administration’s mandate, that is a legitimate reason to remove members of the board.
“Was that your view?” Mr. Rawat asked.
Mr. Malone replied, “It goes in context in terms of the administration, because they ran a political campaign on making sure we’re able to deliver to the people of the Virgin Islands.”
He added, “It is not only for the good feeling of the minister, but in terms of making sure the mandate that was promised to the people could be carried out.”
Revocation of appointments
The COI counsel then asked Mr. Malone to look at another ministry memo in the bundle, which stated that revocation of at least three members of the HSA Board was necessary, as those individuals had been appointed in January 2019 by then-HSD Minister Marlon Penn, who became opposition leader after Mr. Malone’s administration came to power in February 2019.
At the time of the memo, Mr. Penn was allowed, as opposition leader, to make two appointments to the board, Mr. Rawat read.
Mr. Rawat then asked Mr. Malone to explain why the memo states that “revocation of these appointments” — referring to the ones made in January 2019 by Mr. Penn — “is necessary to allow for the balance envisaged by the [BVIHSA] Act.”
Mr. Malone said that if the revocations were not made, there would have been five people on the board chosen by the same individual.
Sir Gary’s questions
But Sir Gary asked about why that situation should present a problem.
“I don’t say this pejoratively, but that’s what the act says,” Sir Gary said, later adding, “The reason for the revocation, it seems to me, is that you were concerned that if you did not revoke them and [reappoint] them you would not end up with a board that would pursue your administration’s mandate.”
Mr. Malone said that was not entirely the concern behind the revocations.
“We were looking in terms of making sure that the board was reflective of all of the initiatives and all of the items that the government had put forward, so we were looking in terms of the construct of it,” the minister explained.
But he did concede that “to the point that we had a mandate, I was looking at the positive view of it. We had a … new government, we had some innovative, forward progressing [ideas] … so you’re seeing the glass as half empty; I’m seeing it as half full.”
The issue of the board members’ revocations ties into the first criticism that Mr. Rawat put to Mr. Malone.
The criticism, Mr. Rawat said, is that revoking several board members’ appointments before they expire hinders “independent oversight and expertise of the board.”
Mr. Rawat also put it to the minister that this practice risks losing the cumulative experience of all the board members.
The minister responded that he ameliorated that risk by reappointing some of the board members.
The other criticism that Mr. Rawat put forward concerned the process of appointing board and committee members: That process is not ideal, he said, because the ministry does not advertise for positions, the appointment process is entirely internal, and candidates are generally not interviewed.
‘Checks and points’
For his part, Mr. Malone said that he frequently has officials in his ministry suggest people who have served in similar positions many times before, as well as advising him to reconsider candidates who they feel may not be the best fit.
“These appointments are not ‘Come off the street, here you go, and this is it,’” the minister said. “It goes through a number of checks and points.