The Commission of Inquiry report strongly refutes Attorney General Dawn Smith’s allegation on behalf of elected ministers that the registrar of interests committed a criminal offence by informing the former governor about House of Assembly members’ failure to file their interests as required by law. Instead, COI Commissioner Sir Gary Hickinbottom praised the registrar for her longstanding efforts to convince HOA members to comply. (Screenshot: HOA)

For 13 years as the territory’s first registrar of interests, Victoreen Romney-Varlack worked tirelessly to urge reluctant House of Assembly members to register their interests as required by law, according to the
Commission of Inquiry report released last month.

HOA members largely ignored her, breaching the Register of Interests Act 2006 at least 90 times between 2011 and 2021.

And during the COI last year, they went on the offensive: Attorney General Dawn Smith argued on their behalf that Ms. Romney-Varlack had committed a criminal offence by breaching confidentiality when she notified Governor Gus Jaspert of members’ serial violations.

COI Commissioner Sir Gary Hickinbottom, however, rubbished that claim, concluding that any criminal proceeding against the registrar for such allegations would be “unforgivable.”

“Indeed, rather than threatening her with possible criminal proceedings for trying to do her job, it seems to me that she should be commended for her efforts — entirely in the public interest — to get elected officials to comply with their constitutional and statutory obligations,” Sir Gary wrote in the report. “For 13 years, she attempted to make the scheme of the 2006 act work, to be frustrated at ever turn by members of the House of Assembly who owed the primary obligations under the act.”

‘Failed to comply’

According to the commissioner, 20 current and former HOA members were questioned about the register during the COI.

“The evidence revealed that nearly all of the current and former members failed to comply with their constitutional and statutory obligations to file declarations in relation to their interests, and, more broadly, it painted a picture of general disregard of these obligations,” Sir Gary stated.

All the members failed to file declarations on time, even after accepting that a late declaration would breach the legislation, the report stated.

Some members were in breach for several years, including then-Premier Andrew Fahie, who was up to three years late, and Eighth District Representative Marlon Penn, who was up to four years late, Sir Gary wrote. Fourth District Representative Mark Vanterpool didn’t make any declarations for six years between 2011 and 2016, Sir Gary added.

Attempts

Ms. Romney-Varlack regularly wrote to each member before their declarations were due and sent delinquency notices afterwards, according to the commissioner.

In 2008, she told then-Governor David Pearey that members were late with their declarations and suggested amending the statute to include public officers and make the register public, Sir Gary stated.

In subsequent years, she reiterated those suggestions repeatedly, according to the report.

“The registrar herself said to the [Standing Finance Committee] in 2014 she was ‘practically begging members to desist from contravening the statute and to do what is required,’” Sir Gary wrote.

Ms. Romney-Varlack also pressed regularly for the formation of the Register of Interests Committee, the HOA body charged with approving the format of the register and accepting the registrar’s reports of late declarations.

When the committee was finally established in 2016, it included Mr. Vanterpool as chairman, as well as Mr. Fahie and Mr. Penn — all of whom were years late in making declarations.

“The committee has never met. The format of the register remains unapproved so that there is still no register: It is, even now, a ‘blank book,’” Sir Gary wrote, adding, “There has never been a system of registration of interests that has worked properly or, indeed, worked at all to the extent that, over 20 years after the introduction of the requirement of the Constitution for a register of interests, there is still not even a register.”

Letters to governors

Sir Gary noted that the reg- istrar’s 2020 correspondence with Mr. Jaspert — who she’d sent a memorandum detailing the members’ default, along with copies of her correspondence with three of the most serious offenders — was not the first time she sought assistance from governors to encourage members to comply with their obligations.

“It was not secret,” he added. “Amongst others, the former premier had been copied into some of the exchanges.”

The attorney general, however, argued that Ms. Romney-Varlack’s correspondence with Mr. Jaspert and others was illegal because of her obligation to keep the register’s contents confidential.

Instead of writing to governors, Ms. Smith alleged, the registrar should have submitted a report to the Register of Interests Committee, waited for the committee to consider the report within 21 days, and then sought an order of the High Court to enforce the obligation.

Providing governors, the Standing Finance Committee and speakers of the House with information about members’ delinquency made her a persistent offender, the AG submitted.

Ms. Smith added that the registrar’s actions demonstrated her “misunderstanding of the nature of her role, which is to be independent of all other institutions of government, including the governor,” according to testimony outlined in the COI report.

“The practice of encouraging the registrar to resort in secret to the governor to apply ineffectual political pressure, thus compromising her independence and the observance of both her statutory duty and her oath of office, let alone contrary to both [governors] secretly requesting her to provide confidential information, was fundamentally opposite to that which good governance required,” the AG wrote in a submission to the COI.

‘Ironic ’ position

But Sir Gary deemed the AG’s submission “ironic” given the “disdain” shown by HOA members for the registrar. The registrar was tasked with keeping members’ interests confidential, but justified in her decision to expose their delinquency, Sir Gary concluded.

“It is clearly in the public interest, in enhancing public confidence in elected officials, to know that they have complied with these obligations,” he wrote. “It is clearly in the interests of good governance that whether members have or have not complied is made public.”

Sir Gary added that any investigations into the registrar would have to be conducted by the criminal courts.

“What concerns me is that elected public officials, who are in clear and persistent breach of their constitutional and statutory obligations, have sought to defend their position in part by attacking the registrar of interests (an independent office holder entrusted with the task of keeping the register) and successive governors (notably former governor Mr. Jaspert) who have merely sought to encourage them to comply with those obligations,” he said. “It seems to me to be an example of the lengths that elected public officials will go to avoid legitimate controls — in this case, controls imposed by the Constitution — on their behaviour.”

He added that he found the attack on the registrar “particularly inappropriate” given her many requests for HOA members to establish the committee required to accept her reports.

The law

According to Section 112 of the Constitution, HOA members are required to declare all potential conflicts between their personal interests and the public interests before an election, after an election, and thereafter annually.

Legislation requires that a register of those interests be kept and that a registrar be appointed by the governor, Sir Gary noted. During the COI, HOA members also noted that they found some areas of the law unclear, and they raised questions including which interests to declare.

The law lists 10 categories of interests, including directorships in companies, services, sponsorships, gifts, overseas visits, interests in commercial land, and shareholdings.

Each member had their own interpretation of the categories, and listed their interests in accordance with their views, Sir Gary noted.

“There is, consequently, no standard understanding with regard to the requirements of the declaration form and hence the 2006 act,” he wrote.

The law also refers to a guidance pamphlet that has never been issued or received by HOA members, the COI found.

Penalties

The Register of Interests Act 2006 also provides penalties for breaches.

If an HOA member fails to make a declaration within three months of the deadline or makes a statement that the registrar deems false or misleading, the registrar is required to submit a report of the breach to the Register of Interests Committee, according to the law.

The member must remedy the situation by first making a declaration. If he or she fails to do so, the Register of Interests Committee must present a report to the HOA. The HOA must then debate it and may impose a fine up to $5,000 or suspend the member from sitting for two consecutive meetings.

Also under the act, HOA members can make allegations against each other to the registrar. The registrar is required to bring such allegations to the Register of Interests Committee, and a hearing must follow. If the committee finds the allegation justified, the member may be subjected to a $5,000 fine or suspension.

However, since the committee wasn’t formed until 2016 and it hasn’t met since then, no enforcement procedure is in place, Sir Gary found.