Concluding hearings for the first of six major topics it plans to investigate this summer, the Commission of Inquiry called legislators from the present and past to answer for their annual declarations of interest, the vast majority of which were filed months or even years late.
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One of the longest delays came from Opposition Leader Marlon Penn, who submitted documents up to four years late on two occasions even though he was on the standing select committee belatedly established in 2016 to oversee the Register of Interests.
His opposition colleague Mark Vanterpool did not submit any declarations between 2011 and 2016, when he was appointed to chair the same committee, which has only met once.
Premier Andrew Fahie acknowledged that he has submitted batches of declarations only twice during his time in government: once in 2017 and again this year.
Nevertheless, Mr. Fahie and other legislators denied suggestions from the commission that they felt their duty to declare their interests was unimportant, in spite of their repeated failure over several years to meet the deadlines even after receiving repeated reminders from the registrar of interests.
Other current HOA members who appeared before the COI from June 16 through June 21 include opposition member Mitch Turnbull, Deputy Premier Dr. Natalio “Sowande” Wheatley, House Speaker Julian Willock (see page four), opposition member Mark Vanterpool, and Health and Social Development Minister Carvin Malone.
Opposition leader
Mr. Penn testified on June 17, touching on topics including his role on the standing select committee charged with overseeing the declarations of interest.
He was first elected in 2011 with the National Democratic Party, and he won his re-election bids in 2015 and 2019.
The declarations of interest are due the day of a member’s swearing in, and on every anniversary as long as they serve. If one is more than three months late, the registrar of interests is required to send a formal report to the standing select committee for further action.
However, multiple HOA members noted that this committee has only met once after it was formed belatedly in 2016 — and that it never considered such reports.
Mr. Penn confirmed that after receiving repeated reminders from the registrar, he submitted a declaration that was originally due Dec. 8, 2013 on Feb. 21, 2017, along with the overdue reports for 2014, 2015 and 2016.
Then on Feb. 16, 2021, Mr. Penn submitted his declarations for 2017, 2018, 2019 and 2020, he confirmed.
His 2021 declaration was due March 12: It was stamped by the registrar on May 25, but Mr. Penn contended that correspondence between his secretary and the registrar shows it was submitted ahead of the deadline.
According to Mr. Rawat, Mr. Penn didn’t disclose any interests on any of his forms.
“Through all nine forms, you have in fact answered ‘no’ to every single question,” Mr. Rawat said.
The opposition leader acknowledged that he missed the deadlines repeatedly and said he has made adjustments to ensure compliance in the future.
Select committee
However, COI Counsel Bilal Rawat asked why he neglected to say he was delinquent when accepting his nomination to the standing select committee in 2016 and again in 2019.
“Did you not anticipate that there could be a conflict of interest for you in allowing your name to be put forward?” Mr. Rawat asked.
“Probably,” Mr. Penn responded, giving no explanation for the oversight.
“If the committee had asked the registrar to provide a report outlining the extent to which members were compliant, without going into details about what they had declared to her but simply whether they had submitted by due dates, you would have been in a very difficult position, wouldn’t you?” Mr. Rawat continued.
“Yes, I would,” Mr. Penn responded.
Mr. Rawat pressed on: “For people who have been nominated to the committee, there is another difficult position, isn’t there? Because it’s beneficial to them that the committee should not meet and not take action. Isn’t that right?”
Mr. Penn replied, “I won’t subscribe to that particular position. My intention was never to be a nefarious activity — no nefarious means for me to not file my declarations.”
Mr. Rawat pressed the opposition leader for a firm answer as to whether the system for elected officials disclosing their interests doesn’t work, evidenced by his extreme delay in submitting with no consequences.
Eventually, Mr. Penn stated, “I accept it’s not working effectively.”
The premier
During the premier’s appearance on June 18, the COI noted that Mr. Fahie’s 2021 declaration listed his interests as Big Ben’s Corporations, Big Ben’s Superette, Big Ben’s Piano School, Big Ben’s Properties, and a “purpose-driven consultancy” in Organo Gold.
However, the premier wrote that all these entities were “basically dormant” and he said that he received no remuneration from them.
The Canada-based Organo Gold, according to a 2014 report from CBS News, is “a multi-level marketer of coffee and personal care products that has been dogged for years by consumer complaints.” At least one United States Federal Trade Commission complaint called it a “pyramid scheme,” according to CBS.
Under “miscellaneous,” the premier listed a building on Sage Mountain with four apartments “in which three are rented and my family and I live in one.”
He also listed “a dot-com enterprise” which has not yielded any significant remuneration to date, and a trade licence for himself doing business as an entity called “I Deliver Reality,” according to Mr. Rawat. He also listed a natural medicine business.
System failure?
Mr. Rawat also asked the premier about the register’s shortcomings, noting that he was two years late submitting his 2015 declaration and repeatedly late thereafter. The COI did not mention earlier declarations.
“The system doesn’t work,” Mr. Rawat concluded. “And the reason the system doesn’t work is because legislators do not accept that it applies to them. They don’t see it as important, do they?”
Mr. Fahie replied, “That is your conclusion.”
The premier went on to express commitment to learning from mistakes and improving the current system despite the previous failures, and he added that he intends to propose new ideas and new legislation to cope with such issues.
“The House has already dedicated itself to improving this system, and the government side is working feverishly to get to Cabinet the legislation that is going to hold us more accountable in a manner that we cannot even miss [the declarations] without the registrar giving us a prompt now and again,” he explained.
However, the commissioner and his team suggested that simply setting reminders may not be sufficient.
“A calendar on a computer might do the same thing,” Mr. Rawat said, adding, “Irrespective of party, irrespective of experience, irrespective of length of time in the House of Assembly, repeatedly, this is a statutory obligation that members of the House of Assembly current and past simply had no regard for.”
It was telling, he added, that none of the repeated correspondence the registrar sent to the premier ever elicited any return correspondence.
A ‘journey’
But Mr. Fahie countered by saying that good governance is a “journey,” and that nobody outside of the VI can know what it’s like to lead the territory, stating that the government of the VI in its current form is barely 70 years old.
“We are now putting all the different institutions in place and further strengthening them so that when we reach the point of self-determination, whenever that is, we have shown that we can further police ourselves,” he said. “[The Register of Interests] is an area that we are weak in, but it does not define who we are as citizens, does not define who we are as a people. So I will sit here and say yes, we’re guilty of not putting the importance of this to the level it should be. And the registrar has done her job. But this isn’t because we don’t think it is important.”
Select committee
The premier also provided an explanation for why the standing select committee that oversees the register only met once since its establishment in 2016.
“So things were a little busy in the political atmosphere, to be fair to the former chair, Mark Vanterpool,” he said. “So we didn’t have a meeting, or we didn’t have another one.”
He declined to say whether it was normal for it to take six months after an election to establish a standing select committee.
“There were committees that took a little while as far as I could remember,” he said.
However, he agreed that the declaration form needs revision, as he and other members came to different conclusions about the meanings of several questions.
“The form isn’t the only problem: The institution building on it is,” he said. “And also some extra layers of laws to help with the timeliness [are] needed.”
Vanterpool
Mr. Vanterpool, who has chaired the standing select committee, said during his June 18 testimony that he did not file any declarations of interest from 2011 to 2016, despite receiving a series of letters from the registrar urging him to do so.
He became the chair of the committee when it was formed in 2016, and he confirmed that it only ever met once. He also acknowledged the conflict of serving in the position while delinquent with his own reports.
By way of explanation, Mr. Vanterpool said, “The standing order did not include such a committee, and therefore this committee had to be continued to make that adjustment to establish such a committee. Now there is no excuse for taking that long for that to happen. But until the standing committee was convened and revised to include such a committee, it wasn’t done.”
According to Mr. Rawat, in the legislator’s written submissions to the commission, Mr. Vanterpool did not answer a question about whether he had ever made a full disclosure of his interests.
Prompted by the counsel, Mr. Vanterpool acknowledged that he inadvertently neglected to declare two businesses in which he held an interest during the years in which he did make declarations: Umbrella Construction Limited and Shoreside Development.
Mr. Rawat also noted that Mr. Vanterpool didn’t directly answer questions on a form sent to him by the COI, but instead enclosed copies of previous submissions he filed with the registrar of interests as his response to the questions.
“And what you say there is, ‘I enclose all documents relevant to the above in my possession at this time,’” Mr. Rawat said. “Why didn’t you disclose that for six years you had not even filed a single declaration?”
Mr. Vanterpool responded, “Commissioner, I would not try to defend anything or try to make an excuse. It was not done. It was negligent on my part and I have learned my lesson from that.”
Mr. Rawat asked, “From your perspective, why is that such an onerous obligation?”
The legislator, however, disputed the characterisation of the submissions as “onerous.”
“I suggested it was negligent on my part because it wasn’t done,” he said.
Deputy premier
Dr. Wheatley was also delinquent, submitting his form due March 12, 2019 the following September. He told the COI that the registrar made him aware of the missed deadline and provided guidance for subsequently filing. His 2020 declaration was stamped June 10, and his 2021 declaration was stamped June 13.
He also raised the question of exactly how many days would be considered three months overdue, as his 2021 declaration was outside the three months by just a day if the period is equivalent to 90 days.
Dr. Wheatley said he was somewhat uncertain about the need to disclose a 2019 trip to France that was partly funded through the public purse and partly through personal funds, but he now understands that only travel funded by another outside entity need be declared.
He agreed that some revision may be needed for clarity about when the interests of immediate family need to be disclosed.
Turnbull
Mr. Turnbull testified on June 16, detailing his submissions since taking office in 2015. He was late by less than a month for 2015, about a year for 2016, four days for 2017, about two years for 2018, by a few months each for 2019, 2020 and 2021.
In his declaration, he listed a boutique owned by him and his wife that he said closed about two months after he took office.
His declarations regarding Gene’s Bar and Grill changed throughout the years as his involvement evolved and plans for incorporating the business changed, he explained, noting that he currently is a part owner of the what he described as a “doing business as” entity.
Health minister
When Mr. Malone appeared before the COI on June 21, he went over his declarations since his appointment on March 12, 2019.
The minister confirmed that he filed his 2019 declaration a month after the deadline and his 2020 declaration just over a year late. His 2021 declaration wasn’t stamped until April 19, about a month after the deadline, according to the COI.
However, he refuted that he was delinquent every year; he characterised the three-month deadline after the initial deadline as a “grace period” and did not immediately accept that missing both deadlines meant he was in breach of the law twice. The COI later heard submissions from witnesses’ legal representatives about what counted as a breach.
Mr. Malone took a different approach to the form than his colleagues, using it as a guideline for documents he attached to describe his multitude of interests in directorships, remunerated positions, and stockholdings.
The commission particularly probed his interests as a businessman. Mr. Rawat questioned whether it was a conflict of interest for him to be involved with a waste management company that held a government contract with his own ministry, the Ministry of Health and Social Development.
Mr. Malone said he made a concerted effort to separate himself from the business’s daily operations and instructed his government staff to handle any matters relating to the business.
“There were many attempts to have it taken altogether from me in earlier years, but being number one in the number two business, others saw it fit to let who’s best at it remain,” Mr. Malone said.
He claimed that his role as an elected official has in fact put him at a disadvantage with his business dealings, citing his inactivity in seeking contracts for CBE Engineering Associates Ltd.
Mr. Malone holds a 100 percent share in the business as the director, he said.
He also disclosed interests in a variety of other companies, including Island Block Corporation Limited and firms involved in property investment, communications, cellular services, water desalination, and more.
Public register
This week, most members generally continued to share their support for making the Register of Interests public and considered other possible amendments as well.
Currently, the government is working on an amendment that would make the register publicly accessible, Attorney General Dawn Smith said during her hearing on June 14, though she noted that the amendment hadn’t reached Cabinet yet.
When questioning Mr. Penn, the commission asked if he would support making the register public. He replied that he had no objection in principle, as long as particularly sensitive personal information is protected.
Mr. Rawat also asked if he would support an amendment to the Registry of Interests Act requiring public officers to declare their interests as well as elected officials.
Mr. Penn said the move would need some consideration by the House, but he didn’t oppose it in principle.
Mr. Vanterpool added during his hearing that he had “no objections” to the register being disclosed to the public, despite being “a bit cautious” about which details of business interests would be revealed.
Mr. Malone showed similar cautious support.
When the premier was asked about his support for a public register of interests, he said it was a discussion he would like to have, but he also made a distinction between a truly “public” register and a “publicly accessible” register.
When pressed, he said he is in favour of a “publicly accessible” register, in which people requesting information must explain why they want it and what they plan to do with it. There must be “some safety nets for whoever is elected,” he added.
Dr. Wheatley expressed similar hesitation, saying, “I support transparency, and I support having proper checks and balances. Now the question of whether the public has access to it versus another body is one, I think, that needs to be discussed more.”
But ultimately, he said he would support opening the register to a competent body charged with investigating possible conflicts. He added that even politicians should be afforded some amount of privacy.
Campaign finance
Several members were also asked in the first round of hearings if they would agree with implementing campaign finance laws. All said they would support the move.
Mr. Penn was part of an ad hoc committee, chaired by Deputy Governor David Archer, that last year considered recommendations for campaign finance policies like requiring political parties to register in the territory, setting spending maximums, and increasing transparency with the costs of campaign ads.
Mr. Penn said a report on the recommendations was submitted to the House and discussed, but no further action was taken.
Another member of the committee was Dr. Wheatley, who said in addition to the formal meetings, community members have been discussing election regulations for a while.
Mr. Turnbull said he “wholeheartedly agreed” that measures like party registration would be a step in the right direction for reducing the risk of corruption in VI elections.
When the premier was asked about campaign finance reform, he replied, “You need it so that you can show to the people of the Virgin Islands and yourself that you have the ability as a country of moving towards self-determination, to police yourself.”
Exemptions
The commission also touched briefly on a few other governance matters, like when Cabinet members recused themselves from official business due to potential conflicts of interest and when House members have sought permission to keep their seats even when their business interests seek work with the government.
Mr. Rawat cited two House resolutions in September 2020, one of which exempted Mr. Vanterpool from the constitutional requirement to vacate his seat due to the fact that his company K-Mark Foods, the parent company of One Mart, signed a contract with government to provide food packages to residents in need.
Mr. Vanterpool said in that case, he was approached by the Department of Disaster Management and invited to supply the packages.
In the House resolution related to that arrangement, K-Mark was described as “providing services for the sales of general food, furniture, appliances and household items for all government ministries and departments and the residence and offices of the governor.”
Mr. Vanterpool said that he was exempted in the case of his contract to provide food packages during lockdown, but he was not “regularly exempted” in the case of providing ongoing general food items for government.
“Those I don’t consider as contracts. We’re a supermarket,” he said, explaining that he doesn’t know when someone comes in to buy food whether that person is a government official.
The second resolution, which took place on the same day, concerned the transfer of Crown land to Shoreside Development BVI Limited, for which he is a director.
In that case, he explained, the Ministry of Health and Social Development was purchasing approximately six acres of property from an individual, a portion of which contained a seabed lease of which four years had expired.
“In order to consummate the purchase of the property, the Crown lease would have had to be transferred to Shoreside,” he said.
He added that he did not know how much time had elapsed between the application for the transfer and when the transfer was completed. The commission had no further questions.
Digitising
Mr. Penn said he has sought only one exemption, in 2012, to allow him to finish helping the Financial Services Commission with digitising its systems shortly after being elected.
“My institutional knowledge was critical, so they sought my expertise after the election,” he said.
He added that the exemption wasn’t strictly necessary because the commission is a statutory body — not central government — but he formally requested it for transparency’s sake.
Mr. Penn said he hasn’t voted on many exemptions since taking office, estimating five in 2011- 2015, perhaps none in 2016-2019, and three in the current House.
Mr. Malone said he has sought exemptions in 2019 for Island Block to provide properties to ministries; in 2019 for Caribbean Basin Enterprises BVI Limited to provide treatment plant services; and in 2020 for Island Block to provide space for a temporary record centre.
Mr. Turnbull said he’s never sought exemption.
Recusals
Mr. Fahie told the COI that no Cabinet members had ever approached him about a “lack of clarity” on conflicts of interest, or about whether they should recuse themselves from Cabinet meetings due to such conflicts. However, he said that it it traditional for members to recuse themselves if needed.
Asked if he had ever recused himself due to conflict of interest, he replied, “I can’t say yes or no. I can’t recall because I don’t want to say no and then records show that I did it.”
Mr. Malone said he recused himself on April 3, 2019 over a contract with Road Town Wholesale Trading Limited because of his role with the board of directors; on April 17, 2019 on the rebuilding of Elmore Stoutt High School because of his brother’s involvement; on July 26, 2019 because of his brother’s nomination to the Planning Authority; on Nov. 7, 2019 regarding an office space relocation involving one of his companies; and finally in Feb. 5, 2020 concerning a Crown land grant to his niece.
He said it is important for members to be transparent about their interests and recuse themselves when necessary, but he added that this requirement must be balanced with officials’ ability to participate in Cabinet proceedings.