Government leaders viewed the $83 million-plus cruise pier project as a tool to retain power in the 2015 elections, according to undisputed evidence given at a trial last Thursday involving former ports head Claude Skelton-Cline’s lawsuit against government.
Allegedly against the wishes of four ministers, Cabinet opted not to renew Mr. Skelton-Cline’s contract after it expired on Dec. 1, 2015, spurring the former managing director to file a lawsuit several months later.
The trial for that lawsuit began last Thursday, and mostly involved technical legal arguments over whether Mr. Skelton-Cline has the right to seek redress from the court over his non-appointment.
But undisputed evidence given at the trial also revealed intricate details about the inner workings and political machinations of government, including apparent disagreements between ministers; efforts by Cabinet to keep much of the decision-making process over Mr. Skelton-Cline’s reappointment confidential; and the opinions of officials about how the pier park project influenced the 2015 elections.
2015 election
For most of 2015, Mr. Skelton-Cline — a church minister who ran unsuccessfully as the National Democratic Party’s candidate for Second District representative in 2011 — was under the impression that his contract would be renewed, his lawyer, Tana’ania Small-Davis, told High Court Justice Vicki Ann Ellis last Thursday.
In January 2015, the BVIPA board passed a resolution to reappoint Mr. Skelton-Cline as the agency’s leader, and provided that resolution to Communications and Works Minister Mark Vanterpool on the 28th of that month, Ms. Small-Davis said.
The next month, Mr. Vanterpool told Mr. Skelton-Cline that Cabinet was “favourably considering” the BVIPA board’s resolution, she said.
However, ministers apparently also wanted to know whether the cruise pier project had progressed to the point where they could call for elections: Mr. Vanterpool told Mr. Skelton-Cline that his colleagues in Cabinet “had questions about progress of the pier park project and the delivery date, in the context of them wishing to call general elections,” according to Ms. Small-Davis.
Soon after that alleged conversation between Mr. Vanterpool and Mr. Skelton-Cline, the expanded cruise pier opened to much fanfare, including a $110,000-plus ceremony with fireworks over Road Harbour on April 29, 2015.
Within a week of the ceremonial opening, Premier Dr. Orlando Smith called for government to be dissolved, and shortly thereafter elections were scheduled for June 8, 2015.
The NDP romped its way to a landslide victory in those elections, winning 11 of the 13 House of Assembly seats.
Party members allegedly attributed the pier park project — which at the time was represented to cost in the $50 million range — as a deciding factor in their victory.
“What had been communicated to [Mr. Skelton-Cline] was approval and words of compliment to the job he had done; that, in fact, the common thought was that it is the cruise pier park that won the election,” Ms. Small-Davis said.
Criticism
While officials may have viewed the pier park as key to their victory, increasingly negative criticisms about the project began to emerge during the latter half of 2015.
In July of that year, former project consultant Hugh Darley told the Beacon that Norwegian Cruise Line — which had committed to deliver at least 300,000 passengers here annually for 15 years and pay a $15 head tax on each one — was only paying a $7 head tax per passenger due to construction delays with the landside development.
Then, on Dec. 1, 2015, the project missed its deadline for “substantial completion” of the park, which gave Norwegian the right to opt out of its commitment. (The cruise line did not opt out, but continued to pay the reduced head tax.)
Dec. 1 was also the day Mr. Skelton-Cline’s contract expired, and the day before Cabinet was scheduled to decide whether to confirm the BVIPA board’s resolution to renew the contract, according to Ms. Small-Davis.
Four of the five ministers allegedly supported his contract renewal, but Cabinet did not make a decision that day: Mr. Skelton-Cline was told by “a minister” that the resolution was inexplicably withdrawn by Dr. Smith, who was out of the territory at the time, Ms. Small-Davis said.
Mr. Skelton-Cline’s attorney said that even though he wasn’t under contract, Mr. Skelton-Cline continued to show up to work until Dec. 7.
But on Dec. 8, a BVIPA board member allegedly told him that the department’s deputy managing director, Al Henley, was being appointed as acting managing director.
With still no word on the status of his contract renewal, Ms. Small-Davis said, her client wrote Dr. Smith on Dec. 31, 2015, expressing “great dissatisfaction” that his status with the BVIPA remained in limbo.
“I wish to give an opportunity to the Cabinet to address this long-outstanding matter, which must be concluded before Wednesday, Jan. 13, 2016 — failing which I will instruct my lawyer to take further action as necessary to protect my position and my reputation,” the letter stated, according to Ms. Small-Davis.
On the same day he wrote that letter, Mr. Skelton-Cline allegedly received a phone call from “a minister,” who told him he couldn’t see how the contract could be renewed because it wasn’t in the territory’s interest.
“When asked what was it that he did [wrong], there was no response,” said Ms. Small-Davis. “Then the suggestion was put to [Mr. Skelton-Cline] that he should put a proposal for settlement.”
Outside of court after the trial session last Thursday, Mr. Skelton-Cline and his attorney declined to tell this reporter which minister called him on that day. Dr. Smith also declined to comment on the matter.
Overruns kept secret
More major events with the pier park project unfolded in the weeks after that alleged phone conversation, including Dr. Smith’s Jan. 21 announcement that he was commissioning an audit of the development; Mr. Vanterpool’s Jan. 25 announcement that the project cost some $30 million more than what was originally stated; and Tortola Pier Park’s “grand opening” on Feb. 16.
Mr. Vanterpool also admitted to the Beacon in a January 2016 interview that much of the cost overruns had been known since 2014, but were kept from the public.
With no renewal at hand, Mr. Skelton-Cline filed his lawsuit against government on Feb. 23, 2016.
Despite the lawsuit, there was apparently still a possibility that Mr. Skelton-Cline’s contract could have been renewed at the time, as Cabinet did not officially reject his renewal until April 6, 2016, according to Ms. Small-Davis.
Before that rejection, several legislators made public statements in support of Mr. Skelton-Cline, including Mr. Vanterpool, whose ministry has responsibility for the BVIPA; backbencher Mitch Turnbull (R-D2); and Health and Social Development Minister Ronnie Skelton.
“The guy did a wonderful job. I didn’t know he had all that skill,” Mr. Skelton said of Mr. Skelton-Cline, his nephew, on March 31, 2016 in the House of Assembly.
Mr. Skelton-Cline also held a televised press conference on April 5, 2016, where he defended his tenure as the BVIPA managing director and said he sued government to protect his reputation.
The next day, Cabinet made the decision to reject his renewal, according to Ms. Small-Davis.
A Cabinet memo was drafted about that rejection, explaining that government wanted a BVIPA managing director with more relevant skills to both oversee Tortola Pier Park and run the rest of the ports, the attorney said.
That memo was obtained by Ms. Small-Davis after the High Court ordered Cabinet to produce it to be used as evidence, she said. However, Cabinet gave the court a heavily redacted copy, with several paragraphs blotted out in black ink, including ones that explain the project’s background, she said.
Ms. Small-Davis criticised the Cabinet for not producing the memo in its entirety.
“I do not see why background information is secret,” she said.
Invalid reason?
Nevertheless, the attorney said the reason cited in the memo for declining to renew Mr. Skelton-Cline’s contract is invalid.
She argued that Mr. Skelton-Cline was never told that Cabinet wanted a BVIPA managing director with more relevant skills; that the current acting managing director does not have any greater skills in running ports than her client; and that the fact that Mr. Henley is still acting as managing director suggests that the issue of finding an MD with more relevant skills “must not be that important” to government.
At the time Mr. Skelton-Cline was brought on board the BVIPA as a consultant in 2011, he was a church pastor with no apparent ports experience.
Ms. Small-Davis added that the memo does not explain why it’s not in the territory’s interest to reappoint Mr. Skelton-Cline — as was allegedly claimed by a minister on Dec. 31, 2015 — and that the decision to reject his renewal may have been politically motivated.
“[Cabinet’s decision] ought to be fair, candid and unprejudiced; not arbitrary, capricious or biased — much less warped by resentment or personal dislike. And we say that there is evidence of that in this case — of arbitrariness and capriciousness, and perhaps some other elements in terms of the politics that are involved,” she said.
Gov’t position
The Attorney General’s Chambers, for its part, did not dispute any of the facts presented by Ms. Small-Davis, but said that those facts do not mean that Mr. Skelton-Cline has a valid legal claim against government.
“You may be disappointed that you are not appointed to a position, or may be disappointed that you were not promoted, but not every disappointment in life leads to a valid course of action,” said Senior Crown Counsel Giselle Jackman-Lumy. “Their argument may be, ‘You could have handled things differently; you could have handled it better.’ And that may very well be so. But that is a distinct question from whether or not the way it was handled leads to a valid course of action.”
The Crown counsel also cited other cases where judges ruled that employees of statutory bodies do not have the same rights to judicial review as central government employees.
With Ms. Small-Davis’ arguments taking up most of the day, Ms. Jackman-Lumy only had about 90 minutes to present government’s side of the case before the trial was adjourned until July 4. The next hearing will likely entail government presenting most of its arguments, as Ms. Jackman-Lumy said she was only on page three of her 13-page submission when the trial adjourned.
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