Fifth Special Report

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'(!")(!&* This special report is made necessary by the Government’s failure to respond, in any way that could be considered adequate, to findings of deliberate and egregious maladministration resulting in preventable financial loss as well as considerable personal discomfort and distress to the complainant.

Summary of report In this case, the complainant, Marta (not her real name), runs a small business in rented premises in the Crafts Alive Village that the Department of Trade and Consumer Affairs manages. She complained to the department in 2009 about the electricity supply to her unit having been turned off, quite clearly by a person, causing her financial loss in the hundreds of dollars. She reported on her suspicions as to who had turned off the supply and requested specific action to prevent a re-occurrence.

The department did not acknowledge or act on her complaint. The electricity outage happened again in 2010, twice, with the same results.

No action was taken until the Permanent Secretary in the Premier’s Office finally gave the department head specific instructions followed closely by the Commission’s intervention on receiving a complaint.

The department and Ministry also ignored Marta’s complaints on the matter of illegal smoking by visitors to the village in the environs of her business, apparently encouraged by a neighbouring tenant, and continued to do so until one day in January, 2011 when, as Complaints Commissioner, I telephoned the responsible Director to request her attendance at the site to deal with a distress call from Marta. The smoking had caused the complainant considerable respiratory distress over the previous two years.

I found that the department had a history of ignoring Marta’s complaints and that this maladministration resulted in injustice to her. I recommended an apology as well as reimbursement of a small part of the claimed financial losses. I also found a degree of looseness in the management of the tenancies at the village that made it difficult to curb excesses by individual tenants. I made general recommendations to fix this situation.

Four months later, neither the Department of Trade nor the Ministry (the Premier’s Office) has responded to indicate what action they intend to take on the recommendations.

CALL TO ACTION The House of Assembly needs to consider what steps it can take to persuade the Government to take proper action in this case and, in general, to reduce the impunity with which some officials mistreat individual members of the public, trample on their right to obtain good service, fail to comply with their service charters, with the General Orders of the Public Service (that command courteous, prompt responses) and the standards of good administration, and ignore the Complaints Commissioner’s recommendations.

Elton Georges Complaints Commissioner

)+$%*+$##","&* 1. Electricity Outages

21st September, 2011

1.1 On 23rd March, 2009 Marta arrived at her unit to find the electricity disconnected from her cooler (or freezer), refrigerator and some lights, but not the overhead lights: these came on. Many of the frozen items that were for sale had melted and water was running on the floor. With the assistance of other occupants in the area she eventually traced the outage to a circuit breaker that was turned off. This breaker was located in a box on other side of the hut, which another tenant, Karenne, occupied. Turning back on the breaker restored the power. Marta immediately wrote to the Director, Trade and Consumer Affairs (“the Director”) to report the incident, report the loss (estimated at $850.00) and name witnesses, and to voice her suspicion that Karenne had maliciously turned off the breaker. She requested that as a matter of urgency a lock be placed on the breaker box to prevent future tampering. This request was made at the suggestion of the maintenance worker employed by DTCA. 1.2 Nothing happened. She received no reply. She wrote to the Permanent Secretary (PS) on 4th January, 2010. In this letter she referred to the above request, inter alia, and informed that to date she had not received a reply, nor had action been taken. Nothing happened following this letter either.

1.3 A similar incident occurred again on 1 October, 2010 nearly 1! years after the first. Marta was at the shop when power failed. After 3! hours she became suspicious that this was not a general outage as she had assumed, and on checking next door found that the circuit breaker had been turned off. She wrote to the Director to inform her, remind of the request some 18 months before and to request this time that the breaker in question be moved to her side of the hut at her, Marta’s, expense if necessary. No reply.

1.4 Marta’s son on 21 October, 2010 discovered that there had been another mysterious meltdown of products in the freezer, though at the time of the discovery the power was on. The suspicion was immediately aroused that the breaker had been turned off during the previous day when the shop had been closed for the day. On this occasion she e-mailed the PS to request her “urgent intervention and assistance to bring this situation to an end”.

She also filed a police report. By e-mail on that day the PS asked the Director to “take immediate remedies to have the necessary electrical work done to allow Marta to have her electrical panel under her control”. When nothing had happened a month later Marta filed a complaint on 22nd November, 2010.

1.5 On that same day, by coincidence, the Director instructed the Consumer Affairs Officer (CAO), Mrs. C. Hodge, to contact the Electrical Unit of the Ministry of Communications and Works to request their assistance with the Crafts Alive problem. Communication problems prevented a meeting until 30th November when the head of the Unit met at the village with the CAO. He advised that the DCTA contact PWD to have the work done. The CAO set about making the contacts and request but owing to various delays the work was not slated to be done until Friday, 10th December. The electrician actually turned up on 13th December and moved the circuit breaker box over. A period of 20! months had intervened since the first request for a simple lock on the circuit breaker box.

2. Smoking

2.1 Documentary evidence established that on 4th January 2010 Marta wrote to the PS to report that it was over a year since she had been in communication with Karenne, the neighbouring tenant, about the effects of

the smoking by customers, mostly tourists, at a table that Karenne would place outside her unit. As a sufferer from asthma, cigarette smoke caused Marta considerable respiratory distress. Moreover, the smoking in that area was against the law. Marta repeatedly went to visitors to explain this, but the practice continued. (On 2nd January, two days before the letter, the police had responded to a call from Marta and they had reportedly admonished Karenne not to encourage her customers to smoke). Marta asked the Department to have prominent signs displayed and take other measures taken to inform visitors about the smoking laws. She received no reply to that letter.

2.2 On 15th December, 2010 the CAO, in response to my query to the Director about this complaint replied that she was aware of it, but it was difficult to police the no smoking rule. The Department was relying on the tenants to do so. (Of course, in this case a tenant appeared to be a major part of the problem, encouraging customers to smoke.)

2.3 When on 26th January, 2011 Marta called the Commission over another crisis brought on by persons smoking in the proximity, we called the Director. Our call resulted in a visit by her and the CAO. They were able to mediate what seemed like an accord, with Karenne agreeing to cooperate in keeping the environs smoke free. I requested, but have not seen, any written evidence of such an agreement.

3. Trade Licence

3.1 Marta wrote to the Director on 21st February, 2010 to confirm a request made orally months before to amend the business licence to include locally made food items and beverages. At the time of the complaint she had received no reply. The Director has said that she had not seen the written request, and the CAO had also not seen it. They now have copies and have undertaken to act on the request.

4. Background

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Much of Marta’s trouble that gave rise to approaches to the DCTA came out of the behaviour of the neighbouring tenant, whom we call Karenne. The apparent inability or unwillingness of the department to do anything about this behaviour led me to inquire into the regime under which the tenants hold the places they do in the village. The information received from the Director and the CAO, and from their files, was astonishing and is here summed up.

The original idea behind the development was that it was to be an ‘incubator’ of small businesses producing and/or selling locally made items for the tourist market. Tenants would be allowed space for a maximum of 5 years. Very few tenants are producing such items, they stated.

There were some 14 original ‘tenants’ – or more accurately, occupants – dating back to the late 1990’s, who remained when the refurbished village with the present buildings was opened in 2002. So the 5 year limitation idea was never adopted nor implemented.

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These occupants and some 7 additional ones were approved by Executive Council (ExCo) for space in the refurbished village on the basis of a draft lease that ExCo subsequently approved. Curiously, the lease was to be between the individual tenants and the Wickhams Cay Development Authority (WCDA) with the DCTA mentioned as manager.

No lease was, however, ever executed for any one of the ‘tenants’.

Neither could letters to the ‘tenants’ setting out the terms of the tenancy be found in the department’s files. It would appear that the whole project is run by loose oral agreement. The monthly rent for the typical space is $150.

Many, if not most, of the ‘tenants’ have not paid any rent in years. [Note: this means that there is little revenue to Government while in 2010 $30, 000 was budgeted for maintenance of the structures (and presumably utilities) and $4, 700 for ‘entertainment’ ($12, 635 estimated spent in 2009!)]

While, therefore, the DCTA exercises some sort of management role, the department has no formal or legal powers to enforce any standards. The tenant/occupants have not been required to sign on to anything in the way of conditions of occupancy.

Marta was the most recent tenant/occupant and she acquired the space formerly occupied by the Tourist Board. (She is one of perhaps only two or three occupants who are actually keeping faith with the original vision of generating local products. I pointed out, and they agreed, that Marta also had a passion for the general quality of service in the village to be of a high standard and her business attracted very many positive comments from tourists that she had documented.)

Because of the lack of powers and mandate the Director attempts to settle disputes or deal with bad behavior by moral suasion: speaking to occupants one on one about complaints. This, she said, generally worked, but was sometimes ineffective, and notably so in the case of Karenne.

Accountability: There is no formal review of the project or report to Cabinet, but the Director said that it is mentioned, in a general way only, in the DCTA’s annual report. I am still awaiting a copy of the last report.

'-,&-,./* 5.1 The Department ignored the complainant’s pleas for assistance to secure the circuit breaker for some 20 months, not even acknowledging written correspondence. The solution to the actual problem was simple and was quickly effected once the department swung into action last November. The aggravated failure to acknowledge, respond or act over that period amounts to indefensible maladministration made worse by the fact that as early as January, 2010 Marta had appealed to the Permanent Secretary.

5.2 I have no doubt that Marta suffered both mental distress and heavy financial loss on account of this maladministration. While the loss from the initial incident cannot be laid squarely at the Government’s door, following losses can. A reasonable estimate for the loss in October, 2010 was $1, 000, as against $800 in the March 2009 incident.

5.3 With reference to the smoking complaint, the complainant at first laudably tried to solve that problem through her own efforts by engaging with a recalcitrant neighbour, posting signs herself and speaking directly to visitors.

Nonetheless, the Ministry and department seem to have done very little to address the problem after Marta brought it to attention in January, 2010. The

Permanent Secretary ought to have seen to it that a reply went to Marta to what was a three page letter, with attachments, addressed to the Permanent Secretary. Lack of response and lack of effective action again worked to Marta’s detriment. The response on 26th January, 2011 was a welcome one, albeit in a crisis situation, but the follow up to the understandings reached must now take place.

5.4 As to the trade licence amendment request, the department informed Ms. M in mid February, 2011 of approval, but written confirmation was still awaited.

5.5 I found that the deplorable situation concerning the tenancy arrangements contributed in no small measure to the department’s failure to react positively to the complainant’s pleas concerning the conduct of the neighbouring tenant.

It is difficult enough to properly manage such a group of entrepreneurs when there are proper signed legal instruments in place, more so for a Government department to do. (Research has shown that a Government department is, in any case, ill suited to such a management task, which is why such tasks are usually assigned to special structures, such as statutory bodies or private entities on contract.) The difficulty level increases greatly in the absence of any leases or other documentation attesting to any covenants on the part of the tenants. Failure to even collect rent adds to an impression that there is no effective management in place and tenants may do what they like. The department’s hands are substantially tied in regulating tenants’ conduct in such a situation. (I have not investigated whose fault it is that no documentation is in place, but clearly the Permanent Secretaries and heads of the DCTA over the past ten years must bear heavy responsibility.)

5.6 Finally, I was satisfied that there are communication difficulties in how the Director and the CAO relate, and this gap helps to account for the extent of the maladministration identified. I say this because the latter was apparently in the dark on certain correspondence addressed to the Director and seemed unsure as to whether and when she could act without a directive, but once given clear instructions she proceeded to get effective action.

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I accordingly made the following recommendations: I. The Director, Trade and Consumer Affairs should within one week address a full letter of apology to Ms. M, copying to the Permanent Secretary and the Complaints Commissioner, for the distress and loss that she has suffered on account of the Department’s various failures to act. She should give assurances that this sort of behaviour will not be repeated.

II. The Permanent Secretary should seriously consider apologising separately to Ms. M for not having responded in writing to the long letter of 4th January, 2010 and not having succeeded for such a long time in getting the department to take effective action.

III. The Ministry should seriously consider making a consolatory payment ex gratia to Ms. M in the amount of at least $500.00 in consideration of the considerable financial losses that she suffered on

account of the failures identified. Action on this recommendation should begin at once and aim to have payment made within four months.

IV. The Director should within three months see to it that No Smoking signs are prominently displayed at appropriate places around the village and have the maintenance worker check regularly to see that the signs are in place. She should also consider what other measures to take, such as to encourage tenants to politely point out the signs to visitors who light up.

V. The Director should review and implement recommendations IV and V made in earlier report (ref. 0200710OP/TCA dated 17 November, 2010) pertaining to the Service Charter. These included:

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Copies of the Charter, which contains information very useful for clients, should be prominently displayed and customers encouraged to take one. Having the Charter displayed adds a level of openness which, in turn, inspires confidence in the approval or decision making and management processes of the organization.

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Staff must be trained on how to consistently and faithfully practice the Department’s Charter.

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The Director should put in place measures to monitor compliance and report at least annually on how well the Department is performing against its stated standards.

VI. The Ministry and Department need to take all necessary steps with all deliberate speed to have lease agreements with the tenants executed. The continuation of the present uncertain situation will give rise to incidents in the future that may well result in injustice to some tenants.

VII. The Director should give the Consumer Affairs Officer a job description letter that clearly sets out her role and authority as it concerns the Crafts Alive project and consistently respect that assignment while retaining supervisory responsibility.

()"*!"#$%&#"*+!%,*'"$-!(,"&(*-&'*,.&.#(!/* On 4th March, 2011 I sent the draft report to the Permanent Secretary and Director to check the factual content and bring any inaccuracies to my attention. I also advised them of their right to a hearing before the critical comments in the draft findings were published further. No acknowledgement or reply having been received by 31st March, I sent them the final report on that date.

Not having received an acknowledgement of the final report either after two months, and the complainant having received no apology, on 7th June I wrote to the Director advising of an intention to send forward a special report and invited her comments to accompany the report. There has been no response.

Follow-up communication with the Acting Permanent Secretary has not produced a response to the recommendations.

The Deputy Governor intervened to urge a response, but this did not produce the desired effect. Two and a half years have passed since that first unanswered letter from Marta and no one from the Department or Ministry has written to her. Neither the Department nor Ministry has admitted any wrongdoing; neither has apparently taken on board any lessons from the experience, nor has either committed to improvement in their mode of operation. This, by any measure, is reprehensible conduct.

Elton Georges COMPLAINTS COMMISSIONER

21st September, 2011