Tucker v Education Board: process fatally flawed’
The appointment process for the Commissioner of Education post was “fatally flawed”, a lawyer claimed this week.
Mark Diel, who represented veteran teacher and education administrator Gina Tucker, told the Court of Appeal on Wednesday that the Board of Education improperly delegated the decision to a panel without experience in public education.
Mr Diel told the court: “When you look at it in the round, we say, resoundingly, it was not a fair process.
“The process was fatally flawed and clearly, based on the evidence, has been fatally flawed for, it would appear, decades.
“It seems to be a systemic problem.”
Dr Tucker has alleged that she was unfairly overlooked as a candidate for Commissioner of Education, which was filled by former CedarBridge Academy principal Kalmar Richards in 2018.
Mr Diel said the decision should be overturned and the selection process started again to ensure proper procedure was followed.
He told the court the Board of Education could have delegated the interview process to a sub-committee, but instead left it to a recruitment panel.
Mr Diel said the panel that interviewed the shortlisted candidates should have included people with experience in the public-school system.
He added: “The best this panel could offer in terms of a Board of Education representative was someone with experience in public education 25 years ago.”
Mr Diel said the process was rushed in an attempt to appoint a commissioner before the start of the school year and the Board of Education had questioned the approach.
He added: “Instinctively, what the Board of Education were seeking to say is why they didn’t use a process that they didn’t seem to notice was already set out.”
Mr Diel said that the Permanent Secretary at the Ministry of Education and representatives from the human resources department had removed non-Bermudian applicants from consideration.
He said the move benefited his client, who was shortlisted for the post, but all qualified candidates should have been considered.
But Delroy Duncan, for the Board of Education, said the board considered and discussed the application process and approved it on a unanimous basis.
He added that the board also had “robust” discussions about the applicants — both those shortlisted and those not — and their relative merits before they approved Ms Richards for the post.
Mr Duncan said that the board also had the option to restart the process if they were unhappy with the result.
He added: “Mr Diel has no evidence before this court, or before the first-instance judge, to suggest that the board was somehow pressured into making the decision.”
Mr Duncan said that the board could have created a sub-committee, but was allowed to use other procedures as long as they were fair.
He added: “The critical issue is if the approach that was adopted was a fair process and whether or not those charged with making a decision had the ability to test the information that was collated on their behalf.
“They could review it, analyse it and, if necessary, not only challenge it but defer their final decision if they felt they did not have the necessary information.”
The appeal panel reserved its judgment.
The hearing was a part of a long-running legal battle between Dr Tucker and the board.
She has alleged the process was weighted against her because of disagreements between herself and Valerie Robinson-James, the Permanent Secretary at the Ministry of Education.
The board has denied the claims and Dr Tucker brought her case to the Supreme Court for a judicial review.
But Assistant Justice John Riihilouma dismissed the case in February.
Mr Justice Riihilouma said in a written judgment: “I can find no actionable fault in the process used by the Board of Education in its role in recommending Ms Richards to the Public Service Commission for the post of Commissioner of Education.
“It follows that I find there is no fault in the process that would vitiate the Public Service Commission’s recommendation of the appointment of Ms Richards as Commissioner of Education to the Governor.”
• It is The Royal Gazette’s policy not to allow comments on stories regarding court cases. As we are legally liable for any libellous or defamatory comments made on our website, this move is for our protection as well as that of our readers.
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