BHB v ICO 2019 12 17 Court Ord
BHB wants top salaries kept secret
Legal action to keep the six-figure salaries of its top executives a secret has been launched by the Bermuda Hospitals Board.
The board, which will receive almost $146 million in public funds this financial year, said it could not comment on how much the litigation is likely to cost.
The court move came after the BHB was ordered by Information Commissioner Gitanjali Gutierrez on October 31 last year to disclose the total cost of each position in its executive team, within $10,000 bands, for the financial year 2015-16.
Ms Gutierrez’s decision followed a public access to information request filed by The Royal Gazette in January 2016, which was twice rejected by the BHB.
The commissioner said the salaries and other details of compensation should be shared with the public in the interests of “accountability and transparency” and gave the board until December 12 to disclose the amounts.
But the BHB, represented by law firm Conyers Dill & Pearman, filed an application for a judicial review in the Supreme Court on December 11.
The court suspended Ms Gutierrez’s order on December 17 pending the outcome of the case.
Ms Gutierrez told The Royal Gazette: “In light of this, I will not enforce the order of October 31, 2019 at this stage.”
A BHB spokeswoman said: “Bermuda Hospitals Board is following the process for reviewing a decision of the Information Commissioner, as set out in section 49 of the Pati Act.
“Out of respect for this legislated process, our concerns will be fully heard at the judicial review hearing.”
The spokeswoman added that the BHB was “unable to say what the legal costs will be at this point in time, as the amount will depend on whether the matter will be contested”.
She said the final cost would also depend on how long any hearing would last and the outcome.
She added: “If the BHB prevails, then its costs will be reimbursed. BHB determined that it did not agree with the decision of the ICO and ultimately there will be final guidance from the court on the matter.
“The ICO must follow the law, as must BHB, and where there is dispute, then this is the process which will allow a fair and final determination.”
The BHB revealed in May 2016 that chief executive and president Venetta Symonds’s basic pay was $468,172 and total compensation was $469,979.
The total cost of Mrs Symonds’s position, including leave-pay provision, social and health insurance payments, payroll tax and pension arrangments, was $504,179.
But the hospitals board did not release full details for the six other executive team members, the chief of staff, chief financial officer, chief operating officer, chief of nursing, chief of psychiatry and the Mid-Atlantic Wellness Institute’s chief operating officer.
The board said only that each employee’s total cost ranged between $158,300 and $504,000.
Ms Gutierrez said in her decision that the range given by the BHB in its May 2016 disclosure was “very broad”, so much so that it did not “further the accountability purposes of the Pati Act”.
She said it resulted in instances in which the cost for executives was less transparent than for employees at the middle and junior levels.
David Burt, the Premier, picks up a salary of $207,285, according to the latest Government Budget Book and the Cabinet Secretary and Head of the Civil Service each get $214,092 a year.
Government House said the Governor’s annual salary was $208,619 and Government’s compensation list on its website said Commissioner of Police Stephen Corbishley was paid $203,897.
The board claimed during Ms Gutierrez’s review that more detailed compensation information would erode senior staff’s right to privacy and give candidates who applied for executive positions a competitive advantage in salary negotiations.
The BHB also said disclosure might cause prejudice against the officials in a “micro-community” such as Bermuda, and claimed it put the executives in a prejudicial position as no other senior executives on the island were required to have their total compensation packages disclosed.
The Information Commissioner’s decision highlighted that hospital executives in Canada and in Britain had their actual salaries or salary ranges available to the public.
The commissioner said that in Bermuda “a number of senior executive posts have an associated actual salary published, not salary range”.
Ms Gutierrez continued: “It is unclear how BHB salary executives would have more challenges with public accountability for their salary ranges than any other senior executive in the public sector, whose salary range or salary is published in a proactive manner for the public, or is otherwise disclosed in response to a Pati request.”
Ms Gutierrez said: “The executive team members hold the most senior executive positions within BHB.
“It is reasonable to expect these executive team members to have less expectation of privacy concerning their compensation.”
Ms Gutierrez said: “These individuals are accountable to the public for the management of Bermuda’s only hospital facility.”
She added: “The governance and management of BHB by the executive team also has a direct impact on how the public funds received by BHB are spent.
“BHB’s claims of discrimination or prejudice against its executive team members appear to be speculative, as no support was provided for those claims.”
The commissioner’s order required disclosure of the total cost, within a range of $10,000, for each executive team position, along with records related to payments for social and health insurance, payroll tax and pensions. Ms Gutierrez also ordered disclosure of a list of payments made by the BHB to professional services firm PwC during the financial year 2015-16 for an interim CFO (see separate story below).
Ms Symonds is due to retire as BHB CEO and president in July.
Craig Rothwell, of law firm Cox Hallett Wilkinson, represents the Information Commissioner’s Office in the judicial review.
He confirmed that Ms Gutierrez would contest the judicial review and said a hearing date was still to be set.
BHB paid $1.7m in four years to CFO
The Bermuda Hospitals Board paid $35,000 a month to a professional services firm for a temporary chief financial officer, according to a public access to information disclosure.
The publicly funded quango made the payments to PricewaterhouseCoopers for four years between 2013 and 2017, for the services of PwC’s David Thompson.
A list of payments shared with The Royal Gazette by the BHB under public access to information showed the amount paid out between April 1, 2015 and March 31, 2016 was $420,000.
Based on the figures provided by the BHB, the bill for the four-year period that Mr Thompson served as interim CFO would have been close to $1.7 million.
For part of Mr Thompson’s tenure, from March 2013 to April 2014, the BHB would have been also paying the salary of CFO Delia Basden, who was placed on administrative leave while a review was conducted by the Department of Internal Audit.
Auditor-General Heather Jacobs Matthews asked for the inquiry as a result of concerns raised during a financial audit.
Mrs Jacobs Matthews said a major review at the BHB was needed to “obtain reasonable assurance that its management-control systems are adequate and operating efficiently”.
The review findings exonerated Ms Basden, but she opted to resign after so long away from the post. A BHB spokeswoman confirmed that Mr Thompson was the interim CFO between 2013 and 2017 and the contract was through PwC.
Mr Thompson was replaced with permanent CFO Bill Shields in April 2017.
The list of PwC payments was given to Information Commissioner Gitanjali Gutierrez by the BHB after she launched a review into the board’s refusal to release salary and compensation information for six members of its executive team to The Royal Gazette in response to a Pati request.
The Information Commissioner wrote: “BHB provided the Information Commissioner’s Office with records that are responsive to the Pati request ... The withheld records contain a list of invoices for services provided by PwC Bermuda to BHB to fulfil the chief financial officer role.”
She added: “PwC Bermuda was invited to make submissions in relation to the payments made to its staff member who was seconded to BHB as the chief financial officer.
“The ICO notified PwC Bermuda that the failure to make submissions would be treated as no objection to disclosure. PwC Bermuda did not provide any submissions.”
The Royal Gazette reported in January 2016 that the Minister of Health gave permission for Mr Thompson, a non-Bermudian, to be hired as chief financial officer without the BHB having to advertise the job.
The BHB has launched court proceedings against the Information Commissioner in an attempt to keep the salaries and compensation of its executive team under wraps.
But it has disclosed information about the CEO’s pay and perks, which were:
• $441,000 in 2009-10
• $474,000 in 2010-11
• $650,536 in 2011-12
• $510,126 in 2012-13
• $469,979 in 2013-14, 2014-15 and 2015-16
Venetta Symonds, who retires in July, became CEO in April 2012. Her predecessor was David Hill.
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