Judge: Civil servant’s appointment was improperly terminated
Former Acting Director of Telecommunications Hiram Edwards was improperly stripped of the post, according to the Supreme Court.
The court heard the decision to revoke his appointment came after it was discovered the department was $276,213 over budget.
Mr Edwards last year filed legal action against the Minister of Finance, the Attorney General and the Minister of Environment, Planning and Infrastructure Strategy regarding both his removal and deductions made to his pension.
The court heard that Mr Edwards retired from the Bermuda Police Service in May of 1996 and was employed by the Bermuda Government as an Assistant Telecommunications Inspector on a temporary basis in 1997.
While the contract was a fixed term of three months, the appointment was repeatedly renewed.
Mr Edwards said he was told the position would be part time, despite working 35 hours a week, and as a result would continue to receive his full pension.
However, the defence said the plaintiff was hired as a full-time employee, but was classified as a part-time employee in error.
Mr Edwards received his pension in full until May 2010, at which time the defendants said the error was discovered.
In order to recover what it considered $91,655.58 of overpayments, a series of deductions were made to the plaintiff’s pension between May 2000 and October 2004.
In November of 2010, Derek Binns was assigned as the Permanent Secretary for the Ministry of Environment Planning and Infrastructure, at which point the post of Director of Telecommunications post was vacant.
Dr Binns noted that Mr Edwards had previously acted in the position and appointed him the Acting Director of Telecommunications between the period of January 5, 2011, to March 31, 2011.
However on November 18, 2010, Dr Binns received an e-mail from the plaintiff notifying him that the department had overspent its budget for the year by $276,213.
Dr Binns communicated with Mr Edwards both by e-mail and in person about the overspending, stating that he was not satisfied with the explanations offered, describing it as an “extremely serious failure of performance and responsibility”.
The court heard that on January 12, 2011, Dr Binns contacted the Director of Human Resources, Carlita O’Brien, stating that he had lost confidence in Mr Edwards ability to serve as Acting Director.
Dr Binns was told that to terminate the appointment he should amend the form used to request the appointment, changing the conclusion date. He subsequently did as advised, changing the appointment’s conclusion date to January 21, 2011.
In a written judgement, Puisne Judge Stephen Hellman ruled that Dr Binns did not have the authority to revoke the plaintiff’s acting appointment, and that the proper procedure would have been to take the matter to the head of the civil service.
However, the judge emphasised the ruling was not a criticism of Dr Binns, as he properly sought the advice of the Director of Human Resources and acted on the advice given.
“His conduct in this respect was irreproachable,” the judge wrote.
Because Mr Edwards’ termination was acting beyond his power, the judge wrote the plaintiff was entitled to the payment of an allowance in respect of that post until March 31, 2011 — the duration of the period for which his acting appointment was authorised.
Regarding the issue of pension, Mr Justice Hellman ruled that the plaintiff was employed on a full-time basis as Assistant Telecommunications Inspector and had no legitimate expectation that he would be treated as a part-time employee for his pension.
But while the law does allow deductions to be made from pensions to recover overpayments, in this case the deductions were unlawful because the plaintiff was not given the opportunity to make representations about the rate of the deductions, or if they should be made at all.
Mr Justice Hellman however declined to grant Mr Edwards declaratory relief on the pension matter due to the delay in launching proceedings in the matter.
However, he did grant a declaration regarding the improper termination of Mr Edwards’ post, adding: “Given the prospect of ratification, such declaration may, however, prove a hollow victory.”
Government has not responded to requests for comment as of press time, and efforts to contact Mr Edwards have been unsuccessful.