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All quiet on the home front: Kathy Lynn Simmons, the Attorney-General, has kept her own counsel over the controversy in which her husband first served as Senior Crown Counsel in her legal affairs ministry, resigned and then was awarded a no-bid consultancy contract

“There are multiple departments that have contracts for legal services. I find it interesting that we’re focusing on this one on this particular Pati request because I know it makes wonderful political fodder for the Opposition, but at the same point in time no one is talking about the $240,000 to various other lawyers in various instances and one can make assumptions as to why they’re focusing on this particular contract rather than others that are more valuable.”

David Burt (House of Assembly, February 9, 2024)

If I understand David Burt correctly, his position is that the recent controversy about the Attorney-General’s office has nothing to do with conflicts of interest, nepotism, corruption or any other kind of abuse of power. Instead, the real reason why questions are being asked is racist mischief-making by the One Bermuda Alliance. The Premier’s position needs to be explored thoroughly.

During my career I have experienced various forms of checks and balances designed to root out unethical and illegal conduct:

• Some companies require that employees take an annual two-week leave of absence so that their work activity can be audited.

• Attempts to transfer money must be authorised and actioned by two different people

• Requisition orders need to be approved by an ever-increasing number of managers or by a committee

• Some companies require that any business-card transaction in excess of $50 be documented with a copy of the receipt, along with an explanation of what the money was spent on, with whom and why

Although I have seen a married couple work for the same company before, it is a very rare occurrence. It’s normally if the company is very large and only when the two employees work in completely unrelated departments. For obvious reasons, one would think, you would never have the two working in the same department. Nor would you have one spouse report to the other. Yet that was not the case in the Ministry of Legal Affairs and Constitutional Reform, which is led by the Attorney General, Kathy Lynn Simmons.

According to Royal Gazette reports, Mrs Simmons’s husband is a Senior Crown Counsel. The Pati statement for the Ministry of Legal Affairs and Constitutional Reform shows that the Senior Crown Counsel reports to the Deputy Solicitor-General. The Deputy Solicitor-General reports to the Solicitor-General, who in turn reports to the Attorney-General. The conflicts of interest here are quite clear. Matters such as the Senior Crown Counsel’s compensation, discipline and promotion would be incredibly difficult to manage without the influence or interference of his wife.

There are more sensitive matters such as the potential for bullying and harassment. However, the greatest concern I have is with whistleblowing. Let’s say that there was a situation where Mr Simmons found a reportable matter regarding the conduct of one of his superiors. How much more difficult would it be for him to file a whistleblower report under these circumstances? Would he report his wife? Likewise, consider how much more difficult it would be for one of Mr Simmons’s superiors to blow the whistle on Mr Simmons when their boss is his wife? What about circumstances where Mrs Simmons should blow the whistle on Mr Simmons?

I have assumed that Mr Simmons was employed in this role before Mrs Simmons became Attorney-General because it would be utterly absurd for him to have been appointed afterwards. Whichever the case, most professionals would agree that this kind of situation needs to be addressed immediately. Accepting this, it would be completely understandable for the Government to eliminate the conflict by transferring Mr Simmons to another ministry at the earliest opportunity. Based on news reports, this conflict remained for six years.

Last May, Mr Simmons resigned from the post and was soon, some would say immediately, hired by his former employer as a consultant. While resignation removed the employment conflict of interest, the new, no-bid contract created another conflict of interest. Ironically, he was to be paid even more. In response to OBA questions regarding the contract controversy, the Premier is reported as saying:

“Consultant contracts are handled through the Public Service. They go through a process of vetting. That was the case in this particular case and instance, and I hope the Honourable Member will try to stop confusing the issue.”

The Premier’s statement insufficiently clarifies the matter. As is the case with the private sector, there are laws and codes intended to prevent and address conflicts, corruption and unethical behaviour. Bermuda has the Good Governance Act 2012, the Code of Conduct for Members of The Legislature 2021 and the Ministerial Code of Conduct 2018.

Specific to the Ministerial Code of Conduct, you will find in the first three pages “Section A: General Principles”, which apply to Cabinet ministers. Here are a few relevant sections:

Section A 1 VI:

Ministers should be as open as possible with Parliament and the public, refusing to provide information only when disclosure would be contrary to law or against the public interest. A determination of whether or not disclosure is in the public interest will be made in accordance with the relevant legislation and any applicable codes of practice. Ministers must ensure that no conflict arises, or appears to arise, between their duties and their private interests.”

Section A 1 XIV:

“No minister should place himself, or allow himself to be placed, in a position which will tempt him to use his official influence to support any scheme or to advance any contract in which he has personal interest.”

Section A 1 XVII:

“Ministers shall be bound by the provisions of the Public Treasury (Administration and Payments) Act 1969 and in particular shall not attempt to influence the awarding of a government contract whether or not the minister has an interest in the contract being considered.”

The very nature of the codes require that a minister be forthright about conflicts. Refusing to comment is only permitted when a disclosure would be contrary to law or against the public interest. Despite this, we have yet to hear from Kathy Lynn Simmons on the matter.

Yes, of course, the Opposition is going to try to expose the matter. Based on its track record, the Progressive Labour Party would have done far worse had the shoe been on the other foot. And if the PLP believes that the Gazette can’t be trusted to fairly report on the matter, why has it not issued its own report containing documented proof that an independent body objectively reviewed, researched and approved, Mr Simmons’s prior employment and the 2023 contract?

Honestly, I’m really struggling to understand why the PLP doesn’t have a bulletproof defence. The smart thing to do would have been to tender the contract even if there was no requirement to tender it. Yet, this was not done. This situation sits so far outside of the bounds of acceptable professional conduct that one would think that the Premier would be fully armed and ready. Yet, he’s not. He’s flapping in the wind with pathetic excuses.

Racism? Come on. It’s more likely that Mr Burt believes that the PLP can do something this outrageous without suffering any kind of legal or political repercussions. Only the public can prove him right.

• Bryant Trew can be contacted via e-mail at bryanttrew@mac.com

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Published February 19, 2024 at 7:00 am (Updated February 19, 2024 at 7:12 am)

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