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City of Hamilton bosses found in contempt

Hamilton Mayor Graeme Outerbridge and Deputy Mayor Donal Smith have been found in contempt after failing to meet with Ombudsman Arlene Brock regarding an ongoing investigation.

However Chief Justice Ian Kawaley said he didn't believe they should be penalised, other than an indemnity costs order.

Mr Outerbridge and Mr Smith appeared in Supreme Court last week, accused of repeatedly refusing to meet with the Ombudsman despite a summons.

Lawyers representing the corporation said the officials had committed a “technical contempt” and that Ms Brock's summons should be called into question because it failed to consider if the respondents were entitled to legal representation.

In a written ruling delivered this week, Mr Justice Kawaley said legislation grants the Ombudsman a great deal of flexibility in how she conducts her interviews — and a similar flexibility regarding allowing legal counsel.

“The mere fact that the summons compels attendance at an inconvenient time or place or, as here, the interviewees wish to obtain legal advice, in my judgment cannot constitute a lawful excuse for failing to comply with an Ombudsman's summons,” he said.

He wrote that the contempt likely occurred because the respondents did not truly welcome the investigation, most likely because they were committed to matters which they considered more important, and had allowed their personal irritation to get the better of their judgment.

“In the result, they have effectively compelled the Ombudsman to issue the present proceedings to prove an ultimately obvious legal point,” he said. “When the Ombudsman issues a summons, it has the same legal force as a court order and cannot be ignored by the summoned parties of their own free will.

“It seems likely, although this observation is admittedly somewhat speculative, that the respondents' inclination to cooperate was undermined in part by the novel nature of the Ombudsman's investigation in local administrative law terms combined with the fact that the respondents had comparatively recently assumed their current public offices.

“The Ombudsman deposed to three previous investigations of the corporation when it was under the control of a different administration, all of which involved far more pedestrian concerns however. In addition, even assuming that both the Mayor and the Deputy Mayor had agreed the appointment dates with the Ombudsman, they were given very short notice that they were legally obliged to attend the interviews in question.

“This is an additional mitigating factor. Be that as it may, the evidence clearly paints the following scene.

“The respondents cooperated at best in a halfhearted manner with the investigation. The Ombudsman, in turn, dealt with the respondents in a far more formal and punctilious manner than might usually have been the case had she, and the subjects of the investigation, established genuinely cordial lines of communication.

“If a pot of ‘angst' soup was simmering in the lead up to July 23, 2013, it came to a boil on that date when the summonses were issued.”

The case, said a “delighted” Ombudsman Arlene Brock, was an important one for the entire Commonwealth.

“I am delighted that the Supreme Court has upheld my certification of Contempt of Court for failure to comply with a summons to attend.

“This is a precedent-setting case for the entire Commonwealth. I did a quick survey of Ombudsman colleagues and those who responded had never faced a situation of witnesses failing to comply with Summonses,” Ms Brock said.

She added that her colleagues in other jurisdictions very rarely allowed legal representatives in interviews but that the case had prompted them to consider the criteria for doing so.

“Although almost everyone has the discretion to allow lawyers, most had not established criteria because they have never exercised their discretion.”

In a statement last night Hamilton Mayor Graeme Outerbridge said: “The Supreme Court has given its ruling in the matter of the Office of the Bermuda Ombudsman and in the matter of an application to certify the offence of contempt pursuant to section 25(2), Ombudsman Act 2004. The lawyers for the City of Hamilton are reviewing the ruling and I will make a formal statement about this matter after consultation with our legal team.”

•Read the full judgment online at www.royalgazette.com

City of Hamilton Mayor Graeme Outerbridge

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Published October 11, 2013 at 9:00 am (Updated October 11, 2013 at 12:35 pm)

City of Hamilton bosses found in contempt

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