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Ombudsman completes eventful term in office

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Arlene Brock's eight-and-a-half years in charge of the Ombudsman's Office of Bermuda have been nothing if not headline-grabbing.

She has been publicly accused of bias by a Cabinet Minister, sued by the Corporation of Hamilton and had at least one of her recommendations ignored by civil servants who, according to her, preferred to focus on “what cannot be done, rather than what can be done”.

But she has also been awarded honorary life membership of the International Ombudsman Institute for her “exceptional commitment” and “outstanding services” to the profession, described as a “standout” watchdog for the Island and chosen to give a prestigious TEDx lecture.

As Ms Brock hands the baton to Victoria Pearman, who takes over the Ombudsman role on Monday, she has one simple piece of advice for her successor: “Listen to the voice inside that says ‘really? Is this really what's going on?'”

It's a philosophy she has followed since becoming Bermuda's first Ombudsman in August 2005, conducting a series of investigations on her “own motion” to root out the truth and ensure accountability from public servants.

As an independent government watchdog, the Ombudsman Act 2004 gives her the power to launch such inquiries — where no complaint has been made to her — if she feels it is in the public interest to do so.

But she says such inquiries “take an enormous amount of time” for her small team of five and she hopes additional staff will be recruited to assist Ms Pearman in the near future.

The outcry over the granting of a special development order (SDO) to Tucker's Point in 2011 convinced Ms Brock to look into what she saw as an issue of “national importance”.

Her conclusion was that Government acted unlawfully by not carrying out a required Environmental Impact Assessment (EIA) of developing the resort.

She contended that the Island was legally obliged to do the study since it signed up to the UK Environment Charter — but Government insisted it wasn't.

Marc Bean, who was Environment Minister when Ms Brock's report was issued, claimed “own motion” investigations by Ombudsmen were rare, adding of her inquiry: “It is left in doubt whether the outcome is without bias.”

Ms Brock says now of that reaction: “When stakes are high you recognise that people will be resistant. Nobody likes to go to their grave thinking ‘the Ombudsman found that I did everything wrong'.

“You know, no one likes that. So you recognise that people will be people.”

But she says the thing she “obviously hasn't let go of because I keep bringing it up” is Government's claim that she was wrong about its legal obligation.

Ms Brock says: “I know absolutely without a shadow of a doubt that I am completely correct. We have a slew of things that all point to this — and the Government said ‘oh no, we disagree' but didn't produce a shred of evidence, a scintilla of anything.”

The outgoing Ombudsman says her office obtained two legal opinions which it shared with Government — but Government refused to share the legal opinion it claimed to have obtained from the Foreign and Commonwealth Office.

“I've had the opportunity to speak with the young man from the Foreign and Commonwealth Office,” says Ms Brock. “He said he gave a preliminary cursory view; he did not give a legal opinion.

“So I would say if you think I am wrong, go and check your sources.”

She says the issue matters a great deal because the lack of an EIA showed a failing by civil servants to pull together all the information required for MPs to make a “huge decision” about an environmentally pristine piece of land.

“I'm agnostic about what the decision is,” says Ms Brock. “But the question is: did you have the right information? Did you analyse it objectively?”

She mentions with obvious satisfaction the new administration's announcement earlier this year that it will do a comprehensive EIA before deciding whether to widen one of Bermuda's shipping channels.

“Let me heartily say that this is the way to go” she says. “That's the modern era; that's what should be done. Before making any decisions, get your facts.”

The importance of making decisions based on fact was the topic of Ms Brock's TEDx talk last October at the Fairmont Southampton.

And she says it was hammered home to her again during her final investigation, into the destruction of historic tombstones at Tucker's Point Golf Club.

That inquiry resulted in her lambasting the Department of Planning for not taking steps to implement an earlier recommendation she made to give the cemetery an extra layer of protection.

She wrote that civil servants resisted her recommendations by “focusing on what cannot be done, rather than what can be done; and giving me information that borders on misleading”.

“They did nothing, they did absolutely nothing” she tells this newspaper. “It's the same Ministry, same department as the SDO report, so they are tired of me anyway.

“So they'd just been criticised heavily. They did absolutely nothing [and] by doing nothing, then you've set the stage for people to come and make bad decisions.

“The evidence is that if the Department had made just one call to schedule one meeting with one person, that people would have been on notice and they would not have touched those graves, those tombs.”

Ms Brock adds: “This is another case of: get your facts. Come, please, just make a couple of phone calls. Don't assume that we know it all.”

She says the graves inquiry was the hardest for her to do because it was the “saddest” but acknowledges that last year's investigation into the governance of the Corporation of Hamilton “was the one with the most legal challenges”.

Mayor Graeme Outerbridge and Deputy Mayor Donal Smith were found in contempt of court for refusing to cooperate with her inquiry.

And the municipality then took the Ombudsman to court — unsuccessfully — to try to prevent her from releasing her report on how it entered into a secret deal to redevelop Hamilton's waterfront.

Ms Brock, a lawyer, says City Hall's response to her own motion inquiry was “absolutely” surprising.

“When we tried to find case law for contempt of law for failure to respond to an Ombudsman's summons we couldn't find any.

“We have excellent relationships all around the world and we couldn't find the case law for a general Ombudsman.

“We couldn't even find the case law because people just don't do that in the world. “When the Ombudsman calls you come. And, in the rare cases where the Ombudsman must summon you, you certainly don't defy a summons.”

She can't say why the municipality responded as it did because “I don't read anybody's minds” but she adds: “What I do know is that certainly in other jurisdictions there is a far amount of respect for the role and people understand it to be a critical role in society.”

That's also true here, she says, for most people she meets on the streets. Though her investigations have seen her delve into contentious areas, such as racism at King Edward VII Memorial Hospital and lack of access at the Bermuda Archives, she feels the public has supported her.

“People will call out from cars ‘Ms Brock!' [and give me a] thumbs-up or what-have-you. And so I think I get that in an enormous way.”

Ms Brock, whose eight-year term as Ombudsman was mandated in the Act, says her next role is “not set in concrete yet” but she hopes it will allow her to “hopefully build my own skills but also continue to contribute to the Ombudsman movement abroad”.

The job is likely to be overseas and she is keen to leave the Island for a while and “connect with the world”.

“I love Bermuda and I always come back to Bermuda. I think landing in Bermuda is one of the greatest experiences but leaving for a bit is also something I think is important. I never have a problem leaving.”

Outgoing Bermuda Ombudsman Arlene Brock
Outgoing Bermuda Ombudsman Arlene Brock
Term over: Bermuda Ombudsman Arlene Brock
<p>Arlene Brock: In Quotes</p>

“A few blacks felt that race was the least of the problems at the hospital — often used as an excuse or veil for issues involving personality, competition and competence. A few whites were sanguine and reflective about the persistence of discrimination with a depth that might surprise many blacks in our race-conscious Bermuda.” – from ‘A Tale of Two Hospitals’ the Ombudsman’s 2007 report into discrimination among medical professionals at KEMH.

“On the balance of probabilities, it became clear that the default position of hospital administration seems to privilege the views, versions of events and interests of white doctors. Moreover, the administration appeared to tolerate a troubling level of ‘non-collegiality’ against black doctors by white physicians and nurses.” – from ‘A Tale of Two Hospitals’.

“There are emotional reasons for people to be allowed to see the original Slave Registers — as artefacts in their own right — not just for the black descendants of the slaves recorded in the Slave Registers but also for the white descendants of the slave owners who sought compensation.” – from ‘Atlantica Unlocked’, the Ombudsman’s 2009 report into barriers to access at the Bermuda Archives.

“There is value in transparency. A proper process would certainly have muted suspicions, or made it difficult for them to gain a foothold.” – from ‘Today’s Choices, Tomorrow’s Costs’, the Ombudsman’s 2012 report into special development orders.

“With respect to the Tucker’s Point SDO application, this report finds that, as there was no proper process to gather information, the data available to inform analysis and decision-making was inadequate. The failure of a proper public consultation process resulted in ad hoc, adversarial airing of public concerns.” – from ‘Today’s Choices, Tomorrow’s Costs’.

“The new Corporation passed a resolution that there should be installation ceremonies for all future incoming administrations and the purchase of at least two business suits, shirts and ties for the Mayor (at a cost of $2,319).” – from ‘4x6=262’, the Ombudsman’s 2013 report into governance at the Corporation of Hamilton.

“There are no laws in Bermuda against non-public meetings in municipalities. However, it is important to know that transparency standards for municipal administrations worldwide are evolving in the direction of open public meetings with strictly limited exceptions.” – from ‘4x6=262’.

“The destruction of the tombs has struck a nerve and evokes the entire history and pain of slavery and the legacy of structural racism and white privilege in Bermuda.” – from ‘A Grave Error’, the Ombudsman’s 2014 report into the demolition of tombs at Tucker’s Point.

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Published March 14, 2014 at 9:00 am (Updated March 14, 2014 at 9:49 am)

Ombudsman completes eventful term in office

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