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Firm appointed Premier and Minister’s relatives after winning Govt contract, claim

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A company contracted to build Hamilton’s new court and police station appointed relatives of politicians Ewart Brown and Derrick Burgess as silent partners, court papers allege.

The papers, obtained by this newspaper, also reveal claims the company, Landmark Lisgar, was chosen against the advice of technical officers.

They allege that Government authorised payments to the company despite serious concerns over the way it was handling the project, and against the advice of the person overseeing the payments.

The building was eventually opened eight months late and millions of dollars over budget in April 2011.

The allegations are detailed in Canada court papers relating to a case where former Premier Dr Brown and current Deputy Premier Mr Burgess are suing two architects for $2 million each for alleged defamation.

The case hit the headlines when Auditor General Heather Jacobs Matthews condemned Government for spending more than $31,000 of taxpayers’ money on legal fees for Dr Brown and Mr Burgess in relation to the case.

She said it was contrary to Financial Instructions rules for the public purse to fund the politicians’ private legal action. Government terminated the agreement to pay the legal fees in September 2011.

The Royal Gazette first broke news of the court case in April 2011, reporting how the politicians were accusing Canadian architect Sam Spagnuolo, who worked on the police and court building project, of creating false copies of cheques to make it look like they were taking kickbacks.

They allege that Mr Spagnuolo then conspired with Bermudian architect Lawrence Brady to “tip off” the Auditor General, in order to create a public scandal about the cheques.

Mr Brady is Government’s Chief Architect, and also the brother-in-law of this newspaper’s editor, Bill Zuill. Mr Spagnuolo is lead architect with Canadian firm Carruthers Shaw and Partners [CS&P], the original firm hired to work on the building in Hamilton. He was also the “payment certifier”, who oversaw all claims for payment in relation to the project.

Both architects strenuously deny the allegations against them. In a statement filed by his defence team in April 2011, recently obtained from the court by this newspaper, Mr Spagnuolo said he and Mr Brady reviewed two bids for the police and court building in 2007.

“The lowest bid was from Landmark Lisgar Construction, a Bermudian-Canadian joint venture involving the Bermudian Landmark Construction and the Canadian Lisgar Construction,” he wrote in his court papers.

“The Landmark Lisgar bid lacked a required project breakdown by division. Landmark itself had previously performed poorly on a project in Bermuda, and had limited experience. It had been pre-approved as a bidder only because of its involvement with Lisgar. The other bidder was Apex, a Bermudian contractor. CS&P and Mr Brady agreed in consultation that based, among other factors, on Landmark’s lack of prior experience and poor performance history, the contract for the construction project should be awarded to Apex.”

However, Mr Spagnuolo said, Government awarded the project to Landmark Lisgar nonetheless around December 2007. Under the contract, Landmark Lisgar agreed to complete the project for a guaranteed maximum price of approximately $66 million according to Mr Spagnuolo.

Government later allowed total funding of $78 million for the building but it ended up costing $91.8 million almost $26 million more than in the agreement described by Mr Spagnuolo and more than $13 million more than the first amount budgeted by Government.

“Following the award of the contract for the project, Landmark Lisgar also appointed two silent, non-voting partners to their company; Mr Burgess’s cousin and Dr Brown’s half-brother,” alleged Mr Spagnuolo in his court papers.

He did not name the politicians’ relatives in his papers and this newspaper was unable to find any publicly-available corporate papers showing who the non-voting partners in the company are.

However, publicly-available corporate papers for LLC Bermuda Limited do show that Vincent Hollinsid and Winters Burgess hold different positions within the company. They are listed as having shares issued to them as of January 26, 2010. They are also listed as directors.

Mr Hollinsid is Dr Brown’s half-brother, and Derrick Burgess described Winters Burgess during a TV interview in 2009 as a close friend and relative.

LLC Bermuda was the new name given to Landmark Lisgar after the Canadian portion of the partnership, known as Lisgar, left the police and court building project in late 2008 (see second story).

The other shareholders listed in LLC Bermuda Limited as of January 26, 2010 were Edmund Matvey, Arthur McLeod (known as Bryan McLeod) and the company itself. Meanwhile the other directors are listed as Mr Matvey, Mr McLeod and Mast Corporate Services Ltd.

This newspaper previously reported, in 2009, that Mr Hollinsid and Winters Burgess were among the owners of the Bermuda Steel Company, which was also subcontracted to work on the police and court building.

CS&P was fired from the police and court building project on December 2, 2008. Later that month, the politicians claim that Mr Spagnuolo transferred the allegedly altered documents to Mr Brady and these were subsequently downloaded from Mr Brady’s computer by an audit manager.

Around January 29, 2009, according to the politicians, the allegedly altered cheques were brought to the attention of the Permanent Secretary at the Ministry of Works and Engineering, Robert Horton.

On February 3 2009, Finance Minister and now Premier Paula Cox raised the issue in Cabinet. Two days later, Dr Brown and Mr Burgess held a joint press conference addressing the issue and denouncing the allegedly altered cheque copies as false documents. According to Mr Spagnuolo, the story only hit the media in stories identifying the politicians at the point where they called that press conference.

After police and prosecutors concluded there was no evidence of any criminality that could be charged in Bermuda, Dr Brown and Mr Burgess alleged in a press statement on January 14, 2010 that the allegedly altered copies of the cheques were produced in Canada, so they would “seek redress” in the courts there.

They launched proceedings for defamation against Mr Spagnuolo and Mr Brady in the Superior Court of Justice, Toronto, on January 31, 2011.

In their court papers, they say they are suing the architects for giving the impression they are “untrustworthy, capable of being bribed and of taking financial advantage of their high government office”.

At the centre of the allegations is a claim that Mr Spagnuolo abused his position as payment certifier to falsify copies of two cheques to make it look like ‘Dr E Brown’ and ‘D Burgess’ were being paid $14,780 and $10,000 respectively.

The politicians say the real cheques were originally made out to Scorpio Construction and Chester Management, but Mr Spagnuolo electronically altered copies of them using Photoshop software.

Mr Spagnuolo denies that. He says in his statement to the court: “In July 2008, CS&P received a draw (draw number four) from Landmark Lisgar that it refused to certify for payment in its entirety, due to CS&P’s disagreements with Landmark Lisgar regarding the progress of the project and the appropriateness of the expenses in draw number four.

“Copies of the cheques alleged to be altered, namely the Landmark Lisgar cheques number 0123 and 0170, made out to ‘Dr E Brown’ and ‘D Burgess’ for $14,780 and $10,000 respectively, were included in the documents submitted in draw number four.”

He went on to allege in the court documents: “Significantly, only later, in several subsequent draws, did CS&P receive copies of Landmark Lisgar cheques number 0123 and 0170, made out to ‘Scorpio Construction’ and ‘Chester Management.’ In other words, CS&P received the allegedly altered versions of the cheques prior to receiving the allegedly unaltered versions of the cheques.”

He alleged that the Bermuda Government approved payment of the draw despite CS&P’s refusal to certify it. Mr Spagnuolo strongly refuted the claims that he used Photoshop to create false documents to transfer to Mr Brady after the Auditor General of Bermuda requested them as part of an audit.

He further denied conspiring with Mr Brady or anyone else to defame Dr Brown and Mr Burgess and denied contacting the media or the Auditor General in a bid to embarrass the politicians. He urged the court to dismiss the case launched against him by Dr Brown and Mr Burgess.

Mr Spagnuolo won a court order on October 6, 2011 that the two politicians must post $50,000 (Canadian) security for his “significant” legal costs in defending the action, should they lose the case. Part of the reasons given is their decision to sue outside of Bermuda.

Meanwhile, Mr Brady is asking the court to stay or dismiss the action against him, and the court has ordered the politicians to pay $3,000 (Canadian) into the trust account of his lawyers as security for his costs in taking that action.

A further court hearing has been scheduled for March.

Robert Horton, the then Permanent Secretary of Works and Engineering, shows the media the documents at the centre of the ?false cheques? controversy.
Toronto architect Sam Spagnuolo is being sued by politicians Ewart Brown and Derrick Burgess.
The then Premier Ewart Brown and Minister of Works and Engineering Derrick Burgess at a press conference relating to the new police and court building in Hamilton.
Photo by Tamell Simons The then Minister of Works and Engineering Derrick Burgess (left) and the late lawyer Julian Hall listened in as the then Premier Ewart Brown addressed the media during a press conference about the new police and court building in Hamilton.
The then Minister of Works and Engineering Derrick Burgess, flanked by Government officials, conducted a tour for the media and gave an update on the progress of the new court and police station in central Hamilton.
How we tried to get answers

The Royal Gazette made repeated attempts to invite the persons mentioned in these stories to respond to the allegations or comment, if they wished.The Royal Gazette replied, stating that the court documents cited in our story were freely available to the public from the court.

First, we e-mailed two Toronto lawyers who are representing Ewart Brown and Derrick Burgess, and contacted Dr Brown, Mr Burgess and Mr Hollinsid on their own e-mail addresses.

When no response was forthcoming we telephoned one of the lawyers, Charles Scott. Mr Scott said he had no comment to make on behalf of his clients.

A “read receipt” from Mr Burgess’s account indicated he read the e-mail three minutes after it was sent.

No reply was forthcoming so we contacted him on his cell phone, and left a voicemail message. He did not call back or respond to a follow-up e-mail.

No reply was forthcoming from Dr Brown so we called his home number and left an answerphone message. He did not call back.

We also called the home of Winters Burgess twice on week days and were advised on both occasions that he was out and does not have an e-mail address.

We called him back at home on a Sunday, at which point he complained: “You are calling me on a Sunday.”

He indicated he did not wish to speak any further. We asked if we might call back at a more convenient time.

He agreed that we could, but stated: “I’m not sure I even want to talk to a reporter.”

We called back the following day and were informed he was out.

We left a message with the person who answered the phone, who was unable to furnish us with a cell phone number for him.

Mr Burgess did not call back.

A “read receipt” from Mr Hollinsid’s e-mail indicated he read our message two minutes after it was sent.

When he did not reply, we called him on his cell phone. When asked if we could take a minute to outline these articles, he replied: “You are not going to have a minute of my time whatsoever. You got a response today from the lawyer (Jai Pachai) and that’s it.”

We e-mailed Arthur McLeod (also known as Bryan McLeod) at Landmark Construction but he did not reply.

An e-mail was subsequently sent to us by Mr Pachai, who indicated he was acting for LLC Bermuda.

He wrote: “Firstly, as you will know, court documents are not open to the public or capable of being publicised whilst a case is pending.

“I have no reason to think that the position in Canada on this is any different. Secondly, certain of the statements contained in your e-mail are defamatory and untrue.

“Should you publish any such statements, we are instructed to take legal action on our client’s behalf.”

We inquired of Mr Pachai which of the statements, specifically, are believed to be defamatory and untrue but he did not reply.

We also e-mailed Mr Spagnuolo and his lawyers, plus Mr Brady and his lawyer to let them know about the story.

Read receipts indicated that Mr Spagnuolo and one of his lawyers, plus Mr Brady’s lawyer, read our message. However, no responses were forthcoming.

We also notified Premier Paula Cox, and her spokeswoman, inviting Ms Cox to comment.

No response was forthcoming.

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Published February 06, 2012 at 9:00 am (Updated February 06, 2012 at 9:03 am)

Firm appointed Premier and Minister’s relatives after winning Govt contract, claim

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