Sooba’s appointment as Town Clerk quashed

Apr 11, 2014 News

– CJ rules Minister does not have such power

By Zena Henry
The decision to appoint Carol Sooba as the substantive Town Clerk of the Georgetown Mayor and City Council (M&CC) was yesterday quashed when Chief Justice (ag) Ian Chang ruled that the Local Government Minister does not have the power to appoint any person in a substantive position within the body.

Carol Sooba

The Chief Justice was at the time passing judgment on the matter brought against the Local Government Ministry by Royston King who challenged the government’s appointment of Sooba to the office of Town Clerk, when he explained that the Constitution does not give the Minister the power to appoint any official earning a certain amount of money annually.
Chang emphasized that the Constitution specifically gives that power to a Local Government Service Commission; members of whom shall be appointed by the Prime Minister.
Section 95 of the Municipal and District Councils Act Chapter 28:01 says that the Commission will be commissioned and consist of a chairman, deputy chairman and three others. Section 96 of the same Act provides for the members appointments, while Section 116 (1) provides the Commission with the power to appoint staffers among other things.
Under Section 326 (4) of the same Act, it is further provided that in the absence of the Commission, “the powers (of the Commission) conferred under section 116 shall be exercised by the Minister.” However, the Chief Justice (CJ) noted that since the law came into being in 1969; the body has never been commissioned to function. The law limits the Minister’s power, while it specifically provides for the establishment of the Commission.
The CJ related however, that the grounds under which King had challenged the Minister’s decision assumed that he (the Minister) had the legal authority to appoint the Town Clerk, but acted irrationally and arbitrarily, breaching the legitimate expectation of those who applied for the position, and that of the assessment of the panel of interviewers.

Chief Justice (ag)
Ian Chang

Chang said that the Minister did not submit his decision-making power to the panel and while there was a legitimate expectation that he (the Minister) would consider all applicants, even if he had the statutory power to appoint “he could not abdicate and surrender his statutory decision-making power to allow the panel to make a decision which was only his to make.”
In defence, Minister within the Local Government Ministry Norman Whittaker submitted that the findings of the panel that were put together by the Ministry were taken into consideration, but any expectations in the minds of the applicants were “wholly misconceived and fanciful.”
The Minister charged that the academic qualifications of Sooba could not have been the only criterion for scrutiny, since other appointments deemed “best” did not always get the post. He pointed to the City Treasurer and the Medical Officer of Health; also deemed not qualified, but who were appointed at the same time with Sooba, but faced no protestation or legal proceedings by the Council. Whitaker reiterated that in his view, Sooba was suitably qualified.
As an interested party, Sooba said to the court that with members such as Deputy Mayor Patricia Chase-Green and Local Government Union President Dale Beresford on the interview panel, it could not validly determine that she was the least qualified candidate, since by correspondences, Chase-Green saw her as a power-seeking Town Clerk and Beresford had already described her appointment as “an insult and injustice” and threatened legal action against the Council.

Royston King

The Chief Justice found that the Local Government Minister acted ultra vires (beyond powers) provided by the Municipal Act, “and his decision to appoint Carol Sooba as Town Clerk must be quashed.” He said that she will however continue her functions as the de facto (not necessary ordained by law) Town Clerk. Chang stated that it is a direct challenge by quo warranto (legal proceeding to show an individual’s right to hold an office) to the authority of Sooba to bring her de facto authority to an end.
Royston King was represented by Attorney Nigel Hughes, Sooba’s interest was represented by Keisha Chase, and Adrian Smith stood for the Local Government Ministry.