Dear Editor,
The Town Clerk’s letter of February 16, 2018 in SN, `As Town Clerk I only act on the basis of legal authority’ is yet another demonstration of his disqualification for office. The orientation of his thinking underlines his continued ignorance of the law, and concomitantly his role and responsibilities. It is the core of why transparency, accountability and good governance are under threat at City Hall.
Firstly, the Municipal and District Councils Act, Chap 28:01, Sixth Schedule, refers to “Powers, duties and responsibilities of certain officers” and outlines those of the Town Clerk. In three instances it gives specific guidance to the Council on the Town Clerk’s role on legal matters:
(2) He shall advise the council and its committees on all matters upon which his advice is necessary, including the standing orders and by-laws thereof.
The schedule expands, yet limits the Town Clerk’s role contextually,
(11) He shall, where legally qualified so to do, give legal advice to the Council, and whether legally qualified or not, to local government officers in the service of the council on questions arising with regard to their official duties and obligations.
Note, the Town Clerk’s advice to Council is predicated on where he is “legally qualified to do so”.
Chap. 28:01 Section 6, “The City Council may sue and be sued by and in the name of Town Clerk of Georgetown,” therefore does not put legal proceedings and matters of Council in the exclusive jurisdiction of the Town Clerk, but instead makes the Town Clerk the object of legal proceedings, lest rationally, every Councillor or employee as servants of the Council be engaged in litigation individually and continually for Council business, hence affecting the efficient functioning of the body.
Secondly, the Town Clerk quoted his favourite section, (77): (3) “The clerk or other officer authorized in writing by the clerk may, subject to the general or specific directions of the council, exercise the powers of the council, and all acts done by the clerk or such officer in the exercise of those powers shall be deemed to have been done by the council.”
The learned Town Clerk has never seemed to realize the authority “exercise the powers of the council” is not an unfettered discretion, but the very section curtails the power, making it, “subject to the general or specific directions of the council”. It is the Council that must instruct the Town Clerk to act on its behalf and when he so does, it is deemed to be done by the Council.
The Town Clerk also states, “I would also note that similar legal matters were never taken to the Council for decision. Successive Councils understood that it is the responsibility of the Town Clerk to manage the legal arrangements of the Council. Again, there is no precedence in this area of administrative responsibility, at the Mayor and City Council. Therefore, my action is based on custom and practice, my understanding of my responsibility and the Act, Chapter 28:01.”
Editor, there is well established jurisprudence that is pellucid in articulation that performing a function incorrectly or illegally for any period of time, protracted or otherwise, does not automatically transform such actions to a legality. This legal principle is best expressed in the Latin phrase ‘ignorantia juris non excusat’: ‘ignorance of law excuses no one’, which holds that a person who is unaware of a law may not escape liability for violating that law merely because one was unaware of its content.
Thirdly, the election of a Councillor to execute the responsibilities of Mayor while both substantive Mayor and Deputy Mayor were out of the jurisdiction, is not a light matter, but has legal implications, as the process features in Chap 28:01. I am astonished by the Town Clerk’s ignorance, as he is condemned by his own words in his letter.
Editor, Chap 28:01: 17 (1), says, “During any period when the Mayor is for any reason unable to perform the functions of his office, those functions shall be assumed and performed by the Deputy Mayor. (2) If the Deputy Mayor is for any reason unable to perform the functions of the office of Mayor in accordance with subsection (1), The Town Clerk shall call a meeting of the councillors to elect a councillor to perform those functions; and the councillor so elected shall assume and perform those functions until such time as the Mayor or Deputy Mayor, as the case may be, is able to act.” The Town Clerk also stated the period for which the Mayor was out of the jurisdiction.
The Act is absolutely clear, “The Town Clerk shall call a meeting of the councillors to elect a councillor to perform those functions”. Did the Town Clerk discharge his function and call a meeting? Absolutely not. The Town Clerk deliberately waited for the regular Statutory Meeting to occur. Clearly yet another dereliction of duty. Subsection (3) of 17 refers precisely to the manner in which that meeting must be called.
The Act and subsection are clear. The Councillor is elected to perform the functions of Mayor, this is not restricted to chairing a Statutory Meeting, this is but one of the functions of the Mayor. The Act is clear that the person so elected “shall” perform“ until such time as the Mayor or Deputy Mayor, as the case may be, is able to act.”
The Town Clerk in his letter stated, “The Deputy Mayor or the Councillor elected to carry out the duties of the Mayor must perform those functions for seven consecutive days or more before he or she is accorded the facilities assigned to the Office of the Mayor. This is in keeping with Section 17, subsection (5) of the Municipal and District Councils Act, Chapter 28:01.”
The Town Clerk, quotes the Section – 17 (5), “In the event of the Deputy Mayor or a Councillor performing the functions of the office of Mayor for seven consecutive days or more, the Deputy Mayor or Councillor, as the case may be, shall during such period, have at his disposal, in lieu of the Mayor, the funds placed at the disposal of the said office in the manner specified for the payment of such funds”.
The Town Clerk interprets this to mean once the Mayor is out of the jurisdiction for less than seven days, there is no need for a Councillor to perform the duties of Mayor, or where there is necessity for someone to Chair the Statutory Meeting, there is no need for the privileges of the office of Mayor to be afforded the individual acting. The relevant subsection is specific that it is “the funds [which is] placed at the disposal of the said office” of Deputy Mayor or Councillor after seven days if the Mayor is unable to act. As a result of the Town Clerk’s misinterpretation he did not afford the said Councillor adequate protection, transportation and needless to say, relevant information for carrying out of the functions of the office to which he was then elected.
Editor, again, I remind the Town Clerk of Minister of Communities Ronald Bulkan’s guidance to the Council: “There can be no doubt that the letter and spirit of the law contemplates that there must at all times, be a Mayor within the jurisdiction of the municipality and common sense would reveal that this would more so apply to the capital city.”
Finally, the 2009 Amendments to the Principal Act, Municipal and Districts Councils Act, Chap 28:01, places on every Councillor a responsibility, among other things, to “Ensure that the municipality is managed in a professional and competent manner by a qualified Town Clerk.”
I am profoundly concerned about the Town Clerk’s understanding of the workings of Chap 28:01, general domestic law, and the quality of his work overall. It is time we embrace the recommendations the City Hall’s Commission of Enquiry (2008) dubbed the Keith Burrowes Report. The Report recommended: “If one were to consider the reasons why it became necessary to establish a Commission of Inquiry, it may be a worthwhile proposition that a legal department of some prominence be set up in the administrative structure of the Council. Also, in light of the fact that the Town Clerk is required to “give general legal advice to the Council”, without explicitly suggesting that the Town Clerk should be a qualified Attorney-at-Law, perhaps, it may be necessary to include some legal training as a necessary aspect of the qualifications for the position of Town Clerk.
Yours faithfully,
Sherod Avery Duncan
City Councillor
