Maroc - NEWSDAY.CO.TT - A la Une - 19/Feb 05:01

169 cops lose out as judge overturns police promotion process

The Trinidad and Tobago Police Service (TTPS) must restart its entire promotion process for officers seeking to advance from the rank of Inspector to Assistant Superintendent of Police (ASP). On February 18, High Court judge Frank Seepersad delivered his decision in a lawsuit which challenged the promotion process for assistant superintendents of police. He also refused to grant a stay of his order because the breaches were “so fundamental and egregious.” Insp Mark Hernandez filed a judicial review claim which questioned compliance and fairness of the performance appraisal and promotion process. [caption id="attachment_1139688" align="alignnone" width="768"] Suspended Insp Mark Hernandez - Photo courtesy Mark Hernandez[/caption] In a strongly-worded judgment, Seepersad laid bare the deep flaws of the process, calling it “deficient and defective.” He ruled the breaches of statutory obligations were significant and undermined the integrity of the system designed to identify the most capable officers for leadership roles. He also said the process revealed a cascade of errors and regulatory breaches which were “neither isolated nor de minimis” but rather “numerous, substantial, seemingly deliberate, pervasive, and profound.” Seepersad found that the police service’s performance appraisal system (PMAS) was fundamentally compromised. Every candidate was automatically given an “outstanding” grade without an authentic evaluation of their performance. This practice, he ruled, violated the merit-based system mandated by Section 16(3) of the Police Service Act and was fundamentally inconsistent with selecting the most qualified candidates. He also held that the contracted third-party firm, Odyssey Consultinc Ltd, failed to enforce the mandatory 50 per cent pass mark for the qualifying examination. Instead, Odyssey allowed all officers—regardless of their scores—to advance to the interview stage, on the advice of DCP Administration Natasha George, directly violating Regulation 19(5) of the Police Service Regulations,the judge found. He deemed this action irrational and unlawful, stressing that it destroyed the credibility of the promotional assessment. The judgment was particularly critical of the Commissioner of Police, holding that she bore ultimate responsibility for ensuring compliance with the regulatory framework. Seepersad noted that every restrictive regulatory requirement of the promotion process had been disregarded, creating a “deficient and defective” system. He held that the promotion process, by law, was a merit-based system of stages intended to identify and promote the most capable officers, not one that operated as a mere formality. “The breaches were neither isolated nor de minimis—they were numerous, substantial, seemingly deliberate, pervasive, and profound,” the judgment stated. “Yet again, the commissioner was seemingly oblivious to her constitutionally imposed supervisory responsibilities as she failed to identify the circumvention of the regulatory requirement with regard to the advancing of the ‘top-performing candidates’. “The flouting of the statutorily imposed obligations under the act thereafter continued unabated, as the interviewing panels were not properly comprised and the commissioner made a third strike as she failed to identify that the contracted party had acted in a manner which disregarded the conditions imposed by Regulation 19(4). “Every restrictive regulatory requirement of the promotion process, as imposed by Parliament, was disregarded and no procedural step can now be initiated to cure the defects and illegality which ensued.” Seepersad made it clear that any merit list generated from a fundamentally flawed promotion process could not be relied upon, declaring that to do so would be prejudicial to the public interest. He quashed the promotion exercise currently taking place as he ordered it to be restarted. Seepersad said, “The TTPS is entrusted with the safety and security of citizens and the organisation is vested with the sacred responsibility of preserving law and order. “As a consequence the TTPS must function efficiently and this is best achieved when the most suitably qualified and best skilled persons are appointed to positions of leadership. “Leadership matters and good leaders can transform organisations. Parliament in its inherent wisdom, determined that the objective of ensuring effective leadership within the TTPS, would be best accomplished by the reform which was engaged and this led to the enactment of the various provisions of the Act and the regulations.” The judge added, “The evidence in this case has established that there were fundamental breaches of the operative regulations and this occurred from the very outset in relation to the very first restrictive provision which required officers to be appraised. It is unacceptable that effective appraisals were not conducted and that candidates were all given an ‘outstanding grade’. “Essentially, there was no screening so as to ensure that only those who scored 60 points or more moved forward. These qualified officers had to be identified in advance and only then could they have moved on to the written examination stage of the promotion process. “This requirement was also not met as this information was only provided after the written exam and the interviews had taken place. “In both instances the breaches were fundamental and the commissioner failed to discharge core constitutional responsibilities.” He added, “Transparent and effective promotion is an integral part of the management and administration of the TTPS and the requirements of the act cannot be disregarded with impunity. “Neither the commissioner nor the contracted party took any step to correct the breaches which occurred and the court, in fact, holds the view that there were/ are no steps which can be effected to cure the hopelessly defective process which was engaged.” Judge: Harewood-Christopher failed in her duty It was for this reason Seepersad said the entire process had to be invalidated. “This position is unfortunate as many officers who may be close to retirement may be adversely affected and understandably they would experience a discernible degree of disappointment. “The culpability for their disappointment must fall at the feet of the commissioner as she failed to discharge her constitutional obligation in relation to promotions within the first division. “ It is also unfortunate that under the watch of the commissioner the public purse was charged for the conduct of a deficient and defective promotion process but the court can neither countenance constitutional violations nor can it sacrifice the need for due process at the altar of economic expediency. “The commissioner failed to effectively and efficiently discharge her function under Section 123A of the Constitution and she together with the contracted party performed a great disservice to the taxpayers of this country and to the officers of the TTPS who applied to be promoted to the rank of Assistant Superintendent of Police. “The continued placement of square pegs in round holes must cease. Persons who are appointed to high office must have the capacity and capability to discharge the constitutional obligations which vest in them. “When they are either incapable or simply fail to do discharge their responsibilities the consequences are detrimental and debilitating.” Mincing no words, the judge continued, “The events which occurred in this case should signal an alarm as there is an evident administrative crisis in the TTPS. “At this time, radical changes are urgently required and every effort has to be made to ensure that the requirements of the act and the regulations are followed when promotions have to be effected.” He was also critical of DCP George for failing to provide the PMAS scores that not all officers received an “outstanding” assessment. “Where a party deprives the court of relevant evidence, the court is entitled to make the most adverse of inferences. “This court, in the circumstances, is inclined to hold that the reason why no PMAS with a grade other than outstanding was produced is likely due to the fact that no such PMAS existed. “In public law matters, the presumption of regularity operates in favour of the public authority, sadly however in this Republic and with increasing regularity, the level of confidence which the court can depose in relation to the candour and forthrightness of many public authorities and officials, has been eroded. “Far too often, deliberate and calculated attempts are made to obfuscate the truth as missteps are rarely ever owned or acknowledged.” While ruling that the promotion process was fatally flawed, Seepersad did not find that Hernandez’s constitutional right to the protection of the law had been violated. He noted that Hernandez advanced through every stage of the flawed process without evidence of specific prejudice or adverse treatment against him as an individual candidate. He also said since Hernandez was on suspension it was unlikely he could be promoted or appointed to the rank of ASP at this time. He has been charged with misbehaviour in public office. Hernandez’s lawsuit disputed the procedural integrity of the promotion assessment. It also questioned the process’s fairness, transparency and adherence to police service regulations. He contended the process failed to follow proper guidelines and deprived qualified officers of fair advancement opportunities. Hernandez also contended all officers eligible for promotion to the rank of ASP, from what he was told, received an “outstanding” grade on their performance appraisals. Some 169 inspectors took part in the process for promotion to the rank of ASP. The commissioner and the Attorney General were ordered to pay Hernandez’s costs. The interested parties, Odyssey ConsultInc and the Police Social and Welfare Association, were made to bear their own costs. Hernandez was represented by Jagdeo Singh, Gerald Ramdeen, Nerisa Bala and Dayadai Harripaul. Rishi Dass SC, Tamara Toolsie, Akenie Murray and Kadine Matthew represented the State. Owen Hinds Jnr and Keisha Kydd-Hannibal represented Odyssey ConsultInc and Kingsley Walesby appeared for the association. Newsday called association president Gideon Dickson about the ruling but he said the association could not comment until it consulted with its attorneys. Attorneys: Hernandez vindicated by judge's ruling Attorneys: Hernandez vindicated by ruling Attorneys Gerald Ramdeen and Jagdeo Singh say their client, Insp Mark Hernandez, felt vindicated by the ruling. In a statement on his behalf, the attorneys said, “His actions were always aimed at ensuring that the provisions of the Constitution, the Police Service Act and the Police Service Regulations were obeyed in the promotion exercise. “The findings that were made by the court in determining this matter are troubling and strikes at the very core of every right thinking patriotic citizen of this country.” They said it appeared that Police Commissioner Erla Harewood-Christopher, who has since been suspended, “was seemingly oblivious to her constitutionally imposed supervisory responsibilities.” [caption id="attachment_1136658" align="alignnone" width="1024"] Suspended Commissioner of Police Erla Harewood-Christopher - File photo[/caption] They said she took no step to correct the breaches identified by Hernandez and affirmed by the court. “The commissioner performed a great disservice to the taxpayers of this country. Under the watch of the commissioner the public purse was charged for the conduct of a deficient and defective promotion process." They said the police service stands as a shield between citizens and criminals and the country must insist that those who lead it are the most qualified and suitable. “Anything less will risk our collective well-being, the safety of our citizens and the undermining of the rule of law. “The decision of the High Court today sounds loud to each of us that things are not right in the TTPS."   The post 169 cops lose out as judge overturns police promotion process appeared first on Trinidad and Tobago Newsday.