Appeal Court narrows 'wide berth' given to suspended state lands commissioner

TWO Appeal Court judges have reversed an order which gave suspended Commissioner of State Lands Paula Drakes a “too wide berth” to cross-examine witnesses for the Public Service Commission (PSC) in her legal challenge of accusations against her.

In April 2021, Justice Carol Gobin gave Drakes permission to pursue her judicial review claim against the commission. She is seeking orders for her reinstatement and for the decision to suspend her and have her face a disciplinary tribunal expunged from her employment record.

As part of the case’s progression, Gobin allowed cross-examination on several issues.

However, the commission, in an appeal on Monday, argued the judge’s directions were far too wide as they would allow for challenges to facts that were not in dispute. Its lead attorney, Russell Martineau, SC, said this was not permitted in judicial review. Martineau also argued the vagueness and wide scope of cross-examination on issues irrelevant to the claim were not allowed in the rules of challenge.

Justices of Appeal Vasheist Kokaram and Malcolm Holdip agreed with Martineau’s contention, upholding the appeal and setting aside Gobin’s order on cross-examination, while encouraging both sides to collaborate on the issues that should be examined at the trial set for next week.

Drakes is represented by attorney Keith Scotland.

In her claim, Drakes also wants compensation for salary lost and aggravated and exemplary damages because of the conduct of the commission.

Drakes, who was appointed on October 10, 2016, was suspended twice after assuming the job, first in May 2018 and again in June
that same year.

After her first suspension, on May 28, 2018, Drakes received correspondence saying the commission had decided to “take no further action” on an allegation of misconduct against her, that her suspension was being lifted and she could report to work immediately.

She did so, but on June 9, 2018, she received a second suspension notice telling her of new allegations of misconduct against her.

On December 28, 2018, Drakes was told charges would be laid against her and the commission was proposing to “interdict her from duty” with half-pay. She remains on suspension.

These are the decisions of the commission that she is challenging.

In her claim, she has contended that the commission’s failure to give her a reason for the withdrawal of the initial charges and for the new charges was irrational, unfair, unreasonable, unjustified, unconscionable and a breach of natural justice.

The allegations against Drakes surround concerns in relation to land allocation with indirect family links.

Drakes said she was never given any warning of an adverse report against her in keeping with Public Service Commission regulations. She also said she had not seen any regulation which allowed a random member of the public to make an adverse report against a public officer, except where some criminal process had been completed in the courts.

She also expressed concern over newspaper reports which coincided with the commission’s first letter to her which referred to the disciplinary charges.

Drakes said she was never told why the six charges against her were withdrawn and then six identical or similar disciplinary charges were laid. Nor was she allowed to attend the Royal Institute of Chartered Surveyors' conference in the Bahamas in 2019.

She also sought to challenge a letter written by the former agriculture minister, who wrote to the prime minister, saying he had lost all trust in her to make sensible decisions and asked for consideration to be given to her removal.

But Martineau said, “She is complaining about the minister’s letter. This is not a challenge of a decision of the minister. What does this have to do with the commission? This is for the tribunal to deal with. If the minister acted in bad faith, this is not for the trial judge…it is for the tribunal.”

Drakes was ordered to pay the commission's costs of the appeal.

She is also represented by attorney Jacqueline Chang.