ASPs lawsuit goes forward despite DCP's admission

A HIGH COURT judge has joined the consultancy firm involved in the promotion assessment process in a lawsuit over the rank of assistant superintendent of police.

Justice Frank Seepersad is also likely to give a decision in the challenge brought by Insp Mark Hernandez, former head of the now-defunct Special Operations Response Team (SORT), on December 17. A previous injunction to stop the commissioner from continuing the promotion process for ASPs remains in place for now.

This comes after attorneys for the commissioner said there was a need for issues raised in the lawsuit to be determined despite an admission by a deputy commissioner to the consultancy firm, Odyssey Consult Inc, to eliminate the pass mark requirement and to permit all participants to advance from stage one to stage two of the assessment process.

In an affidavit, DCP Natasha George said, “The commissioner and I have since been advised that regulation 19(5)(a) of the regulations require that ‘only the top-performing candidates’ as determined by Odyssey are to proceed to stage two of the assessment process.

“I therefore acted on a mistaken basis in informing Odyssey to permit all candidates from stage one to advance to stage two of the process.”

Central to Hernandez’s claim is that the three-part process for assessing officers for promotion to the rank of ASP is set out in a written policy and in the police service regulations, but they are not being followed.

At a hearing on October 30, Seepersad asked Senior Counsel Rishi Dass the commissioner’s position on the continuation of the case, given the admission by the DCP.

Dass said the case raised wider issues and the court had to be careful. He said it might be that the admission was not a breach that would inevitably result in the matter being set aside.

“The court would have to determine the consequences of that breach. The court would have to
determine if it is sufficiently important to justify restarting the process.

“It would not help us to restart and there is this same dispute (on the other issues).

“There is a need to have it determined…as soon as it can be by the court.

"We are prepared to comply with directions for a determination one way or the other.”

Dass’s submission came after the judge raised the admission in George’s affidavit.

Seepersad said the (Police Service) Regulations guided the process, reminding that the commissioner did not have unfettered discretion.

“Clearly on the face of the evidence, there was a significant misstep how the process should move forward. The regulation is clear. The intent of the regulation seems obvious…the ordinary meaning is manifestly evident.

“I do not form the view there is need for significant judicial determination.

“If that process not engaged in manner consistent with the legislative mandate, while there may be irregularities, why can’t an acknowledgment be made, the process be restarted, and there is a strict compliance with the regulatory framework?”

He said the court had a responsibility to ensure statutory obligations were discharged, and promotions were a critical aspect of the police service.

Seepersad said he was also atuned to the fact that officers left in limbo would be demotivated, but: “It takes one bullet for the kill. We do not need to tax judicial time which will ultimately be at the expense of taxpayers.”

However, Dass said “one bullet to get the kill” was not the law, and urged caution.

In response, Hernandez’s attorney Gerald Ramdeen admitted to being taken by surprise by the DCP’s admission, but agreed the wider public interest required the matter be determined, since officers “sitting in the wings” would not be able to enjoy their promotional prospects.

Seepersad gave Odyssey a week to file its information in response to the claim.

The matter will come up for hearing again on November 12, when the attorneys will give a timeline for filing submissions and further evidence in time for the judge to rule by the end of the year.

Hernandez is also represented by Jagdeo Singh, Dayadai Harripaul and Nerissa Bala.

A similar complaint has been made by his colleague Insp Veneta Weaver-Ali, of the police’s White Collar Crime Unit, and was also heard on Wednesday. She is represented by Jagdeo Singh, Karina Singh, Keston Lewis, Savitri Samaroo and Vashisht Seepersad.

Akeenie Murray, Tamara Toolsie, Kadine Matthew, Keisha Prosper, Coreen Findley, Aryanta Williams and Abigail Bristo are appearing with Dass for Harewood-Christopher and the AG’s Office.