Complaints

Why Do We Need a Complaints Commissioner? I was reading through the Cayman Net News this morning. I saw that their Complaints Commissioner, Dr John Epp, has released a report. I found it instructive. We all have our favourite complaints about the Anguilla Public Service. There are the goods that were shipped from overseas and held in the Customs warehouse. When you returned to pick them up, they were gone. No one in Customs could tell you what happened to them. There was the Immigration Officer who was rude to you when you claimed you were an Anguillian. She told you that so long as you showed her a US passport, she would give you a limited time to stay on the island. There was the Planning Officer who would not permit you to build as you wanted. You had to go to the Minister to get him to tell Planning to stop harassing you. Indeed, in Anguilla almost the only remedy we have when we come upon a stubborn public officer is to go to the Minister and ask him to tell the officer to keep quiet. It is how we do it in Anguilla. We are not alone, many other islands function in this way. It is not the right way. It is a perversity. It undermines the public service. But, we needs must find a remedy when we believe that a public officer is not performing. That is where the Complaints Commissioner, or Ombudsman, comes in. He is the one to whom we take our complaints. He investigates and tries to fix the problem. He is paid by the House of Assembly and answers to no Minister. He is paid to be independent and fearless. We in Anguilla need and want such an institution. It was recommended at paragraph 181 of the2006 Report of the Constitutional and Electoral Reform Commission. It reads:

181. Complaints Commissioner. Anguilla has no Complaints Commissioner or Ombudsman. The only remedy for administrative abuse at present is an action for damages in the High Court. High Court proceedings are not only expensive but are often not the best remedy for improper conduct on the part of a public servant or government department. Representations have been made to the Commission that it is time that such relief be provided to citizens who have a complaint of oppressive or unfair treatment by any government officer. The Commission is satisfied that it is appropriate for Anguilla to have an Ombudsman at this time. The Commission recommends that there be provision in the Constitution for the office of Ombudsman, to report to the Assembly and to be regulated by an appropriate law.

In his report, Dr Epp gives some examples of the types of problems the Office of the Complaints Commission (OCC) had to deal with in the Cayman Islands last year. Let is look at some of them, taken directly from the Cayman Net News story. We will find that they are not so different from the types of complaints that we in Anguilla would like to make.

Case 1: Oil spills at the landfill – Investigation completed 10 November 2006
The OCC is still monitoring the outcome of one complaint that raised Environmental concerns at the George Town Landfill.

In February 2005, a complainant accused the Department of Environmental Health of failing to store waste oil drums from the George Town landfill securely and contaminating the surrounding area. He reported that leaking drums were littering the Harquail Bypass after being displaced in Hurricane Ivan in September 2004, and although the department was aware of the problem nothing was being done.

The OCC investigation found that drums had not been properly sealed or stored. While the DEH was taking action to clean up the contamination at the time of the complaint, the OCC considered the complaint justified. Poor storage and the excessive number of waste oil drums that had accumulated at the land fill during hurricane season had evidently contributed to the problem.

The DEH had also failed to keep accurate records of the waste oil it received. The OCC made seven specific recommendations to address storage and record keeping. At the time of publication almost all the recommendations had been implemented so the OCC continues to monitor the situation closely.

Case 2: Refusal of a Work Permit – Investigation completed 29 August 2006
Evidence revealed that the Work Permit Board (WPB) had made the right decision over a work permit renewal complaint which, was not upheld.

A work permit holder came to the OCC complaining that his renewal had been refused because his employer did not have a satisfactory training programme in place but, he believed his employer did indeed have a programme and other factors had influenced the board’s decision.

Investigations by the OCC and consideration of the evidence, including several resignations and contradictory submissions to the WPB by the firm, indicated that whatever training may have been in place was less than genuine.

The OCC decided that the WPB’s process and deliberations which led to the conclusion that the company had failed to meet the requirements regarding a proper training programme for Caymanians was sound. As a result the OCC found no case of maladministration.

Case 3: RCIPS fails to resolve complaint in time – Investigation completed 8 September 2006
Some five recommendations were made to the RCIPS Complaints and Disciplines Unit, (CDU) after it failed to properly act on a complaint made to them by an alleged victim of car theft.

Ten days after logging a complaint surrounding the details of the reported theft to the CDU, resident made a complaint to the OCC. After conducting an investigation this office found that although the CDU was hampered by the Vehicle Licensing office’s delay in supplying documents pertinent to the case, it was still at fault. It failed to contact the complainant about the progress of his case until the OCC began its investigation.

This case included input from the Governor and the Attorney General as it also raised issues about the OCC’s jurisdiction.

Importantly, however, it led to a greater understanding by the RCIPS that its internal complaints system needed to be reviewed and action to improve it.

Case 4: RCIPS follows procedures - Investigation completed 13 April 2007
The Office of the Complaints Commissioner was established to investigate complaints that government departments fail to resolve. When one complainant reported that the RCIPS had confiscated his belongings when he was arrested and given them away, the OCC discovered that the RCIPS Complaints and Discipline Unit police had investigated the accusations.

After the OCC met with the CDU it was apparent the case was being addressed properly and in accordance with procedure. The CDU was ultimately resolved in favour of the complainant, and the OCC decided that proper action had been taken by the CDU so the complaint was unfounded.

Case 5: Wastewater and the Turtle Farm – Investigation completed 30 August 2006
A complex complaint in April 2005 accusing the Water Authority, (WA) of failing to monitor the discharge of wastewater from the Cayman Turtle Farm, (CTF) revealed environmental concerns, but indicated the authority was not at fault.

When a concerned citizen reported that the discharge of effluent water from the CTF into the sea was not being regulated the OCC began a long investigation that involved a number of organizations and expert reports. The investigation was further complicated by the potential impact of a proposed dolphin facility at the same site.

Over 16 months the OCC watched the WA watch the turtle farm and found that the WA complied with the WA Law and was calling the CTF to account. As well as hearing evidence from the Department of Environment, the OCC considered expert research and an impact study. In the end it found that the WA was doing all it could within its regulator parameters. (After writing to the CTF with its concerns the WA deferred CTF’s license and warned of prosecution.)

In a case dragged out by the CTF’s failure to meet all the WA requests in a timely manner, the OCC concluded that the complaint against the WA was not founded.

Case 6: Trade & Business License Board to explain decisions – Investigation completed 13 December 2006
Regardless of the reasons for a deferral the Trade and Business License Board should explain its decisions to those directly affected was the conclusion of one investigation following a complaint against the board.

When an application to operate a small business was deferred in order for the board to collect evidence from the National Roads Authority, (NRA) the OCC discovered the board had not informed the complainant.

It said this was because of their concerns that an explanation would have caused the complainant to call the NRA, which they believed would have been inappropriate. The OCC concluded however, that the board need only have said it was waiting for information from an unnamed government office.

The OCC found in favour of the complainant and recommended that more detailed explanations of the decisions made by the board are given to applicants.

Case 7: The DEH and notification over a garbage skip – Investigation completed 13 September 2006
A poorly placed garbage skip led to a resident’s ill health and a complaint that involved the DEH and the Central Planning Authority, (CPA) being upheld.

When a resident found a skip some 20 feet from his bedroom window as opposed to at the opposite side of the development site as expected, he registered a complaint with the OCC.The subsequent investigation revealed that while the complainant was led to believe the skip would be sited in a given spot according to the original plans, a later meeting of the CPA granted permission to the developer to move it without offering the complainant a chance to object.

The timely involvement of the OCC ensured that the skip was moved to the original location, and that new processes were adopted to ensure proper notification.

Case 8: Public Transport Board improves procedures – Investigation completed 20 June 2007
A letter of apology and the establishment of a secretariat were two of the recommendations made by the OCC to the Public Transport Board, (PTB) after the commissioner found the board had failed to respond in a timely manner to a complaint.

Following the submission of an application for a specialist transport service, the applicant came to the OCC complaining that the PTB had failed to provide him with the correct information and was slow to respond to enquiries. An investigation by the OCC discovered that administrative and communication problems within the PTB had led to a delay in response.

The OCC concluded that while the PTB had provided accurate information it had not done so in an acceptable time period and the second part of the complaint was well founded. The case also resulted in a promise from the Minister of Tourism, Environment, Investment and Commerce that flaws in the administration of the PTB would be addressed.

Case 9: Child and Family Services to provide assistance - Investigation completed 13 December 2006
One parent was approved to receive school lunch assistance for her children when the OCC found a case of maladministration at the Department Child and Family services. After receiving a complaint from a parent who had been refused assistance, the OCC discovered that certain conditions had been imposed on her.

However, under the Poor Person’s (Relief) Law the department did not have the authority to do so. Moreover, there was an evident lack of Regulations in the current framework guiding the department’s decisions.

The OCC was therefore, concerned that arbitrary decisions could lead to injustice and discrimination. It was recommended that until relevant regulation was in place temporary relief should be given to children without (illegal) conditions.

Case 10: License deferrals by the EBE – Investigation completed 14 November 2006
A local contractor complained to the OCC that the Electrical Trade Licensing Board of Examiners (EBE) had undermined its right to a timely appeal by twice deferring license applications for its wireman and electricians.

During its investigation the OCC found that because the EBE were unable to ascertain independently information about the electrician’s qualifications it twice deferred the contractor’s applications.

After a refusal and then a resubmission the board finally granted the licenses. The delay of over three months however, caused by the deferrals was significant and the contractor was prevented from following through with a right of appeal.

As a result the OCC recommended that there should only ever be one adjournment to allow for more information before a decision is made, other than in exceptional cases.

The Aim of the OCC is to investigate in a fair and independent manner complaints against government to ascertain whether injustice has been caused by improper, unreasonable, or inadequate government administrative conduct, and to ascertain the inequitable or unreasonable nature or operation of any enactment or rule of law.

It is pathetic that we in Anguilla have no similar remedy. We are obliged to go running to some fixer to do us the favour of calling on the offending public servant to do his job. Then, we worry what favour we will be asked to give in return. As my Dominican friend likes to say, “You can do anything you want in Anguilla, so long as you have a Godfather”. What kind of a way is that to live? The answer is that we live as close to the jungle as it is possible to get in this day and age. We can only read and wonder at how luck those Camanians are!