Editorial | No ex post facto valour for CMU’s supine council

The only conclusion to be drawn about the council of the Caribbean Maritime University (CMU) is that it was acquiescent and supine, which no amount of ex post facto show of heroic tale-telling can eradicate, and oughtn’t to evoke sympathy.

This characterisation is affirmed by the revelation that, in June 2018, most, if not all, 23 members signed non-disclosure agreements (NDAs), preventing them from speaking about the going-ons at the university, now at the centre of a scandal, over allegations of graft, cronyism, breaches of government procurement rules and hosting private fêtes with taxpayers’ money.

“The way it (the NDA) was written, it was very tight,” said a former member of the council, who is now speaking out, but hasn’t been publicly identified. “Some people were uncomfortable signing, but they signed anyway.”

It ought not to have required much thought for anyone asked to sign such an agreement to find it fundamentally wrong on at least three grounds. First, as this newspaper previously observed, the council of the CMU is, in law, similar to the board of a directors of a company, to which they have a fiduciary responsibility and owe a duty of care. The members are expected to act in the best interest of the university and can’t allow themselves to be compromised by an imposition of silence.

Second, the NDA arose after, it has been reported, an eight-month hiatus in meetings of the council, during which several agreements, which are now the subject of a corruption probe, were signed by the management of the CMU and which the council, prima facie, ought to have been aware, would have been controversial, if not illegal.

NDAs not the norm

Finally, and more important, sophisticated business leaders, academics and entrepreneurs, should have been aware that NDAs are not the norm in governance arrangements, except where there is need to protect proprietary information, usually with regard to business transactions, or in circumstances where national security may be at risk.

When all of this is taken together, the most charitable conclusion about the members of the council is that they were naive. The more accurate one, though, is that they displayed great dereliction of duty.

What, however, is even more curious about this affair, is the pantomime that has emerged involving the permanent secretary in the education ministry, Dr Grace McLean, and Prime Minister Andrew Holness, over the advent of the non-disclosure agreements.

According to Dr McLean, the NDA was part of “the corporate governance framework of the Government”, which we assume means that it would have been subject to policy discussions, which would have included a Cabinet submission and final approval by ministers at one of their weekly meetings, before implementation by the former education minister, Ruel Reid, who is now facing corruption charges in relation to the CMU scandal.

Most unusual

But Prime Minister Holness, who, having been struck down by the courts for having senators present him with pre-signed letters of resignation, would likely, in the circumstance, be wary of NDAs of this nature. But he declared ignorance of the policy, which he described as “most unusual”. He promised to seek advice on whether the approach “is permissible”.

Permissibility is not issue. More important is the principle. And in circumstances where people are asked to have oversight of public institutions and taxpayers’ resources are at stake, NDAs should be exceedingly sparingly used. Anyone asked to sign them should mull deeply over the request and take advice before complying.

In the case of the CMU, it is a serious question of whose counsel the members of the council sought. For, they were not independent members, representing themselves. Indeed, except for four maritime industry-related professionals, presumably to be invited to the council by the minister, all other members are to be representatives of industry organisations and educational institutions, including those elected by the CMU’s academic staff, and, in one case, a representative of the government of Norway, which helped establish the university.

The Government must, in appointing the new council, ensure the required consultations with these organisations take place so members are clear that they don’t sit as independent members.