Sacrificial lamb?
Legal, labour experts question NEPA building inspector’s suspension amid controversy over Barnetts’ development
Published:Sunday | January 21, 2024 | 12:09 AMLivern Barrett - Senior Staff Reporter
The building inspector who was the first to flag breaches detected at a controversial St Andrew housing development undertaken by a senior public officer has been suspended amid claims that it was his “gross misconduct” that resulted in the scathing findings of an Integrity Commission (IC) investigation of the project, a leaked document has revealed.
The IC is the country’s main anti-corruption body.
Rhyan Henry, an inspector employed by the regulatory body – the National Environment and Planning Agency (NEPA) – was placed on interdiction, minus 20 per cent of his salary, on January 17 to facilitate a “disciplinary investigation” into “allegation of gross misconduct”, according to the document seen by The Sunday Gleaner.
Without any warning or meeting with superiors, Henry was handed a letter shortly after 3 p.m. last Wednesday and was reportedly allowed to gather his personal belongings by superiors who accompanied him to his workstation then asked to leave the building, claimed sources who were present.
A report has since been made to the IC, sources disclosed, though it is unclear what role the anti-corruption body could play in the impasse.
The commission, which also has remit for the Protected Disclosure Act (PDA) – or whistle-blower legislation – declined to answer Sunday Gleaner questions posed on Friday, citing several clauses in its legislative framework, including sections 56 – the so-called muzzle clause – and 53.
“In the circumstances, the provisions of the ICA (Integrity Commission Act) and the PDA prohibit the IC from confirming, one way or the other, the particulars of your inquiries,” the commission said.
Notice of Henry’s interdiction was communicated to him via a letter signed by Karlene Hamilton-Reid, director of human resource management and development at NEPA. The investigation is being led by Satcha Atkinson, a senior human resource officer, Hamilton-Reid reportedly indicated.
According to sources, Hamilton-Reid indicated, in her letter, that the investigation was based on allegations that Henry brought NEPA into “disrepute” because of his failure to “satisfactorily” carry out his monitoring duties at the housing development at 11 Charlemont Drive in St Andrew.
The housing development was undertaken by Mark Barnett, president of the State-owned National Water Commission (NWC), and his wife Annette.
The NEPA human resource director signalled, too, that Henry is being investigated for “inefficient work performance” for allegedly failing to carry out established enforcement procedures “with respect to monitoring” the project.
“The purpose of the investigation was to establish whether there is a disciplinary case to answer,” Hamilton-Reid reportedly explained, adding that the actions taken by the agency were in accordance with its policy and procedure manual dated August 2023.
The decision by NEPA to suspend Henry came six days after the country’s prosecutorial authority indicated, in a legal opinion, that the allegations made against the Barnetts support the filing of criminal charges against them, but said the authorities are out of time to file those charges.
The legal opinion by the Office of the Director of Public Prosecutions (ODPP) was made public on January 11 by the IC, which conducted an investigation into the allegations against the Barnetts and developer Phillip Smith.
Legal and industrial relations experts believe Henry has a “more than arguable” case to defend his position and that NEPA’s approach may be flawed.
Peter Champagnie, KC, an attorney who is not involved in the case, believes the building inspector may be a scapegoat for NEPA’s failure to initiate a criminal prosecution against the Barnetts as is outlined in Section 36 of the Natural Resources Conservation Authority (NRCA) Act.
The NRCA has oversight responsibility for NEPA.
Champagnie acknowledged that he has not assessed all the documentation related to the case, but said it appears to be “a classic case of regulatory bodies not holding themselves accountable”.
“Certainly, he can’t be held accountable for that because that is where the ultimate wrong is,” Champagnie said, referring to NEPA’s failure to initiate a prosecution. One of the findings in the IC’s 90-page report indicated that Henry reported the breaches he observed at the housing development to superiors in December 2020.
“It would almost seem that he is being sacrificed at the altar of expediency to satisfy the public’s appetite for someone to be held to book and, therefore, the focus is misplaced,” the attorney said.
John Levy, general secretary of the Union of Clerical, Administrative and Supervisory Employees, said he had concerns about the use of both interdiction and pay cut as well as the reasons given by the regulatory body.
“Is this a case where the employee is likely to interfere with witnesses or evidence? Those are the particular circumstances in which interdictions are usually appropriate,” he asserted.
According to Levy, issues related to performance on the job “are generally not treated in the way that this case is being approached”.
“Pay cuts are usually used in circumstances of fraud or stolen assets. This is not a case of possible recovery of lost assets or revenues,” Levy said, adding that bringing an entity into disrepute is a “very subjective and challenging” matter.
“Where is the appraisal of the employee in all of this? Was there a hearing or consultation with the accused employee to allow him to state his concerns and challenges as to the effect of not just the interdiction, but the cut in salary?”.
The IC investigation confirmed that the NEPA issued building, planning, and environmental permits to the Barnetts on August 13, 2019, for the construction of two three-storey blocks consisting of 12 one-bedroom units.
They were granted a building permit by the KSAMC the following day, records show.
However, IC Director of Investigations Kevon Stephenson concluded that the development – now listed as completed – consists of six two-bedroom units and six three-bedroom units, “in breach of the permits issued”.
According to the evidence collected by the IC and reviewed by prosecutors, Henry observed, during his seventh visit to the project site on December 17, 2020, that the layout of the apartment complex had deviated from the drawings that had been approved, received, and date-stamped by the regulatory body on July 3, 2019.
Those breaches were outlined to the NWC president in a warning letter written on February 10, 2020, by Carlene Martin, acting manager of the enforcement branch at NEPA, the IC investigation revealed.
Eight months after the warning letter from Martin, another NEPA building inspector, Jac-Wain Campbell, visited the housing development and noted, like Henry, that one block contained six two-bedroom units, and a second block had six three-bedroom units.
According to the evidence, Morjorn Wallock, then director of legal and enforcement at NEPA, wrote to the Barnetts requesting that they submit applications to the relevant authorities seeking an amendment “consequent on the project’s departure from what was approved”.
Annette Barnett, an attorney, acknowledged receipt of Wallock’s letter on November 8, 2021, and requested a deadline of November 22 “to review and address the issues raised”, according to the evidence.
She acknowledged last February, during an interview under oath with investigators at the IC, that she had done nothing after her response to Wallock requesting additional time.