Legal Scoop: The requirement for public servants to disclose their assets

About a year ago, a good friend of mine, who is an engineer with a government organisation, was summoned before the Resident Magistrates' Court for failing to file his annual declaration of assets.

In a panic, he called me. I gave him free legal advice (clearly, he did not know the saying that legal advice is worth what you pay for it), he brought his filings up to date, appeared before the court, and paid the fine I had told him to expect, and so, luckily for him, avoided a prison term.

All ended well in my friend's case, however, there are still many public servants who are not complying with the requirement in question, either through ignorance of the law wholly, or, in part.

Therefore, in today's instalment of this column, I will look at this requirement for public servants to annually declare their assets.

WHO IS REQUIRED

TO DISCLOSE

The legislation which governs the disclosure of income by public officials is the Corruption (Prevention) Act.

Section 4, subsection (1) of the Act provides that every person who is a public servant shall furnish to the Commission a statutory declaration of his assets and liabilities and income.

An important caveat to Section 4 subsection (1) is to be found in subsections 2-4, which set out the groups exempted from the requirement to file a declaration. This includes public servants in receipt of less than the prescribed amount of emoluments. That is $2,000,000 per annum.

There are, however, certain categories of public servants who must file annual declarations regardless of their emoluments not amounting to $2,000,000 per annum. A list of these categories of public servants can be found in Parts I and II of the 2003 regulations.

PUBLIC SERVANT

In the event of a lack of clarity as to whether one is a public servant, Section 2 of the Act provides a definition:

Any person:

(a) Employed - (i) in the public, municipal or parochial service of Jamaica; (ii) in the service of a statutory body or authority or a government company;

(b) Who is an official of the State or any of its agencies;

(c) Appointed, elected, selected or otherwise engaged to perform a public function.

The broad width of the definition suggests that anyone being paid by a government organisation or affiliate would be caught within its purview, whether an actual employee or consultant. Interestingly, a person employed to a private organisation could also be regarded as a public servant. Note carefully the wording of subsection (c) above. It seems that what is important is that the person is performing a 'public function', not so much how their contractual status is described in writing.

PUBLIC FUNCTION

What then is regarded under the Act as a public function? Again Section 2 comes to our help:

Public function means any activity performed a single time or continually, whether or not payment is received, which is carried out by:

(a) A person for or on behalf of or under the direction of a ministry, department of Government, a statutory body or authority, a Parish Council, the Kingston and St Andrew Corporation or a government company;

(b) A body, whether public or private, providing public services;

(c) a A member of the House of Representatives or of the Senate in that capacity;

(2) For the purposes of paragraph (b) of the definition of public function, public services includes the provision of electricity, water and communication.

Intended or unintended, the above section, in my opinion, means that not only would employees of the National Water Commission and Jamaica Public Service Co Ltd be caught in the definition of performing public functions, but so too would employees of communication companies such as Flow and Digicel.

I am not aware that it is the current practice for employees of communication companies to disclose their assets to the Commission, and I admit my ignorance in that regard, however, the Act is very clear. A "public function" can be provided by either a private or public body.

The quite popular view then that persons employed in the private sector are exempt from the provisions of the Act, by virtue of them not being employed to the public sector, is erroneous.

CONTENTS OF DECLARATION

A declaration pursuant to subsections (1) and (4) of Section 4 shall include particulars of the assets, liabilities and income of the declarant, as well as those of his/her spouse and children. However-

(a) If the spouse was not living with the declarant at any time during the period in relation to which the declaration is made; or

(b) If a child of a declarant - (i) has attained the age of 18 years; or (ii) is married and under the age of 18 years, and was not living with the declarant at any time during the period in relation to which the declaration is made.

In such instances, the particulars required to be furnished by this subsection shall be limited to assets held by the spouse or child (as the case may be) in trust for, or as agent of, the declarant.

DUE DATE FOR FILING OF DECLARATION

In the usual course, declaration of assets must be filed annually by March 31 and should cover the preceding calendar year.

However, the Regulations of 2003 sets out alternative time frames for varying scenarios which readers -interested in this area - would be well advised to acquaint themselves with.

- Shena Stubbs is an attorney at law and legal commentator. Send feedback to shena.stubbs@gleanerjm.com Twitter:@shenastubbs