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Lavusvatu Water Project - Luganville [2002] VUOM 4; 2002.05 (26 April 2002)

REPUBLIC OF VANUATU

OFFICE OF THE OMBUDSMAN

PMB 081
Port Vila
Vanuatu

PUBLIC REPORT

ON THE

LAVUSVATU WATER
PROJECT - LUGANVILLE

26 April 2002

0038/2002/05

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PUBLIC REPORT

ON THE

LAVUSVATU WATER

PROJECT - LUGANVILLE

TABLE OF CONTENTS

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1. JURISDICTION

1.1 The Constitution and the Ombudsman Act and the Leadership Code Act allow the Ombudsman to look into the conduct of government, related bodies, and leaders. This includes the conduct of the Luganville Town Clerk in implementing decisions of the Council. The Ombudsman can also look into defects in laws or administrative practices, including the Municipal Act [CAP 126].

2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED

2.1 The purpose of this paper is to present the Ombudsman's findings as required by the Constitution, the Ombudsman Act and the Leadership Code Act.

2.2 The scope of this investigation has been to establish the facts surrounding the non-implementation by the Town Clerk, Mr Karl Batick, of Luganville Municipal Council's decision to carry out the Lavusvatu Water Project and his decision, instead, to undertake road works in the Pepsi area.

2.3 This Office collects information and documents by informal request, summons, letters, interviews and research.

3. RELEVANT LAWS

3.1 The relevant laws are produced in Appendix E to this report.

3.2 The Constitution and the Leadership Code Act provide that a leader has a duty to conduct him or herself in such a way - both in his public and private life - so as not to demean his or her position.

3.3 The Municipal Act provides that the Council has the sole responsibility for control, management and administration of the municipality. The council may enter into contracts for the purpose of any works, services or other matters that it is required or empowered to undertake, carry out or manage.

3.4 The Municipal Act also provides that the Town Clerk may, subject to the general directions of the Council, exercise the powers of the Council and all acts done by him in the exercise of such powers are considered to have been done by the Council.

4. OUTLINE OF EVENTS

4.1 At its meeting on 21 June 1999, the Luganville Municipal Council (LMC) unanimously resolved that the Department of Public Works (PWD) begin the work on the Lavusvatu water supply project on the basis that LMC would only be billed for the work on completion. A copy of the minute recording the LMC decision is contained in Appendix A.

4.2 In its 1999 development budget, the LMC had budgeted VT1,490,000 for the Lavusvatu Water Supply project Appendix B.

4.3 Mr. Charlie Tari, a senior foreman with the PWD urban water supply section in Luganville, prepared a quotation amounting to VT467,115 for the project Appendix C.

4.4 On 18 October 1999 the Ombudsman received a complaint against the Town Clerk, Mr Karl Batick, alleging that the had not implemented the LMC decision to proceed with the Lavusvatu water project, but instead had applied the funds toward road repairs in the Pepsi area, not authorised by LMC.

4.5 In response to a request from the Ombudsman to explain his actions, Mr Batick replied (Appendix D):

The Council should have funded this project at Lavusvatu. However, the council has budgeted for that project, but due to funds the Council can't afford to purchase the project. Therefore, as it is a Council project, with due respect that once the Council has funds then the Council should take it as a priority project.

4.6 Instead of executing the Lavusvatu water project as per the Council’s decision, Mr Batick decided to implement road maintenance at the Pepsi area in Luganville - work that was never approved by Council.

5. RESPONSES BY THOSE WITH COMPLAINTS AGAINST THEM

5.1 Before starting this enquiry, the Ombudsman notified all people or bodies complained of and gave them the right to reply. Also a working paper was provided prior to this public report to give another opportunity to respond.

5.2 No responses were received from any party to whom the working paper was submitted.

6. PRELIMINARY FINDINGS

6.1 Finding 1: As a chief officer of the Council, Mr. Karl Batick may have breached s.25 of the Municipal Act [CAP 126] by approving the implementation of a project for which no budget had been allowed (the Pepsi area road maintenance) while not implementing the Council approved Lavusvatu water project.

6.2 Finding 2: Mr. Karl Batick may have breached s.25 (1)(a) of the Municipal Act [CAP 126] by interfering with the Council’s responsibility to control, manage and administer the Municipality.

6.3 Finding 3: As a leader, Mr. Karl Batick’s action in not implementing the decision of LMC may also be in breach of the Leadership Code Act (Misuse of public funds).

7. RECOMMENDATIONS

7.1 Recommendation 1 The Minister responsible for the Municipalities should issue a Standing Order or Circular advising the Town Clerks to comply with lawful resolutions of their Council.

7.2 Recommendation 2 The Minister responsible for Municipalities should refer this matter to the Police and the Public Prosecutor should there be a prima facie case against Mr. Batick for breaches of the Municipalities Act Cap 126.

Dated 26 April 2002.

Hannington G. ALATOA

OMBUDSMAN OF THE REPUBLIC OF VANUATU

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8. INDEX OF APPENDICES

1. Copy of the LMC minute approving the Lavusvatu Water Project.
   
2. LMC Development Budget (1999-2000 ).
   

100. Copy of quotation prepared by Mr. Charlie Tari from PWD
     

4. Copy of Mr. Batick’s letter dated 21 December 1999.
   
5. Relevant laws
   

APPENDIX E

RELEVANT LAWS, REGULATIONS AND RULES

3.2 CONSTITUTION OF THE REPUBLIC OF VANUATU

CONDUCT OF LEADERS

66. (1) Any person defined as a leader in article 67 has a duty to conduct himself in such a way, both in his public and private life, so as not to

(a) place himself in a position in which he has or could have a conflict of interests or in which the fair exercise of his public or official duties might be compromised;

(b) demean his office or position;

(c) allow his integrity to be called into question; or

(d) endanger or diminish respect for and confidence in \the integrity of the Government of the Republic of Vanuatu

(2) In particular, a leader shall not use his office for personal gain or enter into any transaction or engage in and enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by subarticle (1).

DEFINITION OF A LEADER

(a) For the purposes of the Chapter, a leader means the President of the Republic, the Prime Minister and other Ministers, members of Parliament, and such public servants, officers of Government agencies and other officers as may be prescribed by law.

3.3 LEADERSHIP CODE ACT NO. 2 OF 1998

LEADERS

(a) In addition to the leaders referred to in Article 67 of the Constitution, the following are declared to be leaders:

(h) the town clerks )or their equivalent in name) of municipal councils.

3.4 DUTIES OF A LEADER

13(1) A Leader must:

(a) comply with and observe the law.

(b) comply with and observe the fundamental principles of leadership contained in Article 66 of the Constitution;
(c) comply with and observe the duties, obligations and responsibilities established by this code or any other enactment that affects the leader; and
(d) not influence or attempt to influence or exert pressure on or threaten or abuse persons carrying out their lawful duty.

20. A leader must not use, or agree to the use of, any public money for a purpose other than the purpose for which it may lawfully be used.
    

3.5 MUNICIPAL ACT (CAP 126)

MUNICIPAL CLERK

19. (1) A Council shall appoint a fit person, not being a councilor, t be clerk upon such terms and conditions as it may determine.
    
21. The clerk shall be the chief officer of the council and shall have the change and custody of and be responsible for all books, records and other documents of the council.
    
22. The clerk may, subject to the general directions of the council, exercise the shall be considered to have been done by the council
    
23. The appointment of a person as clerk and the terms and conditions of such appointment shall in all respects be subject to the approval of the Minister.
    

GENERAL POWERS

25. (1) Subject to and in accordance with the provisions of this Act relating to the duties of the council, it shall be the duty of the council

(a) to control, manage and administer the municipality

(b) to safeguard public health;

(c) to develop, control and manage land taken on lease from any statutory land authority including any housing estates thereon; and

(d) to administer education, medical and health services as the Minister may after consultation with the responsible Minister by Order declare.

CONTRACTS

27. (1) Subject to the provisions of subsection (2) to any regulation made under section 57 and to any conditions or limitations imposed by its standing orders, a council may enter into contracts for the purpose of any works, services or other matters which it is required or empowered to undertake carry out or manage.

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