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Vanuatu Ombudsman's Reports |
REPUBLIC OF VANUATU
OFFICE OF THE OMBUDSMAN
PMB 081
Port Vila
Vanuatu
PUBLIC REPORT
ON THE
IMPROPER ACTION
OF THE
PUBLIC SERVICE COMMISSION
IN APPOINTING
MR. GEORGE ANDREW
AS
DIRECTOR GENERAL
OF EDUCATION
10 June 2005
8597/2005/05
PUBLIC REPORT
ON THE
IMPROPER ACTION OF THE PUBLIC SERVICE COMMISSION
IN APPOINTING MR GEORGE ANDREW AS
DIRECTOR GENERAL OF EDUCATION
TABLE OF CONTENTS
1. JURISDICTION
2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED
3. RELEVANT LAWS, REGULATIONS AND RULES
4. OUTLINE OF EVENTS
5. RESPONSES BY THOSE WITH COMPLAINTS AGAINST THEM
7. FINDINGS
8. RECOMMENDATIONS
9. INDEX OF APPENDICES
1.1 The Constitution, the Ombudsman Act and the Leadership Code Act No.2 of 1998 allow the Ombudsman to look into the conduct of government, related bodies, and Leaders. In this report, the Ombudsman looks into the conduct of the Public Service Commission in making the appointment of the Director General of Education. It was when the Public Service Commission decided to recruit a number of highly motivated and experienced managers to be appointed as Director Generals to head one of the nine Ministries, the Ministry of Education, in the Public Service of Vanuatu.
2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED
2.1 The purpose of this report is to present the findings of the Ombudsman as required by the Constitution, the Ombudsman Act and the Leadership Code Act. This event took place in 1998 prior to the appointment of Mr Hannington G Alatoa in August 1999 as Ombudsman of the Republic of Vanuatu. Since the former Ombudsman, Mr Hannington G Alatoa was also one of the applicants and the recommended candidate for the position, he was reluctant to issue the report. Issuing the report by himself would be seen, by many, as a conflict of interest.
2.2 The scope of this investigation is to establish the facts about the appointment of Mr. George Andrew as Director General of Education by the Public Service Commission (PSC) and to determine whether such appointment was in accordance with the laws and Regulations of the Public Service.
2.3 This Office collects information and documents by informal request, summons, letters, interviews and research.
3. RELEVANT LAWS, REGULATIONS AND RULES
3.1 The Constitutional and statutory provisions relevant to this report are mentioned in Appendix L to this report.
3.2 Article 66(1) of the Constitution provides for the conduct of leaders in the fair exercise of their public or official duties.
3.3 The Leadership Code Act No.2 of 1998 provides in section 5(u) that the members of the Public Service Commission are also considered to be leaders of Vanuatu. In the exercise of their public or official duties and responsibilities, the leaders should act fairly and impartially in making appointments of people on merit to offices and positions in the Public Service.
3.4 The Public Service Staff Manual also provides for procedures in making appointment of people to the Public Service on merit by the Public Service Commission.
4.1 On 12 December 1997, the PSC advertised vacancies seeking to recruit a number of highly motivated and experienced managers to be appointed as Director Generals to head one of the nine newly created ministries in the Public Service of Vanuatu (Appendix A).
Pursuant to the Comprehensive Reform Program, the Government of Vanuatu intended to restructure the existing Government Ministerial portfolios into only nine new Ministries in early 1998. The Directors General are to be in each of the Ministries as main connecting points of contact between the ministerial offices and the Public Service Departments, statutory bodies and Vanuatu Government business arms. The established Ministries were:
- Prime Minister's Office;
- Finance and Economic Management;
- Health;
- Education and Youth Affairs;
- Internal Affairs;
- Trade and Business Development;
- Agriculture, Forestry and Fisheries;
- Infrastructure and Public Utilities;
- Lands, Geology and Mines.
Applicants for appointment as Director Generals were to indicate which of the nine positions they wanted to be considered. The closing date for submitting applications was 16th January 1998 and applicants were told to be available for interview from 23rd – 29th January 1998.(It has been noted, in the advertisement, that are errors in the dates. (Refer Appendix A)
The members of the PSC at that time were late Joseph Calo as Chairman, Mr Edwin Basil and Kalpovi Mangawai as members and Bergman Bebe secretary. The Government through the PSC appointed a three member interviewing panel made up of late Joseph Calo chairman of PSC and chairman of the panel, Ms. Susana Tuisawau as Pacific Islands representative and Franklin Kere as independent representative.
4.2 On 27th and 28th January 1998 the Interview Panel on behalf of the PSC met and assessed the applications. It decided to facilitate a second round of interviews to allow those who applied a fair opportunity to provided sufficient information about themselves before a decision is made and the applicants are short listed.
4.3 On 26th and 27th February 1998 the second round of interview was held. Upon completing an intensive interview process and using a merit based assessment process, the Interview Panel Members, rated Mr Hannington Alatoa first with 297 points, Mr Amon Gwero second with 254 points, Mr Nako Abel Hivo third with 244 points and George Andrew fourth with 241 points. Thus, the Interview Panel recommended Mr. Hannington G Alatoa on 28th February 1998 for the position of Director General of Education to the PSC (Appendix B).
4.4 On 24th March 1998 the PSC met. Present at the meeting were late Mr Joseph Calo(Chairman), Mr Edwin Basil(Member), Mr Kalpovi Mangawai (Member) and Mr Bergman Bebe(Secretary). The Commission at that time approved the appointment of the other Director Generals but deferred the appointment of the Director General to the Ministry of Education. According to the Commission minutes no reasons were given.(Appendix C)
4.5 On 31st March 1998 the PSC met again, consisting of the same members who met on 24th March 1998, approved and appointed Mr. George Andrew (Appendix D).The typed nomination from the Interview Panel Members which was dated 28th February 1998 was now altered with Mr George Andrew’s name been entered hand written. According to the members of the PSC the alteration to the panel's recommendation was done after a reference check on the candidates during which Mr. Hannington Alatoa was allegedly said to have had a bad record. However, there was no proper documentation by the PSC of the alleged wrongdoing against Mr.Alatoa nor an official reason for the change of the successful candidate.
4.6 Despite the above argument put by the PSC for Mr. Alatoa, PSC did not provide the Ombudsman its reasons why the second runner up Amon Gwero was not appointed and why he was excluded from reference checks discussions as stated by late Mr Calo.
In order to gather information and document concerning this matter the Ombudsman asked Mr Frankly Kere to provide information relating to the alteration being made to the panel's recommendation.
4.6.1 On 4th December 1998 Mr Kere replied and said that "I have no idea who made the change. You may want to ask the Public Service Commission... When we sign the full list, it was Alatoa's name which was on the list" (Appendix E).
4.6.2 On 21st December 1998, Ms Susana Tuisawau informed the Ombudsman when she was requested to provide information regarding the change. Among other things, she stated that, "When I signed the full list of Director General the name of Alatoa was there and not Andrew. in my opinion and the result of points allocated to all applicants far surpassed all other applicants for post that there was no cause to confuse that issue about his appointment. Indeed there was no issues brought up by the chairperson or Public Service Commission to question his eligibility or final confirmation. George Andrew was never in the running nor was ever close to Alatoa in as far as the criteria for the posts were concerned" (Appendix F)
4.6.3 Upon interviewing the chairman of both the Interview Panel and PSC (late Mr Joseph Calo) on 22nd December 1998 on the reason for the change, he said that "Ofisiali oli jusum George Andrew. Folem ol risalt tingting i bin stap se Hannington be from bakraon blong hem nao mekem se oli changem i ko long George Andrew" (officially the Public Service Commission appointed Mr. George Andrew. As per the result of the selection panel Mr. Hannington was recommended, however, due to his (Hannington) background a change was made from Hannington to George Andrew).
When the Ombudsman asked if there was anything in writing about the change late Mr. Joseph Calo could only answer by saying "No. Mifala i toktok nomo. I tru long propa way blong hem sipos oli bin mekem wan raeting i kam long komisen olsem ia i mo gud ofisel i samting ia nao" (No. We only communicated orally. It's true that following the proper procedures they should have put it in writing to the Commission for record purposes) (Appendix G).
4.7 At its No. 09 session held on 31 March 1998 the PSC approved the appointment of Mr. George Andrew on P23.1 as Director General on to the Ministry of Education, as from 1 April 1998 (Refer to Appendix D).
5. RESPONSES BY THOSE WITH COMPLAINTS AGAINST THEM
5.1 Responses to the working paper were received from the following:
Mr George Andrew (Appendix H)
Mr George Pakoasongi (Appendix I)
Mr Hannington Alatoa (Appendix J)
Mr Amon Gwero (Appendix K)
5.1.1 Mr George Andrew responded by saying that he believed that the DG’s appointments were in order.
5.1.2 Mr George Pakoasongi stated that section 18 of the Public Service Act under section (e) and (f) states that the PSC must appoint a panel to interview and to recommend a short list of the most competent and suitable applicants and for the Commission to make the appointment from the short list. He further stated that the Public Service Act does not require the PSC to appoint the person recommended by the selection Panel. That the Selection Panel is a procedural aid to assist the Commission meet its obligation to appoint a suitable person from a short listing.
5.1.3 Mr Hannington Alatoa stated that in view of the PSC not taking into account the recommendation of the Panel could be deduced that it did not place importance and confidence in the ability of the Panel, a member of which costed the Government to fly her in from Fiji.
5.1.4 Mr Amon Gwero stated that the PSC undoubtedly had failed to comply with its own recruitment procedures as set out in section 2.9(d) of Chapter 3 of the Public Service Staff Manual. That the PSC had acted unfairly, impartially and without merit in appointing Mr George Andrew to the position of Director General of Education.
7.1 Finding 1: The Members of the Public Service Commission may have acted contrary to section 2.9(d) of chapter 3 of the Public Service Staff Manual for not complying with the procedures in the recruitment process.
7.1.1 As the PSC did not approve the Selection Panel Outcome Report's recommendation, the Commission should have informed, via its Secretary, all the applicants about the non- approval of the Selection Outcome Report. Furthermore the Commission should have referred the report back to the Ministry concerned for further action as it could determine. In this case, the Secretary of the PSC, Mr. Bergmans Bebe, should have informed all the applicants about the Commission's failure to approve the proposed candidate. Furthermore, Mr. Bergmans Bebe should have sent the report back to the Ministry of Education and Youth Affairs for further action instead of executing a change to the recommended list of names for the newly created Ministries. The name of Mr. Alatoa was changed to Mr. Andrew on the Selection Outcome Report.
I find the argument from the current Secretary of the Commission Mr Pakoasongi invalid. This is because the selection panel is to conduct interviews and from its interview it then decides the best candidate for the position. The members of the Commission do not have any idea of the candidate background, experience or qualification been interviewed by the panel. Moreover this is the reason why there has to be a selection panel to do the interview and makes its recommendation of the best candidate to the PSC to make the appointment. For the Commission to appoint someone else who has not been recommended by the panel is a short sighted argument. If this is the intention of setting up a selection panel whose decision and recommendation can be quashed by the Commission then it is better not to set up a selection panel as it is a waste of time and it serves no useful purpose to anyone nor the PSC.
7.2 Finding 2: The Public Service Commission may have acted contrary to section 2.2 of Chapter 3 of the Public Service Staff Manual for not keeping accurate records of the recruitment process.
7.2.1 It is clearly stipulated therein that in the case of a recruitment action in relation to a Director-General or Director, the file should be created by the Commission and be kept permanently.
7.2.2 In this case there was no proper documentation or record being kept as to the justifiable reasons to be provided by the PSC in order to select and appoint Mr. Andrew as the Director General of Education. In fact, Mr. George Andrew was never in the running nor was ever close to Mr. Alatoa in as far as the criteria for the posts were concerned. Thus, for that matter the PSC may have breached section 2.2 of Chapter 3 of Public Service Staff Manual.
7.3 Finding 3: The Public Service Commission may have breached Article 66 (1) (a) of the Constitution by not acting fairly in appointing Mr. Andrew to the post of Director General of Education.
7.3.1 Article 66 (1)(a) of the Constitution provides that a leader must act fairly when exercising his/her position in a public office.
7.3.2 In this case, the Interview Panel Members rated Mr. Hannington Alatoa first with 297 points. Mr. Amon Gwero came second with 254 points, Mr. Nako Abel Hivo third with 244 points and Mr. George Andrew fourth with 241 points. If Mr. Alatoa had a "bad" record, one can easily raise a question as to why the second runner up was not appointed to that position instead of straight away opting for the fourth runner up (which was Mr. Andrew). If the second runner up had a "bad" record as well, why did the PSC not consider appointing the third runner up? By acting unfairly, impartially and without merit in the appointment of Mr. George Andrew to the post of Director General of Education on 3 March 1998, the PSC may have breached Article 66 of the Constitution.
7.4 Finding 4: Late Joseph Calo, Edwin Basil and Kalpovi Mangawai acting on behalf of the Public service commission may have breached Article 66 [1] [b], and [c] of the Constitution through their collective actions and decisions by allowing their integrity as members of the Commission to be called into question.
7.5 Finding 5: Late Joseph Calo, Edwin Basil and Kalpovi Mangawai acting on behalf of the Public Service Commission may have breached Section 2.9 (b) (ii) of the Public Service Manual.
7.5.1 The ignorance to observe the provisions of the Public Service Staff Manual has demean the positions they held as members of the Commission and also demean the PSC. PSC is in charge of recruitment, disciplinary issues and all matters relating to people working for and on behalf of the Government of Vanuatu. All civil servants and intended employees in the Government look up to them for fair actions and decisions based on qualification and merit. This is one example where PSC ignored to follow the rules it has set up but expects others to strictly apply them at departmental levels.
7.5.2 As members of the PSC appointed by the Head of State they had taken oath upon appointment to uphold the laws of Vanuatu and to carry out their functions without fear or favour. By altering the panels recommendation without proper written records and reasons, they have acted unfairly and have diminish the respect all public servants, ministerial officers, residents and people of Vanuatu have on the PSC.
8.1 Recommendation 1: The Public Service Commission must always act fairly and must be seen to act fairly in appointing people to offices and positions based on merit as required by the laws of the Republic of Vanuatu.
8.2 Recommendation 2: The Public Service Commission must at all times work in accordance with the Public Service procedures set out by the Public Service Staff Manual.
8.3 Recommendation 3: The Public Service Commission must officially apologize to Mr. Alatoa for its shameful actions.
8.4 Recommendation 4: The Head of State and the Prime Minster and any minister of the Government of Vanuatu empowered to make appointments under any laws of Vanuatu must not appoint Edwin Basil and Kalpovi Magawai to positions of authority in any government agencies unless they show remorse for what they have done.
Dated the 10th day of June 2005.
Peter K Taurakoto
OMBUDSMAN OF THE REPUBLIC OF VANUATU
A. Copy of vacancy notice dated 12 December 1997
B. Copy of Interview Panel’s recommendation recommending Mr Hannington Alatoa
C. Copy of PSC minutes of 24th March 1998 deferring the appointment of the Director General for Education
D. Copy of PSC minutes of 31st March 1998 approving the appointment of Mr George Andrew as Director General for Education and altering the Interview Panel’s list
E. Copy of Mr. Franklyn T Kere’s letter
F. Copy of Ms Susana Tuisawau’s letter
G. Copy of late George Kalo’s interview with the Ombudsman
H. Copy of Mr George Andrew’s reply
I. Copy of Mr George Pakoasongi’s reply
J. Copy of Mr Hannington Alatoa’s reply
K Copy of Mr Amon Gwero’s reply
L. Relevant Laws, Regulations and Rules.
APPENDIX L
3.1 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 any 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 sub-article (1).
DEFINITION OF A LEADER
67. For the purposes of this 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.
3.2 LEADERSHIP CODE ACT NO.2 OF 1998
LEADERS
5. In addition to the leaders referred to in Article 67 of the Constitution, the following are declared to be leaders:
(a) members of the National Council of Chiefs;
(b) elected and nominated members of local government councils;
(c) elected and nominated members of municipal councils;
(d) political advisers to a Minister;
(e) directors-general of ministries and directors of departments;
(f) members and the chief executive officers (however described of the boards and statutory authorities);
(g) chief executive officers or secretaries-general of local governments;
(h) the town clerks (or their equivalent in name) of municipal councils;
(i) persons who are:
(i) directors of companies or other bodies corporate wholly owned by the Government; and
(ii) appointed as directors by the Government;
(j) the Attorney General;
(k) the Commissioner and Deputy Commissioner of Police;
(l) the Solicitor-General;
(m) the Public Prosecutor;
(n) the Public Solicitor;
(o) the Ombudsman;
(p) the Clerk of Parliament;
(q) the Principal Electoral Officer;
(r) the Auditor-General;
(s) the Chairperson of the Expenditure Review Committee;
(t) the Chairperson when acting in that capacity of the Tenders Board;
(u) members of the Public Service Commission;
(v) members of the Teaching Service Commission;
(w) members of the Police Service Commission;
(x) members of the Electoral Commission;
(y) the Commander of the Vanuatu Mobile Forces.
APPOINTING PEOPLE ON MERIT
14. A leader must:
(a) act fairly in appointing people to offices and positions for which he or she has responsibility, so that people are appointed impartially and on merit; and
(d) do his or her best to encourage participation in government by men and women according to their abilities; and
(c) not interfere or attempt to interfere in the Public Service Commission in breach of the Public Service Act 1998.
PUBLIC SERVICE STAFF MANUAL
CHAPTER 3 - RECRUITMENT AND SELECTING STAFF
1. INTRODUCTION
The Public Service Act requires that "the selection of persons for appointment and promotion to be based on merit" [section 15(2)(b)] and that a person's merit for appointment or promotion be determined by assessing their:
(a) Skill and ability to perform the duties and responsibilities of the post;
(b) Standard and efficiency of work performance;
(c) Formal qualifications and training; and
(d) Personal qualities including conduct [section 15(3)].
For the purpose of this criteria, the Commission may also determine what the minimum qualifications are for any particular position or class of positions.
To establish who the best applicant is, proper and appropriate merit selection procedures need to be in place that will ensure that recruitment and selection decisions that are transparent, impartial, and fair. In particular, the procedures should ensure that:
- All potential applicants have reasonable access and opportunity to apply for vacancies;
- Applicants are given the same information about the selection process;
- All applicants receive and are assessed against the same selection criteria;
- Selection committees make sound and unbiased selection decisions using information gathering methods appropriate to the nature of the job being filled; and
- The selection process is free from political interference.
At the same time, recruitment and selection decisions should be made with regard to the same department's should and long-term objectives. The aim of recruitment is to establish a quality workforce capable of effectively delivering government programs and services. Efficient and effective recruitment means operating within reasonable cost restraints and avoiding unnecessary delays, whilst achieving the outcome of recruiting the most suitably qualified person.
To implement these principles of merit selection and cost effectiveness in recruitment, the procedures in this chapter must be used in all cases of standard promotional recruitment. These procedures also apply in the case of recruiting to the position of Director-General or Director except that additional prescribed procedures in Section 18 of the Public Service Act also apply.
In some circumstances the best person may be selected without the need for the usual competitive process. Section 4 of this chapter identifies cases where the full recruitment procedures may not apply.
2.2 KEEPING ACCURATE RECORDS OF THE RECRUITMENT PROCESS
(a) A separate Recruitment File must be created by the Director-General for each job vacancy that is to be filled in a Ministry and be kept for a period of 12 months.
(b) In the case of a recruitment action in relation to a Director-General or Director, this file must be created by the Commission and kept permanently.
(c) Each separate recruitment file must contain the following documentation:
(i) A register noting down the same of each applicant and the date their application was received and acknowledged;
(ii) A copy of the job vacancy advertisement;
(iii) A copy of the job description;
(iv) All job applications received for the particular vacancy with the prescribed Individual Assessment Forms (PSC FORM 3-3) attached to the applications; and
(v) Copies of all documentation sent to the Commission regarding the job vacancy, including the Approval to Advertise and Fill a Vacancy form (PSC FORM 3-1);
the Comparative Assessment of Applicants Form (PSC FORM 3-4) and the Selection Outcome Report (PSC FORM 3-5);
(vi) All documents relating to the job vacancy received from the Commission or others;
(vii) Any other relevant documentation (e.g. copies of the acknowledgement and appointment letter) such as created by the Ministry or Department.
2.9 OBTAINING APPROVAL FOR THE SELECTION OUTCOME REPORT
(a) A Director-General must submit all Selection Outcome Reports completed in the prescribed format to the Commission for consideration. Each Selection Outcome Report must have attached to it the completed Comparative Assessment of Applicants Form (PSC FORM 3-4) prepared by the Selection Committee.
(b) Under section 23 of the Public Service Act, the Commission is the sole authority for making appointments to the Public Service. No job offer or appointment is to be made by any other person or organization, either within or outside the Public Service. In exercising this function, the Commission shall:
(i) consult and take into consideration the views and requirements of the Director-General affected by the appointment;
(ii) act independently but have regard to its obligation to act as a good employer.
(c) If the Commission approves the recommendations made in the Selection Outcome Report the Secretary of the Commission shall:
(i) inform the Director-General concerned;
(ii) make an offer to the successful applicant;
(iii) if this offer is not accepted, an offer shall be made to the next eligible candidate, if any, recommended in the report;
(d) If the Commission does not approve Selection Outcome Report's recommendations, the Secretary shall:
(i) inform all the applicants of the circumstances; and
(ii) refer the report back to the Director-General concerned for further action as he or she may determine.
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