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JULY 1, 2016
TO ALL MEDIA: Ombudsman for Bermuda Submits Her Annual Report for 2015

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Hamilton, BERMUDA: Victoria Pearman, Ombudsman for Bermuda, issued her Annual Report for the calendar year 2015.

The Ombudsman’s Annual Report for 2015 reports on the work of the Office in its 10th anniversary of service. The Office opened to the public on 1st September 2005 and celebrated its 10th year during the last reporting year. The Report highlights the efforts and progress made and reflects generally on the work of the Ombudsman over the past 10 years. It provides an opportunity to reflect on the Office’s principles, gauge its position and plan the way forward.

The Report indicates that the Office of the Ombudsman received 232 requests for assistance in 2015. This included 161 new complaints. As a result of implementing a prioritisation strategy, the Office was pleased to report that, as of 31st May 2016, 82% (83 of 101) of outstanding complaints that had been carried into 2015 have been addressed. There were no systemic investigations launched in 2015, and the Office concentrated on individual complaints. Of the 29 recommendations the Ombudsman made in 2015 concerning administrative action, 25 of them were accepted by authorities in an effort to improve their policies, procedures and practices. Other recommendations remain under review. Among its other responsibilities, the Office’s main priorities were to address outstanding complaints from previous years and to improve complaint turn-around times.

The Report outlines work on best practice, good administration and accountability. It provides guidance on assisting members of the public to obtain Government-held records under the greater public access to information regime which came into force in 2015. This is vital for improved transparency in Government, an area which the Ombudsman seeks to promote.

The Report contains information consistent with the Office’s objectives to broaden education of the public. Useful general information from departments, namely Social Insurance, Health, Environment & Natural Resources, Customs, Land Surveys & Registration, and the Office of the Chief Medical Officer, is detailed. Selected complaint summaries are included which demonstrate shared learning and the wide scope of matters with which the Office dealt, as well as a section to empower members of the public to be their own advocates. It also describes the Ombudsman’s work in the community to advance public knowledge and awareness, and provides reference resources for the public and authorities.

In her message the Ombudsman noted: “Our complainants are often people in our community who rely on us to confidentially ensure public officers hear and address their concerns, complaints and grievances. Most of our work is not reported publicly. We have learned that a single, seemingly small complaint can be the impetus for significant improvements. This mirrors what we have learned about our Office. Even the work of a small team can make a big impact to affect change and improvement over time. The Ombudsman is an ally and a resource in the cause for good governance. Watchfulness, vigilance and attentiveness are necessary. Understanding the Ombudsman’s role requires an appreciation that she is not an advocate for any side, but an advocate for what is fair.”

“In closing”, the Ombudsman said, “I wish to thank all who have played a part in the growth and accomplishments of the Office in 2015. Our team is committed to assisting the public and to assisting the Government to improve service to the public. This is in keeping with the tradition established in the first 10 years of this Office and our continued advancement as we navigate the challenges to come.”

Limited copies of the Report are available for the public at the Office of the Ombudsman located at: Dundonald Place, Suite 102, 14 Dundonald Street West, Hamilton HM 09. The Report can also be downloaded from www.ombudsman.bm, along with all previous reports published by the Office.

Editor’s notes:
• The Ombudsman is an independent, non-government official who investigates complaints from the public about maladministration in the delivery of public services.
• The Ombudsman Act 2004 is the governing legislation.
• Section 24 of the Ombudsman Act 2004 requires that, within six months of the end of the year, the Ombudsman shall submit an Annual Report to the Speaker of the House of Assembly, with a copy to the Governor and the President of the Senate.
• Sections 15-17 of the Ombudsman Act 2004 lay out the process by which the Ombudsman may make recommendations further to an investigation to which the authority is required to respond. Pursuant to section 24 and 17, the Ombudsman may submit a special report to Parliament outlining an authority’s: (1) failure to notify the Ombudsman of action proposed to be taken; (2) failure to take any action; (3) action that in the Ombudsman’s opinion has been inadequate or inappropriate.
• For more information, contact the Office of the Ombudsman for Bermuda at 296-6541.




JUNE 26, 2015
TO ALL MEDIA: Ombudsman for Bermuda Submits Her Annual Report for 2014

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Hamilton, BERMUDA: Victoria Pearman, Ombudsman for Bermuda, issued an Annual Report for the calendar year 2014.

“Our Annual Report provides a review of the Ombudsman’s first year in Office. It shows how the Ombudsman has achieved strategic aims set out in her message in the Annual Report 2013. The strategic aims are separated into sections, namely: Greater Public Access, Greater Public Awareness, and Championing Best Practice. These sections include complaint statistics presented in an easy-to-read format. Summaries of complaints closed in the calendar year 2014 are also described, as well as information on specific authorities that we have chosen to share so the public can learn more about various departmental practices, policies, procedures and governing legislation.

The Annual Report includes a special report regarding a complaint where the Ministry of Home Affairs and the Department of Immigration failed to follow certain Ombudsman’s recommendations.

Additionally, the Report includes a section of updates on previous Special Reports. These provide information on what has occurred in 2014 in relation to: ‘4x6=262: Special Report on the Ombudsman’s Own Motion Systemic Investigation into Governance at the Corporation of Hamilton’ and ‘A Grave Error: Ombudsman for Bermuda’s Own Motion Systemic Investigation into the Demolition of Tombs in the Marsden Methodist Memorial Cemetery at Tucker’s Point’.”

Limited copies of the Report will be available for the public at our Office located at: Dundonald Place, Suite 102, 14 Dundonald Street West, Hamilton HM 09. The Report can also be downloaded from www.ombudsman.bm, along with all other previous reports published by the Office.

Editor’s notes:
• The Ombudsman is an independent, non-government official who investigates complaints from the public about maladministration in the delivery of public services.
• The Ombudsman Act 2004 is the governing legislation.
• Section 24 of the Ombudsman Act 2004 requires that, within six months of the end of the year, the Ombudsman shall submit an Annual Report to the Speaker of the House of Assembly, with a copy to the Governor and the President of the Senate.
• Sections 15-17 of the Ombudsman Act 2004 lay out the process by which the Ombudsman may make recommendations further to an investigation to which the authority is required to respond. Pursuant to section 24 and 17, the Ombudsman may submit a special report to Parliament outlining an authority’s: (1) failure to notify the Ombudsman of action proposed to be taken; (2) failure to take any action; (3) action that in the Ombudsman’s opinion has been inadequate or inappropriate.
• For more information, contact the Office of the Ombudsman for Bermuda at 296-6541.




JUNE 27, 2014
TO ALL MEDIA: Ombudsman for Bermuda submits Ninth Annual Report

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Hamilton, BERMUDA: Victoria Pearman, Ombudsman for Bermuda, issued an Annual Report for the 2013 calendar year.

Ms. Pearman states: “This Annual Report covers the work of the Office prior to my appointment in March 2014. I am appreciative of the work done by my predecessor Ms. Arlene Brock and the members of my new team. They have assisted me in completing this Report in fulfillment of my statutory duty to report on the work of this Office for the last calendar year.

Ms. Pearman notes: The Report includes comments by my predecessor who finished her term as Bermuda’s first Ombudsman at the end of January, 2014, after eight years in office.

Ms. Pearman adds: As we move forward we will be reviewing our procedures with a focus on improving our turn-around time and attending to our outstanding complaints. The Office will build on the work done thus far to improve accessibility and awareness of what we do. We want all to know that this Office is an independent office of last resort that provides free, unbiased redress against maladministration within our jurisdiction. We want to know how we can better assist.

The Report will be made available on 30th June, 2014 at www.ombudsman.bm

Editor’s notes:
S.24 of the Ombudsman Act 2004 requires that, within six months of the end of the year, the Ombudsman submit an annual Report to the Speaker of the House of Assembly, with a copy to the Governor and the President of the Senate.

For more information contact L. Tucker, Administrative Officer, tel: 441-296-6541



January 30, 2014
TO ALL MEDIA

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Hamilton, Bermuda: Ombudsman for Bermuda, Arlene Brock, has presented to the Speaker of the House of Assembly “A Grave Error” - a report of her Own Motion Investigation into the Demolition of Tombs at the Marsden Methodist Memorial Cemetery within the Tucker’s Point golf course. The report was disseminated today to members of the Legislature and the Speaker will formally introduce it in the next sitting of the House of Assembly. Members of the Legislature will receive copies by email or can collect hard copies at the House of Assembly.

A Grave Error notes: “The Cemetery was the last relatively intact relic that evidences the communal life of a wholly unique population in Bermuda. This population was removed from their lands in Tucker’s Town (either by voluntary sale or compulsory acquisition) pursuant to legislation in 1920 that granted development rights to the Bermuda Development Company to establish an exclusive tourism resort there.”

Ms. Brock said: “In my February 2012 Report on the Tucker’s Point Special Development Order, I had recommended that, notwithstanding that the Cemetery was already designated as an Historic Protection Area, it should receive “an extra layer of protection” as a Listed Building.

Ms. Brock said: “in mid-October 2012, the ancient tombstones were razed to the ground. I conducted this investigation to find out what happened. Despite making a commitment in April 2012 to implement my recommendation, the Ministry for the Environment and the Department of Planning did absolutely nothing to do so. This failure to implement the recommendation set the stage for the tragedy that was to follow.”

Ms. Brock said: “the tombstones were demolished by an agreement of Marsden First United Church (institutional inheritors of the Cemetery), Rosewood Tucker’s Point and Dr. Edward Harris, Bermuda’s premier archeologist. They based the decision on an utterly false assumption that the tombs were newly built in 1992. In fact, it was only the three inch deep lids of the graves that had been replaced. The tombs were clearly Bermuda limestone and had been there for as long as Tucker’s Point / Castle Harbour Hotel employees and a few others could remember.”

Ms. Brock said: “this is so very sad. Before demolishing the tombs no one asked why would an elite private tourist resort suddenly in 1992, build false tombs in the middle of its golf course – without reason, pressure, provocation or incentive?”

Ms. Brock said: “lamentably, no one double-checked with the Department of Planning to see if altering the structures was even allowed. Although the Department and Ministry did not make the decision or actually destroy the tombstones themselves, they could provide no credible reason for failing to do anything to implement the recommendation. The evidence is quite clear – had the Department just scheduled a meeting or otherwise contacted Rosewood Tucker’s Point or Marsden First United Church, the tombs would never have been destroyed.”

Ms. Brock said: “A Grave Error” sets out the history of the area and the reason why this Cemetery is of national importance. The report then sets out some of our research into the law and treatment of historical cemeteries – especially those within private golf courses. Interestingly, while cemetery land may belong to churches or private owners, it appears that descendants have decision rights regarding the actual tomb or headstones.”

Ms. Brock said: “While there are descendants amongst some of the members of the Marsden First United Church, there are also descendants throughout Bermuda. Therefore, I have recommended that, in consulting stakeholders about what to do next, the Historic Building Advisory Committee and the Development Applications Board should engage in a broader community consultation”.

Ms. Brock said: “the year 2020 will mark the 100th anniversary of the removal of a unique black population from Tucker’s Town. We can work together for the next seven ways to find ways of honouring that 1920 experience, not only to bring dignity to the ancestors but also to bring unity to the living. A lot of hurt had continued through the generations – partly because this highly racialized episode has not been fully acknowledged.”

Ms. Brock said: “I believe that a community consultation can use the Cemetery as a focal point to take the high road and forge positive memorials that can truly bring us together in our own Bermuda version of truth and reconciliation.”

Ms. Brock said: “A Grave Error concludes that: the Cemetery within the Tucker’s Point golf course must be understood to be a national heritage site with resonance even beyond its stones. It is more than a mere physical space. It is emblematic of a communal history known, dismissed and forgotten. It is a mirror for us to acknowledge the past as well as its living and institutional legacies. It is an opportunity for us all to rally around, reflect and reconcile.”

Editor’s notes:

  • The Ombudsman for Bermuda may initiate investigations on her Own Motion under s.5(2)(b) of the Ombudsman Act 2004
  • Supporting documentation for the History Timeline (Appendix F of A Grave Error) will be available on the Ombudsman’s website by 4 February 2014 www.ombudsman.bm
  • Hard Copies of A Grave Error will be available on 4 February 2014 at the office of the Ombudsman for Bermuda, 14 Dundonald St., Hamilton.
  • More information: office of the Ombudsman for Bermuda 441-296-6541



December 13, 2013
TO ALL MEDIA

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Hamilton, Bermuda: Further to her March 20 announcement of an own motion Systemic Investigation into the Corporation of Hamilton (“CoH”) in the public interest, this morning the Ombudsman for Bermuda, Arlene Brock, issued her report into governance generally at the CoH and the Waterfront Development in particular.

Ms. Brock said: “The Waterfront Development seems to illustrate the general allegations of poor governance. The report title: “4x6=262” refers to the fact that the Request for Proposal (“RFP”) to select a development partner for the Waterfront Development consisted entirely of a 4 inch by 6 inch advertisement. This ultimately led to the CoH and the chosen developer signing a 262 year ground lease.

Ms. Brock said: “The advertisement, 4” by 6”, constituted the entire RFP. There were no supporting specifications, guidance or other scope, parameters and documents that would typically accompany an RFP. The CoH’s decision not to follow their own Tendering and Quotes Policy, their failure to invite the technical staff to provide input into the RFP process as well as the absence of materials such as submission guidelines, evaluation criteria and parameters of the project created an environment for arbitrariness, non-transparency and abuse of power. Not only was the RFP advertisement wholly inadequate, but the submission process was unclear and the evaluation process was unfair. If one page of the report could capture the inadequacy of the RFP process it would be Appendix III.

Ms. Brock said “with respect to the RFP, the most problematic issue is that there is no credible evidence that all of the conditions that the CoH resolved should be fulfilled prior to entering into contracts were actually fulfilled. Further, the CoH’s own legal obligation to consult with an existing tenant prior to assigning rights to third parties was never complied with”.

Ms. Brock said: “If there were only three or four mishaps in governance or just a few technical gaps in the Waterfront Development process, then everyone would readily forgive normal human failings, ignorance, lapses and misconceptions. However, the maladministration that permeated the Outerbridge Administration – especially as reflected in the Waterfront Development – seem to have crept up at every corner in a dazzling, infinite, relentless variety and willfulness of ways.

With this RFP process the CoH effectively asked responders to enter a game in which not only were the rules of the game not explained to them, but the rules were not created until the game had already begun. In such circumstances, observers cannot help but suspect that the rules were being created to ensure that a certain participant wins. Transparency, accountability and fairness do not seem to be the CoH’s strongest suits.”

Prior to tabling this report, all persons about whom there were adverse or other comments were given the opportunity to view extracts related to them and to provide written feedback. They also had the due process opportunity to be heard in a meeting with the Ombudsman (and to be represented by a lawyer or other person) in accordance with s.17 of the Act. Eleven persons, of whom four were members of the CoH submitted written responses. Two persons, one of whom was a member of the CoH, requested oral hearings. Ms. Brock said: “most of the members of the CoH therefore waived their statutory opportunity to respond and to have their concerns about this report reflected (either as corrections or restatements)”.

A limited number of copies of “4x6 = 262” can be obtained in the Office of the Ombudsman for Bermuda, 14 Dundonald St., Hamilton. The report is posted to www.ombudsman.bm

Editor’s notes:

  • The Ombudsman for Bermuda is an independent Officer of the Constitution.
  • Section 5(2)(b) of the Ombudsman Act 2004 provides for the Ombudsman to conduct investigations on her “own motion, notwithstanding that no complaint has been made to her, where she is satisfied that there are reasonable grounds to carry out an investigation in the public interest”.
  • Systemic investigations are conducted in the public interest when issues are broad; affect many people; are highly sensitive; involve several Ministries; or are not conducive to simple or informal resolution.
  • For more information: A. Brock, Office of the Ombudsman, tel: 296-6541



November 13, 2013
To All Media: In light of the extensive public interest in the Contempt of Court case between the Ombudsman and the Corporation of Hamilton, the Ombudsman today detailed the final stages of her investigation into the governance at the Corporation of Hamilton.

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The Ombudsman’s Contempt of Court action against the Mayor and Deputy Mayor of the City of Hamilton was due to their failure to comply with her Summons to attend investigation interviews. They claimed that they had a right to have their lawyers present during the Ombudsman’s investigation interviews. The Supreme Court found that there is no right of legal representation during the Ombudsman’s fact-finding stage of investigations. Ms. Brock said, “people are, of course, free to consult with attorneys before and after interviews – but not inside the interview room. I will exercise my discretion to allow lawyers only for compelling reasons”.

The Ombudsman Act 2004 provides for legal representation only at the reporting stage of the Ombudsman’s investigation. Section 17 requires that persons about whom adverse comments are made in a preliminary draft report have the right to be heard on their concerns and/or objections. In this stage of the process, they may be represented by anyone of their choosing, including attorneys. The opportunity to “be heard” regarding adverse comments is often referred to as “due process” or “natural justice”. Ms. Brock’s investigation is now at this stage.

Ms. Brock said, “The great value to me of the due process stage is that the feedback helps me correct any factual errors in the Preliminary Draft Report and, more importantly, to reflect and re-draft if I have misinterpreted or unfairly characterized any issues.”

Further, the Ombudsman said, “The responses, concerns and any other representations that persons give back to me may lead to substantive changes to the Preliminary Draft Report. For this reason it is important that the contents remain confidential until I complete and table the final report in Parliament.”

“I usually circulate comments being made in draft reports to people if the comments may identify them – even if the comments are not at all adverse. This is a courtesy for them to be aware of what may be in the report. In the past, people have respected the process and have honoured the need for confidentiality,” Ms. Brock said.

Ms. Brock said, “The steps for carrying out this due process depends on the circumstances. In the case of the Corporation of Hamilton, there are at least nine members of the City Council itself and other persons either about whom there are adverse comments or who are otherwise named. Given the complexity of this investigation, there are several issues that people may want to comment on.”

“Therefore, to ensure that I have fully heard their concerns, I have established two opportunities for people to present their concerns (in both cases, they may resort to legal or other representation:
• First, they will be to clearly articulate their responses in writing.
• Second, they have the right to hearings in person in order to clarify any further concerns.

The due process period begins today and will be completed by 21 November. Ms. Brock said, “Typically for sensitive investigations, Ombudsman best practice requires the review of adverse comments to be completed within a couple of days. However, I have decided to extend the time in this case.”

Editor’s notes:

  • The Ombudsman announced an investigation into governance issues, particularly regarding the waterfront development process on 20 March 2013
  • The Supreme Court of Bermuda upheld the Ombudsman’s Certification of Contempt of Court against the Mayor and Deputy Mayor on 10 October 2012. [Re Office of the Bermuda Ombudsman [2013] SC (Bda) 72 Civ]
  • The Ombudsman Act 2004 provides for the due process opportunity to be heard regarding adverse comments:
  • Adverse comment
    17 (1) The Ombudsman shall not —
    (a) in any recommendation given under section 15(3); or
    (b) in any report made under section 24,
    make any statement that is adverse to any authority or person unless that person has been given an opportunity to be heard.
    (2) A person to whom subsection (1) applies may be represented at the hearing by a barrister and attorney or any other person.
    (3) In this section, "barrister and attorney" means a person admitted and enrolled as a barrister and attorney under section 51 of the Supreme Court Act 1905.
  • This is a media release for information only – there will be no further statements prior to the Ombudsman’s Report being tabled.
  • Office of the Ombudsman: tel: 296-6541.


October 10, 2013
To All Media: Supreme Court Upholds Ombudsman’s Certification of Contempt against Mayor and Deputy Mayor of Corporation of Hamilton

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Hamilton, Bermuda: Yesterday, the Supreme Court upheld the Ombudsman for Bermuda’s Certificate of Contempt of Court and held the Mayor and Deputy Mayor of the City of Hamilton to be guilty of contempt.

Failure to comply with the Ombudsman’s summons constituted Contempt of Court
The Supreme Court held that, in the absence of a lawful excuse, the failure of the Corporations’ two most senior executives to comply with the Ombudsman’s Summonses constituted a contempt of Court: The contempt occurred because the Respondents, who had been doing their best to cooperate with an investigation they did not truly welcome, most likely because they were heavily committed to matters which they considered to be far more important, allowed their personal irritation to get the better of their judgment. In the result they have effectively compelled the Ombudsman to issue the present proceedings to prove an ultimately obvious legal point.”  It is now clear that “When the Ombudsman issues a summons, it has the same legal force as a court order, and cannot be ignored by the summonsed parties at their own whim”.

Ms. Brock stated: “I am delighted that the Supreme Court has upheld my certification of Contempt of Court for failure to comply with a Summons to attend. This is a precedent- setting case for the entire Commonwealth. I did a quick survey of Ombudsman colleagues and those who responded had never faced a situation of witnesses failing to comply with Summons’. In fact, most have never had to issue Summons’ because their requests for interviews are fully respected by the citizens of their countries. Bermuda is truly sometimes “Another World”. I had issued the Summons’ in this case only because I learned that the Respondents had decided not to attend scheduled interviews and also planned to be abroad most of August. It was very important for the progress of the investigation that I be able to interview them before Cup Match. I must add that our experience of the last eight years is that face to face interviews are infinitely more forthcoming than written questions.”

 

Legal Representation for witnesses at interview stage is at the Ombudsman’s discretion
The Respondents failed to advance any credible reasons why legal representation was required at the interview stage. Indeed, the Supreme Court observed that the desire for legal representation appeared to be based on “a deep-seated hostility to the very idea of the investigation and a failure to fully comprehend the character and purpose of the Ombudsman’s role”.

Ms. Brock noted: “of course at the stage when I make adverse comments in a recommendation or report, people have a right to legal representation and to be heard. This is established in Ombudsman statutes all over the world. The Chief Justice indicated during the hearing that he had conducted his own research and found that the state of Victoria in Australia permits witnesses to have legal representation during the investigation stage. I am not aware of any other jurisdiction in the world that permits this. In fact, two Ombudsman statutes – for British Virgin Islands and Montserrat – expressly exclude a right to legal representation during interviews.”

The Supreme Court surmised that, based on the evidence before it, “no recognized grounds for legal representation presently existed because the Ombudsman has not yet reached the stage of revealing to the Respondents any specific adverse comments which she is contemplating including in her report”. Further, “the express power conferred on the Ombudsman to regulate investigations as she sees fit (subject to the terms of the Act) is incompatible with the idea of interviewees having an implied right to legal representation at the interview stage”.

The Supreme Court noted that there is a statutory right (under s. 17(2) of the Ombudsman Act) to legal representation at the stage when the Ombudsman writes a recommendation or report, she makes adverse comments against any person or authority. Before that stage, it is at her discretion to allow legal representation: “I find that the Ombudsman is subject to an implied duty to consider whether the rules of natural justice require, in any particular case, the subject of an investigation to be afforded access to legal representation as any relevant stage of that process before the rights under s.17(2) are engaged. The rules of natural justice are far too fluid to permit any inflexible policy to exclude access to legal advice in all cases even though the statutory context may justify the practical view that the need for counsel will only arise in exceptional cases at the investigative phase.”

Ms. Brock responded: “Absolutely, I agree with the Court that in each particular case, there may be reasons to allow for legal representation. This has to be balanced against the tendency to inject the adversarial techniques of judicial proceedings into investigations. Other than Victoria, I have learned of only a couple of jurisdictions that have allowed lawyers to attend interviews in the last five years. In one Caribbean island, an Ombudsman once actually requested a lawyer to explain a technical matter that the witness could not. Another is Ontario where, in the last five years lawyers have been allowed 6 or 7 times (out of approximately 75,000 investigations). Most of these cases were instances where the witness expressed concern that the questions being posed trespassed on areas protected by lawyer/client privilege.  Even in Victoria, lawyers may not interject, ask questions unless given leave, or seek to put forward their client’s views.”

Role of the Ombudsman
The Supreme Court noted: “The Office of the Ombudsman in Bermuda is still a comparatively new one and the number of persons in Bermuda, be they public officials or ordinary citizens who have an instinctive appreciation for the principles underlying the review of administrative action is probably comparatively small…Bermuda’s formal constitutional adoption of democratic governance in 1968 was merely a legal and political step into modernity; the Ombudsman Act, designed to facilitate practical good governance in modern real world terms, is still an infant less than ten years old. Against this background the idea of an investigation into whether the processed deployed by the Corporation in granting a lease conformed to best good governance standards in terms of, inter alia, requirements of transparency and public consultation might be viewed, understandably, as revolutionary in public policy terms.”

Ms. Brock stated: “Of course, I am very happy that the role of the Ombudsman has been clarified and shown to be worthy of respect. This can be inferred from the fact that the Supreme Court marked its disapproval of the Respondents’ conduct by making a provisional award of indemnity costs against the Respondents. The question of precise penalties to be exacted on the Mayor and Deputy Mayor has been left open to further argument at a later hearing. Given that there have been relatively few Court challenges around the world of Ombudsman jurisdiction and powers, this case is not only important for Bermuda but for all Commonwealth jurisdictions. I imagine that this decision will be used in years to come as it provides helpful guidance on the right to legal representation during an Ombudsman’s investigation.

Colleagues are already noting that this case will prompt them to consider criteria for allowing legal representation during interviews. Although almost everyone has the discretion to allow lawyers, most had not established criteria because they have never exercised their discretion.”

Editor’s Notes:

  • The Ombudsman is an independent Officer of the Constitution, appointed under s. 93 by the Governor (after he has consulted with the Premier and Opposition Leader).
  • As a “corporation which is established by Act of the Legislature”, the Corporation of Hamilton is within the jurisdiction of the Ombudsman under s.3(d) of the Ombudsman Act 2004 (“Act”).
  • S.12(5) of the Act provides that the Ombudsman may regulate investigations and proceedings as she sees fit.
  • S. 17 of the Act provides that the Ombudsman shall not make an adverse statement about anyone in a report unless she gives them an opportunity to be heard. They may be represented by an attorney or any other person at a hearing.
  • The Ombudsman for Bermuda was represented by Nathaniel Turner of Attride-Stirling & Woloniecki .



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June 28, 2013
To All Media: Ombudsman for Bermuda submits Eighth Annual Report

HAMILTON, BERMUDA:
Arlene Brock, Ombudsman for Bermuda, issued an Annual Report for the 2012 calendar year.

Ms. Brock notes: “This report comments on the ongoing denial of the government that the UK Environmental Charter constitutes a legal obligation. It also canvasses issues such as whistle-blowing, public access to information and steps for resolving complaints before coming to the Ombudsman’s office”.

Ms. Brock adds: “The Annual Report also describes the Ombudsman’s new day-long complaint handling workshop for government departments (which can get in touch directly with her office to schedule).”

Other topics included in the report are notes on the quadrennial conference of the International Ombudsman Institute, the value of apology, the right to privacy and an extract from the Ombudsman’s recent review of the Corporate and Clinical Governance Review of the Bermuda Hospital’s Board.

The report can be found on www.ombudsman.bm

Editor’s Background Notes:
S. 24 of the Ombudsman Act 2004 requires that, within six months of the end of the year, the Ombudsman submit an Annual Report to the Speaker of the House of Assembly, with a copy to the Governor and the President of the Senate.

For more information contact Q. Kumalae, Chief Investigations Officer, tel: 441-296-6541


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May 22, 2013
To All Media: Ombudsman Responds To Howard Associates' Open Letter
To download full press release please click here.

HAMILTON, BERMUDA:
Arlene Brock, Ombudsman for Bermuda responded to an “Open Letter to the People of Bermuda” sent to the Royal Gazette by Howard Associates (“HA”):

“Once again HA chooses to engage in a blame-game rather than take responsibility for a poor quality report. HA had ample due process opportunities under the Ombudsman Act 2004 to submit written concerns about my report and to attend two hearing meetings to raise questions or otherwise express their concerns. They failed to do so. Therefore they effectively waived the opportunity. Their letter to the media is out of order, bordering on underhanded. Nevertheless, to be clear:-

My Role was to: review HA’s process and Original Report (which they did submit on the agreed deadline of 18 March); encourage HA to meet with all relevant persons and review key issues; and, ensure that their report was not compromised by BHB priorities, influence or direction. My role was absolutely not to give substantive input to HA’s report. However because their February draft raised so many red flags I decided to pose 134 specific questions to alert HA to the report’s deficits. This was not a “task” – this was a due process opportunity for HA to have additional clarity about my concerns (which I had already pointed out in previous meetings). HA submitted answers to all the questions but only half were adequate (see page 9 of my report).

Agreed Deadlines: HA insisted that they wanted a public release of their report on Tuesday, 9 April 2013. In order to accommodate HA’s deadline (and therefore to table my report on the first Friday after their public release) I explained my statutory and printing requirements and staffing constraints. I even specified deadlines in the attached grid. HA’s response of 2 March was “we are [sic] howard Associates can adhere and meet this plan and timeline as shown in

your table”. If HA had a different plan for “debate and feedback” they had a whole month to mention it – but failed to do so. HA agreed that the 18 March report would be their Original Report for the purpose of my review – subject only to minor revisions. Their expression of “surprise” that I actually reviewed this report is disingenuous at best. As explained in the Executive Summary of my report, it turns out HA presented a different report dated 22 March (available on our website) to the BHB filled with blatant self-serving marketing that warranted my additional review (see pages 21- 22 of my report.)

In response to and with the benefit of my report, HA produced a further ‘Rectification Report’ (available through the BHB). Obviously I cannot review or report on my own suggestions for improvements. However I did read it, contrary to HA’s unfounded assumption. As indicated in the Executive Summary of my report – most of the improvements are boilerplate and ‘googleable’. This Rectification Report does not address the deficits in the Original Report. In particular, the self serving assumptions, bald assertions and undermining of the Auditor General remain egregious.

HA’s weak attempt to blame others for their poor report reflects their modus operandi. I am convinced that no amount of extra time would have made much of a difference. My evidence for this is that in the full month between the February Draft and the Original Report of 18 March there was very little improvement – despite my 134 questions which, as carefully explained to HA, were precisely intended to help them make improvements.

“Next Gig-itis”: HA’s claim to have identified $200million in savings (see page 46-47 of HA’s report) is a vague assertion with no foundation or blueprint of how to achieve the saving (like so much else even in their Rectification Report). For example, the suggestion of moving long-term care out of KEMH simply transfers costs to another agency but will not necessarily save money in Bermuda’s healthcare system. Just saying: ‘you will save $200 million if you don’t pay out $200 million’ is hardly a blueprint.

HA’s letter is an obvious and desperate attempt to salvage opportunities for further
engagements. To paraphrase HA’s own assessment of Bermudian expertise: “I do not believe
that HA has demonstrated the talent and skills set to contribute to the important next steps that
the BHB must take” (see page 21-22 of my report).”



Editor’s Background Notes:

• The Ombudsman is an independent, non-government official who makes inquiries and investigates complaints from the public about maladministration in the delivery of public services.
• Although requested by the Bermuda Hospitals Board to review their Corporate and Clinical Governance Review, the Ombudsman’s decision to do so is based on her authority under s.5(2)(b) of the Ombudsman Act 2004 : “on her own motion, notwithstanding that no complaint has been made to her, where she is satisfied that there are reasonable grounds to carry out an investigation in the public interest.”
• 
Attached Deadlines schedule
• For more information, contact Arlene Brock, Ombudsman for Bermuda, tel: 441-296-6541.

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May 17, 2013
To All Media
To download full press release please click here.

HAMILTON, BERMUDA:
The Ombudsman has issued a third report imploring the Government to honour the legal commitments of the UK Environment Charter that it signed in 2001. One critical commitment is that Environmental Impact Assessments (EIA) – including adequate public consultation – must be done before approval of major developments.

Ms. Brock delivered her 8 page report – Diligent Development-Getting It Right – to the House of Assembly today. In it she updated the findings of her February 2012 systemic report on the data-gathering and analysis by civil servants in the lead up to Parliamentary approval of the Tuckers’ Point Special Development Order.

Mr. Brock said: “Last year when I tabled Today’s Choices – Tomorrow’s Costs, I made a finding that the civil service had erred at law by not recognizing that Bermuda’s signature on the 2001 UK Environment Charter is a legal commitment. The then Minister rather emphatically responded that I was wrong. Since then I have received additional information that further proves that I was absolutely correct.”

This report pulls together in one document the evidence already presented in the February 2012 report Today’s Choices – Tomorrow’s Costs as well as the June 2012 Report that set out the Ombudsman’s reply to the Government’s response.

Ms. Brock explained: “I have subsequently spoken with one of the drafters who is quite clear that the commitments in the Charter were not ‘merely aspirational’. There are certain commitments that everyone recognized would need more funding and planning to implement. There were others – such as the requirement for EIAs before approval of development proposals – that could be implemented right away without the need for local legislation or government expenditure.”

“That is not all,” Ms. Brock continued. “We do not have to rely on the intentions and memories of the drafters. I have now learned of a court decision that confirms that the commitments of the Charter are legal obligations. This decision of the Eastern Caribbean Court states that the Charter constitutes Government policy. The public has a legitimate – legal – expectation that the Government will implement its own policy.”

Although this case is not a Privy Council decision that would be binding on Bermuda, Ms. Brock states “as this is the only case that determined the legal status of the Charter, it is likely to be highly persuasive for Bermuda’s Supreme Court. It ought to be highly persuasive for our Government too”.

“It is a mystery to me why Bermuda would not want to honour our commitments to protect our fragile environment – not just for today but for our grandchildren. Even the International Court of Justice has said that EIAs may be considered a requirement under general international law. What better guidance are we waiting for?”

“It is time for Bermuda to join the 21st Century, and keep our promises. EIAs – inclusive of adequate public consultation – must be done prior to approval of major developments and all development proposals that may cause significant adverse impact.”


Editor’s Background Notes:

• The Ombudsman is an independent, non-government official who makes inquiries and investigates complaints from the public about maladministration in the delivery of public services.
Section 5(2)(b) of the Ombudsman Act 2004 provides for the Ombudsman to conduct investigations on her “own motion, notwithstanding that no complaint has been made to her, where she is satisfied that there are reasonable grounds to carry out an investigation in the public interest”.
• The case to which Ms Brock refers is Webster et al. v. Attorney General (Anguilla) and Dolphin Discovery (Civ) A.D. 2010 (ECSC). Please see attached excerpt from the case.
Diligent Development- Getting It Right can be read on www.ombudsman.bm on Friday, 17 May. A limited number of paper copies are available now from the Office of the Ombudsman, 14 Dundonald St., Hamilton.
• For more information, contact Arlene Brock, Ombudsman for Bermuda, tel: 441-296-6541.



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May 17, 2013
To All Media

HAMILTON, BERMUDA:
Arlene Brock, Ombudsman for Bermuda, expressed disappointment with the quality of the Bermuda Hospital Board’s (“BHB”) Corporate and Clinical Governance Review.

Ms. Brock said, “In November 2012 I announced that I would be reviewing the Corporate and Clinical Governance Review commissioned by the BHB and conducted by Howard Associates.”

“My oversight of Howard Associates was intended to allay some of the skepticism the public may feel given that this was not an independently commissioned report, but one paid for by the BHB. (‘He who pays the piper plays the tune’ - especially if the piper hopes for further opportunities to play.) My role was never to be a rubber stamp of Howard Associates’ final report. The BHB had agreed from the beginning that my independence as an Officer of the Constitution of Bermuda would not be curtailed.”

“I participated in the interview of the short-listed consultants and agreed that Howard Associates had presented themselves best – as humble, serious and inclined to ask questions rather than razzle-dazzle with “consultant-speak”.

“Their proposed methodology was particularly impressive. They would embed themselves into the BHB (in the same way that journalists embed themselves with troops at war). This is an ideal way of obtaining both formal and informal information about the real dynamics and operations of an organization.

“From such an auspicious beginning through an excellent methodology, however, Howard Associates’ report simply does not reflect the wealth of information and insight that ought to have been obtained from embedding.”

“I am very sorry to say that I am exceedingly disappointed with Howard Associates’ report. My conclusion is that the Howard Associates report is full of statements, conclusions and recommendations without evidence, examples, best practices or rationales. Further Howard Associates’ clear focus on the ‘next gig’ could well have compromised their report.”

Ms Brock noted that, “Howard Associates failed to address certain questions that had been swirling in the media for some time. In particular Howard Associates did not adequately report on the operations of Healthcare Partners Limited – a unique new venture for the BHB. Due to a separation agreement with the former Chief of Staff that imposes broad, strict confidentiality on the BHB, Howard Associates were also unable to adequately report on the concerns that had been previously aired in the media about him.”

“Largely as a result of my critique,” Ms Brock said, “Howard Associates subsequently produced a “Rectification Report”. I was not informed until 1st April (almost accidentally) that the BHB’s contract required Howard Associates to rectify their report after my critique.”

Ms Brock said, “Logically, I cannot critique the Rectification Report. It would be improper for me to applaud the improvements that I myself had suggested. Our office dedicated considerable resources, thinking, insight, time and efforts to the oversight and critique of Howard Associates’ original report.”

Ms Brock concluded “Bermuda needs the BHB to succeed. We need to develop solutions that both tap our vast insight into our own problems and still harvest the best from the rest of the world. Most important, we need all of the people in this critical endeavour to be focused on our common good.”

Ms Brock explained that the report she tabled today in Parliament was based on her review of the original reports Howard Associates’ produced on 18th and 22nd March 2013. Their March 22nd report and the Ombudsman’s report are available on the Ombudsman’s website www.ombudsman.bm. Ms. Brock encouraged the public to download a copy of her report, as there are a limited number of hard copies available at her office.


Editor’s Background Notes:

• The Ombudsman is an independent, non-government official who makes inquiries and investigates complaints from the public about maladministration in the delivery of public services.
Although requested by the Bermuda Hospitals Board to review their Corporate and Clinical Governance Review, the Ombudsman’s decision to do so is based on her authority under s.5(2)(b) of the Ombudsman Act 2004 : “on her own motion, notwithstanding that no complaint has been made to her, where she is satisfied that there are reasonable grounds to carry out an investigation in the public interest.”
• For more information, contact Arlene Brock, Ombudsman for Bermuda, tel: 441-296-6541.

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January 21, 2013
To All Media

HAMILTON, BERMUDA: Ombudsman for Bermuda, Arlene Brock, has announced that she has recommended to the Bermuda Hospitals Board (BHB) that the deadline for the report by Howard Associates of their Clinical and Corporate Governance Review be extended from the end of January for one month to the end of February.

Ms. Brock noted: “as originally hoped, this is turning out to be a robust, comprehensive review of the BHB. I have met several times with Howard Associates and to date, am satisfied that they are thorough and getting a good grip on the issues.”

However, Ms. Brock noted that “Howard Associates still needs to complete interviews of some physicians and community stakeholders as there were some scheduling delays in December due to the election and the holiday season. This extension will also give them the time to meet with the new Minister and new BHB Board.”

Anyone who wishes to provide information directly to the Ombudsman for forwarding to the reviewers may do so at: complaint@ombudsman.bm; tel: 441-296-6541; or 14 Dundonald St., Hamilton HM 09.



Editor’s Background Notes:

• The Ombudsman is an independent, non-government official who makes inquiries and investigates complaints from the public about maladministration in the delivery of public services.
• Although requested by the Bermuda Hospitals Board to review their Clinical and Corporate Governance Review, the Ombudsman’s decision to do so is based on her authority under s.5(2)(b) of the Ombudsman Act 2004 : “on her own motion, notwithstanding that no complaint has been made to her, where she is satisfied that there are reasonable grounds to carry out an investigation in the public interest.
• For more information, contact Arlene Brock, Ombudsman for Bermuda,  tel: 441-296-6541.


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November 5, 2012
To All Media: Ombudsman involvement in BHB Review

HAMILTON, BERMUDA: Arlene Brock, Ombudsman for Bermuda, commends the Bermuda Hospitals Board for initiating a full review of its Clinical and Corporate Governance: “This comprehensive review is timely given the BHB’s transition to a new CEO and new facility”.

Ms. Brock states: “It is to the BHB’s credit that they have asked me to be involved as well – in the public interest. I will be updated on a weekly basis, will give input and will comment publically on the reviewer’s report. I have agreed to this involvement under the following terms:
•  my involvement is in accordance with the authority under the Ombudsman Act to conduct own motion inquiries and regulate proceedings as I see fit (sections 5(2)(b) and 12(5))
•  none of the powers conferred by the Ombudsman Act may be fettered in any way, including the power to question any person and to request copies of documentation
•  I may identify issues to be referred to more appropriate authorities for further review
•  periodically and upon my request, the reviewers will update me on their progress
• my report on the process and final report will not be subject to BHB timelines or preview.”

The BHB has just completed a rigorous search and selection of the reviewer. Ms. Brock notes: “I was involved in the vetting and selection process of the short-listed candidates. I can confirm that this was a thorough process and that, to date, I have confidence in the competence and objectivity of the successful candidate, Howard Associates”.

Anyone who wishes to provide information directly to the Ombudsman for forwarding to the reviewers may do so at: complaint@ombudsman.bm; tel: 441-296-6541; or 14 Dundonald St., Hamilton HM 09.



Editor’s Background Notes:

• The Ombudsman is an independent, non-government official who makes inquiries and investigates complaints from the public about maladministration in the delivery of public services.
• Although requested by the Bermuda Hospitals Board to review their Clinical and Corporate Governance Review, the Ombudsman’s decision to do so is based on her authority under s.5(2)(b) of the Ombudsman Act 2004 : “on her own motion, notwithstanding that no complaint has been made to her, where she is satisfied that there are reasonable grounds to carry out an investigation in the public interest.”
• For more information, contact Arlene Brock, Ombudsman for Bermuda,  tel: 441-296-6541.


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