Friday, December 15, 2017

Appraising public officers

At a meeting held on March 23, 2012 between the Joint Select Committee (JSC) and the Public Service Commission, the JSC expressed its concern that there were over 8,000 vacancies in the Public Service with about two thirds of the posts being held by acting officers. However, in response to that concern, the Commission's explanation was that for years permanent secretaries had not been submitting performance appraisal reports on public officers, which were critical for the filing of thousands of vacancies.

Section 121 of the Constitution provides for the establishment of a Public Service Commission with powers to appoint persons to hold or act in offices in the Public Service and to make appointments on promotion and transfer and to remove and exercise disciplinary control over them.

The Commission's regulations on the other hand have established the procedure to be followed in the exercise of its powers and the performance of its functions. The Commission is constitutionally an independent body, independent of the executive and the legislature and free from political interference when making appointments, promotion and exercising disciplinary control over public officers.

According to the Commission's Regulations, permanent secretaries are required to submit an annual staff report on all officers and in that staff report they are required to make an unbiased and objective assessment of an officer's performance and conduct over the 12 months and give an indication of the officer's future prospects. But that is not all. Permanent secretaries are also required to inform an officer within the 12 months of his shortcomings, if any, and give him/her an opportunity to correct them. Moreover, the regulations require permanent secretaries to inform an officer of any adverse markings in the staff report before submitting them to the Commission.

When making promotions, the Commission takes into account the seniority, experience, educational qualifications, merit and ability of officers together with their relative efficiency and for this purpose the Commission would rely on the submission of staff reports on all officers.

The failure and/or neglect on the part of permanent secretaries to submit such staff reports constitute a breach of the Commission's regulations and warrant the institution of disciplinary proceedings against them.

However the fact that permanent secretaries have been permitted to continue their breaches with impunity evidences the Commission's failure and /or neglect and/or refusal to invoke its disciplinary powers against them and consequently constitutes an abdication of its constitutional responsibility. According to the Commission's Regulations, the Commission may either institute disciplinary proceedings against an officer or retire him in the public interest where the circumstances so warrant.

The constitutional authority of the Commission to make promotions is supreme and cannot be neglected or subordinated to departmental issues such as the releasing of funds or departmental restructuring and the whims of permanent secretaries or political influence bearing in mind that in the exercise of its functions the Commission is subject to the direction and control of no one.

The Public Service is a career Service and an officer when joining does so with the expectation of upward mobility. However, when that expectation is frustrated it leads to apathy, frustration, demotivation and demoralisation.

Accordingly the damage resulting from failure to appraise public officers to determine their suitability for promotion and the consequential neglect of the Commission to promote not only redound to the detriment of public officers but also to the country as a whole since the public service is one of the bulwarks of our democracy.

Another issue raised by the Chairman of the JSC was: who appraised the performance of permanent secretaries? Section 85 of the Constitution provides that a Minister with responsibility for a department shall have the general direction and control of it and subject to such direction and control the department shall be under the supervision of a permanent secretary whose office shall be a public office.

According to Section 121 (4) and (5) of the Constitution a person can only be appointed to the office of permanent secretary if the Prime Minister has no objection to his appointment. Further, the Constitution empowers the Prime Minister and not the Commission to transfer a permanent secretary from one Ministry to another. If therefore, a Minister is dissatisfied with the performance of his Permanent Secretary he can request the PM to transfer him or her to another Ministry.

Moreover, although not provided for in the Constitution or in the Schedule to the Civil Service Act, there is a Head of the Public Service, an office equivalent to that of the Head of the Home Civil Service in England whose appointment is approved by the British Prime Minister and who is usually guided by the views and recommendations of the Head of the Home Civil Service.

Since the Constitution of Trinidad and Tobago is of the Westminster model it would appear that the establishment of the office of the Head of the Civil Service was in tandem with the British Constitution and provided for the holder thereof to be attached to the Office of the Prime Minister who has the general direction and control of the Civil Service. Accordingly the Head of the Public Service has or is presumed to have supervisory jurisdiction over permanent secretaries inclusive of monitoring their performance and to communicate to the Commission acts of misconduct.

To give an example of the role and function of the Head of the Home Civil Service in England, a Minister of government in 1993 had advised the Head of the Home Civil Service that he was not satisfied with his permanent secretary and since it was not possible for the Head of the Civil Service to find an alternative ministry for him he directed his early retirement in the public interest.

Kenneth Lalla, SC, is a former head of the Public Service Commission.