Cayman Islands Ombudsman Sharon Roulstone is taking legal action against Governor Jane Owen over a disciplinary investigation that she claims is unlawful and unfair.
Roulstone, the first Caymanian to hold the post, argues that Owen does not have legal authority to instigate proceedings against her. She also highlighted a history of repeated complaints against her which have been unfounded or abandoned.
The Office of the Ombudsman is Cayman’s public sector complaints investigation body and has a statutory independence designed to protect it from political interference.
Now Roulstone has taken the unprecedented step of filing judicial review proceedings against the governor.
The case is linked to an internal grievance and disciplinary proceeding started by Owen in response to three staff complaints about Roulstone’s management style. The Ombudsman claims the proceedings have been misleading, rushed and lacking in transparency.
While the governor does have power to remove the Ombudsman from office in limited and extreme circumstances, the court filing argues she does not have the legal remit to carry out a disciplinary investigation or to impose sanctions short of dismissal.
The court filing argues that the allegations against Roulstone amount to relatively minor HR matters that don’t come close to the kind of conduct that could trigger the governor’s involvement.
“The nature of the allegations are … confined to internal office complaints by three members of staff concerning the Applicant’s management of them …
“(They) do not relate to or impinge upon the competence, integrity or quality of the exercise of her primary constitutional investigative functions in serving the public and … do not ascend to the level of grave seriousness required to be “misbehaviour” warranting removal under the Constitution,” it states.
The document, filed late last month and published on the Grand Court register on Tuesday, adds: “Since her appointment as the Ombudsman, the Applicant has conducted rigorous investigations of several public bodies including the office of the Governor. So far as the Applicant is aware, public confidence in her has never been questioned.”
Outlining the background to the case, the filing indicates that Roulstone was informed of the decision to start a ‘grievance process’ against her by email on 30 July.
In that message, Owen indicated she had appointed Felicity Mitchell, a former UK senior ombudsman, to “lead the investigation into grievances I have received about your conduct”.
The court document highlights “terms of reference” for the investigation sent to Roulstone by the UK investigator, which included the possibility that she could be required to undergo mediation, take personal development training or face a written warning or dismissal.
Some of the complaints about the Ombudsman, referenced in emails to her and repeated in the court document, include that she had raised her voice and struck her hand against a table in meetings, that a manager was given inconsistent messages about his performance and that she rejected an employee’s request for additional sick leave and to work from home.
The Notice of Motion characterises the complaints as relatively minor office issues, which the governor has no authority to intervene in. It states that the Ombudsman is the public sector’s independent watchdog and under the Constitution it “shall not be subject to the direction or control of any other person or authority”.
It goes on to state that Roulstone was never informed how the findings in relation to those complaints could amount to misbehaviour of the type that might justify her removal from office, the only mandatory sanction available to the governor under the law.
It states that the process was misleadingly portrayed to Roulstone as an internal HR procedure from which many outcomes could result.
The document asserts that Roulstone was told by the UK investigator that the inquiry was concerned with “HR type issues” and that “there’s a big gap between what I’m looking at now and the Governor’s power to dismiss”.
Pattern of abandoned complaints
The legal filing highlights a pattern of investigations from complaints against the Ombudsman by some staff members whose cause had originally been taken up by then-governor Martyn Roper. Three previous investigations were abandoned or determined in her favour.
Roulstone alleges that Owen tried to persuade her to step down, suggesting she “must be exhausted” from the investigations against her. She claims this gave her cause for concern about the nature and fairness of the process against her which she argues was unreasonable and unfair from the outset.
Critically, though, the legal filing states that the governor simply lacked the legal authority to take the action she did.
“The Governor lacks power to institute the type of mandatory processes to which the Applicant has been formally notified she is subject. The only power she possesses is to consider the Applicant’s removal under section 120 of the Constitution,” the filing states.
Roulstone’s legal team, Travers Thorp Alberga, asserts that internal staff complaints of the type referenced cannot amount to “misbehaviour” warranting removal from office under the Constitution.
They are asking the court to quash two decisions made by the governor – one to initiate a grievance investigation into the complaints and another to commence a disciplinary process based on those grievances.
The case met the requirements for a judicial review and a full hearing is expected before a Grand Court judge this year.
