The Tribune

By RASHAD ROLLE

Tribune Staff Reporter

rrolle@tribunemedia.net

AS governments around the world come under fire for confidential settlement agreements, their use persists in The Bahamas in the absence of public scrutiny, alarming transparency advocates.

Attorney Wayne Munroe said secret agreements potentially expose the public to abuse. His comment came after The Tribune revealed last week the government has reached a mutual agreement with former Christie administration advisor Sir Baltron Bethel over contracts the government initially declined to honour. Prime Minister Dr Hubert Minnis terminated Sir Baltron’s contract last year and insisted he would not honour its terms. He said Sir Baltron’s contract was extended two weeks before the last general election, his salary increased from $140,000 to $200,000.

When contacted recently, Attorney General Carl Bethel declined to reveal terms of the agreement with Sir Baltron, citing confidentiality. The Office of the Attorney General is in talks with other people seeking payment related to their departure from public office. Historically, the public has not been given details of settlement agreements and is not told how much a person is paid.

The secrecy involving taxpayer funds prohibits accountability, according to Mr Munroe, QC.

“The reason (to disclose settlement agreements),” he said, “is it permits you scrutiny to see if there has been even-handed application of a policy. It also prevents politicians talking tough in public about somebody, then settling quietly behind the scenes. Disclosure will also tend to expose if a government or a politician is using public funds improperly either to benefit persons of a particular class, to give money to your boys or to discriminate against other persons and to make other people go through a lot of challenges.”

Mr Munroe said some matters should be subject to a degree of disclosure, such as police misconduct cases, hospital negligence cases and employee disputes. He called for a vigorous debate about what class of settlement agreements should be revealed to the public and what should be kept secret.

He said: “In a settlement agreement, a confidentiality clause is usually to advance a commercial interest. If the company is a private company or the defendant is a private person, that’s simple. But when the defendant is the state or the government, you have accountability and transparency issues. Should the government be made to disclose raw data? Should they disclose how much is the value of settlements by confidentiality agreements? Should they be made to individualise them as to the amounts of individual ones and the next step is should they be made to identify the recipients or the plaintiffs in the cases that cannot be proven to be commercially sensitive?

“There will be some matters where you don’t want people to know you settled a case, for instance where there is mould in a building then everyone and their mother would file an action that you would have to settle. But there should be run of the mill things like employment matters and personal injury matters that wouldn’t fall within that class. We should at least have the debate, the discussion like they do in other jurisdictions to say you have a disclosure obligation and this discussion should be in the context of a Freedom of Information Act.”

In Missouri last year, the state’s Attorney General Josh Hawley committed to releasing monthly reports detailing settlements, according to Pew Research. He said the state’s “citizens deserve transparent and accountable government, especially in the expenditure of their tax dollars”. In states around the US, disclosure of payments in agreements is the norm for some class of cases. Secret agreements have come under attack in the United Kingdom. In 2013, the National Audit Office of the UK, an independent parliamentary body, said “the lack of transparency, consistency and accountability” around compromise agreements and special severance packages “is unacceptable”.

“With the public purse under sustained pressure and services increasingly delivered at arm’s length, it is important that compromise agreements do not leave staff feeling gagged or reward the failure either of an employee or an organisation,” the NAO said.

Critics are careful to note settlement agreements themselves are not bad policy.

“Settlement is a good thing,” Mr Munroe said. “For instance, in some cases I have done, I’ve done one where you might end up with an award of $50,000 whereas if the government offered $10,000 my client would have accepted it. People say ‘oh you say you didn’t do it,’ but that’s all well and good if the court sides with you, you pay nothing, but if the court rules against you, you pay $50,000. So offering $10,000 is a gamble but litigation is that way generally.”

Matthew Albury, executive director of the Organisation for Responsible Governance, said it’s unclear if the Freedom of Information Act, which has not fully come into force, mandates disclosure of settlement agreements.

“In theory,” he said, “in Freedom of Information they may be released unless there is some judicial mandate that a file must be closed or because of national security or something like that. The independent information commissioner would be the ultimate adjudicator around whether that information would be available. It goes back to one, we need to push to be clearer about how to use this law, and we need to push for independence and strength in the information commissioner. At the moment the commissioner is going to be appointed by virtue of a process that is not outside political influence.”

It is not clear if settlement agreements involving the government contain confidentiality clauses or if government officials simply avoid discussing them in public by citing the need for confidentiality.

“It’s part of the culture,” Mr Albury said, “so deeply entrenched that people can’t speak to it. A changed culture and mindset is needed so we understand that information isn’t just about a ‘gotcha’ moment but much more of a learning opportunity for us to ask if we are doing things not only above board but as effectively and efficiently as possible.”