NIGEL Jones, attorney-at-law representing Zavia Mayne, has dismissed as baseless and irresponsible the report of the Integrity Commission touching and concerning the provision of legal services in 2011 to Factories Corporation of Jamaica (FCJ) in respect of the purchase of 200 acres of land from Urban Development Corporation (UDC).
In a statement to media Wednesday evening, Jones said the report produced by the Integrity Commission has left him questioning whether the commission has the competence or the capacity to conduct a detailed investigation into any matter however simple it may be.
The Integrity Commission in a report tabled in Parliament on Tuesday called for the Ministry of Economic Growth and Job Creation (MEGJC) permanent secretary to implement mechanisms to prevent the misuse of public resources and immediately commission an audit into the financial affairs and governance arrangements of the corporation.
The commission labelled the FCJ's engagement of serving board members to provide private legal services pertaining to the acquisition of 200 acres of land under the Caymanas Economic Zone (CEZ) project as irregular, improper and constituting a conflict of interest.
According to the commission's report, newly appointed state minister in the Ministry of Finance and Public Service, Zavia Mayne, and attorney-at-law Robert Ramsey, former FCJ board directors, were paid a total of $26.43 million in legal fees to acquire the land at Caymanas Estate for $900 million from the UDC.
In the report, Integrity Commission's Director of Investigations Kevon Stephenson indicated that up to February 2, 2023, the FCJ's acquisition of land under the CEZ project remains incomplete, even though the attorneys were paid legal fees in full.
"The property was transferred to the FCJ on January, 28 2016; however, the UDC remains an unpaid vendor as the sum of $829,605,575 remains outstanding," he said.
Stephenson further said the Office of the Contractor General initiated an investigation in 2016 concerning allegations of conflict of interest and/or impropriety in the award of contract for legal services for the land acquisition. He said the probe uncovered issues of conflict of interest and breaches of the Public Bodies Management and Accountability Act.
He stressed that the decisions taken by the FCJ's board of directors in the matter were "ill-advised, palpably wrong and antithetical to the principles of good governance and the proper use of public funds".
But Jones, in his statement, contends that the existence of a person on a board does not amount to a conflict of interest, but instead a conflict of interest arises when a person who is a member of a board participates in the making of a decision from which he intends to benefit directly or otherwise.
In the statement, Jones outlined that Section 17 (2) of the Public Bodies Management and Accountability Act provides inter alia:
A director who is directly or indirectly interested in any matter which is being dealt with by the board —
a) Shall disclose the nature of his interest at a board meeting;
b) Shall not take part in any deliberation of the board with respect to that matter
Further, Jones said the Integrity Commission's report, while stating that Section 17 (2) (a) does not apply, clearly listed at page 15 of the report the members of the board who were present during the deliberations of the decision to appoint the attorneys-at-law who acted for FCJ in the transaction of which Zavia Mayne was not one.
Jones said in this regard the provisions of Section 17 (2) of the Public Bodies Management and Accountability Act dealing with conflict of interest was not in breach.
He added that there were several instances where the conclusions of the director of investigation disregarded the findings of fact he would have made in the same report specifically in relation to the terms of engagement and the existence of a contract between the parties.
Jones said he also questions the timing of the publication of the report into a matter which took place 12 years ago long before his client entered representational politics and became an MP in 2016.
Moreover, outlining details of the arrangement, Stephenson noted that on June 2, 2011, the FCJ entered into an agreement for sale with the UDC, to acquire the land, which was as a result of a Cabinet decision which accorded the development of the 200 acres of Caymanas lands 'National Priority' status, and required that all the relevant State agencies facilitate its implementation with urgency.
He said that on April 1, 2011, the board of directors of the FCJ approved the appointment of Zavia Mayne and Robert Ramsey, also members of the CEZ Sub-committee, as attorneys-at-law in the FCJ's land acquisition.
He noted, however, that there is no evidence of any written contract or any other document detailing the terms of the agreement between FCJ and attorneys Zavia Mayne and Robert Ramsey, regarding their engagement under the CEZ project.
Stephenson noted that the FCJ terminated the legal services of Zavia Mayne and Robert Ramsey, on September 4, 2012, prior to the completion of the acquisition of the referenced land, notwithstanding full payment of the fees was made.
He said that on December 19, 2014, the FCJ contracted the services of Linton Walters and Company to complete legal services for the CEZ land acquisition, and to recover funds that were paid to attorneys Zavia Mayne and Robert Ramsey. No funds have since been recovered.
The report outlines that at its meeting on April 27, 2017, the new FCJ board resolved that it would not proceed any further with the case against the two attorneys.
Stephenson said he is recommending that FCJ, if not yet done, implements a policy which addresses conflict of interest, specifically at the board level, in keeping with the Public Bodies Management and Accountability Act.
Stephenson also recommended that Prime Minister Andrew Holness commission a general review of this issue with a view to introducing legislation and/or regulations to clarify how these should be managed.