Tucker v Public Service Commission and Board of Education

• Jurisdiction: Bermuda
• Judgment Date: 29 January 2020
• Date: 29 January 2020
• Docket Number: Civil Jurisdiction 2018 No 392
• Court: Supreme Court (Bermuda)

[2020] Bda LR 9

In The Supreme Court of Bermuda

Civil Jurisdiction 2018 No 392

In the matter of the Appointment of the Commission of Education

And in the matter of recommendations made by the Board of Education and the Public Service Commission pertaining to the position of the Commissioner of Education

Between:

Dr Gina Tucker

Applicant

and

Public Service Commission

and

Board of Education

Respondents

Mr M Diel for the Applicant

Mr R Horseman for the 1^st Respondent

Mr D Duncan and Mr R Hawthorne for the 2^nd Respondent

The following cases were referred to in the judgment:

R (oao Reckless) v Kent Police Authority [2010] EWCA Civ 1277

Dolding v Public Service Commission [2004] Bda LR 15

Judicial review — Appointment of Commissioner of Education — Procedural impropriety — Bias

JUDGMENT of Riihiluoma AJ

Introduction

1. This matter comes before the court on the Applicant's Originating Notice of Motion seeking a declaration against the Public Service Commission and the Board of Education that the appointment of Mrs Kalmar Richards as Commissioner of Education is void on the basis of illegality and that the appointment be declared null and void.

2. The Applicant, Dr Gina Tucker, is an educator with many years of experience both as a teacher and an administrator in the Department of Education. She unsuccessfully applied for the post of Commissioner of Education in 2013 and 2016. Dr Tucker applied for the post of Commissioner of Education in 2018 and she was, again, unsuccessful. Mrs Richards was appointed as Commissioner of Education.

3. Dr Tucker complains that she was unsuccessful because the Board of Education and the Public Service Commission woefully breached the legislation and regulations governing the appointment of the Commissioner of Education. Further, Dr Tucker contends that the Permanent Secretary for Education was complicit in these breaches in order to obtain the appointment of her chosen candidate. I will deal first with Dr Tucker's claim in respect of breach of legislation and then I will deal with her allegations in respect of bias.

The Department of Education

4. Broadly, the Department of Education operates and administers the public education system in Bermuda. Section 2(2) of the Education Act 1996 provides:

“(2) The Department shall, subject to the general direction and control of the Minister,—

• (a) be under the supervision of a public officer who shall be known as the Permanent Secretary; and

• (b) consist of the Commissioner of Education and such other public officers as may from time be authorized by the Governor.”

5. The Commissioner of Education is the Head of the Department of Education. The Commissioner of Education's duties are set out in section 5(2B) of the Education Act and include such matters as:

“prepare for the Board [of Education] a draft statement of vison, values and strategy for education to assist the Board in making recommendations to the Minister [of Education]

[responsibility] for the assessment … of the performance of the educational system and implementation of plans for improving the system; and

[responsibility] for the development of the curriculum for schools.”

6. Section 3 of the Education Act provides that the Minister may appoint 15 members to the Board of Education which shall consist of the following:

• “(a) 5 persons who are representative of schools, other than senior schools, in different areas of Bermuda;

• (b) 2 persons, one from the Berkeley Institute and one from CedarBridge Academy, appointed after consultation with their boards of governors;

• (c) 4 persons, one from the Association of School Principals, one from the Bermuda Public Services Union and two from the Bermuda Union of Teachers, appointed after consultation with each of them;

• (d) 2 persons appointed after consultation with organizations representing the business community as determined by the Minister; and

• (e) 2 persons who are representative of parents or the education community, appointed after consultation with any national organization representing parent-teacher associations;”

7. The functions of the Board of Education are set out in section 4 of the Education Act as follows:

• “(a) make recommendations to the Minister regarding the evaluation of the Commissioner of Education and directors of the Department;

• (b) make recommendations to the Public Service Commission regarding the appointment of the Commissioner of Education, directors of the Department and principals;

• (c) make recommendations to the Minister regarding educational policy;

• (d) make recommendations to the Minister regarding a statement of vision, values and strategy for education;

• (e) make recommendations to the Minister regarding its budget, the budget for schools and the allocation, within the budget for schools, of funds for individual schools;

• (f) evaluate, in conjunction with the Commissioner of Education, the performance of schools and boards of governors;

• (g) make recommendations to the Minister regarding the curriculum for schools;

• (h) make recommendations to the Minister regarding methods for assessing the performance of the educational system and monitoring the implementation of plans for improving the system;

• (i) make recommendations to the Minister for the design and implementation of an effective risk management strategy for schools, including policies and measures to control risks relating to the provision of education, security of persons and property and health and safety.

• (j) provide monthly reports to the Minister on its activities.”

8. The Board of Education does not have its own administration/secretariat. It relies on the Department of Education for these resources.

Procedure for the Appointment of the Commissioner of Education

9. The basic procedural requirements laid down in legislation and regulation for the appointment of the Commissioner of Education are:

• i. the Board of Education makes recommendation to the Public Service Commissioner regarding the appointment of the Commissioner of Education (section 4(1)(b) Education Act);

• ii. the Public Service Commission is obliged to consider all applicants (section 16 of the Public Service Regulations);

• iii. the Public Service Commission shall recommend to the Governor the best candidate for the post (section 19(2) Public Service Act); and

• iv. the Governor shall consult with the Premier in making the appointment (section 82(2) Bermuda Constitution Order).1

The Procedure Adopted for the Appointment of Mrs Richards

10. The civil service Recruitment Code was used for the appointment of Mrs Richards as Commissioner of Education in 2018. The civil service Recruitment Code was used for the appointment of the Commissioner of Education in 2013 and 2016.

11. Ms Germaine Trott, the Senior Human Resources Manager for the Department of Education, describes in her affidavit the administrative steps taken in the 2018 appointment of the Commissioner of Education. Ms Tott was directly involved, working with the Permanent Secretary, in the 2018 selection process. She had performed a similar role in respect of the 2013 and 2016 appointments of the Commissioner of Education.

12. In May 2018 the position of Commissioner of Education was advertised locally and in the Official Gazette. A copy of the advertisement has not been exhibited. There is no suggestion that the Board of Education prepared or placed the advertisement.

13. After the closing date for applications Ms Trott met with the Permanent Secretary to establish a shortlist of candidates to be interviewed by an Interview Panel. Three non-Bermudians who had applied were not shortlisted. Two Bermudians who applied were not shortlisted because they did not meet the qualifications. Dr Tucker did meet the qualifications and was shortlisted. Ms Richards did not meet the qualifications but the Applicant Summary Form states that she had “extensive years of relevant experience” and she was shortlisted.

14. Ms Trott then met with the Permanent Secretary to determine the composition of the Interview Panel. Ms Trott says in her affidavit that the Recruitment Code provides that a maximum of five persons should sit on an...