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(PRESS RELEASE VIA SNO) – The Minister for Infrastructure, Ports, Energy & Labour, the Honorable Stephenson King, has revoked the appointments of commissioners of the National Utilities Regulatory Commission (NURC), effective June 6, 2018.
The NURC was established by the National Utilities Regulatory Commission Act (2016) as replacement for the National Water and Sewerage Commission (NWSC) and to regulate the supply of utility services, including water and electricity. The commissioners in question were appointed February 2016 by the former administration.
The appointment duration of commissioners was staggered, with two commissioners serving five-year terms, two serving four-year terms, and three serving three-year terms.
The minister cited misconduct as the reason for the revocations. Unlike the directors of most Boards, the appointments of NURC commissioners cannot be summarily revoked with a change of administration. Section 25 of the NURC’s Act details the conditions under which the minister can revoke the appointments of commissioners. Misconduct being one of these conditions.
The minister stated as misconduct the failure of the Commission to carry out his directive of not renewing the contract of the NURC’s executive director to be replaced by the appointment of a new commissioner who would double as a commissioner and an executive director. However, fairness and a reading of sections 8 – 14 of the Act suggest that the Commission would have been derelict in its duties and responsibilities were it to comply with the minister’s directive.
First, section 8 provides that the minister may issue directives to the Commission of a general policy nature. However, it is reasonable to surmise that the staffing of the NURC secretariat is not of a general policy nature, rather it is an administrative matter and therefore falls outside of the purview of the minister.
Second, the structure and composition of the Commission are stipulated in section 9, which doesn’t envision the commissioner-executive position that the minister wishes to impose. Therefore, such a change would be a violation of the Act.
Third, sections 13 – 14 make specific provisions for a position of executive director, separate from the role of commissioner, who along with other staff are to be appointed by the Commission. The Act makes no provisions for a commissioner-executive director and makes no provisions for the minister to appoint staff or to give directives to the Commission in the appointment of staff.
Fourth, the Commission could find few faults with the executive director. His conduct, performance, leadership, communication, and proactiveness were without reproach. A recent performance evaluation of him yielded an approval score of over 90 percent. Therefore, the Commission had no grounds for failing to renew the contract of the executive director, and failure of renewal would have been unfair and tantamount to penalizing excellence. And as any parent or freshman economist knows, one of the worse things you can do in life is to punish good behavior while rewarding bad behavior.
Therefore, it appears that in issuing directives to the Commission in matters of staffing, the minister was operating outside the provisions of the NURC’s Act, which governs the operations and conduct of the Commission. It also appears that were the Commission to carry out the directive of the minister, not only would the Commission be in breach of the Act but would be complicit in the minister unlawfully usurping its authority and responsibilities.
It is not by accident that the Act doesn’t make provisions for the minister to meddle in the staffing and other administrative affairs of the secretariat and that the Act spells out the conditions under which the minister can revoke the appointments of commissioners. It is to ensure that the Commission dispense with its regulatory responsibilities with independence, impartiality, and the absence of undue political influence or interference.
One can safely say that the minister was very much aware of the foregoing regulatory principles and stipulations of the Act, and thus knew that the Commission couldn’t lawfully carry out his directive. Therefore, one has to conclude that the minister’s directive was simply a guise to get rid of a Labor government appointed Commission and an executive director appointed by same Commission, knowing full well that the commissioners would rather resign than violate the trust vested in them.
Perhaps another reason the minister sought to dismiss the Commission was that in carrying out its regulatory oversight and protecting the public’s interest, the Commission was perceived as preventing the utility companies from having things their way, which may suggest that the minister is in cohort with the public utilities. Clearly, such motivation on the part of the minister would be tantamount to him placing the interest of the public utilities above that of citizens and returning the public utilities to self-regulation.
If the commissioners were to allow the minister to get away with such breach of law, then this will set a very detrimental precedent.
Laws and procedures designed to protect the country from politicians and to protect politicians from themselves need to be protected and enforced. Otherwise it’s a steep decline to dysfunctionality and despotism. Therefore, the commissioners would be hitting a six for the nation if they were to challenge the minister’s directive and revocation of commissioners’ appointments and his unfair dismissal of the chief executive director, an act likely in violation of labor laws.
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