In contempt: Mayor and deputy fall foul of Ombudsman

The Mayor and Deputy Mayor of Hamilton have been found guilty of contempt for failing to comply with summons by the Ombudsman.

Graeme Outerbridge and Donal Smith did not adhere to requests from Arlene Brock to meet as she probed the background of the Corporation’s move to grant a lease for its waterfront project.

Chief Justice Kawaley said the pair had ‘allowed their personal irritation to get the better of their judgement’ and cooperated ‘at best in a half-hearted manner’ with the investigation.

And although he ruled that the pair’s actions constituted contempt, he did not impose a penalty other than that the two City bosses should pay indemnity costs. In a written judgement he said that the origins of the dispute “partially lie in a clash of strong personalities”.

In his ruling he stated that a summons by the Ombudsman had the same legal force as a court order.

And he ruled that Mr Outerbridge and Mr Smith had no entitlement to legal representation at the investigation stage.

The judgement was welcomed by Ms Brock who said she was ‘delighted’ the Supreme Court had upheld her case.

Mr Kawaley acknowledged that the Ombudsman had dealt with Mr Outerbridge and Mr Smith in a ‘far more formal and punctilious manner than might usually have been the case had she and subjects of the investigation established genuinely cordial lines of communication’.

But he added: “My provisional view is that no question of penalty for a purely technical contempt properly arises in all the circumstances over and above the usual indemnity costs order. The contempt occurred because the Respondents, who had been doing their best to cooperate with an investigation they did not truly welcome, most likely because they were heavily committed to matters which they considered to be far more important, allowed their personal irritation to get the better of their judgement.

“In the result they have effectively compelled the Ombudsman to issue the present proceedings to prove an ultimately obvious legal point. When the Ombudsman issues a summons, it has the same legal force as a court order, and cannot be ignored by the summonsed parties at their own whim”. 

Ms Brock described the judgement as a ‘precedent setting case’ adding: “I did a quick survey of Ombudsman colleagues and those who responded had never faced a situation of witnesses failing to comply with Summons’. In fact, most have never had to issue Summons’ because their requests for interviews are fully respected by the citizens of their countries.”

Ms Brock said she was ‘happy’ the role of Ombudsman had been clarified and shown to be worthy of respect.

She said: “This can be inferred from the fact that the Supreme Court marked its disapproval of the Respondents’ conduct by making a provisional award of indemnity costs against the Respondents. Given that there have been relatively few Court challenges around the world of Ombudsman jurisdiction and powers, this case is not only important for Bermuda but for all Commonwealth jurisdictions.”

Mr Outerbridge said in a release last night that city lawyers are reviewing the ruling and a statement will follow.