25th October 2018
The Honourable Thomas Desmond Bannister, M.P.
Minister of Public Works
Ministry of Public Works
John F. Kennedy Drive
Dear Minister, Bannister:
Re: Darnell Osborne-Wrongful Dismissal from the Board of BPL & Defamation
We represent Mrs. Darnell Osborne, the immediate former Chairperson of BPL, in the captioned matter.
Mrs. Darnell Osborne is the former President of the Bahamas Institute of Chartered Accountants and a Certified Public Accountant licensed in the state of Georgia with almost thirty (30) years of outstanding professional practice in the Commonwealth of the Bahamas.
Mrs. Osborne was appointed as Chairperson of the Bahamas Electricity Corporation’s Board by you, pursuant to Section 8 (3) and (4), Part III of the Electricity Act, 2015, for a period of five (5) years with effect from July 1, 2017. In breach, inter alia, of Section 2 of the First Schedule of the Electricity Act, 2015, and the Rules of Natural Justice you purported to constructively dismiss Mrs. Osborne from the Board of BPL, without reasonable cause, on or about August 15, 2018. To create a pretext for this wrongful conduct, you published to the general public several false, careless, misleading, malicious and defamatory comments about Mrs. Osborne that have injured her personal and professional reputation and cause her to suffer considerable distress and embarrassment.
For convenience, we set out below the historical background leading up to your wrongful decision to rescind Mrs. Osborne’s appointment as well as the relevant legal principles which should guide you in reconsidering your actions in this matter.
Darnell Osborne was appointed to BEC’s/BPL’s Board as Chairperson by you effective from July 1, 2017 for a fixed term of five (5) years. She was appointed as Executive Chairperson of BPL Board of Directors by letter dated January 5, 2018 from the Acting Permanent Secretary of the Ministry of Public Works to Mr. Whitney Heastie, Chief Executive Officer of BPL. The letter purports to limit the post of Executive Chairperson as not full time, that she will “be the Government’s representative in setting policy for the Company and advising the Minister on policy matters.”
We are instructed that the Board of BPL operated smoothly in carrying out the functions of the Electricity Act. However, it appears to our client that you adopted a hostile attitude towards her, beginning in May 2018, with respect to the independence that she manifested on several issues before the Board, amongst the following:
1. Proposal to vary the Shell NA Power Purchase Agreement (“PPA”), which had been approved by the Board in December 2017 and by the Cabinet in March 2018, by removing the building of the power plant from the PPA and having BPL select either BWSC or Wartsila to build the plant.
2. Proposition that CEO Heastie had exclusive authority to employ officers and employees of BPL, without Board’s supervision, notwithstanding the clear statutory provision at section 5 of the First Schedule of the Electricity Act that “The Board may appoint officers and employees of the Corporation, or engage other services, only as may be necessary for the implementation of the provisions of this Act.”
3. Your appointment of Mr. Hugh Patrick Rollins, as Executive Director of BPL, without any prior consultation with the Board and settlement of a job description for the position of Executive Director in relation to the position of Executive Chairperson.
4. Mrs. Osborne’s insistence that the BPL Board obtain a legal opinion from outside counsel before she, in her capacity as Executive Chairperson, would sign the Shell MOU. In response to this position, Executive Director Rollins sent Mrs. Osborne (who was in Canada on holiday with her family at the time) an email on July 26, 2018 communicating that you had issued a ministerial direction that Mrs. Osborne sign the MOU by the end of that day. Mrs. Osborne responded on Sunday, July 29, 2018 insisting that she would sign off on the MOU only after it was reviewed by outside counsel.
In retaliation against Mrs. Osborne for her independence and fidelity to her fiduciary obligations to BPL, you took a number of actions which amount, in our legal opinion, to ministerial abuse of office, breach of the Electricity Act, 2015 and procedural fairness, defamation and constructive dismissal.
Therefore, your letter to Mrs. Osborne in August 2018 purporting to unilaterally vary the terms of her five-year fixed term appointment under the pretext of renewing the term of her appointment for one (1) year from July 1, 2018 to June 30, 2019 was an act of retaliation.
On Friday, August 3, 2018 you summoned Mrs. Osborne to your office and criticized “her leadership style”.
On Sunday, August 5, 2018 the Honourable Prime Minister summoned Mrs. Osborne to his office to discuss the concerns at BPL. At the end of the meeting, the Prime Minister told Mrs. Osborne that she should “stay put.”
On Tuesday, August 14, 2018, you summoned the BPL’s Board to your office and announced that three members of BPL’s Board, namely Messrs. Whitney Heastie, Hugh Patrick Rollins and Ferron Bethell had resigned and that the Prime Minister had asked for the resignation of Mrs. Osborne, Mrs. Nicola Thompson and Mr. Nick Dean; thereby, creating the pressure for constructive dismissal (Mr. Dean was not at the meeting, as he was out of the country).
Mrs. Osborne and Directors Nick Dean and Nicola Thompson never received any written communication requesting their dismissal, no written reason for their dismissal has been provided nor did they submit written resignations. In fact, Mrs. Osborne only learned about the appointment of the new Board of BPL on Friday, August 17, 2018 when she was sent a WhatsApp message by a reporter from one of the local newspapers who wanted her response to her dismissal and the new appointments.
We are instructed that on the following day Prime Minister Hubert Minnis telephoned Mrs. Osborne and apologized to her for the matters that had transpired with the BPL Board and advised Mrs. Osborne that she would be appointed as Director of Inland Revenue and that the Acting Financial Secretary, Mr. Marlon Johnson, would be calling her over the next few days.
THE CLAIM FOR WRONGFUL TERMINATION FROM THE BPL BOARD
Sections 8, 12 and the First Schedule of the Electricity Act 2015 address the appointment and removal of Board Members and Directors of BPL and BEC.
Section 8 of the Electricity Act 2015 states that the BEC board is to be comprised of seven persons who are appointed by the Minster to be members of the board. Section 8 (4) indicates that one of the seven members appointed is to be the chairperson of the Board and another member is to be the deputy chairperson of the Board.
Based on Section 8 (5) of the Electricity Act 2015, a Board member is to be appointed for a maximum term of five years.
Section 8 of the Electricity Act 2015 sets out, in extensor, the following:
“8. Continuation of the Corporation
(1) The Bahamas Electricity Corporation, established under section 3 of this repealed Act, continues to exist as a body corporate for the purposes of and shall be governed in accordance with, this Act
(2) The Corporation has the functions and powers conferred or assigned by this Act until such functions and powers are transferred to BPL in accordance with this Part
(3) The Corporation shall be governed by a Board consisting of a maximum of seven persons appointed by the Minister to be members of the Board.
(4) The Minister shall appoint one member of the Board to be the chairperson of the Board and one other member to be the deputy-chairperson of the Board
(5) A member of the Board shall be appointed for a maximum term of five year and is eligible for reappointment for a further term not exceeding five years.
(6) The provisions of the First Schedule apply and have effect with respect to the functioning of the Corporation and the Board
Section 12 of the Electricity Act is concerned with the constitution, functions and powers of BPL. According to s 12 a Board of Directors is appointed over BPL to govern the affairs of BPL. Section 12 of the Electricity Act 2015 provides as follows:
“12. Constitution, functions and powers of BPL.
(1) BPL shall be a wholly-owned subsidiary of the Corporation
(2) There shall be appointed to govern the affairs of BPL a Board of Directors
(3) BPL shall
a. Take responsibility on the transfer date for the performance of the section 9 functions; and
b. Subject subsection (4), on or after the transfer date enter into a management contract with the System Operator for the management and operation on behalf of BPL of the GTDS functions and related facilities of the electricity supply system transferred to and vested in BPL.
(4) BPL shall perform the section 9 functions, for a minimum period of five years from the transfer date, through the maintenance of a management contract with a system operator.”
Section 2 of the First Schedule of the Electricity Act 2015 sets out the following four (4) prescribed circumstances under which the Minister can remove a board member from the board of BEC or BPL.
(1) Where the Minister is satisfied that a member
(a) Has been absent from meetings of the Board for a period longer than six consecutive months without the permission of the Board;
(b) Has become bankrupt or made an arrangement with his or her creditors;
(c) Is incapacitated by physical or mental illness; or
(d) Is otherwise unable or unfit to discharge the functions of a member
The Minister may declare his or her office as a member to be vacant and shall notify the declaration in such manner as the Minister thinks fit whereupon the office shall become vacant
(2) On the expiration of the period for which a member is appointed, the members shall continue to hold office for a further period not exceeding three months or until a successor has been appointed, whichever is the first to occur.
(3) A member of the Board may resign upon giving one month’s notice in writing to the Minister and, whenever the office of a member becomes vacant before the expiry of the term of office, the Minister may appoint another member in place of the member who vacates office, but such member shall hold office only for the unexpired part of the term.
(4) The members of the Board shall be paid such allowances as the Board may, with the approval of the Minister determine.
(5) Subject to this Act, the Board may regulate its own procedure.”
Based on the aforesaid provisions of the Electricity Act 2015, it is clear that Mrs. Osborne and the other Board members of BPL could only be removed by you for reasonable cause, based on any of the prescribed four (4) circumstances set out in Section 2 of the First Schedule of the Electricity Act 2015. This mandatory statutory procedure for the removal of BEC and BPL Board Members prohibits the removal of BEC and BPL Board Members at ministerial pleasure. Therefore, it is our legal opinion that the dismissal of Mrs. Osborne as Executive Chairperson of BEC and BPL, without reasonable cause and without affording her procedural fairness, is ultra vires the Electricity Act and a breach of the rules of natural justice.
By way of analogy, we also refer you to the Court of Appeal for British Columbia decision of Martin v Vancouver (2006) BCCA 197 where the alleged dismissal from a statutory board was the subject of judicial review. In the British Columbia Court of Appeal decision of Martin v Vancouver (2006) BCCA 197 the Plaintiff was a chair of a Board when his appointment to the board was rescinded by the Vancouver City Council. The Plaintiff then challenged the Councils’ decision to rescind his appointment by commencing an action for judicial review. The application for Judicial Review was dismissed and the Plaintiff appealed the decision. The issue on appeal was whether the Council acted within its statutory authority in good faith and in accordance with the principles of procedural fairness in rescinding the appointment of the Plaintiffs appointment as a Board member.
The British Columbia Court of Appeal concluded that, based on the provision of the Vancouver Charter, the Council breached no principles of procedural fairness and had acted in good faith in rescinding the appointments of the Board Members. In Martin v Vancouver (2006) BCCA197, the relevant provision that the British Columbia Court of Appeal had to consider was s 572 (2.1) of the Vancouver Charter which gave the Council an absolute right to rescind the appointment of a Board member at any time.
In contrast, the provisions of the Electricity Act 2015 make it pellucidly clear that you could only remove Mrs. Osborne and the other Board Members based on any one of the four prescribed circumstances set out in s 2 of the First Schedule of the Electricity Act 2015. Accordingly, we posit that Mrs. Osborne was wrongfully removed from the Board of BPL, without reasonable cause, and that she is entitled to be compensated for salary and benefit due to her for the remaining four years under her appointment to the board of BPL.
In addition to the wrongful removal of Mrs. Osborne from the Board of BPL on or about August 15, 2018, you published to the general public several false, careless, misleading, inaccurate, malicious and defamatory comments about Mrs. Osborne. Specifically, you contended that:
1. Mrs. Osborne demanded a salary of Three Hundred Thousand Dollars ($300,000.00) a year for her position as the Executive Chairperson of BPL
2. Mrs. Osborne used BPL’s money to pay for her personal bills.
3. Mrs. Osborne caused BPL to spend several hundred dollars on personal makeup
4. Mrs. Osborne caused BPL to pay for the installation of additional securities features at her home in Treasure Cove
5. Mrs. Osborne caused BPL to make a Twenty Thousand Dollar ($20,000.00) donation to the Bahamas Institute of Chartered Accountants
6. Mrs. Osborne and the Procurement Committee of the BPL Board exposed New Providence Residents to power outages by blocking the purchase of critical parts for a generator.
7. Mrs. Osborne interfered with the day to day operations of BPL
8. Mrs. Osborne tried to assume the functions of the CEO of BPL, Mr. Whitney Heastie
9. Mrs. Osborne and others were the cause of a “gridlock” on the BPL board
You also made and continued to make the following additional defamatory comments to journalists from the following newspapers, namely:
1. In the August 22, 208 Nassau Tribune article entitled “BPL boardroom battle sparks power outage” Tribune Business Editor Neil Hartnell stated the following:
“Bahamas Power & Light’s (BPL) former chairman was yesterday accused of exposing New Providence residents to power outages by blocking the purchase of critical parts.
Desmond Bannister, minister of works told Tribune Business that BPL was facing a $10 m plus loss after Darnell Osborne and fellow former director, Nick Dean refused to authorize the acquisition of equipment needed to restore ten percent of the utility’s Nassau generation capacity
Mr. Bannister, who has ministerial responsibility for BPL, disclosed that the state-owned monopoly faced being without 31 megawatts (MW) of generation capacity at its Clifton Pier plant for at least four months- a situation that will cost it $2.7 million per month.
He added that Whitney Heastie, who remains BPL’s chief executive, had made arrangements to order the turbochargers necessary to restore the affected engine to service but the former board and its procurement committee blocked the purchase.
Describing the situation as “like a nightmare” Mr. Bannister said Mrs. Osborne and Mr. Dean who headed the former board’s procurement committee, had refused to authorize the turbochargers’ purchase unless their questions were answered-something that Mr. Heastie had attempted to do.
… Mr Bannister told Tribune Business that “personalities were getting in the way of making decisions in the best interest of the country when it came to BPL and its former Board.
He revealed that the impacted Clifton Pier generation engine had been off-line since May 30 and added: “One of the reasons we have load shedding now is because we don’t have this engine up.
“Mr Heastie made the request for procurement from July 24. Mr. Heastie made the arrangement, ordered the parts and the ordering of the parts is still not approved by the procurement committee
… Mr. Bannister alluded to this yesterday saying “One of the challenges is we can’t let personalities get in the way of making decisions in the best interest of the country. That’s one of the challenges we have had with the former Board.”
2. In the August 22, 2018 Nassau Tribune Article entitled “OUCH! Bannister savages BPL Chair with finance revelations” written by Tribune Chief Reporter Ava Turnquest the following is stated:
“Works Minister Desmond Bannister yesterday revealed he became involved with the operations of the Bahamas Power and Light board of directors in a bid to block the company from paying the personal bills of its former chairwoman, including make up service and the installation of a home security system
His rebuttal to claims of political interference in a statement penned by former chairwoman Darnell Osborne and two former board members is the latest in a string of allegations surrounding the shock dissolution of the board last week.
Mr. Bannister told the Tribune yesterday he believed the discord between board members stemmed directly from Mrs. Osborne’ disenchantment over his decision to appoint his close friend Patrick Rollins to the executive director post after it was vacated by Deepak Bhatnagar late last year.
The works Minister insisted Mrs. Osborne wanted the post and had gone as far as to offer a salary proposal of $300,000.00 which he refused
He further accused the former chair of repeatedly attempting to take on the functions of BPL’s CEO Whitney Heastie and engaging in a relentless attack on Mr. Rollins, whom he stressed was professionally qualified for the post.
“I didn’t set out to attack Mrs. Osborne,” he said. They have been relentless in attacking Rollins, Heastie, and Ferron. I’m in public life, they can attack me.
What I was really trying to do this morning is to tell them leave Rollins, leave (board member) Ferron (Bethell), leave Heastie, stop the nonsense. I’m fair game, but these things coming out are wrong, they’re attacking people who are giving service.
If I had agreed to this $300,000.00 none of this would have come up, “he continued.
Up to almost the last meeting I met with her in December, she personally said that to me, she said I promised her the executive director post
Mr. Bannister added; “all this confusion, so much problems, all the board had to do is sit and deal with policy issues and not try to get involved in the BPL day to day operations
Personal bills submitted to BPL detailed by Mr. Bannister outside Cabinet include: the installation of a security system at Mrs. Osborne’s home and a bill for “hundreds of dollars” in makeup services.
“The chairman, Mrs. Darnell Osborne getting security system for her house and getting BPL to pay for it he said, that type of thing is wrong. It cannot be condoned as a member of Parliament, as a minister I cannot accept that type of thing
Mrs. Osborne to get someone to do her makeup and to give the bill to BPL in hundreds of dollars and ask BPL to pay for it, and in some instances, BPL has paid for it and BPL is going to account to me for why they have paid to go to her house and do her makeup and there are many more bills that she has submitted, personal bills.
The Tribune understands one invoice- which was not progressed-was for a $20,000 donation by BPL to Bahamas Institute of Chartered Accountants of which Mrs. Osborne is a recent past president
Mr. Bannister said Mrs. Osborne and Mrs. Thompson presented the proposal for the former chairwoman to be paid $300,000 for the executive director post, adding he still had the emails.
“These are the type of personal things that I have to admit political interference with, he said because I told them what the salary would be for her and it was not going to be anything close to that. I’m not going to pay the Bahamian people’s money for that type of thing so I want everybody to be aware that when they make allegations of political interference it is political interference of that nature that I described.
I’m not going to let the money of the Bahamian people, the funds of BPL, to be wasted and be used in those circumstances. I regret that I have to say these types of things but that is my public duty to the Bahamian people.
Mr. Bannister said he advised Mr. Heastie to release all personal bills submitted by Mrs. Osborne to the media in a bid to “set the record straight” adding he has demanded an explanation from the company as some bills have already been paid.
The Tribune understands that there was a makeup bill submitted for services rendered in connection with a company branding photoshoot, which included scores of other employees.
However, Mr. Bannister last night contended he was referring to a different bill which totaled $700 and reflected make-up services for only Mrs. Osborne.
Mr. Bannister added: “The CEO is responsible for operations in that organization. It cannot be that the chair seeks to take over the job of the CEO as Mrs. Osborne has tried for time and time again, that cannot be. Mr. Whitney Heastie is very capable of doing what he is assigned to do, and Mr. Heastie is doing a great job. He is to report to the board and the manner in which he has done his job is to be evaluated by the board. The chair does not take over the duties of the CEO.
3. In an August 22, 2018 Nassau Guardian Article entitled Bannister Hits Back the following was stated:
“Minister of Public Works Desmond Bannister said yesterday he interfered politically with the Bahamas Power and Light (BPL) after he had learned BPL had paid for the makeup bill of its now former chairperson, Darnell Osborne, and had paid for a security system for her house.
.. I will admit to political interference in three respects. “Bannister told reporters outside Cabinet
I admit to political interference because it is my duty to ensure that what happens in BPL, and happened in BPL under the former administration, does not happen again.
And so, when issues that came up to me were important for me to deal with. I advised … they could not continue in that direction
“An example, the chairman, Mrs. Darnell Osborne, getting security system for her house and getting BPL to pay for it. That type of thing is wrong.
It cannot be condoned, as a member of Parliament, as a minister, I cannot accept that.
For Mrs. Osborne to get someone to do her makeup and to give the bill to BPL in hundreds of dollars and ask BPL to pay for it, and in some instance, BP has paid for it, and BPL is going to have to account why they paid to go to her house to do her makeup
And there are many more bills that she has submitted like that, personal bills.
I’ve authorized the CEO of BPL to provide it to the media because you and the Bahamian people know this nonsense that has been going on, and we have to stop it. Bannister said last week that relationships among the board members had significantly deteriorated… after they had locked horns on almost every critical issue at great cost to the company, which ultimately necessitated new leadership.
While he never fully elaborated on what he meant by the board costing the company because of the inability to make decision on “every critical issue. Bannister yesterday pointed to one instance of the board being locked with respect to buying parts for a generator.
He noted that BPL has a generator that has been sitting unused since May 30, which requires parts that cost several million dollars.
He said Heastie located those parts, but was unable to order them because of the issues with the board
All of you will notice that there are three persons who sent this letter out. Bannister added.
The other three persons are still involved with BPL
They were so annoyed by what was going on that all of them tendered their resignations
They resigned out of integrity and honor, they weren’t going to let it happen. These are the kinds of things I think the public ought to be aware of that we are getting this right and not going to tolerate any of these kinds of things that are going on
Rollins was recently appointed by Bannister as BPL’s new executive director, replacing Deepak
That was a post that the chair constantly asked me to appoint her to; such an extent that she and Mrs. Thompson provided me with proposals to pay (Osborne)Three Hundred Thousand Dollars ($300,000.00) to be executive director. Bannister further claimed yesterday.
I still have that in writing
These are type of personal things that I have to admit political interference with, because
I am not going to pay the Bahamian people’s money for that type of thing.
So, I want everybody to be aware that, when they make allegations of political interference, it is interference of that nature that I described, that I’m not going to let the money of the Bahamians and the funds of BPL to be wasted and be used in those circumstances.
I regret that I have to say these types of things, but that is my public duty to the Bahamian people Bannister did not make public the proposals he claimed were made to pay Osborne $300,000
The minister said, as far as he is concerned, he has not overstepped his boundaries
Bannister reported that it was Osborne who overstepped her boundaries, often trying to do the work of the CEO
There is a chair for BPL and there is a CEO he said
The CEO is responsible for operations in that organization
It cannot be that the chair seeks to take over the job as the CEO, as Mrs. Osborne has tried from time again, it cannot be.
Mr. Whitney Heastie is very capable of doing what he is assigned to do, and Mr. Heastie is doing his job.
The chair does not take over the duties of the CEO.
Your allegations in their natural and ordinary meaning were understood to mean that:
a. Mrs. Osborne was dishonest
b. Mrs. Osborne was disruptive and impaired the success of the BPL board
c. Mrs. Osborne was appropriating BPL funds for her own personal use.
As a result of your false, careless and malicious attacks, Mrs. Osborne has been seriously injured in her personal and professional reputation in the Bahamas and in the United States of America causing her considerable distress and embarrassment.
Mrs. Osborne issued several press statements in response to your false and malicious attacks. Once again, to correct the record, we will address each of your allegations, which you would have known to be false, or with reasonable diligence, could have been confirmed to be false, misleading and inaccurate:
Request for Salary of $300,000.00
Our instructions are that Mrs. Osborne never had any discussions with you concerning salary or compensation to her of Three Hundred Thousand Dollars ($300,000.00). In fact, Mrs. Osborne’s compensation from BPL which was agreed with you was Sixty Thousand Dollars ($60,000.00), even though the compensation for the former Executive Director of BPL was One Hundred and Eighty-Six Thousand Dollars ($186,000.00)
We understand that during your preparation of a White Paper to Cabinet for the conversion of both the Chairmanships of BPL and the Water and Sewerage Corporation to Executive Chairmanship, you requested some information from Director Nicola Thompson. The information that you requested was the history of the compensation of the former Executive Chairpersons of BEC and BPL as well as the sitting Executive Director. We understand that in compliance with your request, one of the submissions was a spread sheet listing in detail the full salaries and benefits of the executive management of BPL, with a comparison to those of PowerSecure’s.
Our instructions are that the salary base for the Executive Director of BPL was not Three Hundred Thousand Dollars ($300,000.00), but rather a figure with salary, inclusive of gratuities and benefits totaling approximately three hundred thousand dollars.
We are also instructed that Mrs. Osborne never discussed an Executive Director’s post with you and that, at all material times, her discussions with you centered around her role as Executive Chairperson of BPL. There was never any pressure on you to change the salary base for Mrs. Osborne, but there were differences with you in the understanding of the time commitment required of Mrs. Osborne to fulfill her role as the Executive Chairperson of BPL. We understand that it was your view that Mrs. Osborne, as the Executive Chairperson of BPL, only needed to be at BPL on a part time basis, even though her initial communications with you that led to her decision to take on the role was based on the understanding that she would in full time attendance at BPL.
Our instructions are that the BPL Public Relations Consultant had arranged for a number of staff members to be photographed as a part of a project to upgrade the Company’s website and other corporate promotions. We are instructed that, at the same time, a request was made by a magazine for photographs of Mrs. Osborne in her home environment, to promote her appointment as the first female chairperson of BPL. We are further instructed that the invoice submitted for these expenses was not exclusively for the services to Mrs. Osborne. In fact, the cost of Mrs. Osborne’s makeup was between Forty-Five Dollars ($45.00) to Fifty Dollars ($50.00). According to our instructions, except for a group of Board pictures that were taken when the Board was first appointed, this was the only makeup charge incurred by BPL for Mrs. Osborne during her tenure. All other make up bills were submitted by the PR Consultant and not Mrs. Osborne and arrangements were handled by the PR Consultant. Therefore, the Seven Hundred or Seven Hundred- and Fifty-Dollar makeup invoice that you claimed to have been for Mrs. Osborne had nothing to do at all with Mrs. Osborne, but instead relates to a second group of BPL employees who were photographed for BPL’s website or annual report. This information is corroborated by statements made by the Makeup Company that was hired for the BPL Public Relations projects.
In an Article entitled “Makeup Company Says Invoice Was Not For Mrs. Osborne” in the August 25, 2018 Nassau Guardian the following was stated:
“The makeup company retained by Bahamas Power and Light (BPL) for a public relations project said yesterday it has never met nor serviced former BPL Chairman Darnell Osborne, despite claims from Public Works Minister, Desmond Bannister that she racked up hundreds of dollars for makeup services.
We were asked by another artist to come on board for a PR project that BPL, was doing for its employees,” said a representative of the Beauty Bee Makeup Artistry, who did not want her name to be used.
So on several occasions we were able to render services to several groups of employees for makeup
Mrs. Osborne was never a part of any of those groups that my company would have serviced, so we have never met or serviced Mrs. Osborne
We would have charged 45 to $50 per person for the BPL group, for about 60 people.
This was actually a project by the PR group, so it went on for some time and on different occasions
We would have gotten different groups with varying numbers of persons, but overall it would have been in excess of 60 persons
On Tuesday, Bannister said Osborne had billed BPL hundreds of dollars in personal makeup bills
For Mrs. Osborne to get someone to do her makeup and to give the bill to BPL in hundreds of dollars and ask BPL to pay for it, and in some instances, BPL has paid for it, and BPL is going to have to account to me why they paid to go to her house to do her makeup.” Bannister said
And there are many more bills that she has submitted like that, personal bills
In an interview with the Tribune Banister alluded to a bill which totaled some $700 and claimed it reflected makeup services for only Osborne
The invoice from the Beauty Bee Makeup Artistry, dated May 25, reflected “fresh face application” for 15 people at a cost of $50 each, with the overall cost being $750”
Accordingly, we remind you once again that the information you reported about a bill for hundreds of dollars in make up services for Mrs. Osborne, is misleading and inaccurate and could easily have been clarified with reasonable diligent inquiry on your part.
Installation of Security System at Mrs. Osborne’s Home
Based on our instructions, it was the recommendation of Deputy Chairman Rollins that all members of the BPL Board should assess the adequacy of their personal security. We understand that Mrs. Osborne already had security at her residence. Additional security cameras were installed at her residence with the approved of the Board.
Donation by BPL to The Bahamas Institute of Chartered Accountants
Our instructions are that a Twenty Thousand Dollars advertising fee was approved by the Chief Executive Officer of BPL for BPL’s participation in a speaking engagement for the Institute of Chartered accountants of the Caribbean Annual International Conference which was held at the Atlantis Hotel in June 2018. We also are instructed that the CEO of BPL approved and was scheduled to be a featured speaker with the intentions that the Shell NA deal would be unveiled. We understand that this engagement was withdrawn by Mrs. Osborne for two reasons:
1. The shell MOU would not have been finalized before the scheduled engagement, therefore no funds were disbursed; and
2. The speaking engagement itself was not deemed to be critical to the interest of BPL at that time.
We also are instructed that a similar speaking engagement was also approved for the Platts Energy Conference hosted at the Grand Hyatt, Bahamar in January 2018, at which you brought remarks at the opening of the event and several Board members attended. In fact, BPL’s Chief Operating Officer spoke on behalf of BPL at the Conference.
BPL’s Board Gridlock
Your allegations of a “gridlock” on the BPL Board appears to relate to the following three issues
1. The Shell MOU
2. The Board Meetings and Board Communications and
3. The CEO’s right to hire and fire, without Board supervision
We shall address all three issues:
The Shell MOU
We are instructed that the Cabinet of the Bahamas approved the award of the contract to Shell NA LNG LLC & Affiliates to construct a new generation and liquified natural gas (LNG) plant at Clifton Pier. The Technical Committee, comprising Directors Whitney Heastie and Hugh Patrick Rollins. was given the task to arrange for the Memorandum of Understanding (“MOU”) in connection with this contract to be presented to the Board. The first version of the MOU was issued to Board members on June 28, 2018 by Director Heastie. By email exchanges, the Board members provided their input on the document which was later circulated to an external legal counsel for review. Due to the fact that the leading law partner of BPL’s external legal counsel was on vacation some time was lost waiting for his review and analysis of the MOU. Our instructions are that upon learning of the absence of the Senior law partner, Mrs. Osborne directed the Manager of Legal Affairs at BPL to request another partner within the external counsel’s law firm to review the document. At this time, Director Nick Dean also put forward a number of questions relating to the Shell MOU.
Preparatory to Board’s resolution on this issue, Mrs. Osborne asked that Director Dean’s queries be addressed along with several issues posed by her. Even while Mrs. Osborne was out of the country, she took steps to ensure that all aspects of the MOU were vetted and that this process moved as expeditiously as possible. In fact, after noticing a delay in progress, Mrs. Osborne sought out the Manager of Legal Affairs at BPL about the finalization of the document and was informed that Director Rollins had issued instructions that the MOU be put on hold. This direction had been given days before the agreed signing date with Shell, without the knowledge of Mrs. Osborne. Mrs. Osborne then sent an email to Director Rollins to inquire on the basis that the Shell MOU was put on hold to which a response was never received.
We are instructed that a few days prior to Director Rollins’ instruction to put the Shell MOU on hold you had issued a directive to Mrs. Osborne, through Director Rollins, to sign the MOU by the end of the day and that at that time Mrs. Osborne advised you that all of the directors’ concerns and outstanding legal issues had not been settled.
Board Meetings and Communications
We are instructed that a board meeting was scheduled for August 13, 2018. Several hours before the scheduled meeting, directors Heastie, Rollins and Bethel submitted apologies for their absence. Mrs. Osborne emailed a note to you to point out that the Board meeting was non-quorate and therefore several critical issues could not be addressed amongst which was the Shell MOU. According to our instructions, on the following morning August 14, 2018, Director Ferron Bethel issued a response email to you criticizing Mrs. Osborne’s assessment of the quorum needed for the meeting and attached an outdated 2017 version of the Company’s Articles. We are instructed that it was Mrs. Thompson who directed both you and Director Bethell to the 2018 version of the Company’s Articles which proved that Mrs. Osborne and the Company’s Corporate Secretary’s position on the quorum for a meeting to proceed was correct.
Based on our instruction, you, along with Directors Rollins and Heastie, clashed with Mrs. Osborne on the issue of the use of BPL’s interim financing. Our instructions are that Mrs. Osborne and Director Thompson attempted to guide the Board to use BPL’s Interim Financing for its original intent. We are instructed that the original intent was for funds from the interim financing to be allocated to the VSEP settlement, Advanced Metering Infrastructure (AMI) initiative and many other capital projects awaiting funding to proceed.
According to our instructions, on May 4, 2018, Directors Rollins and Heastie counter proposed to the Board that BPL enter into a consortium with Shell and use its available funds from the interim financing to build an LNG plant. Our instructions are that the Board gave the Technical Committee (Heastie & Rollins) of BPL the approval to gather information and make a presentation to the Board on the proposed construction of the LNG plant so that the Board could make an informed decision. According to our instructions, Directors Heastie and Rollins continued to travel and meet with contractors for the LNG plant, without consulting or advising Mrs. Osborne and the other BPL Board members in advance. We are instructed that Mrs. Osborne and the other Board members chastised Directors Rollins and Heastie for their actions and insisted that all prospective contractors for the LNG plant be brought to the BPL Board to make presentations. Mrs. Osborne also insisted that, in accordance with standard practice and protocol, a tender report be presented to the Board from BPL’s executive management. We are instructed that on the date that the presentations were made to the Board, relating to the proposed construction of a power plant, the Finance committee recommended that the cash flow could not support the construction of the plant by BPL until the Rate Reduction Bond funding was in place.
Duties and Responsibilities of the CEO
We are instructed a contentious issue for the Board was the CEO’s belief that he had an exclusive right to hire and fire executives, without approval from the Board. Based on our instructions, the CEO, defended by Director Bethel contended that his exclusive right to hire and fire was derived from his contract and the Board’s Human Relations Charter. Other Board members pointed out the CEO’s job description was clear that Board approval was required for hiring and firing. Considering the debate and inconsistencies between the CEO’s contract, the HR Charter and the CEO’s job description, Mrs. Osborne prudently requested that external legal counsel provide an opinion to the Board on this issue. Our instructions are that you prohibited Mrs. Osborne from obtaining independent legal advice on the power of the CEO to hire and fire.
THE CLAIM FOR DEFAMATION
We have reviewed several authorities one of which we refer you to in connection with Mrs. Osborne’s claim for defamation against you. In the Bahamian Supreme Court case of Sharon Wilson v Debra Rose (2003) /CIV.gen/01935 the Defendant defamed the Plaintiff in two letters that she forwarded to the Registrar of the Supreme Court and the court awarded the Plaintiff Eighty Thousand Dollars ($80,000.00) for the defamatory actions of the Defendant. We contend that, based on the facts of this matter in which defamatory comments were published in several newspapers over a prolonged period, that Mrs. Osborne would be entitled to receive far more than the Eighty Thousand Dollars ($80,000.00) awarded to Lady Sharon Wilson. The reckless and malicious nature of your published comments in local newspapers, and the broadcast of your comments nationally and internationally on local television stations and the worldwide web without any regard to the truthfulness of your statements, would overcome any qualified privilege that you may assert.
1. Based on the provision of the Electricity Act 2015, it is clear that Mrs. Osborne and the other Board members of BPL could only be removed by you for reasonable cause, based on any of the prescribed four (4) circumstances set out in Section 2 of the First Schedule of the Electricity Act 2015.
2. Mrs. Osborne was wrongfully removed or constructively dismissed from the Board of BPL and she is thereby entitled to be compensated for salary and benefit due to her for the remaining four years under her five years fixed-term appointment to the board of BPL.
3. The publication of your defamatory comments about Mrs. Osborne in several national newspapers over the past several months entitle Mrs. Osborne to claim far more than the Eighty Thousand Dollars ($80,000.00) awarded to Lady Sharon Wilson.
We ask that you reconsider your comments and actions in this matter and issue a comprehensive written retraction and apology to Mrs. Osborne and compensate her for the contract damages for which she is entitled.
Should we not hear from you within seven (7) days of the date of this letter, we are under firm instructions to commence action against you in the Supreme Court of the Bahamas, without further notice.
We trust that you will see the wisdom in avoiding costly and unnecessary litigation.
SEARS & CO.
Alfred M. Sears, QC