The PSC has the sole authority to dismiss, suspend or take disciplinary action against the top cop.
Solicitor General Eleanor Donaldson-Honeywell, in a report to Attorney General Anand Ramlogan on February 24, advised that Gibbs “acted without authority” in the procurement of a Zenith Air Scout Surveillance Aircraft from TT Air Support Services Limited at an estimated cost of $902,772.
She declared, Gibbs failed to comply with the procurement procedures set out in the Central Tenders Board Act.
“He may therefore be found to have failed to carry out his duties as a public official in this transaction,” the Solicitor General found in her report to the Attorney General.
Prime Minister Kamla Persad-Bissessar disclosed the findings of the Solicitor General to the House of Representatives during a marathon sitting last Saturday.
The PSC is currently reviewing Gibbs and Deputy Commissioner Jack Ewatski’s roles in the procurement of the aircraft for surveillance use by the Police Service.
The two Canadian senior cops have defended the lease saying it was only for a 12-week trial to determine its effectiveness in crime fighting, compared to the use of helicopters.
Despite a recent poor performance appraisal of Gibbs and Ewatski, the PSC has assured their conduct was still under review, citing the probe of the aircraft lease.
The PSC’s members, chairman Prof Ramesh Deosaran, Addison Khan, Martin George, Kenneth Parker and Jacqueline Cheeseman, are expected to take “urgent action” on the future of Gibbs, as well as Ewatski, in a special meeting on Thursday to discuss the Solicitor General’s report, which the Prime Minister said had been sent to the commission for its consideration.
The light aircraft made its debut during Carnival last month, and, continues to be in use, Police Public Information Officer Sgt Wayne Mystar disclosed yesterday, even though the procurement of the aircraft is under probe.
In a statement on Sunday, Gibbs stood by the lease of the aircraft insisting that it was only in use for a trial period and said it had not been purchased.
He did not comment on the Prime Minister’s disclosure of the findings of the Solicitor General’s report, a copy which Newsday has obtained.
The Solicitor General noted that in response to her queries, Gibbs defended his actions saying he had the constitutional authority to lease the aircraft.
Gibbs is maintaining that he adhered to Section 123A (1) of the Constitution which gives him the full authority to manage and control the Police Service.
123A (1) of the Constitution states, “...the Commissioner of Police shall have the complete power to manage the Police Service and is required to ensure that the human, financial and material resources available to the Service are used in an efficient and effective manner.”
The Solicitor General said Gibbs felt that this constitutional provision superceded the Central Tenders Board Act and a 1992 legal notice that specified that procurement for aircraft for the Defence Force and protective services must be approved by the Minister of National Security.
He argued that as the “accounting officer” of the Police Service he could authorise the procurement for items worth an estimated $1 million and did not have to apply to the Central Tenders Board (CTB).
Not so, said the Solicitor General who wrote, “The supposition of the Commissioner of Police that as accounting officer he was authorised to act for the CTB in procurement, resulting in engagement of a contract valued up to $1,000,000, was unfounded. Only as a permanent secretary could he have had such authority, not in his capacity as accounting officer.
“The commissioner, as the law now stands, has no authority to enter into procurement transactions of any dollar value without adhering to the existing CTB Act provisions. The provision of the Constitution at Section 123A has no impact on the legislative framework under the CTB Act.
“Moreover, as accounting officer, the Commissioner of Police is required by law to ensure that financial expenditure for the TTPS is duly authorised.
He was required therefore to ensure that the CTB procedures were applied.”
Furthermore, the Solicitor General’s report details that on October 11, 2011, the permanent secretary of the Ministry of National Security provided Gibbs with a manual on procurement guidelines, which he interpreted as giving him full autonomy as accounting officer for the Police Service.
In a letter dated February 7, 2012, Gibbs informed Minister of National Security John Sandy of his interpretation of the correspondence provided to him by the permanent secretary on assumption of his duties. The letter also spoke to the commissioner’s “suppositions” that he had acted in accordance with relevant legislation highlighting in particular his role as “accounting officer” and the provision of section 123A (1) of the Constitution.
The Solicitor General, also citing the Constitution, debunked this interpretation arguing that the power of the Police Commissioner cannot be greater than that of a Government Minister.
She said Section 85(1) of the Constitution gives ministers power to exercise general direction and control over departments to which they are assigned responsibility.
She further pointed out that ministers are not exempt from the procurement procedures in the CTB legislative framework so logically the similar level of power granted to the commissioner by Section 123A of the Constitution cannot exempt him from these procedures.
The Solicitor General concluded that “the transaction in question was executed by the Commissioner of Police without proper procurement authority and consideration must be given to the legal impact of these circumstances.
A PSC source said that based on the Solicitor General’s legal opinion on the lease of the aircraft, the PSC will have no choice but to act on the matter on Thursday.
See Solicitor General’s
report on page 18A.