Given only last week

“The opinion was done last week,” Jeremie said, in response to queries by Newsday over the document, an undated copy of which was disclosed near the bottom of a 225-page bundle which the THA placed on its website this week. Jeremie said the copy posted by the THA is an authentic version of his opinion. “That is the final signed version,” he said.

On October 23, Minister of Finance Larry Howai wrote the THA asking for all documents in relation to the $320 million deal for construction of a building to house the THA’s agriculture division. That deal, involving firms linked to former PNM Minister John Rahael, was entered into by the THA since January. Talks on the deal, according to the THA, have been ongoing since 2009.

Howai set a deadline of seven days for submission, but this deadline was ignored by the THA, who argued they were under no obligation to comply. Four weeks after Howai’s request, the opinion was done, according to Jeremie’s stated time-line.

The THA, in its index to the 225-page cache of documents released on its website this week, said the Jeremie document was evidence of its authority to enter into the Rahael deal. It described the document as, “The authority of the THA to engage in a BOLT operation — a legal opinion with specific reference to the Division of Agriculture, Marine Affairs, Marketing and the Environment.”

The legal opinion was done specifically in relation to the Milshirv deal and concluded that the THA did not breach the THA Act which bans the THA from borrowing money without authorisation of the Finance Minister.

Jeremie’s analysis also concluded that the THA did not violate the Central Tenders Board Act by not putting the land deal up for a public tender. The land deal involved a web of discrete transactions involving sale and lease-back of land ostensibly as a way to avoid costly borrowing. The arrangement is referred to as a built-own-lease-transfer (BOLT) arrangement.

In addition to questions over whether this form of financing was legal under the reporting requirements of the THA Act, there were questions over why the project was never publicly tendered under the Central Tenders Board.

This week was the first time Jeremie’s legal opinion was produced to justify the deal and the THA’s failure to openly tender the project. Previously, Chief Secretary Orville London and others had hinted that the firm of Timothy Hamel-Smith and Company provided advice to the THA on the use of BOLT financing.

However, a copy of the confidential Hamel-Smith and Company legal opinion, which was also disclosed by the THA among its cache, states the Hamel-Smith and Company opinion was done specifically in relation to another project — a sports and youth education complex. Further, the advice was not done for the THA, but for a broker behind the deal, AIC Capital Market Brokers Limited.

The Hamel-Smith legal opinion, signed by Senate President Timothy Hamel-Smith, who is a senior counsel and partner in the firm, concluded that the THA may have the power to use BOLT to further the interests of education, sport and youth affairs.

The premise of the advice, however, was the assumption that there was a specific need for a youth/education /sport facility. “We are advised and assume that the THA has determined it requires an administrative building to be used for Education, Sport and Youth Purposes,” Hamel- Smith wrote.

“(Under the THA Act) the THA has been given the power to do all such acts and take all steps that are incidental to the exercise of its powers or for the discharge of its duties. The THA is specifically permitted to enter into such contracts as it deems fit for the discharge of its functions under the Act.”

Hamel-Smith concluded that the arrangement “may” be allowed since, “leasing and leasing-back property with the view of acquiring an administrative centre to be used for education, sport and youth purposes may well be considered within the powers of the THA.” Hamel-Smith was never specifically asked to advise in general on the question of the use of Bolt. He was also not asked to advise on whether projects should be subject to the Central Tenders Board.

So much so, Hamel-Smith prefaced his opinion by making clear that the opinion he was providing was in response to a request for advice, “on the power and authority of the THA to enter into this proposed sale and leaseback transaction.”

That proposed transaction was identified specifically as the arrangement “to develop an Administrative Centre for Education, Sport and Youth purposes.”

In a press release yesterday, the THA said, “after getting legal advice from prominent attorneys (the THA) went ahead with its plan to have the...office complex for the Division of Agriculture, Marine Affairs, Marketing and the Environment in September 2009 through the BOLT arrangement (built).”

The Jeremie opinion, done last week, is the only legal opinion specifically on the Agriculture Building Project disclosed among the 225-page cache which was commissioned by the THA. It is unclear if the THA ever sought independent legal advice on the matter.