Supreme Court declares Public Service Commission’s decision on CEO was unlawful

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Ringo Fa'oliu. Photo/Facebook

The Supreme Court has declared that the Public Service Commission’s decision not to
appoint Mr. Ringo Fa’oliu as CEO of the Ministry of Infrastructure, Transport and Tourism was unlawful.

Lord Chief Justice Paulsen granted Mr. Fa’oliu leave to apply for a review of the
Commission’s decision of July 11, 2016 not to appoint him.

“In my view the interests of the parties and the public can be best advanced if the
Commission is now free to re-advertise the role of CEO for the Ministry,” Mr Justice Paulsen
said.

“Mr. Fa’oliu will of course be entitled to apply for the position on an even footing with all other applicants.”

The Supreme Court heard an appeal from Mr. Fa’oliu for a declaration that the decision of
the Commission not to re-appoint him as CEO was unlawful and directing the Commission
to consult with the Minister and appoint him as the CEO of the Ministry.

Fa’oliu was interviewed for the position in 2015 and was given to understand that his
appointment was imminent.

However, the Commission’s chairman, Mr. Liava’a, wrote to the Minister, saying that a
series of reports indicated that during Mr. Fa’oliu’s previous term as CEO, there had been failures to comply with procurement procedures, significant overpayments to
contractors and the inappropriate use of daily paid workers without regard for public
service policy or budget allocations.

The most serious finding was that Mr Fa’oliu had approved overpayments of nearly TP$ 1
million to contractors working on the Cyclone Ian Reconstruction Project in Ha’apai.

In August that year Mr Liava’a wrote to the Minister again, advising him that after
considering the reports the Commission had decided not to re-appoint Mr Fa’oliu.

A lengthy and complicated legal battle ensued, with, among other matters, the Commission
offering to reconvene the recruitment process. During this period the Commission
considered another report on the former CEO and used this as the basis for making a new
decision not to re-appoint him, a report of which Mr Fa’oliu was not immediately made
aware.

The Commission also obtained legal advice, which said that Mr Fa’oliu should be
reappointed, advice which it rejected.

Mr Fa’oliu asserted that since Mr Liava’a had chaired one of the enquiries that found against
him, he had a conflict of interest as chairman of the commission.

Lord Chief Justice Paulsen said this question of bias lay at the heart of his decision on the
case.

When Mr. Liava’a sat on the Committee that prepared one of the reports he agreed with findings that reflected badly on Mr. Fa’oliu’s fitness to be CEO of the Ministry, the judge said.

When he then sat on the Commission to consider Mr. Fa’oliu’s appointment he was likely to have already formed a view that Mr. Fa’oliu was not a suitable person to be reappointed to that role.

The judge said it could not be expected that Mr. Liava’a would impartially assess Mr.
Fa’oliu’s responses when he was directly challenging findings that Mr. Liava’a himself had made.

It was too much to expect that Mr. Liava’a would consider that what Mr. Fa’oliu had to say might be incorrect.

“I think any fair minded observer would conclude that Mr. Liava’a was likely to have had a biased disposition towards Mr. Fa’oliu,” the judge said.
However, despite finding the Commission had acted unlawfully, the judge issued a word of
caution.

“It cannot be denied that the information which the Commission had before it casts a
shadow over the prospect of Mr. Fa’oliu’s appointment,” he said.

“It is an unanswered question whether the Commission would have refused to appoint Mr.
Fa’oliu if Mr. Liava’a had not been involved. In light of the findings made against Mr Fa’oliu in the three reports it is quite possible that it might have done so.”

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