REPUBLIC OF VANUATU

OFFICE OF THE OMBUDSMAN

PUBLIC REPORT ON THE
IMPROPER APPOINTMENT OF THE PRINCIPAL VITE

Date: 1 June 2005

3091/2005/04

REPUBLIC OF VANUATU

-------------------------------

1 SUMMARY

Outline of events

When the post of Principal of the Vanuatu Institute of Teacher Education was to be become vacant in 2003, a member of the Institute’s Council as well as an applicant to the position, Mr Jacques Gédéon as then Acting Principal, had the position advertised in the local newspaper. The VITE Council convened a meeting to shortlist applicants and recommended Mr John Atkins Arukelana as Principal to the appointing body, the Teaching Service Commission. Citing "technical errors" as being a major cause for concern in the recruitment process, the TSC then took the liberty to readvertise the post. A second selection panel was then convened comprising members of the Public Service and the Teaching Service. The panel’s recommendations were then sent directly to the TSC, bypassing the requirement to have the Council’s endorsement.

Findings

Finding 1: Then Acting Principal, Mr Jacques Gèdèon’s decision to advertise the post of Principal was in direct contravention to Section 22 (1) of the VITE Act.

Finding 2: Then Acting Principal, Mr Jacques Gédéon’s action in advertising the post of Principal constitutes a breach of Section 13 (a) of the Leadership Code Act.

Finding 3: The Teaching Service Commission’s decision to re-advertise the post of Principal in May 2003 was in breach of Section 25(4) of the VITE Act.

Finding 4: The Teaching Service Commission has breached Section 22 (1) of the VITE Act.

Finding 5: The TSC and the second selection panel have breached section 22(1) of the VITE Act.

Finding 6: The TSC’s actions in breaching Section 22(1) and Section 25(4) of the VITE Act show a lack of respect for the law. This constitutes a breach of Section 13 (a) of the Leadership Code Act.

Finding 7: The second selection panel’s actions in breaching Section 22(1) of the VITE Act show a lack of respect for the law. For panel members who are public servants, this amounts to a breach of Section 34 (1) (f) which are disciplinary offences under Section 36 (1) (a) & (b) of the Public Service Act.

Finding 8: Members of the selection panel who are bound by the Teaching Service Staff Rules and who have shown a lack of respect for the law, have breached Section 8.14 of the Teaching Service Staff Rules.

Recommendations

The Ombudsman recommends:

-	The Teaching Service Commission should revoke Mr Gédéon’s appointment and the Council readvertise the position of Principal immediately.

-	Mr Gédéon should be disciplined by the Minister of Education and the Teaching Service Commission for misconduct in Office.

-	The Public Service Commission should consider the findings against the public servants involved in this matter (members of the second selection panel) and consider applying disciplinary action where necessary.

-	The Teaching Service Commission should consider the findings against the teachers involved in this matter (members of the second selection panel) and apply disciplinary action where necessary.

-	The Council should use its powers under Section 19 of the VITE Act to make rules for the recruitment process for staff such as for the post of Principal.

-	The appointing body of the Teaching Service Commission (President, Minister responsible and the Chairman of the Public Service Commission) should consider applying disciplinary action against the current members of the Commission who were involved in this matter

TABLE OF CONTENTS

1. SUMMARY
2. JURISDICTION
3. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED
4. RELEVANT LAWS
5. OUTLINE OF EVENTS
6. RESPONSES BY THOSE WITH FINDINGS AGAINST THEM
7. FINDINGS
8. RECOMMENDATIONS
9. INDEX OF APPENDICES

2 JURISDICTION

2.1 The Constitution and the Ombudsman Act and the Leadership Code Act allow the Ombudsman to look into the conduct of government, related bodies, and Leaders. This includes the Teaching Service Commission and public servants who were involved in the recruitment of the Principal of the Vanuatu Institute of Teacher Education ("VITE") in November 2003. The Ombudsman can also look into defects in laws or administrative practices, including breaches of the VITE Act.

3. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED

3.1 The purpose of this report is to present the Ombudsman’s findings as required by the Constitution the Ombudsman Act and the Leadership Code Act.

3.2 The scope of this investigation was to establish the facts about the process to recruit the Principal of the VITE which began in 2002. The investigation aims to determine whether the respective selection panels and the Teaching Service Commission’s conduct in the process was proper.

3.3 This Office collects information and documents by informal request, summons, letters, interviews and research.

4. RELEVANT LAWS

Relevant parts of the following laws are reproduced in Appendix A.

THE CONSTITUTION OF THE REPUBLIC OF VANUATU
VITE ACT
PUBLIC SERVICE ACT
LEADERSHIP CODE ACT
TEACHING SERVICE STAFF RULES

5. OUTLINE OF EVENTS

The Complaint

5.1 In July 2003, the Office of the Ombudsman received two separate complaints against the Teaching Service Commission in regard to the recruitment of a Principal for the VITE. The complaints alleged that the recruitment process for the position of Principal VITE should be investigated because over two advertisements had been published for the post and the delay may be unjustified. The complaints said that this was not fair to the applicants as well as the institute. Further, the complaints also stated that the Teaching Service Commission’s ("TSC") explanation to the candidates that there had been technical errors committed in the first advertisement required investigation.

During the process of the inquiry, the Office of the Ombudsman discovered that when the Principal was eventually appointed in November 2003, there were still doubts as to whether the recruitment process had been done according to the required procedures.

VITE

5.2 VITE is an educational institution that is formally established under the Vanuatu Institute of Teacher Education Act No.25 of 2001 ("the Act"). Section 3 of the Act describes VITE as "the national institute of excellence for the education and training of primary and secondary teachers, and in so doing to contribute to the social and economic development of Vanuatu." VITE is run by a Council known as the Vanuatu Institute of Teacher Education Council ("the Council"). The functions of the Council are mainly to oversee the management of VITE (refer to Annex A for more information).

This Council is comprised of 8 members, one of which is the Principal (see Annex A).

Chronology of Events

5.3 In 2000, Mr Jacques Gédéon ("Mr Gédéon") was appointed as Principal of VITE. His contract was for 3 years. When his term in Office was due, the Minister of Education invited him to act in the position whilst the post was to be advertised.

5.4 On 15 February 2003, Mr Gédéon had the position of the Principal advertised in the Daily Post Issue No. 893 (see Annex B which is also labelled as "First Advertisement"). Applications were invited from the public which saw four men, Mr John Atkins Arukelana ("Mr Arukelana"), Mr Gédéon, Mr George Iapson and Mr John Tanga apply.

5.5 On 17 March 2003, then Minister for Education, Mr Jacques Sese, issued a letter to Mr Gédéon that his appointment as Principal would only be on a temporary basis.

5.6 The Council then set up a panel, which was comprised of the Council members; Mr Ture Kailo, Mr John Laan ("Mr Laan"), Mr Etienne Warimavute ("Mr Warimavute"), Mr Tom Alick Kalo and Mr Kanam Wilson. (At the time, Mr Warimavute was Chairman of the Council).

On 24 March 2003, the panel short listed the applicants and recommended to the TSC Mr Arukelana as Principal. A copy of the panel’s report is attached as Annex C) In the meantime, Mr Gédéon had been acting as Principal and on 1 March 2003, his contract ended.

5.7 On 22 May 2003, Chairman of the TSC, Mr William Mael ("Mr Mael") informed Mr Gédéon by letter that his contract as principal (which had been renewed after 1 March 2003) was due to expire on 19 May 2003 had been extended to 15 July 2003.

5.8 On 23 May 2003, the Secretary General of TSC (Mr Christopher Karu) wrote to all applicants for the post of Principal that there was a technical error so the post would be re-advertised. However, they were invited to re-apply (See Annex D for sample of letter).

5.9 On 12 June 2003, Acting Chairman VITE, Mr Laan wrote to Mr Mael that the Council was concerned over the handling of the appointment of the VITE Principal in that it was taking too long for an appointment to be made (See Annex E). The Council was concerned that the TSC could be in breach of the VITE Act if they did not recommence the process of recruitment.

5.10 On 14 June 2003, the Post of Principal VITE was again advertised in Port Vila Presse, Issue No.129 (see Annex F which is also labelled as "Second Advertisement"). Applications were then received from Mrs Céline Telukluk, Mr Simeon Watas, Mr Gédéon, Mr Arukelana, Mr John Tangaloabani and Ms Andrea Leo Hinge.

5.11 On 11 July 2003, Secretary General of the TSC, Mr Christopher Karu ("Mr Karu") informed Mr Laan of the applicants for the post of principal (Mr Gédéon’s name was not included). He also asked them to proceed with the selection process (refer to Annex G).

5.12 On 17 July 2003 the Council met to consider the make-up of panel members for the post of Principal VITE. The following day, letters were issued to panel members whose names included Mr Bill Willie, Mrs Lewani Iopa, Mr Philibert Raupepe, Mr Jean Pierre Nirua, Mr Tamath Daniel and Mr Roy Obed.

5.13 On 21 July 2003 Mr Karu informed Mr Laan that they had included Mr Gédéon’s name in the list of six applicants. Mr Karu also asked Mr Laan to include Mr Gédéon’s name in their deliberations (refer Annex H)

5.14 On 22 September 2003, Mr Karu informed the Office of the Ombudsman (refer Annex I), that the Principal’s post had been re-advertised because

the current principal carried no balance in terms of language weighting and specifically more weighting on Anglophone side which could be seen (as bias and unfair."

5.15 Mr Karu also commented:

The re-advertisement specifically stated it has to be a bilingual applicant approved by the VITE Council then, later during the process the Council recommend an Anglophone applicant to be a new principal which is seen contradicting the advertisement and technically questionable. For this reason, the Teaching Service Commission decided it would be proper to re-advertise the post to allow flexibility for that matter.

5.16 On 1 October 2003 Mr Gédéon as Acting Principal wrote to the panel members to attend the short-listing process for applicants on 7 October 2003 (refer Annex J).

5.17 On 10 October 2003, Ag. Chairman of VITE, Mr Laan reported to the Office of the Ombudsman that there was a delay in convening a panel meeting as some members had travelled overseas. Further, there should have been 6 members in the panel, but two members still needed to be appointed.

5.18 On 25 October 2003, the selection panel met to select a Principal.

5.19 On 11 November 2003, Mr Bill Willie ("Mr Willie"), Chairman of the selection panel, informed the Secretary of TSC that they had recommended Mr Gédéon as the Principal and the eligible candidate was Mr John Arukelana (see Annex K).

5.20 Mr Laan informed the Office of the Ombudsman that on 25 November 2003, he had contacted Mr Karu at the TSC to advise him that he had received a copy of Mr Willie’s letter of 11 November 2003. Mr Laan further stated that Mr Karu told him that he (Mr Karu) assumed that the matter had also been brought before the Council and Mr Laan told him no. Mr Karu then told him that Mr Gédéon’s appointment letter was in the process of being issued on that same day. He also told Mr Laan that each candidate should make an appeal if they were not satisfied with the process.

5.21 On 25 November 2003, Mr Mael of the TSC wrote to Mr Gédéon to tell him that his application for the post of Principal VITE was successful (refer to Annex L).

5.22 On 12 February 2004, the Office of the Ombudsman wrote to the selection panel that recommended Mr Gédéon as Principal (copy of sample letter attached as Annex M). Allegations had been brought to the Ombudsman’s attention that the process did not follow the proper procedures of recruitment.

5.23 (Please refer to Annex K, N1, N2 & N3). Several members of the panel confirmed that their deliberations had been sent directly to the TSC, but they felt that they had good enough reasons to do so as one of the applicants (Mr Gédéon) was also member of the Council.

Comparison of Selection Process

After the first round of applications were received in February 2003, the panel used the Public Service assessment forms to assess each applicant. A copy of the forms is attached as Annex O. Applicants would then be short listed and interviews conducted. A copy of the interview questions is attached as Annex P. The final scores were then tallied and Mr Arukelana scored the highest of the applicants.

5.24 The second panel also stated that they used the same forms. Following the short-listing process, applicants were asked to prepare written statements on their interest in the post (see Annex Q). Their answers would also be discussed in their interviews for the position. The second panel stated that they discovered that Mr Gédéon scored higher than all other applicants (refer to Annex K).

5.25 In the first round of applications, all four candidates were interviewed. In the second round of interviews, only three of the applicants from the total of six had been short-listed for interviews.

The questions raised in the interviews were not similar. The first interviews focused on specific responsibilities of the Principal. Applicants in the second interviews were asked questions that were more broad, particularly on how the Principal would guide the institution towards the future.

5.26 According to Section 25 (1) of the VITE Act, the Council in making the appointment of the Principal must make an appointment on merit and also ensure that the process is a fair and transparent one. Both panels have informed this Office that they believe that the processes they used have been "independent", "unbiased", "comprehensive", "lengthy" and a "fair one".

After the first panel had determined the successful applicant, a recommendation was made to TSC. The second panel did not return to the Council with its recommendation, but instead sent it directly to TSC.

6. RESPONSES BY THOSE WITH FINDINGS AGAINST THEM

6.1 Before starting this enquiry, the Ombudsman notified all people or bodies complained of and gave them the right to reply.

6.2 On 21 June 2004, the Office of the Ombudsman released a Working Paper on the preliminary findings made on the alleged improper appointment of the principal, Mr Gédéon. Responses received included new information on the issues raised. As such, the Findings and Outline of Events of the report were edited to take account of the changes.

6.3 Responses to the first working paper were received from Mr Laan ("Annex R"), Mr Obed ("Annex S"), Mr Kanam Wilson ("Annex T"), Mr Warimavute ("Annex V") and Mr Arukelana ("Annex W").

Mr Laan’s response pointed out that the second advertisement was done by the TSC and not the Council, so that the finding that the TSC caused the Council to breach the VITE Act was in error. This had implications on the findings and they were changed as such.

6.4 Mr Obed was a member of the second selection panel and his view is that had they had access to copies of the Leadership Code and the VITE Act, then the submission of their recommendations would have followed the proper channel.

6.5 The Ombudsman’s response to Mr Obed’s rationale is that as public servants or teaching service staff, they are expected to know the law. In fact, Section 34 (f) of the Public Service Act and Section 8.14 of the Teaching Service Staff Rules clearly state this.

6.6 Mr Obed also said that the complaints outlined in this report do not fall in line with the actions that the second panel took. The Ombudsman’s reply to this is that under Article 62(c) and Section 11 (2) (b) of the Ombudsman Act, the Ombudsman may inquire into the conduct of any person or body on his/her own initiative. As there were additional issues arising after the two complaints were received, the Ombudsman took the initiative to conduct additional inquiries.

6.7 Mr Wilson, who was a member of the first selection panel, said that Mr Gédéon issued an advertisement in February 2003 that was closed and not open as compared to the second advertisement of June 2003.

6.8 Mr Wilson also confirmed that the first selection panel used the Public Service recruitment procedures to select a principal. In light of this, the first advertisement used did not reflect the Principal’s approved job description as it should have (see Annex U for a copy of the Principal’s job description).

6.9 Mr Warimavute’s comments were similar to what Mr Wilson had provided to the Office of the Ombudsman.

6.10 Mr Arukelana had requested more time to provide a response, so his response was received later. He points out that on 8 December 2003, he had written a complaint to the TSC and in February 2004, together with another applicant, Mr Tangaloabani, the Director General of Education ("DG") and Mr Karu, they had met over the issues raised. Mr Arukelana says in his letter to the Ombudsman that the DG had seen the need to rectify the situation and had instructed the TSC to deal with the matter quickly but nothing had been done about it. Mr Arukelana further states that he had written an additional letter on June 1st 2004 to the DG, but has not received any response from the DG. Mr Arukelana attached a copy of his letter with his response.

6.11 On 18 March 2005, the Ombudsman released a second working paper on this matter. Responses were received from Messrs Warimavute and Wilson (see "Annex X") and Mr Bill Willie (refer to "Annex Y").

6.12 Messrs Wilson and Warimavute’s comments have been mainly to provide some minor editions to the report and their first statements to this Office. The Ombudsman has accepted their comments and made the appropriate changes to this report.

7. FINDINGS

7.1 Finding 1:	Then Acting Principal, Mr Jacques Gèdèon’s decision to advertise the post of Principal was in direct contravention to Section 22 (1) of the VITE Act.

7.1.1 Under Section 22 (1) of the VITE Act, the Council is the authority designated to conduct the selection process of the Principal. Mr Gédéon acted outside of the Council in making the decision to advertise the post without the Council’s endorsement.

7.1.2 Mr Gèdèon has a conflict of interest in the matter and did not take the necessary steps to disallow his involvement in the recruitment process. He regardless, sent invitation letters to the second panel to convene a meeting to shortlist candidates for a position he himself had applied for.

7.2 Finding 2: Then Acting Principal, Mr Jacques Gédéon’s action in advertising the post of Principal constitutes a breach of Section 13 (a) of the Leadership Code Act.

7.2.1 Mr Gédéon was a member of the Council, but he acted without the Council’s endorsement of the advertisement. Section 13 (a) of the Leadership Code Act requires that a leader "comply with and observe the law". Further, he also had a conflict of interest in the matter but failed to refrain himself from the recruitment process. Section 13 (1) (b) of the Leadership Code Act require that a leader "comply with and observe the fundamental principles of leadership contained in Article 66 of the Constitution". Section 19 of the Leadership Code states that a leader who does not comply with Section 13 of the Leadership Code Act is in breach of the Code and may be punished as such.

7.3 Finding 3: The Teaching Service Commission’s decision to re-advertise the post of Principal in May 2003 was in breach of Section 25(4) of the VITE Act.

7.3.1 Section 25(4) of the VITE Act provides that the TSC must "as the case requires accept a recommendation for appointment made to it under section 22, 23 and 24 unless it is satisfied that all or any of the requirements of subsection (1) or (2) have not been complied with." Subsection (1) says that such appointments as the Principal’s must be made on merit following a fair and transparent selection process. Subsection (2) states that "…All vacancies must be advertised in such a way that informs and seeks applications from people throughout Vanuatu."

7.3.2 The TSC have said that they rejected the Council’s recommendation because there were technical errors committed in the advertisement. These are reasons that are not in line with subsection (1) and (2) of Section 25(4) of the VITE Act.

7.4 Finding 4: The Teaching Service Commission has breached Section 22 (1) of the VITE Act.

7.4.1 Section 22 (1) of the VITE Act requires that the Council conduct the selection process under the requirements of Section 25 of the Act (i.e. appointments to be done on merit). The TSC is mentioned in Section 22 (1) as the authority to appoint the Principal on the recommendation of the Council. They were not required by law to re-advertise the post. In so doing, they were undermining the authority of the Council by taking action on matters that were not in their area of responsibility.

7.5 Finding 5: The TSC and the second selection panel have breached section 22(1) of the VITE Act.

7.5.1 Under Section 22 (1) of the VITE Act, the TSC will make an appointment based on the recommendation of the Council. The second selection panel had been instructed to forward their proceedings to the Council, who will then make a recommendation to the TSC. The panel failed to do this.

7.5.2 The TSC on receipt of the panel’s recommendation failed to notify the Council that their endorsement of the recommendation had been overlooked.

7.5.3 As a result, the TSC made an appointment that did not carry the recommendation of the Council and this is a breach of Section 22 (1) of the VITE Act.

7.5.4 The Secretary General of the TSC had suggested to the Acting Chairman of the Council that because the selection panel had bypassed the Council in their recommendation, that applicants should make an appeal to the TSC. It is the responsibility of the TSC, the Council and the selection panel to ensure that the recruitment is done in a fair and transparent manner (refer to Section 25(1) of the VITE Act in Annex A). It is not the duty of applicants to make certain of this.

7.5.5 The second selection panel has reasoned with the Office of the Ombudsman that they had not sent their deliberations to the Council as one of the applicants, (Mr Gédéon) was also a member of the Council. Whether this is a justification for their oversight, it does not excuse the fact that they did not abide by the law.

7.6 Finding 6: The TSC’s actions in breaching Section 22(1) and Section 25(4) of the VITE Act show a lack of respect for the law. This constitutes a breach of Section 13 (a) of the Leadership Code Act.

7.7 Finding 7: The second selection panel’s actions in breaching Section 22(1) of the VITE Act show a lack of respect for the law. For panel members who are public servants, this amounts to a breach of Section 34 (1) (f) which are disciplinary offences under Section 36 (1) (a) & (b) of the Public Service Act.

7.7.1 The selection panel did not follow the law or abide by the Council’s instructions to send their deliberations to them prior to their endorsing their recommendation to the TSC. Their actions amount to breaches of Section 22(1) of the VITE Act and for the panellists who are public servants, a breach of Section 34 (1)(f) of the Public Service Act.

7.7.2 The Public Service Act requires that all employees of the Service comply with and abide by the law and any other lawful instructions. Failure to do this could amount to a disciplinary offence where the offender could face a disciplinary hearing by a disciplinary board.

7.8 Finding 8: Members of the selection panel who are bound by the Teaching Service Staff Rules and who have shown a lack of respect for the law, have breached Section 8.14 of the Teaching Service Staff Rules.

7.8.1 Section 8.14 of the Teaching Staff Rules requires that teachers conduct themselves in such a way so that they do not break the law. Teachers who act in contravention to the Teaching Service Staff Rules may be reported by the Director of Education to the TSC who will then take steps to discipline the officer concerned (refer to Annex A for relevant section of staff rule).

8. RECOMMENDATIONS

Recommendation 1: The Teaching Service Commission should revoke Mr Gédéon’s appointment and the Council readvertise the position of Principal immediately.

Recommendation 2: Mr Gédéon should be disciplined by the Minister of Education and the Teaching Service Commission for misconduct in Office.

Recommendation 3: The Public Service Commission should consider the findings against the public servants involved in this matter (members of the second selection panel) and consider applying disciplinary action where necessary.

Recommendation 4: The Teaching Service Commission should consider the findings against the teachers involved in this matter (members of the second selection panel) and apply disciplinary action where necessary.

Recommendation 5: The Council should use its powers under Section 19 of the VITE Act to make rules for the recruitment process for staff such as for the post of Principal.

Recommendation 6: The appointing body of the Teaching Service Commission (President, Minister responsible and the Chairman of the Public Service Commission) should consider applying disciplinary action against the current members of the Commission who were involved in this matter.

Dated the 1st day June 2005

Mr Peter K. TAURAKOTO
OMBUDSMAN OF THE REPUBLIC OF VANUATU

9. INDEX OF APPENDICES

A Relevant laws
B Vacancy Notice of 15 February 2003
C First Selection Panel’s Report
D Sample letter from TSC to applicants
E Letter of 12 June 2003 from Mr John Laan to Mr William Mael
F Vacancy Notice of 14 June 2003
G Letter of 11 July 2003 from Mr Christopher Karu to Mr John Laan
H Letter of 21 July 2003 from Mr Christopher Karu to Mr John Laan
I Letter of 22 September 2003 from Mr Christopher Karu to the Ombudsman
J Letter of 1 October 2003 from Mr Jacques Gédéon to panel members
K Panel report and recommendation for post of principal
L Appointment letter of Principal
M Sample letter from the Ombudsman to panel members
N1 Response from panel member, Mr Roy Obed
N2 Response from panel member, Mrs Lewani Iopa
N3 Response from Mr Tamath Daniel
O OPSC Applicant Assessment Forms	
P Interview Questions
Q Questions for applicants to prepare written statements on
R Mr Laan’s Response of 23/6/04
S Mr Obed’s Response received 30/06/04
T Mr Wilson’s Reply of 30/6/04
U Copy of Principal’s Job Description
V Mr Warimavute’s Reply of 01/07/04
W Mr Arukelana’s Reply of 05/7/04
X Mr Warimavute and Mr Wilson’s Reply of 22/3/05
Y Mr Willie’s Reply of 21/3/05

[PacLII's editorial note: please refer to the downloadable PDF at the top of this page for the full text of the Appendices]