Outcomes - Selected Case Summaries

The subsequent investigation by the Ombudsman found that eight of the nine separate allegations made did not rise to the level of improper conduct. The ninth allegation made was separated into three distinct claims. In two of those claims, no improper conduct was found, in one of them, improper conduct was determined to have occurred.

While the Ombudsman found that the majority of the allegations made did not meet the threshold for improper conduct as defined under the then-Whistleblower Protection Act, the investigation did reveal broader administrative concerns with the operations of OfReg as it then existed.

Following investigation, the Ombudsman made the following recommendations:

1. The Board engage a consultant to assist with a self-assessment of the Board’s operations and a performance appraisal. This process should encompass and address, in particular:

• The novel challenges presented by the structure of the Board, and the inclusion on the Board of executive members reflecting the various regulated sectors and who are also employees of the statutory authority;
• The formation of defined roles and responsibilities and associated policies to improve structural organisation; and
• An evaluation of the Board’s current competencies and the training required to address any deficiencies identified.

2. The Board develop and implement a comprehensive Board Charter as per Part 3 of the Cayman Public Sector Governance Handbook and Governance Policies. It is understood that many of the responsibilities of the Board and the CEO are covered in the (former) Public Authorities Law and the (former) Utility Regulation and Competition Law. However, supplemental and more comprehensive direction via a Board Charter would promote clarity, understanding and confidence and would reduce ambiguity and mistakes.

Specific benefits of establishing a Board Charter could include:

• Establishing a Mission, Vision and Values – the statement which defines the principles and sets the culture for the organization;
• Defining the roles and function of the Board, identifying duties and responsibilities of members, stipulating the conduct and frequency of meetings and regulating how the Board’s performance should be assessed;
• Clarifying the Board’s overall responsibilities and the interface with the operational authorities and expectations of the CEO; and 22
• Articulating clear expectations in respect of communications both internally and externally.

3. Enhanced Board Governance Policies should be implemented. Although there were some policies provided in a draft format concerning how Board meetings were to be managed and minutes were to be prepared, these policies were not comprehensive and did not cover many critical areas. Board Governance Policies should include, for example, a:

• Code of Conduct, which establishes the standards expected of Board members in accordance with Schedule 2 to the Standards in Public Life Law, 2014 and the actions that should be taken in the event that a member does not comply with these standards;
• Code of Ethics, which governs decision-making in accordance with key moral principles such as honesty, fairness, equality, dignity and individual rights;
• Policy relating to conflicts of interest and how these should be addressed to supplement the provisions in section 17 of the (former) Public Authorities Law; and
• Complaints Policy encompassing a process for dealing with both internal and external complaints

All recommendations have now been followed and/or adopted to the extent that OfReg is able and file has been closed.