‘Egregious’

Mark Barnett’s “moral authority” to lead the National Water Commission (NWC) has been brought into question by an Integrity Commission (IC) report into what it has labelled his “egregious” actions in the building of his apartment complex in alleged violation of permits.

In the scathing 90-page report, the IC has also recommended that the Kingston and St Andrew Municipal Corporation (KSAMC) “take action” against Barnett, his wife Annette, and developer Phillip Smith for “breaching” the building permit for the complex at 11 Charlemont Drive in St Andrew.

The commission’s investigation report into allegations of irregularities in the approval processes for the development was tabled in the House of Representatives on Tuesday.

Kevon Stephenson, the IC’s director of investigations, referred the case to Director of Corruption Prosecutions Keisha Prince-Kameka.

However, in a four-page opinion, she explained that her powers have “not been triggered” and advised that the report be referred to the KSAMC.

“It proves the most appropriate course to allow the local authority to utilise the enforcement mechanisms available to it, while simultaneously prosecuting the parties for the breaches,” she said.

However, Stephenson said, after consultations with Kameka-Prince, Director of Public Prosecutions Paula Llewellyn is “hereby alerted to the noted breaches of the applicable legislation for appropriate action, in relation to the prosecution of any viable offence as the DPP may determine”.

Stephenson said he confirmed that the KSAMC and the National Environment and Planning Agency (NEPA) issued building, planning and environmental permits to Barnett and his wife for the construction of two three-storey blocks consisting of 12 one-bedroom units.

However, he concluded that the erected development consists of six two-bedroom units and six three-bedroom units, “in breach of the permits issued”.

The project, which is listed as complete on the Real Estate Board’s website, was undertaken under a joint venture involving the Barnetts, owners of the property, and Phillip Smith, the developer.

Meanwhile, the IC has recommended that KSAMC Chief Executive Officer Robert Hill institute disciplinary proceedings against Chief Engineering Officer Xavier Chevannes and Senior Building Officer David Clarke for alleged failure to execute their roles.

“As it relates to the egregious conduct of Mark Barnett, the DI recommends that the NWC apply such sanction as it deems appropriate and necessary to restore public confidence in its leadership and to demonstrate that such conduct cannot and will not be tolerated in public office,” Stephenson recommended.

Regarding Barnett’s wife, who is an attorney, Stephenson recommended that the legal profession’s regulator, the General Legal Council, “takes such actions as it may deem necessary and appropriate” regarding alleged breaches of the Legal Profession (Canons of Professional Ethics) Rules.

Barnett has been president of the NWC since August 2015.

In a Gleaner interview on Monday, NWC Chairman Michael Shaw said the board “had no issue with Mark’s performance” and that “the records show that the company has performed very well under his leadership”.

The NWC has turned from being a loss-making entity into a profitable one, recording a $3-billion profit for the 2022-2023 financial year.

“Trust me, you know, if we heard anything egregious, I’m the first person to act,” Shaw said on what the board would do should there be any adverse recommendations from the IC.

The NWC is an agency of the Ministry of Economic Growth and Job Creation, which is headed by Prime Minister Andrew Holness.

editorial@gleanerjm.com

Key Integrity Commission Conclusions

- Mark Barnett and Annette Francis Barnett breached the building, planning and environmental permits which were issued by the KSAMC and NEPA.

- There was a clear intention on the part of Mark Barnett and Annette Francis Barnett to contravene the terms of the building and planning permit which was issued by KSAMC in June 20, 2019, at the time of the execution of the joint venture agreement between Mark Barnett and Annette Francis Barnett and Philip Smith on November 25, 2020

- The joint venture agreement is indicative of a clear intention, on their part, to build in contravention of the terms and conditions of the permit granted by the KSAMC. Conclusion is premised on the inclusion of a clause for the construction of 12 one-bedroom units, which is then contradicted by another clause, which indicated that the owners were to retain ownership of two two-bedroom units and two three-bedroom units. Clearly, it would be a practical impossibility for the developer to have complied with both of the referenced clauses.

- Clause which provides that the owners were to retain ownership of units is illegal and depending on the centrality of same to the overall contract, it may have operated to make the entire contract void ab initio.

- The joint venture agreement calls into question the integrity of the parties involved, by virtue of their contracting to construct a development that breached the terms and conditions of the permit and development approval issued by KSAMC and NEPA, respectively.

- As it relates to the foregoing egregious conduct, the DI concludes that there is sufficient basis for the NWC to consider Mark Barnett’s moral authority to lead that entity, and whether by virtue of his actions, the entity has been brought into disrepute.

- The conduct of Annette Francis Barnett, who is a member of the legal profession is inconsistent with her duty to “… at all times maintain the honour and dignity of the profession and shall ,abstain from behaviour which may tend to discredit the profession…” Canon 1b of the Legal Profession (Canons of Professional Ethics) Rules.

- Mark Barnett and Annette Francis Barnett breached Section 17 (1) of the Building Act, 2018 which provides that building work executed pursuant to a permit issued by a local authority is to be conducted in accordance with the building permit and the Building Act. -Philip Smith, either conspired with, or aided and abetted Mark Barnett and Annette Francis Barnett, in the commission of the foregoing breach of law and is thereby equally liable for said breach.

- Xavier Chevannes, Chief Engineering Officer, KSAMC, failed to execute his statutory functions as outlined in Section 10 of the Building Act, 2018, in relation to inspection and post permit monitoring activities. The chief engineering officer failed to ensure that an inspection was conducted at each stage of construction; failed to issue the requisite certificate of compliance at each stage of construction and failed to issue a certificate of occupancy upon completion of the project.

- Failure of Xavier Chevannes to execute his statutory functions facilitated the breaches of the building permit by Mark Barnett and Annette Barnett.

-David Clarke, Senior Building Officer, KSAMC, failed to identify and record the breaches of the permit issued by the KSAMC in relation to the development during either of the inspections which he purportedly conducted at the premises in November and December of 2020.

- Morjorn Wallock, former Director, Legal & Enforcement Division, NEPA, failed to execute any further enforcement measures to ensure compliance with the permit issued in relation to the development subsequent to the issuance of the Warning Letter dated February 10, 2021. The omission on Wallock’s part, amounts to gross dereliction of duty and significantly contributed to the creation of the environment/opportunity which facilitated the breaches.

- A potential conflict of interest existed in relation to the supply of a water and wastewater system by the National Water Commission to Mark Barnett for the development. . However, the DI further concludes that the handling of the process by the NWC, prevented this potential conflict of interest from materialising.

-An actual conflict of interest arose out of the correspondence between Mr Ian Bennett, NWC and Mark Barnett and Annette Francis Barnett, in their capacity as owners of #11 Charlemont Drive, in respect of outstanding fees owed to the NWC.