REPUBLIC OF VANUATU

OFFICE OF THE OMBUDSMAN

PUBLIC REPORT

ON

IMPROPER CONDUCT BY MR HILTON TARILEO
DEPUTY DIRECTOR OF CO-OPERATIVES DEPT.
& LACK OF DISCIPLINARY ACTION
AGAINST MR TARILEO

7 May 1998

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TABLE OF CONTENTS

PREAMBLE
1. CASE NUMBER
2. THE COMPLAINANT
3. THE COMPLAINT AGAINST
4. THE COMPLAINT
5. METHOD OF INVESTIGATION
6. JURISDICTION
7. RELEVANT LAWS
7.1 CONSTITUTION OF THE REPUBLIC OF VANUATU
Conduct of leaders
Definition of a leader
Fundamental rights
7.2 Chapter 129 - Public Service
7.3 These laws are reflected in the Public Service Staff Manual at Clauses 9 and 10:
7.4 Penal Code Act
8. RELEVANT MATTERS AND FACTS
9 REPLIES
Reply from Mrs Chabod
Comment by the Ombudsman
Reply by Mr Figa
Comment by the Ombudsman
Reply by Mr Tarileo
Comment by the Ombudsman
10. FINDINGS OF WRONGFUL CONDUCT AND MALADMINISTRATION
Finding No. 1: The conduct of the Deputy Director of the Cooperative Department, Mr Hilton Tarileo, was contrary to law in that he breached Section 11 (d) of the Public Service Act Chapter 129.
Finding No. 2: The conduct of the Deputy Director of the Cooperative Department, Mr Hilton Tarileo, was contrary to law in that he breached Section 11(d) of the Public Service Act.
Finding No. 3: The conduct of the Deputy Director of the Cooperative Department, Mr Hilton Tarileo, was contrary to law in that he breached Section 107(a) of the Penal Code Act Chapter 135.
Finding No. 4: The conduct of the former Director of Cooperatives Department, Mr Figa, was contrary to law in that he breached of Clause 9.19 of the Public Service Staff Manual.
Finding No. 5: The conduct of the former Director of Cooperatives Department, Mr Figa, was contrary to law in that he breached the Leadership Code, Article 66 (c) and (d) of the Constitution.
Finding No. 6: The conduct of the then Acting Director of the Public Service Department, Ms M. Chabot and the Director of the Public Service Commission, Mr J Wabaiat was contrary to law in that it breached the Leadership Code Article 66 (a), (c) and (d) Constitution.
Finding No. 7: The conduct of the Chairman of the Public Service Commission, Mr Joseph Calo, was contrary to law in that he breached the Leadership Code Article 66 (c) and (d) of the Constitution.
11 RECOMMENDATIONS
Recommendation No. 1: Mr Tarileo be formally reprimanded by PSC
Recommendation No. 2: Mr Tarileo apologise to Ms M by letter as she has now left Vanuatu.
Recommendation No. 3: PSC arrange education for Heads of Departments of the Public Service in their responsibilities under the Constitution, the Public Service Act and also the Public Service Manual and in gender issues.

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PREAMBLE

'They have filled the midst of thee with violence, and thou have sinned ....'

Ezekiel 28 v 16

This Report illustrates a reaction by a public official which reflects a tendency within society itself for men to gain advantage over women by resorting to violence. It is apparently very difficult for many men to accept criticism at all, and to receive criticism from women is even harder to bear.

We hope that the exposure of this matter will illustrate that officials dare not raise their hands to women and also act as a warning against failure to investigate legitimate complaints and handle such incidents more appropriately by the responsible authorities.

1.	CASE NUMBER

1.1	C.126/95-96/10

2.	THE COMPLAINANT

2.1	Ms M, Women’s Business Adviser in Department of Cooperatives & Rural Business Development

3.	THE COMPLAINT AGAINST

3.1	Hilton Tarileo, Deputy Director of Cooperatives Department, and the former Director of Cooperative Department and Public Service Department('PSD'), Mr Robert Figa.

4.	THE COMPLAINT

4.1	It was alleged by the complainant that she was assaulted by Mr Tarileo during working hours in his office at the Department. Ms M further alleged that the Former Director of the Cooperatives Department Mr Robert Figa and the PSD failed to take any action against Mr Tarileo.

5.	METHOD OF INVESTIGATION

5.1	Interview with the complainant.

5.2	Interview with Mr Robert Figa.

5.3	Interview with a staff of Cooperatives Department.

5.4	Interview with Mr Tarileo

5.5	Correspondence with Mr Robert Figa.

5.6	Correspondence with Public Service Department

6.	JURISDICTION

6.1	Pursuant to Article 62 of the Constitution and Section 14 of the Ombudsman Act No. 14 of 1995 ('Act') I have jurisdiction to enquire into the conduct of certain public bodies or persons on receiving a complaint or on my own initiative. I have determined that Ms M’s complaint against Mr Tarileo falls within my jurisdiction by reason of Section 14(1)(a)(ii) as he is a public servant.

7.	RELEVANT LAWS

7.1	CONSTITUTION OF THE REPUBLIC OF VANUATU

Conduct of leaders

66. (1)	Any person defined as a leader in Article 67 has a duty to conduct himself in such a way, both in his public and private life, so as not to-

(a)	place himself in a position in which he has or could have a conflict of interests or in which the fair exercise of his public or official duties might be compromised;

(b)	demean his office or position;

(c)	allow his integrity to be called into question; or

(d)	endanger or diminish respect for and confidence in the integrity of the Government of the Republic of Vanuatu.

(2)	In particular, a leader shall not use his office for personal gain or enter into any transaction or engaged in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by subarticle (1).

Definition of a leader

67.	For the purposes of this Chapter, a leader means the President of the Republic, the Prime Minister and other Ministers, members of Parliament, and such public servants, officers of Government agencies and other officers as may be prescribed by law.

Fundamental rights

5 (1)	The Republic of Vanuatu recognises, that, subject to any restrictions imposed by the law on non-citizens, all persons are entitled to the following fundamental rights and freedoms of the individual without discriminating on the grounds of race, place of origin, religious or traditional beliefs, political opinions, language or sex but subject to respect for the rights and freedoms of others and to the legitimate public interest in defence, safety, public order, welfare and health -

(g)	freedom of expression;

(k)	equal treatment under the law or administrative action, except that no law shall be inconsistent with this sub-paragraph insofar as it makes provisions for the special benefit, welfare, protection of advancement of females, children and young persons, members of under-privileged groups or inhabitants of less developed areas.

7.2	Chapter 129 - Public Service

11.	Every officer commits a disciplinary offence for the purposes of disciplinary proceedings who -

(d)	behaves in a manner calculated to cause unreasonable distress to other officers or to affect adversely the performance of their duties;

(i)	is guilty of any improper conduct in his official capacity, or of any other improper conduct which is likely to affect adversely the performance of his duties or is likely to bring the Public Service into disrepute;

7.3	These laws are reflected in the Public Service Staff Manual at Clauses 9 and 10:

Clause 9.15 states that all public servants:

' ... must show responsibility and restraint in their conduct with regards to public affairs. They should not conduct themselves in such a way as to bring their office or service into disrepute,.... Public servants should not engage in conduct to the prejudice of the law and order, the government of the day, or service discipline.'

Clause 9.19 states:

Heads of Departments are responsible for reporting cases of misconduct or disciplinary offences to the Director of the Public Service Department. This applies whether or not formal disciplinary proceedings are instituted against the officer, so that such offences may be reflected in the officer’s record and taken into account when the officer’s suitability for promotion, confirmation, etc. is being considered.

7.4	Penal Code Act

The Penal Code Chapter 135 Section 107(a) states that no person shall commit intentional assault on the person and prescribes a penalty of 3 months if no physical damage is caused.

8.	RELEVANT MATTERS AND FACTS

8.1	Ms M came to work in Vanuatu under a three year project funded by Overseas Development Agency. She worked as a Women’s Business Adviser to the Women’s Business Unit in the Cooperatives Department.

8.2	As part of her duties, Ms M was a member of the steering committee of VANWODS, the Vanuatu Women in Development Scheme. At a meeting of the Committee, the Director of Women’s Affairs, Roselyn Tor, mentioned that it was difficult to get to women at Elluk with a normal car as the road was so bad. Ms M proposed to the meeting that she ask her Department, the Department of Cooperatives and Rural Business Development, for the use of the land rover.

8.3	After that meeting, on 2 April 1996 Ms M approached the Deputy Director, Mr Tarileo, to request permission to use the office vehicle for a meeting to be held with women living in the Elluk area to discuss small business. She pointed out that it would be after hours. Mr Tarileo gave his approval for the use of the vehicle and advised that she could use the vehicle after hours. The land rover was a gift from the British Government. However, he was not able to supply a driver. It was agreed that Ms M would drive the land rover.

8.4	Ms M went to see Mr Tarileo on 16 April 1996 to confirm the use of the vehicle. However, Mr Tarileo then informed her that she could not use the vehicle. When Ms M reminded him of the first agreement, he denied having given permission.

8.5	As Ms M had already indicated to the Committee that the land rover would be available, she persisted in trying to explain why it was necessary that she use the land rover as promised. She explained that seven women would need to go to the meeting, and that the promised transport was the only one available.

8.6	Mr Tarileo refused to give a reason for his change of heart, and stated that business advisors should try to wear the shoes of their clients, suggesting that they should walk to the meeting. He then suggested that they use the Department of Women’s Affairs car, and Ms M explained that they did not have one, which was the reason they were relying on interdepartmental cooperation for the use of a vehicle. Mr Tarileo told Ms M to leave, but she refused to leave until she had a reasonable explanation as to Mr Tarileo’s change of heart.

8.7	Mr Tarileo then ignored Ms M by perusing material on his desk. Ms M picked up a calculator from the desk top and slammed it onto the top of a pile of papers in front of Mr Tarileo to attract his attention. Mr Tarileo then slapped Ms M across her face with his right hand and shouted at her to get out.

8.8	When Ms M left the office, she spoke to her colleague at the Women’s Business Unit, and they both went to see the Director, Mr Figa. Mr Figa expressed his concern, and suggested that Ms M go home for the afternoon. 

8.9	Mr Figa did not deal with the matter immediately, nor did he deal with the matter the next day. On 19 April 1996, Mr Figa sent a letter to Mr Tarileo stating that his behaviour was not acceptable and could ruin the image of the Department. (Attached as Appendix A)

8.10	On 22 April 1996, Ms M wrote to the Chairman of the PSC, explaining the situation and indicating that no further action had been taken by Mr Figa. In her letter, she highlighted the appropriate provisions of the Public Service Staff Manual (' PSS Manual') and the Public Service Act. (Attached as Appendix B)

8.11	As Ms M was concerned that the matter was being treated lightly, and she had seen other instances of women being mistreated by Mr Tarileo, she complained to the Ombudsman on 26 April 1996.

8.12	Ms M explained that her colleague, Mrs A, had already lodged a complaint with the Ombudsman about her maternity leave. Mr Tarileo was refusing to allow Mrs A her twelve week maternity leave entitlement. This was taken by the Ombudsman to Mr Figa, who acknowledged the mistake made by Mr Taileo and ordered that Mrs A’s leave be paid.

8.13	On 7 May 1996, Mr Tarileo wrote to the then Chairman of the PSC Mr Joseph Calo, stating that Ms M manipulated officers in the Cooperatives Department to bring complaints to the Ombudsman and recommending that the officers be demoted. (Attached as Appendix C)

8.14	On 2 August 1996, Ms M Chabod, Acting Director of the PSC, informed the Ombudsman by letter that it was her understanding was that the PSC need not consider the matter because Mr Tarileo had been warned, and it apparently had not happened before. (Letter attached as Appendix D)

8.15	On 4 September 1996, Mr Johnson Wabaiat, then Director of PSD confirmed Ms Chabod’s information, remarking that the matter would only be considered if it happened again. (Letter attached as Appendix E)

9	REPLIES

9.1	The Preliminary Report was sent to the following people:

-	Mr Robert Figa
-	Mr Hilton Tarileo
-	Mrs Marilyn Chabod

Reply from Mrs Chabod

9.2	Mrs Chabod attended at the office of the Ombudsman to say that the PSD did not take any disciplinary action against Mr Tarileo because Mr Figa did not request them to do so and also because Mr Tarileo had been warned by Mr Figa.

Comment by the Ombudsman

9.3	That statement is in correct. According to s.9.12(8) of the Public Service Staff Manual the complainant has the right to appeal directly to the Director of PSD. In this case Ms M wrote to the Director of PSD when Mr Figa failed to speak to Mr Tarileo after the incident. Therefore I find that excuse unacceptable.

Reply by Mr Figa

9.4	The former Director of the Cooperatives Department Mr Figa also attended at the Ombudsman’s office in response to the report and stated the following:

1.	The reason why he did not write a report immediately to send to the PSD was because he thought he should give time and opportunity to Mr Tarileo and Ms M to make peace and sort out their differences.

2.	Ms M should have shown respect to Mr Tarileo instead of throwing the calculator down in front of him. That action shocked Mr Tarileo and caused him to slap her. Mr Tarileo is a Deputy Director and should be respected as a senior officer.

3.	Ms M should take responsibility for her actions too. Her behaviour was not 100% perfect.

4.	The department trucks are not used on the weekends. I don’t know if Mr Tarileo explained this to Ms M but the request was made for the group to use the truck on Saturday. This could be one of the reasons for Mr Tarileo’s refusal.

Comment by the Ombudsman

9.5	In this case Ms M approached the Head of Department Mr Figa straight after the incident. According to s.9.12(6) of the Mr Figa should have interviewed Mr Tarileo and give an answer in writing within 7 days of the interview. This did not happen in this case. His answer would have taken into consideration his points above. However a physical assault is a criminal offence which makes this case very serious. If Mr Figa had taken the appropriate measures in dealing with this matter the Ombudsman’s office would not have investigated the matter.

Reply by Mr Tarileo

9.6	Mr Tarileo said in his letter to the Ombudsman in reply that he respected fully the warning letters given to him by Mr Figa and the PSD.

Comment by the Ombudsman

9.7	Mr Tarileo did not have the courtesy to apologise to Ms M. He should be grateful that he was not charged with assault. Physical assault on women and men in public office is unacceptable and should not be tolerated. Senior officers such as Mr Tarileo should act in a manner that will not bring the Public Service into disrepute.

10.	FINDINGS OF WRONGFUL CONDUCT AND MALADMINISTRATION

Finding No. 1:	The conduct of the Deputy Director of the Cooperative Department, Mr Hilton Tarileo, was contrary to law in that he breached Section 11 (d) of the Public Service Act Chapter 129.

10.1	Mr Tarileo’s behaviour is unacceptable. While the altercation between Ms M and Mr Tarileo became heated, he is obliged to act in a reasonable manner and not to cause distress. Mr Tarileo admitted that he initially did give permission to Ms M to use the vehicle. At the time of the incident, he denied giving permission, and when Ms M persisted, he refused to give an adequate explanation for his change of heart, and dismissed Ms M’s obvious anxiety. She was put in a position where her work was adversely affected by that fact the Mr Tarileo reneged on his permission to lend her the land rover. While I find that Ms M’s behaviour in slapping the calculator down in front of Mr Tarileo may have been provocative, there is no excuse for physical assault.

Finding No. 2:	The conduct of the Deputy Director of the Cooperative Department, Mr Hilton Tarileo, was contrary to law in that he breached Section 11(d) of the Public Service Act.

10.2(a)	Mr Tarileo’s improper conduct in his official capacity brings the Public Service into disrepute. It is unacceptable to assault any person in the course of duty regardless of whether that person is Ni-Vanuatu or Expatriate, male or female.

10.2(b)	Mr Tarileo further brings the Public Service into disrepute by his recommendation to the Public Service Commission that Mrs A and another officer be demoted as they had complained to the Ombudsman. Civil servants have the right to visit and to complain to the Ombudsman without fear of reprisal under the constitutional rights of freedom of expression stated in the Constitution, Article 5 (1)(g).

Finding No. 3:	The conduct of the Deputy Director of the Cooperative Department, Mr Hilton Tarileo, was contrary to law in that he breached Section 107(a) of the Penal Code Act Chapter 135.

10.3	Mr Tarileo intentionally assaulted Ms M by slapping her. Where no physical damage is done, the law prescribes a penalty of three months imprisonment.

Finding No. 4:	The conduct of the former Director of Cooperatives Department, Mr Figa, was contrary to law in that he breached of Clause 9.19 of the Public Service Staff Manual.

10.4	The Former Director of Cooperatives Department Mr Figa failed to take the appropriate steps to deal with this matter. Mr Figa is obliged by clause 9.19 to report cases of misconduct or disciplinary offences regardless of whether proceedings are instituted or not. Had he done so, the behaviour of both parties could have been examined and appropriate action taken.

Finding No. 5:	The conduct of the former Director of Cooperatives Department, Mr Figa, was contrary to law in that he breached the Leadership Code, Article 66 (c) and (d) of the Constitution.

10.5	Mr Figa’s inaction in this matter has allowed his personal integrity to be called into question, and as this incident surrounded an aid worker sent to Vanuatu to advise, respect for and confidence in the integrity of the Government of the Republic of Vanuatu could be endangered or diminished.

Finding No. 6:	The conduct of the then Acting Director of the Public Service Department, Ms M. Chabot and the Director of the Public Service Commission, Mr J Wabaiat was contrary to law in that it breached the Leadership Code Article 66 (a), (c) and (d) Constitution.

10.6	It is the public duty of the Director of the Public Service Department to deal with complaints that are presented to him or her. Section 10.4 of the Staff Manual of the Public Service gives a discretion to Directors to initiate disciplinary action. As enquiries had been received from the Ombudsman’s office, it would be reasonable to expect that the Director would have investigated this matter. This incident involved an overseas aid worker who had come to advise, and the lack of action in what can only be described as an assault cannot foster respect and confidence in the Government of Vanuatu in the eyes of other countries.

Finding No. 7:	The conduct of the Chairman of the Public Service Commission, Mr Joseph Calo, was contrary to law in that he breached the Leadership Code Article 66 (c) and (d) of the Constitution.

10.7	This incident involved an overseas aid worker who had come to advise. Ms M complained of the inaction in response to her complaint to the Chairman personally. The lack of action in what can only be described as an assault cannot foster respect and confidence in the Government of Vanuatu in the eyes of other countries.

11	RECOMMENDATIONS

Recommendation No. 1:	Mr Tarileo be formally reprimanded by PSC

Recommendation No. 2: 	Mr Tarileo apologise to Ms M by letter as she has now left Vanuatu.

Recommendation No. 3: 	PSC arrange education for Heads of Departments of the Public Service in their responsibilities under the Constitution, the Public Service Act and also the Public Service Manual and in gender issues.

Dated this 7th day of May 1998.

Marie-Noëlle FERRIEUX PATTERSON
OMBUDSMAN OF THE REPUBLIC OF VANUATU.

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