Court filings submitted to Justice Oliver Saksak during the course of the TRR trial appear to show a series of ethically questionable activities by staff employed in the office of the Regulator and in the Office of the Government Chief Information Officer.
Some of these filings were submitted late to judge Saksak, and as a result some of the materials mentioned here were not subject to findings of fact. They are nonetheless public documents. They remain allegations until tested in court.
In his evaluation of the evidence, Justice Saksak writes, “it is shown that the second Respondent [Gerard Metsan] secretly conspired and colluded with a TRR employee [Margret Joyce Kensen] to prepare the grounds of the Claimant’s suspension contrary to her employment contract.”
Ms Kensen was employed as a Regulatory Legal Officer. During the time period covered by sequence of events covered in the trial, Ms Kensen voluntarily resigned from her position at TRR, and subsequently took a contract at OGCIO.
In correspondence dating back to 2016, court filings appear to show a close and trusting friendship between Mr Metsan and Ms Kensen, who refer to each other as ‘tawian’. Submissions show them frankly and explicitly discussing matters of a sexual nature, and Mr Metsan sharing bawdy and explicit photographs, some showing men and women having sex.
The submissions suggest the two did not have any kind of intimate relationship, but rather a close and trusting friendship punctuated with frank talk and bawdy humour.
The two were colleagues at the time. In 2016, Mr Metsan was employed at the TRR as Project Manager for the Universal Access Policy. He subsequently left that position to work as Government Chief Information Officer. Among other things, the CIO is responsible for formulating IT-related policy.
The documents seem to show some awareness of the impropriety of their exchanges. At the end of one discussion, which involved explicit sexual information, Ms Kensen writes, “Delete email ia plis.” Mr Metsan replies, “Yu no kros blong yumitu nomo”.
Nonetheless, the personal communications continued using official email accounts. One court filing shows an email, dated approximately a month before the Regulator’s initial suspension, in which Mr Metsan sent a cartoon image depicting a man sucking a woman’s breast, with humorous text attached.
This appears to contravene both TRR professional standards and Public Service rules concerning the use of email.
Other filings allege breaches of confidentiality and professional conflict of interest. After it was determined that Ms Baniala could not be suspended without notice, the court filings show evidence of direct engagement by Ms Kensen with Mr Metsan in the composition of a second letter, which revoked the first, and then placed the Regulator on notice, citing the same reasons as those in the original letter.
Having received a draft of the second letter, Ms Kensen wrote back to the OGCIO and to Jackson Miake, whom the Prime Minister had attempted to name interim Regulator, stating in a mix of English and Bislama, “You have to put all the grounds [for suspension] in the letter of the 19th October. I told you on the phone that you have to put those grounds in there. You think you don’t need them? Because you revoked the original letter, you have to put them back in…”.
Additional correspondence from Ms Kensen to the Gerard Metsan at his OGCIO account relates details about the events immediately after Ms Baniala’s receipt of the initial letter of suspension. In a pair of emails sent in quick succession on morning of October 20, 2017, Ms Kensen, writing in Bislama, informed the Government CIO that “I have gone through all the grounds [of suspension] and laws, it’s all good. Honestly, it will be very difficult for her to take the Government to court. Yesterday, she was shocked and talking nonsense that the law was wrong.”
The message continued, reporting a meeting she had with a telecommunications professional, and concluded by recommending that Gerard immediately block Ms Baniala’s access to the Regulator’s email account, and that he should instruct Jackson Miake, whom the Prime Minister had instructed to act as interim Regulator, to conduct a ‘medical’ examination (presumably a forensic examination) of the account in order to determine whether she’d had contact with an American lawyer, Eric Braun.
Mr Braun was employed on a number of occasions on contract to the TRR over the preceding years. He was the subject of accusations that he was being hired preferentially, and therefore costing Ni Vanuatu employment opportunities.
Among the instructions in the Prime Minister’s letter was a directive to terminate his employment and that of certain other expats employed at the TRR office.
Mr Braun later participated in the trial, representing the TRR along with Edward Nalyal. He was temporarily permitted to appear before the Vanuatu bar in order to do this.
Another email relates that the Regulator met with an unspecified ‘white man’, and suggests that a Commission of Inquiry should ask them what they discussed. It goes on to describe their situation in what appear to be prejudicial terms, including the statement that “Fire blong tufala i ded wan taem ya. No gud ya.”
The Regulator was asked to explain how this objectionable behaviour was allowed to continue when it was her responsibility to ensure a high standard of professional conduct. She sent a written response stating, “I trust all my staff hence I [didn’t] really take time to investigate or even take time to understand everyone along those lines. But after the suspension, I realized it’s one area that I must look onto.”
Asked to respond to the argument that she could be considered remiss in not noticing this conduct, Ms Baniala replied, “I understand that.”
She continued, “I have indicated to staff that this matter, my suspension occurred for a purpose, to test the effectiveness of the administrative procedures and even the staff conduct despite any levels of seniority including myself.”
Comment was sought from Government CIO Gerard Metsan, and from Ms Kensen.
Mr Metsan responded to questions concerning his apparent collusion with Ms Kensen by phone. The Daily Post reported that “Mr Metsan stated that his understanding of the affair was that he was conducting official correspondence with TRR’s legal staff pursuant to the PM’s instructions.”
He did not respond to subsequent questions concerning the transmission of indecent images from his professional email accounts by the time this article was completed.
The Prime Minister’s Office was contacted by email to multiple recipients on two occasions. No acknowledgement or response was received at the time this article was finalised.