Brooks’ appointment allowed pending approval by VDSM

May 26, 2016

PHILIPSBURG–There are no legal objections to the appointment of William Brooks as Chief Executive Officer (CEO) of utilities company GEBE N.V., pending screening by Security Service of St. Maarten VDSM, the Court of First Instance stated Wednesday.

GEBE Supervisory Board of Directors Chairman René Richardson and Board member Edwin Gumbs had filed an injunction against sole shareholder Country St. Maarten in their bid to prevent Brooks’ appointment without the prior required screening.
No person can be appointed as GEBE Director, which position is considered a position of confidentiality, without screening and a declaration of no objection from the Prime Minister or the Minister of General Affairs.
The National Ordinance on the National Security Service of St. Maarten stipulates that it is forbidden to appoint a person in a confidential position without a prior security screening to safeguard “the democratic legal order, integrity of public governance, security or other important interests of St. Maarten.”
The GEBE Supervisory Board members filed the injunction in their bid to prevent Brooks’ appointment, which was scheduled to be handled in a postponed shareholder’s meeting on Friday, May 20.
Pending his decision in the injunction, the Judge ordered the meeting’s cancellation in a so-called preliminary provision, which prevented a meeting on the thorny issue pending the Court’s decision.
GEBE has not had any statutory directors since December 1, 2015. In response, the Supervisory Board appointed Brooks as temporary manager, a position he held until January 29, after which the Supervisory Board appointed Andrew Zagers in this capacity.
It is Government’s intention to appoint Brooks as GEBE’s CEO, but up to May 13 the Council of Ministers had not requested VDSM’s approval for his appointment.
Prime Minister William Marlin, who was present at the hearing of the injunction, called it an oversight by the Minister of Public Housing, Spatial Planning, Infrastructure and Environment VROMI, which had been remedied in the meantime. It would take four to eight weeks to complete the screening process, Marlin explained to the Court.
According to Country St. Maarten, Brooks could be appointed pending his approval under a so-called “dissolving condition,” meaning that Brooks would be terminated in case a statement of no objection were not forthcoming.
The Court agreed with this standpoint, but added that Government should take measures to limit the risks involved in such a procedure.
Claimants also said it was doubtful whether Brooks would pass the screening, as there would be “more than sufficient” objections against him, which had surfaced during an internal audit.
The Court did not give a judgment on this element in the pleadings, as the Court said it could not sit in the chair of VDSM, the Prime Minister and Country St. Maarten as GEBE’s shareholder, as the audit and other (personal) circumstances concerning Brooks will have to be taken into consideration in the security screening, in the decision to give a declaration of no objection, and in the decision-making process concerning the continuation of the shareholder’s meeting.
Plaintiffs’ lawyer Jairo Bloem said his clients were pleased with the outcome of the case, despite the fact that they did not win.
“If it were not for plaintiffs’ actions, a person might have been appointed as Director of GEBE for whom the security screening process was not initiated, an act that is surely not sanctioned by law,” Bloem said. “More importantly, the Court of First Instance stated that if Government intends to appoint someone who has not yet been approved by VDSM, but for whom the screening process has started, Government should take proper measures to reduce the risks that may follow from a security screening.
“The best interest of GEBE is served by persons only exercising a so-called confidential function for which a security screening and approval is required by the Security Council, after they pass the security screening; moreover, since a possible decision by VDSM to not approve an appointed person does not derogate to possible contractual obligations incurred as a consequence of an appointment under civil law or civil servant law.
“The plaintiff parties once again hope that Government will take requisite measures to safeguard against violation of a confidential function and, equally important, prevent GEBE from unnecessarily incurring damages in case the Security Service does not approve of the appointed person.”