The former CEO has officially requested a copy to the Prime Minister and the PSC and has not received any response nor an official report yet to date.
Matafeo, however, has responded below to contents of the PSC investigation report published in the Samoa Observers issue of 13 March 2020.
para33.
This suggests a lack of transparency, responsiveness, and communication on the part of the Ministry. At times it seemed that the respondent was the last person to be informed of his case after the media had reported on the matter. There was no respect or working contractively and positively together in the resolving this matter.
RESPONSES
a. It is unfortunate that I did not record my face-to-face meetings with the respondent on this matter, three times in my Customs office and once at my IRS office, and in one of those meetings I had advised respondent that his case was referred to the PSC. The ACEO-IAD also told him about the case been referred to the PSC. The DCEO-Customs and the ACEO-Risk and Compliance had also talked with him about this case. If the PSC-IO Fesili had come around to interview us, then maybe we could have given him some diary notes on our separate meetings with the respondent. No interviews were conducted for all officers and managers stated in our report.
6. Questions surrounding the identity of the complainant or the person who reported the incident:
para34.
The MCR Report did not name the informant or the complainant who initially raised the allegations against the respondent. Generally, a complaint or a report against an employee is first received by the Ministry before any matter is investigated. The same complaint or report is then provided to the person alleged of wrongdoing for his or her response.
RESPONSES
a. From the start, we had advised that it was the information I had received from my former Minister then I checked from ACEO-Risk and Compliance, then the case was developed from there especially when it was confirmed that from our records (e.g. the CER) and system that the respondent was in breach of our code of conduct, particularly the completion of the CER all by himself, the different signature on the form where duty officer signs that did not match any of the duty officers or any of the MCR officers at Customs office when checked from the attendance register, the act not to examine the container contents at the Customs CCA yard, the act not to seal the container if he had intended to have it examined at the importer’s premises, the act of transferring the container to be opened at the importer’s premises without proper authority, the act of directing Simati to just take the photo of the vehicle parts only, and the act of breaking the trust and the code of conduct, all prompted the CEO to document the report and refer same to the PSC.
b. The complaint or report from the public is NOT the only factor or criteria for the CEO to act on but when facts were presented by themselves for you to act on. As managers, we are required to practice ‘integrity’ that we preach to our officers on a daily basis and such improper acts by a manager which are not in line with our code of conduct, should be dealt with accordingly.
para35.
Unfortunately, none of that happened. It wasn’t until this author prompted the CEO to name the informant that she named Mr. Hunt. Given the political context at the time, the CEO ought to have exercised care and good judgement in handling this case.
RESPONSES
a. This is a blatant lie by the PSC-IO Fesili as he did not prompt me or forced me to name the informant! And how disrespectful of him to call former Hon. Minister Tialavea Hunt as an “informant” when the information he had passed on to me was part of the Hon. Minister’s responsibilities to inform or advise the CEO on public concerns and issues. Does this mean that PSC now considers our Hon. Ministers to be “informants” when it is legally their responsibilities to inform and direct the CEOs on public concerns? This is indeed a very concerning precedented reference made by the Commission delegate.
b. I never before had an interview with PSC-IO Fesili and due to our clashed and my busy schedules, we did not even once meet. There was also no serious effort from him to make any appointment except once but I was busy at the Parliament sessions. However, when I came over to the PSC office for my scheduled meeting with Afioga Lauano (Madam Chair) and Afioga Auelua (Commissioner member) to discuss my 30 months performance appraisal before PSC advertised the CEO post, somewhere in October 2021, he suddenly appeared in the waiting area and said he wanted to ask me just one ‘small’ question. I told him that I was preparing for my performance appraisal interview and if he could wait for this important interview to be completed then I would come to his work station to be interviewed.
c. However, he chose not to hear that and quickly asked if I had received a public complaint or report which had caused me to submit the report to PSC. And I immediately advised him that it was a public concern that was relayed to me by our Hon. Minister Tialavea Hunt; he did not force that out of me!! I promptly advised because it was the truth and was never a secret. He was also very disrespectful in approaching me at the PSC waiting area whilst my mind was on a very important meeting with the PSC Madam Chair Lauano and former Commissioner Auelua Samuelu Enari. However, I chose to ignore and bypass his disrespectful actions on my view of him as a young and inexperienced ACEO on customer service skills with perhaps little to no exposure to Samoan culture and customs such as ‘fa’aaloalo’. I did not make any ‘mountain’ out of the one ‘small’ question as I answered with all honesty as a CEO given that the investigation was on the actions of the contract officer as a public servant, and not on the importer who I had considered to be a regular commercial importer and not as a ‘Minister’.
7. Inconsistency in decision making:
para36.
On 10 April 2019, the respondent reported an incident to the CEO where a commercial container was allegedly processed as “personal effects”. The said container was processed without commercial invoices or a physical examination of personal effects under BS4. The process declaration, payment, and CRA issuance were all done under the unlawful influences of the former ACEO Client Services and Excise Division (Solia Tanuvasa Kalolo) and towards … forward the report to the internal audit to investigate the matter.
para37.
The CEO acknowledged the respondent’s report and his “diligence” in leading his team. Regrettably, the CEO took no further action and the matter was never investigated, Mr. Kalolo is no longer with the MCR and therefore the Commission cannot investigate the matter further, the CEO ought to have referred the matter to the Commission as mandated under s32 of the Act.
RESPONSES
a. I respectfully do not remember the specific details of this case as alleged by the respondent to have been reported to me on 10 April 2019. I also do not remember if he had formally reported the incident to me after I had called them both into my office and advised for them (Alvin and Solia) to work as a team of managers/ACEOs, discuss the case, sought out their differences but must ensure the correct process and procedures were done as required, especially for Solia to respect Alvin’s new post as the ACEO-Border Operations (at that time). If there was any further issue after their discussion and deliberation, then submit a report for my further information and consideration of their actions done. I never took it further to investigate as I believed a complaint report from Alvin was never filed as to formally report the issue to CEO. It was my view that they had eventually sought out the differences as ACEOs and the procedures was done as required.
b. This incident is not comparable to what the respondent had done as Solia did not do the CER all by himself but sought the assistance of Border’s Principal Officer(s) and he did not release the container to be examined at the importer’s premises. Solia had asked for assistance from one of the relevant Border senior officers, in their line of authority and within their delegated authority. As I do not remember the details of this case, I will reserve my comments until further investigation is done on this matter.
para38.
However, in this case, the CEO and the Ministry took immediate action. So much so that the matter was referred to the Commission and the Police within the space of seven (7) days.
RESPONSES
a. This case was never formally referred to the Police but only the copy of the preliminary report was emailed upon the insistence from the Police Commissioner and his investigation team. Hence, my letter of 01st July 2021 to the Police Commissioner. As also advised before, I took actions because of clear breach of the PSC and MCR code of conduct, nothing else.
b. The time frame of “PSC investigation” from 17th June 2021 to 22nd November 2021 took more than five months and another more than 3 months to await the decision on it. Therefore, it did not take 7 days to be done nor was there a Police action or report done consecutively with the PSC investigation.
8. Inappropriate intervention by the CEO and ACEO Corporate Service (MCR) in removing the respondent during an interview with the Commission Delegate at the Customs premises at Matautu on 22 September 2021.
para39.
On 22 September 2021, I requested a meeting with the respondent at his
office at Matautu. The purpose of the meeting was for the respondent to
demonstrate what transpired on 8 June 2021. Not long after the meeting
started at the respondent’s office, we were unexpectedly interrupted by the
new corporate service ACEO (“Sela”). Sela advised us that the respondent
was under suspension and therefore was not allowed on premises.
para40.
Advised Sela that the respondent was under the Commission’s jurisdiction
and investigation, that the respondent only attended the meeting on the
premises at the request of the Commission albeit through the Commission
Delegate.
para41.
Sela did not accept the advice and proceed to remove the respondent from
the office. I asked Sela who gave the instructions and she responded it was the
“CEO’s instructions”, it was highly inappropriate for the CEO and a ACEO to
interfere in a Commission investigation. The respondent was under suspension
due to the Commission’s advice and at all times was an employee under the
jurisdiction of the Commission.
RESPONSES
- The alleged inappropriate intervention by myself and our ACEO
Corporate Services (Ms. Zella Schwenke) on the 22nd September 2021 is sincerely regretted but it was in our view, caused simply from miscommunication between the PSC-IO Fesili and myself, or any of respective senior management officers such as the DCEO-Customs (Fonoti Talaitupu Lia), ACEO-Legal (Avila Ah Leong), ACEO-Internal Audit (Namulauulu Ioasa Apelu), ACEO-Risk and Compliance (Rodney Lui Yuen), ACEO-Corporate Services or the Acting ACEO-Border Operations at that time (Henry McCarthy), who were long awaiting any visit or call from the IO to eventuate or commence his investigation on site.
b. The PSC- IO Fesili should have the curtesy and as required under any
investigation process, to formally advise the CEO of his proposed visit so that I
would, or the assigned management personnel if I was unavailable, be on the
standby to assist him whilst he is within our office premises. Otherwise, an email
or telephone call to me or any of the assigned official would have been sufficient
dvice for us. As far as MCR was concerned, it was not a criminal case that would
warrant a raid, a surprised search or an unannounced visit, for PSC-IO Fesili to
just walk in casually with the officially suspended contract officer as if we are
ignorant officials who would just do as they are told.
c. As tax and custom investigators, we are required to advise the taxpayer/importer before you go into their premises, therefore we know of the general procedures to undertake. Hence, the PSC-IO was expected to have that similar curtsey if it is not clearly stated in the PSC Act. The ACEO-Corporate Service did advise me by text on telephone whilst I was at the Parliamentary meeting on that day, of Fesili and the respondent Alvin’s visit and I had advised for her to assign the Acting ACEO-Border (Henry) to assist him with all his enquiries but was concerned with Alvin’s presence in the office premises when he was on official suspension. I also advised to call others to standby, such as the DCEO-Customs, ACEO-Internal Audit, ACEO-Risk & Compliance, Principal Officers of Border Operations (Luaiva and Ieti), Principal Legal Officer (Alesana), the Customs RCD Officer (Frank) and the Assistance Customs Border officer (Simati) who took the photos. I would come straight to Customs office after the Parliament meeting after 1pm. However, when I arrived later, I was advised that PSC-IO Fesili only asked Henry one question (of where the container was located inside the Customs CCA) and then took his leave.
d. With respect, we had fully understood right from the beginning that the investigation was under the PSC jurisdiction but there is still the required common trust and curtesy to make that communication so as to avoid misunderstanding and any unintended differences. Even if it is not written in our regulations, that trust and respect in our Samoa culture and customs normally comes in to assist us during the execution of our duties, at any level of positions. That is why our culture is very unique. Nevertheless, I apologize profusely for the inconvenience caused but there was certainly no intention to interfere or disrupt the Commission’s investigation process.
CONCLUSION:
This report finds that s11 of the Customs Act 2014 does not set a particular standard of an employee’s behavior. Therefore, there is an issue with the use of s11 to charge the respondent. The said provision only deals with what constitutes a Customs Controlled Area. Furthermore, the Charge Sheet did not specify the relevant provisions of the Standard Operating Procedures it referred to in Charge 3. Therefore, I was not able to make a detailed assessment of the particular allegations.
For the reasons provided above, Charge 3 is NOT PROVEN on the weight of the evidence, I respectfully recommended the Commission withdraw Charge 3.
RESPONSES
a. Agreed that Section 11 of the Customs Act 2004 relates to Customs Controlled Areas and does not set a particular standard of the employee’s behavior. However, the act done by the respondent to make decision without proper authority to transfer the relative’s container to a temporary place that was not a registered CCA or even the residence of the importer or his business place, but a vacant land at Nu’u said to be owned by another relative, is an offence under the Customs Act 2014 and would cause some suspicious and concern from the Ministry of why the container was taken there in the first place. The act was certainly not in line with the standard operating procedures on CCAs. Again, if the PSC-IO Fesili had done his supposedly investigation, he would have been given the related SOP and more evidence on this issue.
b. As details of the Charge 3 was not in the Samoa Observer article, I am not able to comment more on this except of what been said above.
THE CHARGE SHEET – CHARGE 4:
The Charge Sheet alleged that the respondent breached of the Act in that he failed to disclose, take all reasonable steps to avoid, any real or apparent conflicts of interest to the execution of his duties.
ISSUE:
Whether the respondent committed the acts as alleged in the charge sheet: – If the answer is to the affirmative, then the second issue to consider is whether the said act breached the public service code.
RELEVANT LAWS:
Public Service Act 2004:
Every employee must “Disclose, and take all reasonable steps to avoid, any real or apparent conflict of interest to their employment.”
A conflict of interest exists when it appears likely that an employee could be influenced, or where is could be perceived that they are influenced, by a personal interest in carrying out of their duty. Conflict of interest may be real or apparent:
a. Real – where a direct conflict exists between the current official duties and existing private interests;
b. Apparent – where it appears or could be perceived that private interests are improperly influencing the performance of official duties whether or not that is the case. The key factor distinguishing “apparent” conflicts of interest from the other type of conflict of interest is that a conflict appears to, or is perceived by an outside person.
FINDINGS:
This report found that there was no real conflict of interest. The respondent had no interest attached to the consignee’s interest which may conflict with his duties. In addition, there was insufficient evidence to suggest that the respondent and consignee or Hon. Toelupe benefited from the respondent’s actions or lack thereof.
However, this element of the Code places an obligation on the respondent to “take reasonable steps to avoid
However, this element of the Code places an obligation on the respondent to “take all reasonable steps to avoid, any…apparent conflicts of interest”. An apparent conflict of interest is a conflict that appears to or is perceived by an outside person. Therefore, it is an objective test, not the subjective interpretation of the respondent.
It is not disputed that the respondent had some form of knowledge that the consignee of the container (Wellbeing Support Solutions) had some form of connection to the Hon. Toelupe. It is also not disputed that the respondent and Hon. Toelupe were second cousins.
Whilst we have found that there was no conflict of interest, it is the perception to the public that is concerning. Appearance to the public is the key, not the public servant’s integrity or good faith. In most cases, the problem would arise from the appearance rather than from the actual resulting injury to the interests of the state.
CONCLUSION:
With respect to Charge 4, whether the respondent breached s19(1) of the Act in that he failed to disclose, and take all reasonable steps to avoid, any real or apparent conflict of interest to the execution of his duties, this author respectfully submits that there was no real conflict of interest.
……Hon.Toelupe (second cousin), a reasonable person may perceive that a personal interest could improperly influence the performance of the respondent’s duties. With that being said, this report proceeded on the basis that the consignee of the container was Wellbeing Support (NGO), not “Pou Onesemo” – Bill of Lading and Cargo Examination Form.
The respondent’s lapse was at the lower end of the scale. The respondent made the right decision when he instructed another employee (Simati) and a MAF officer to accompany a representative of the consignee to examine the container on his own, then this report would have found otherwise.
RESPONSES
a. The PSC-IO Fesili had painstakingly taken a long clarification on whether there was a ‘real’ or ‘apparent’ conflict of interest in the actions done by the respondent in executing his duties as the ACEO-Border Operations or as a public servant. Throughout his presentation, he sounded more as a defense lawyer, instead of an investigator, stating the obvious instead of solid evidence and only make reference to one subsection (f) of section 19 of the Public Service Act 2004 without applying all other related subsections (a) to (l) as to assess whether the public servant or the respondent had indeed acted in accordance with the required code of conduct. The values of the Public Service under section 17 of the PS Act 2004 should also be applied to assess the actions done by the respondent as these are also the same organizational values that MCR expects and requires its employees to have in carrying out their official duties as tax and customs officers. The MCR’s Code of Conduct and values (honesty, impartiality, service, respect, transparency, accountability, efficiency and effectiveness) are strictly aligned to those of the PSC’s.
b. From facts and evidence of this case, it is our view and conclusion that the respondent had indeed breached the values and code of conduct of the PSC as well as that of the Ministry. The following are facts and findings that we can be verified from records that MCR has:
• The respondent had assessed, valued, cleared and released his second cousin’s 40ft container, without proper authority from the CEO. He had three Principal Officers who always do the tasks as he had done in this case, but he deliberately did it by himself probably on his view that he is the ‘boss’ and chose not to assign to anyone despite his conflict of interest with the importer. He did not act honestly and impartial. As a result, he failed to assess correctly and honestly the values of most if not all of the consigned items.
• At our level of senior management of the Ministry, there is no excuse for a ‘simple’ or small lie or an ‘honest’ mistake as we are leaders and many staff looked up to us. Alvin is a senior management officer, a contracted officer with many years of technical working experiences in the intelligence and investigation unit of the Risk & Compliance division before he was appointed in early 2019 to be an ACEO-Border Operations. He was also at one time a representative of our Customs Services into the joint Trans Crime Unit (TCU) with Police and Immigration units. He is not a junior officer to make an ‘honest’ mistake as he is quite familiar with the required Customs processes and ‘integrity’ is always the message we hammered down to our duty officers when they go out to examine the containers. I would think the PSC who is a strong advocate of its principles and values as public servants and should immediately treat a ‘deliberate’ lie to be a breach to its code of conduct. He was not a permanent junior officer nor an officer, senior or principal officer but a senior contract officer!
• The respondent did not submit any request from the importer to have the importer’s container sealed and checked outside of the Customs examination yard, for the CEO’s consideration and approval, nor to the Deputy CEO-Customs (Fonoti Talaitupu Lia) if CEO was out of office on the day of his actions. Even if the full assessed duty was paid by the importer, the fact that the container was not checked at the Customs examination yard before clearance nor sealed and approved by the CEO, had made the respondent’s actions a breach of conduct as he is not the CEO. The due process for clearance and relevant procedures were not adhered to by the respondent and this coming from him as a manager is inexcusable.
• To further proved that the respondent’s actions were wrong, I had formally met and made known to Hon. Toelupe Onesemo on the 29th June 2021, of the issues and that we would re-examine and re-assess all the contents of the said container under the requirements of section 106 of the Customs Act 2014 before I had issued the underpaid duty re-assessment with compound penalties under section 265 because importer had failed to produce the required list of goods, after meeting with him in my office. Although it was not the fault of the importer, the fact remained that the contents of his container were not properly and correctly assessed for duty payable by Alvin, his relative. The Hon Minister did pay duty assessed by Alvin before the container was released. As the Comptroller, I had dealt with the importer under the requirements of the Customs Act 2014 whilst PSC had dealt with Alvin’s wrong actions, which we believed had breached our own code of conduct and that of the PSC’s. Again, all these facts are in the MCR files that I believe are intact and safely kept.
• The respondent had directed the Assistant Customs Officer (Simati) to go to where the container was offloaded at Nuu with the importer’s representative and a Quarantine officer, and take the photo of the vehicle parts only. No directive was given to fully examined the contents of the container nor for him to do and complete the Cargo Examination Report as normally done by the duty officer who examines the consignments.
• The respondent did not sight and physically examine the contents of the container as normally done by duty officer, before duty is assessed by Principal Officer of the ACEO if the Principal Officer is not in officer. He did the CER from his desk using information from the bill of lading document.
• The respondent had listed and assessed only 22 items in the report he had prepared but when we found from site inspection on two days afterwards, that there were actually 31 items. He also did not make valuation of additional vehicle spare parts and some household items of the total consignments which our team had valued and re-valued later after our investigation.
• Since respondent had solely completed the CER, it is suspected that he had also fake a signature at the part of the form where the duty officer normally signed, as no such signature was found to be any of the officers when the attendance register of the division was fully inspected.
• The importer’s container was not transferred into the Customs examination area which is also the Ministry’s CCA, for examination as normally required of ‘personal effects’ container, and suspected to be transferred straight from the wharf to Nuu. This was confirmed when the Customs CCTV footage were viewed. The respondent had no authority to do this action unless approved by the Comptroller/CEO.
• The importer was a regular commercial importer but his container was declared as ‘personal effects’ as per information on the bill of lading and other related shipping documents.
RECOMMENDATIONS:
Whilst the report has found that the respondent ought to have acted with care
and diligence in the handling Container No. CMAU498246, it nonetheless,
respectfully recommends the Commission to withdraw all the Charges and in its
place issue Alvin Onesemo a first warning and counselling. The shortfall in the
performance of his duties was due to an honest mistake and an oversight in
completing the CER. This matter is best dealt with under a performance
framework.
There was no intention to mislead, commit fraud, and/or deceive the Ministry.
This is the first that the respondent has had an issue with the Code. The
respondent did instruct another Customs Officer and Quarantine officer to
accompany a representative of the importer to examine the consignment and
take photos.
Finally, Alvin Onesemo’s case was treated differently compared to other cases
handled by the Commission and the Ministry. The urgency in handling the matter
and the involvement of political figures throughout the process was concerning –
respectfully, the case had the hall marks of a “political motive” if not, the
perception as one.
RESPONSES
- Mr. Fesili was very unprofessional with his reporting based on “private
conversations” with ‘some employees’ when he did not interview any of our staff and “private conversation” cannot be considered as evidence in any investigation or any commission of inquiry for that matter. The report alleged that I had allowed commercial containers under the disguised of personal effects and special relationships with the CEO to be released. I am confident to advise lau Afioga that all decisions that I had made during my tenure as CEO, both at the IRS and Customs, are in accordance with the requirements of the laws and the Audit Office or external auditors you may use, can check and look into those cases as alleged by the PSC report to be done by myself. Even if there is a stated discretion for the Comptroller or Commissioner in a respective provision to apply, I made sure there is always a documented submission with recommendation(s) from the DCEOs and/or ACEOs for me to consider before I made appropriate decision.
b.There is nothing 100% perfect in any system and if any case had been done and
cleared without my knowledge, undetected or not within the required provisions
of the law, during my tenure as the CEO, then I can only sincerely apologize with
humility and sincere regrets as those cases reflected my negligence and
imperfection as a leader of the Ministry, especially as leader of our Senior
Management Team who are expert technical divisional leaders and whom I
relied on their technical advice and recommendations. I take full responsibilities
of those alleged cases if proven correct by the Commission of Inquiry or
Investigation by the Audit Office and the Internal Audit division of the MOF.
Recommendation 2:
The Commission is also advised to consider initiating an inquiry under s6 of the
PS Act 2004 into the MCR, in particular the Customs arm of the MCR, to
determine whether the Ministry and/or its employees are operating in
accordance with the PS Act 2004 and relevant laws pertaining to their respective
functions.
There were allegations that commercial containers were being passed through
customs under the guise of private/personal effect containers – an example can
be found in the BOE on pages 116 and 117. Unfortunately, some of these
containers were not properly investigated, this was despite the CEO being
alerted of a suspected case in 2019.
The enquiry should also look into reviewing the full processes of receiving and
clearing containers including ……process is the weakest link. During private
conversations with some of the employees, there was a sense that commercial
containers for companies such as but not limited to two named companies
received special treatments due to their relationship with the CEO. If this is the
case, then there are a lot of customs duties and fees unaccounted for. A full
inquiry may prove or dispel these allegations.
RESPONSES
a. These allegations are serious and very damaging to the reputation of our Ministry which is government’s major revenue collector from taxes and duties. Therefore, we have no issue for any Commission of Inquiry or further audit investigation by the PSC, Ministry of Finance, Audit Office and the Ministry of Police to seek the truth into these allegations.
b. The private conversations and hearsay by the respondent with those few staff that the author had conversed with but did not investigate further but include them in his report, is quite concerning and very irresponsible too given the responsibility of this Ministry to collect our revenues. Especially when the Audit Office had regularly audited our Ministry and no such issues were found and our Ministry had been working so hard to meet and exceeded their annual targeted revenues every financial year. However, that does not mean the Ministry is 100% perfect, as admittedly, we also have a lot of challenges and risks that are both intrinsic and extrinsic which impacted the effective and efficient operations of the Ministry but it’s a regular and daily effort from all divisions and teams of this Ministry to give it their best hence their achievements. Therefore, I am confident that the Ministry is openly ready for further investigations as recommended by the ‘author’, a task he should have taken during his investigation. Private conversations and private meetings during any investigation process is a risk to the process and must never be considered as valid and factual evidence of the investigation.
c. It is also very concerning the allegations that I allow commercial containers to receive special treatments because of the CEO’s relationship with them, and would like for the author to be open with these allegations so that the Audit office or MOF can investigate given the obvious offence of ‘defraud revenues’ and ‘revenue leakage’. I have said above in my above responses that it is my practice to ensure that any decision I made on a request or issue from the taxpayers/importers, are documented on a formal submission memo prepared by the respective ACEO through the DCEO that would provide their views on the issue(s), the legal basis and then their recommendations before I made an informed decision. Even in cases where I can apply the Comptroller’s discretionary powers, I maintained this practice for transparency and accountability. There are many cases as such and there will be no problem to find evidences, especially on those two companies alleged to have received special treatments.
d. We lead by good examples and never with exceptional rules for the management or for the CEO and the Hon. Minister for that matter. We all abide by the law and for the law. In view of allegations against me in the report, I never once since I was the CEO released any container without documented submission from the DCEO-CS or respective ACEO of Customs to provide me with the technical advice before I made my decision to approve or decline the request of the importer. It’s a long-standing practice I had done since my early years at the MCR and as an accountant/auditor by profession, as I know, all documented evidence is quite important than verbal if there is any investigation by the internal auditor or the Audit Office. When I got requests from closely related relatives, or siblings, or even my best close friends, I passed them over to the respective DCEOs or ACEO of either Customs or IRS to process and actioned in view of usual requirements in our documented SOPs . That is expected of us as management members and leaders to Ministry staff and as required under the MCR’s ‘Code of Conduct’ and ‘Conflict of interest’ frameworks.
Recommendation 3:
The Legal and Investigation division to train the Internal Audit division (MCR) on the full procedure of handling misconduct and poor performance in the public service. The failure to provide the respondent with the right to the allegations and the MCR’s report meant that the allegations were interpreted out of context and blown out of proportion.
RESPONSES
a. If the provisions of the PS Act 2004 as quoted above and the clause 19 of the Contract of Employment document are required to be performed and applied by our Internal Audit division on Contract Officers, then we will be happy to have a refresher training to further improve our application of PSC requirements relating to Contract officers. For the record, the IAD has done a number of ‘misconduct and poor performance’ ministry cases for respective permanent staff, which can be verified from copies required to be sent to PSC for their records. Also, if there was any doubt in any step of the process as provided in the PSC legislation and relevant regulations, both managers or ACEOs of our two divisions never shy from seeking appropriate advice from PSC, either by telephone, email or formally by letter if matter was more complicated. Therefore, we are confident to say that the ACEO-IA is well versed with the said processes relating to permanent staff.
b. We absolutely agreed with the PSC-IO’s comment on the need to provide the contract officer, the respondent, the right to the allegations if he had done the process as required under Clause 19 of the “Contract of Employment for the Contract Employee” and section 32 of the Public Service Act 2004. These requirements and processes are no simple matters for any CO and/or any IO to take for granted and on hearsay without concrete and confirmed evidence, as it is the alleged person’s livelihood that is at stake throughout the process.
c. Hence, we sincerely regret the situation as pointed out by the PSC-IO but we humbly believe it is the PSC jurisdiction to do that step of the process. However, MCR will be willing to be trained as to get these provisions of the PSC legislations correct and not to confuse legal requirements to be applied on permanent staff cases and those on Contract officers.
a. Noted the recommendation for the Ministry to immediately review our current processes in handling commercial and personal effects for further improvements. For the record, there is an ongoing review of all processes in view of our Regional and International Obligations (with OCO, WCO and WTO to name a few) and if the PSC-IO had conducted interviews with relevant personnel in his investigations, the exact part of the process/procedure in question and alleged to be corrupted would have been made clear to him and for him to take copies of the documented SOPs for his records.
Recommendation 5:
For the Commission to caution the CEO and the ACEO Corporate Service that any
further interference with a Commission investigation including witnesses will be
treated as obstruction. The interference on 22 September 2021 was highly
inappropriate as it undermined the Commission’s authority.
RESPONSES
a. Noted the recommendation but humbly advised that there was never any deliberate intention to interfere with the investigation process and that the PSC-IO had also failed to demonstrate curtesy as to simply advise the CEO or DCEO-Customs by email or telephone before the visit into the office premises with the officially suspended respondent. We maintained that we should have been advised so that the CEO, or DCEO-Customs or the Acting ACEO-Border could have joined his investigation visit that morning as to assist with his enquiries. The investigation was not a criminal case that would require a surprised inspection or critical examination and assessment of the ‘murder scene’. The evidence was on our AW system and CCTV video footage. Our team could have directed him to those evidence, in the presence of the respondent, if he had actually done his investigation as required.
b. I understood that the PSC-IO had wanted to interview the respondent within his ‘zone’ or office environment for him to understand the situation and make the right interpretation and recommendation from that context. But how could the PSC-IO know the respondent was telling the truth if none of us was assigned to join or was even been interviewed by him as to form a view if the respondent’s statements were true and correct?
c. Nevertheless, I sincerely apologize for the misunderstanding and regret the inconvenience caused with our sincere undertaking that the MCR will and have always been very compliant with PSC requirements and standards as required of us public servants and public Ministry.
Ma lou fa’aaloalo lava,
Matafeo Avalisa Viali-Fautua’alii
(Former Chief Executive Officer, MINISTRY OF CUSTOMS AND REVENUE)