Public Service Commission Regulations 1968

PART I

1 Interpretation

PART II

2 Secretary and staff

3 Privileged communications

4 Immunity from legal action

5 Powers

PART III

6 Filling of any office

7 Vacant offices

8 Delegated appointments

9 Circulation of notices of vacancies

10 Procedure after circulation under reg. 9

11 Extent of advertising

12 Reasonable time

12A Special exception to regs. 9 to 12 in certain cases

13 Commission may require information

14 Immigration comment

15 Commission to consider all applications

16 Information to immigration

PART IV

17 Cabinet specification of qualifications and emolu ments

18 Principles governing recommendations

19 Disqualification

PART V

20 Probationary period

21 Annual reports

PART VI

22 Misconduct

23 Hearing of charges

24 Decision

25 Suspension

26 Conviction of criminal of fence

27 Appeals

PART VII

28 Staff Medical Board

29 Composition of Staff Medical Board

30 Procedure of Staff Medical Board

31 Retirement in public in terest

32 Premature termination of contract

33 Abolition of office

PART VIII

34 Saving for Criminal Code

35 Improper influence

36 False information

37 Unauthorized disclosure or use of information

"Personnel Officer" means the Personnel Officer in the office of the Secretary to the Cabinet;

"promotion" means the conferment upon an officer of an office to which is attached a higher salary or a higher grade or a grade with a higher maximum salary than that which attaches to the office to which he was last substantively appointed and includes the upgrading of an office of which the officer is the holder and in which the officer continues as the substantive holder after the upgrading;

"seconded officer" means an officer seconded for service in an of fice by an authority outside Bermuda for a fixed period;

"the Secretary" means the Secretary of the Commission;

"transfer" means the substantive appointment, other than by way of promotion, of an officer holding an established office to another established office.

(2) These Regulations shall, where the context so requires or permits, be construed as one with orders made under section 32 of the Police Act 1974 [title 10 item 21], rules made under section 32 of the Prisons Act 1979 [title 10 item 32] and General Orders of the Government for the time being in force.

PART II

STAFF, PROTECTION, PRIVILEGE
AND POWERS OF THE COMMISSION

Secretary and staff

2 (1) There shall be a Secretary of the Commission, appointed by the Governor acting in his discretion, who shall be the senior adminis trative officer of the Commission.

(2) There may be appointed such other officers to assist the Secretary in the discharge of his duties as may be authorized by the Governor.

[regulation 2 amended by 1998 : 20 effective 18 June 1998]

Privileged communications

3 (1) Any report, statement, record or other document which is prepared by, or on behalf of, or for the purposes of the Commission or which is a communication to or from the Commission, or any member thereof acting in the course of his duties as such, shall be privileged in that in the event of legal proceedings no person shall be required to make discovery of such document or to produce it for inspection if the Governor, acting in his discretion, certifies that such discovery or pro duction is not in the public interest.

(2) No person in any proceedings may be required to answer any interrogatory if the Governor, acting in his discretion, certifies,

(a) that the answer relates to the performance of the func tions of the Commission or of a member of the Commis sion or the performance of functions by an officer acting on behalf of, or for the purposes of the Commission; and

(b) that it is not in the public interest that such interroga tory should be answered.

Immunity from legal action

4 The Chairman and any member of the Commission shall have the like protection, privileges and immunities from legal action for any thing done or omitted to be done by him in the performance of his func tions as a judge of the Supreme Court in the performance of his func tions as such.

Powers

5 (1) The Commission may —

(a) require any officer to appear before it and give evidence on any matter before the Commission, and the Commis sion may require such evidence to be given on oath; and

(b) require the production of any document within the cus tody or control of any officer which, in the opinion of the Commission, relates or is likely to relate to any matter before the Commission.

(2) Without prejudice to the generality of paragraph (1)(b) any officer who is concerned with any submission for the consideration of the Commission shall forward to the Commission any document in his custody or control which is relevant to such submission.

(3) Any officer who fails to comply with a requirement imposed upon him under paragraph (1) or, without reasonable cause. fails to act in accordance with paragraph (2) or in accordance with any request lawfully and properly made by the Commission shall be guilty of a breach of dis cipline and subject to proceedings accordingly if the Commission so rec ommends.

PART III

PROCEDURE ON VACANCY
OR AWARD OF SCHOLARSHIP

Filling of any office

6 (1) The following provisions of this Part shall apply to the filling of any office which the Commission is informed should be filled.

(2) For the purposes of this Part, the expression "fill an office" shall be read and construed as referring to the appointment to an office including the renewal of the agreement of a contract officer and the award of any scholarship, bursary or other financial assistance towards any academic or training course, where it is a condition that the person to whom the scholarship, bursary, or financial assistance is awarded shall serve in an office.

Vacant offices

7 Upon an office becoming vacant, or where it becomes apparent that any office will become vacant, then the Head of Department shall so advise the Personnel Officer in writing and, if it is an office which should be filled, the Personnel Officer shall inform the Commission accordingly.

Delegated appointments

8 Where the office to be filled is one in relation to which powers to make the appointment have been delegated to some other person, that person, having satisfied himself that the office is one which should be filled and having informed the Personnel Officer accordingly, shall pro ceed to fill the office acting in accordance with the principles and for malities set out in this Part and Part IV in so far as they are applicable:

Provided that all advertisements referring to offices to be filled shall be approved and placed by the Personnel Officer:

And provided further that the Commission may authorize the person to whom such powers have been delegated to dispense with the compliance with any formalities in relation to any particular office or any class of office.

Circulation of notices of vacancies

9 (1) The Commission shall, unless it is satisfied that there is good and sufficient reason not to do so, cause to be circulated to every Department notice of all offices to be filled except vacancies which relate to offices which are paid on an hourly, daily or weekly basis; and such notice shall invite applications from officers qualified to be appointed to the vacant office.

(2) All applications made as a result of a notice circulated un der paragraph (1) shall be forwarded through the Head of Department and shall be accompanied by a report from the Head of the Department to which the applicant is appointed stating whether or not he recom mends the applicant.

Procedure after circulation under reg. 9

10 After considering any application that may be made as a result of the notice circulated under regulation 9(1), the Commission shall cause the vacancy to be advertised in accordance with regulation 11 but need not do so if it is of the opinion that there is a good and sufficient reason in the particular case why the vacancy should not be advertised.

[Regulation 10 substituted by BR 33/1997 effective 6 June 1997]

Extent of advertising

11 Where an office is advertised —

(a) it shall be advertised in such manner in Bermuda as, in the opinion of the Commission, is likely to be sufficient to bring to the attention of persons possessing Bermu dian status who may be qualified to fill the office; and

(b) it may be advertised in such manner as, in the opinion of the Commission, is likely to be sufficient to bring it to the attention of other persons who may be qualified to fill the office:

Provided that no office shall be advertised under paragraph (b) before such time as it has been advertised under paragraph (a).

Reasonable time

12 The Commission shall not make a recommendation to the Gov ernor until such reasonable time has elapsed for such persons who have seen the notice if any circulated under regulation 9 or the advertise ments referred to in regulation 11 to make application for appointment to the office.

Special exception to regs. 9 to 12 in certain cases

12A Where the Commission considers that a candidate for an office is fit for appointment to another office which is vacant, the Commission may recommend him for appointment to that other office even if the vacancy has not been notified or advertised under regulations 9 to 12.

[Regulation 12A inserted by BR 33/1997 effective 6 June 1997]

Commission may require information

13 The Commission may require any applicant to —

(a) submit to it such information and documents; and

(b) attend for such interview, examination and tests as, in the opinion of the Commission, are necessary to estab lish that the applicant is qualified for, and capable of performing the functions of, the office to which his appli cation relates.

Immigration comment

14 Where the Commission has under consideration the recommen dation of a person, who needs permission under section 60 of the Bermuda Immigration and Protection Act 1956 to engage in gainful occupation in Bermuda, to fill an office, the Commission shall, before making that recommendation, invite the Minister for the time being re sponsible for immigration affairs (hereinafter referred to as "the Minis ter") to comment thereupon and the Commission shall take into account any comment by that Minister before making its recommendation.

[Regulation 14 amended by BR 33/1997 effective 6 June 1997]

Commission to consider all applications

15 The Commission shall consider all applications received within the reasonable time referred to in regulation 12 and, acting in accor dance with Part IV and any other law, shall, if there is a candidate of sufficient merit to enable it to do so, make a recommendation to the Gov ernor.

Information to immigration

16 The Commission shall make available to the Minister such in formation relating to persons recommended by the Commission for ap pointment to an office as may reasonably be required by the Minister in the discharge of his functions in relation to immigration to Bermuda.

PART IV

PROCEDURE FOR MAKING APPOINTMENTS

Cabinet specification of qualifications and emoluments

17 (1) Subject to these Regulations the qualifications for any office shall be those for the time being specified by the Secretary to the Cabinet for that office or for the class or grade to which that office belongs and no person shall be recommended by the Commission for appointment thereto who does not possess such qualifications,

(2) The emoluments attaching to any office shall be such as may be approved by the Cabinet after consultation with the Joint Grad ing Panel appointed by the Premier, and no person shall be recom mended by the Commission for appointment to an office except at the salary so approved for that office or at a salary in a scale so approved for the class or grade to which that office belongs.

Principles governing recommendations

18 (1) This regulation states the principles that apply where under section 82 of the Constitution the Commission is to make a recommendation to the Governor about an appointment to an office.

(2) Subject to this regulation, the person who in the Commission's opinion is the best candidate shall be preferred.

(3) The Commission shall not recommend a person for appointment to an office if he is not fit to be appointed.

(4) For the purpose of appointment to an office, a person with Bermudian status ("a Bermudian") who is not already an officer shall, other things being equal, rank equally with a Bermudian who is already an officer unless the Commission for special reasons decides otherwise in the particular case.

(5) Subject to paragraph (11), the Commission shall not recommend a person for permanent appointment to an established office if he is not a Bermudian.

(6) A Bermudian shall be preferred to a person who is not a Bermudian ("a non-Bermudian").

(7) Where a non-Bermudian—

(a) is the spouse of a Bermudian; and

(b) is by virtue of section 60(1)(c) of the Bermuda Immigration and Protection Act 1956 exempt from the need to obtain permission to engage in gainful occupation in Bermuda,

he shall be preferred to any other non-Bermudian who is not such a spouse so exempt.

(8) Where in a competition for an office—

(a) one of the candidates is in a higher category of preference under this regulation than another candidate; and

(b) the candidate in the higher category of preference is fit to be appointed,

the Commission shall recommend the candidate in the higher category of preference even if the other candidate is more fit or no less fit.

(9) Except as allowed by paragraphs (10) and (11), the Commission shall not recommend a non-Bermudian for appointment to an office for a term exceeding three years.

(10) The Commission may recommend a non-Bermudian for appointment to an office for a term exceeding three years but not exceeding five years if either—

(a) the Commission for special reasons sees fit in the particular case; or

(b) the office in question is an office in the Police Force.

(11) Notwithstanding paragraphs (5), (9) and (10), where a non-Bermudian has been employed for a period of not less than five consecutive years as an officer in the Police Force, the Commission may recommend him for permanent appointment to an established office in that Force.

[Regulation 18 substituted by BR 33/1997 effective 6 June 1997]

Disqualification

19 Any person who —

(a) canvasses any member of the Commission or any mem ber of either House of the Legislature, either directly or indirectly in connection with the appointment of any person to any office; or

(b) fails to provide such information or documents as are reasonably required by the Commission; or

(d) knowingly misleads the Commission, or causes or con spires with any other person to mislead the Commission, in connection with the application to any office,

shall be disqualified for an appointment to an office.

PART V

PROBATIONARY APPOINTMENTS AND REPORTS

Probationary period

20 (1) Every appointment to an established office upon permanent and pensionable terms shall be made in accordance with the recommen dation of the Commission subject to probation for a period of six months in the first instance:

Provided that every such appointment to an office in the Police service, whether or not on pensionable terms, shall be made in accor dance with the recommendation of the Commission subject to probation for a period of three years unless the appointment is made on promotion or transfer from within the Police service of Bermuda.

(2) The Head of Department, or some other senior officer of his department designated by him, shall submit in writing to the Commis sion at two-monthly intervals throughout the probationary period a re port upon any officer in his department who is subject to probation as to his aptitude, suitability and performance of his duties.

Provided that, in the case of a police officer, reports shall be so submitted at six-monthly intervals.

(3) Where any appointment to an office is subject to probation, the Commission may at any time before the period of probation has ex pired, either of their own motion or at the instance of the Head of De partment, recommend to the Governor that the appointment be termi nated forthwith.

(4) After considering all the reports submitted under paragraph (2) and such other reports or representations as it regards as necessary, the Commission shall either—

(a) record that the appointment of the officer is confirmed at the expiry of his period of probation; or

(b) order that the period of probation be extended for such further period as the Commission may specify; or

(c) recommend to the Governor that the appointment of the officer be terminated at the expiry of the period of pro bation.

(5) Where the appointment of an officer is to be terminated in accordance with either paragraph (3) or paragraph (4) and the officer concerned was, prior to his appointment, the substantive holder of an other established office, the Commission shall further recommend to the

PART VI

DISCIPLINARY PROCEDURE AND APPEALS

Misconduct

22 (1) Where a Head of Department considers it necessary to in stitute disciplinary proceedings against any officer holding an estab lished office (in this Part referred to as "the accused officer") on grounds of misconduct which if proved would justify his dismissal from office or other disciplinary penalty, the Head of Department shall cause such pre liminary inquiry to be made as he considers necessary and report the facts in writing to the Secretary to the Cabinet.

(2) The Secretary to the Cabinet shall consider every report so made and if he is satisfied that a prima facie case of misconduct exists, he shall, after consulting the Attorney-General as to the wording of the charges, serve on the accused officer a statement of the charges of mis conduct against him together with a brief statement of the grounds on which they are based and shall invite the accused officer to state in writing, within a reasonable time to be specified, any grounds on which he relies to exculpate himself.

Hearing of charges

23 (1) If the accused officer does not furnish a reply to a disci plinary charge served on him or if his reply is considered unsatisfactory, the Secretary to the Cabinet shall forward the papers to the Commission so that a hearing of the matter may be held.

(2) The Commission may appoint a Tribunal consisting of ei ther one or three officers to hear the evidence relating to the charges and to report to the Commission whether or not the charges or any of them are found proved:

Provided that the Commission may, if it thinks fit, itself hear and determine the charges and the evidence relating thereto in any particular case instead of appointing a Tribunal.

(3) At a date and place specified in writing served on the Head of Department and on the accused officer the Tribunal or the Commis sion, as the case may be, shall consider the charges and any evidence which may be adduced in support thereof, and shall give the accused of ficer an opportunity to be heard and to adduce evidence in his defence.

(4) The accused officer and the Head of Department may be repre sented at any hearing held under this regulation by either—

(a) a barrister and attorney; or

(b) an officer; or

Decision

24 (1) Upon receipt of the report of a Tribunal or after itself con ducting a hearing in accordance with regulation 23, the Commission shall consider, in respect of each charge found to be proved, its recom mendation as to the punishment, if any, which shall be imposed on the accused officer, and shall forward its recommendation together with the record of the proceedings including any report of the Tribunal to the Governor.

(2) The determination of the Tribunal or Commission, as the case may be, on each charge shall be notified to the accused officer, but not the reasons for the decision nor the nature of any recommendation made.

Suspension

25 (1) The Secretary to the Cabinet if he considers that the public interest so requires may at any time direct that an officer who has been charged with a criminal offence or with a disciplinary offence be sus pended from duty pending the hearing and determination of the charge.

(2) An officer suspended from duty under this regulation shall receive such emoluments. not being less than one half of his normal emoluments, as the Secretary to the Cabinet thinks fit.

(3) Where any proceedings against an officer do not result in his dismissal, any emoluments withheld from him under this regulation shall be restored to him when the final decision is made unless those emoluments are withheld from him as a disciplinary punishment.

Conviction of criminal offence

26 (1) Where an officer has been convicted of a criminal offence the Commission may, having regard to the seriousness of the offence, recommend to the Governor that he be dismissed forthwith, and in that case it shall not be necessary to institute disciplinary proceedings under this Part.

(2) Where an officer has been convicted of a criminal offence and is dismissed in accordance with this regulation, he shall with effect from the date of conviction be paid only such emoluments, if any, as the Commission may direct, but any emoluments so withheld from him
shall be restored if the conviction is quashed on appeal.

Appeals

27 (1) Any officer aggrieved by the exercise in his case of disci plinary powers under the Public Service (Delegation of Powers) Regula tions 1968 [title 2 item 1(c)] may exercise his right of appeal by giving no tice in writing to the Commission and to the person who made the deci sion or award within fourteen days of the date when it was first notified to him.

(2) The Commission may call for a report on the case from the person who made the decision or award against which an appeal is lodged and shall take the matter into consideration at a meeting, but neither the officer appealing nor the person who made the decision or award shall be entitled to appear before the Commission unless it other wise orders.

(3) The Commission may on consideration of an appeal under this regulation confirm, vary or reverse the award or decision appealed against or may remit the matter for re-hearing to the person who made it, with or without any observations which it thinks fit to make. The deci sion of the Commission on any such appeal shall be final.

PART VII

REMOVAL FROM OFFICE

Staff Medical Board

28 Where any question arises of whether or not an officer is inca pable by reason of some infirmity of mind or body of discharging the du ties of his office and whether such infirmity is likely to be permanent, the Commission shall refer such question to a Staff Medical Board estab lished under regulation 29 for their report on such questions.

Composition of Staff Medical Board

29 (1) The Staff Medical Board shall consist of—

(a) The Chief Medical Officer, who shall be chairman; and

(b) two other qualified medical practitioners, who are not officers, appointed by the Governor acting in his discre tion and whose appointments shall be at the Governor's pleasure.

(2) Fees shall be paid to members of the Staff Medical Board in accordance with the Government Authorities (Fees) Act 1971 [title 14 item 6].

Procedure of Staff Medical Board

30 The Staff Medical Board in considering any question referred to it shall give notice to the officer concerned that they intend to consider such a question and shall give him an opportunity to be heard and ad duce evidence before reporting to the Commission their opinion on such question.

Retirement in public interest

31 (1) Where a Head of Department considers that it is desirable in the public interest that an officer holding an established office should be required to retire from the public service on grounds which cannot suitably be dealt with under any other regulation, he shall report the matter to the Secretary to the Cabinet.

(2) The Secretary to the Cabinet may obtain reports from senior officers under whom the officer concerned has served, as to his work and conduct, and shall allow such officer to consider such reports and shall allow him to show cause why he should not be retired and to make a written statement if he so desires.

(3) The Secretary to the Cabinet shall forward to the Commis sion all reports obtained under this regulation together with any state ment of the officer concerned and his own observations and the Commis sion shall thereupon recommend to the Governor whether or not the offi cer should be retired.

(4) Where the Public Service Superannuation Act 1981 [title 9 item 31] or other relevant statutory provision permits the grant of a pen sion gratuity or other allowance to an officer who is being retired under this regulation, the Commission shall also recommend to the Governor whether or not any such pension, gratuity or allowance should be granted to the officer upon his retirement.

(5) Whenever the Commission decides to recommend to the Governor that an officer should be retired from the public service the Secretary to the Commission shall forthwith inform the officer in writing that such recommendation is being made.

Premature termination of contract

32 (1) Where an officer is serving under a contract which provides for termination by notice before the expiration of the period of service stipulated therein and the Head of Department considers that the con tract should be so terminated, he shall report the matter in writing to
the Commission and the Commission shall recommend to the Governor whether such course be taken.

(2) In any ease where the Commission recommends to the Gov ernor that a contract of service of an officer should be terminated pre maturely and the contract provides for payment of a gratuity on comple tion of satisfactory service, the Commission shall further recommend whether the whole or part only or no part of the gratuity should be paid to the officer concerned.

Abolition of office

33 (1) Where an established office, being one of a number of such offices, is abolished but one or more of such offices remain, the Head of Department shall report to the Secretary to the Cabinet as to which of the substantive holders of such offices shall have his appointment ter minated. The Secretary to the Cabinet shall forward the report with his observations to the Commission which shall thereupon make its recom mendations to the Governor.

(2) In making its recommendation under this regulation the Commission shall act upon the following principles—

(a) that an officer appointed on contract shall have his ap pointment terminated in preference to any officer serving on the pensionable establishment; and

(b) that officer who do not possess Bermudian status shall be retired before officers who do possess that status are required to retire.

PART VIII

OFFENCES IN RELATION TO THE
FUNCTIONS OF THE COMMISSION

Saving for Criminal Code

34 The provisions of this Part shall be without prejudice to any pro visions of the Criminal Code [title 8 item 31].

Improper influence

35 Any person who otherwise than in the course of his duty directly or indirectly by himself or by any other person in any manner whatso ever influences or attempts to influence any decision of the Commission or of the Chairman or of any member or any person acting under delega tion powers commits an offence:

Punishment on summary conviction: imprisonment for 6 months or a fine of $360 or both such imprisonment and fine.

Provided that nothing in this regulation shall prohibit any person who may properly do so from giving a certificate or testimonial to any applicant or candidate for any office or from supplying any information or assistance upon formal request by the Commission.

False information

36 Any person who in connection with any application by any per son for employment in, or promotion to, an office or with any matter upon which it is the duty of the Commission to advise, or make a rec ommendation to the Governor or to make any decision, wilfully gives to the Commission or to any member thereof, or to any person or body of persons appointed by any regulation or by any competent authority to assist the Commission in the exercise of its functions or the discharge of its duties, any information which he knows to be false or does not believe to be true, or which he knows to be false by reason of the omission of any material particular, commits an offence:

Punishment on summary conviction: imprisonment for 1 year or a fine of $720 or both such imprisonment and fine.

Unauthorized disclosure or use of information

37 (1) Neither the Chairman or any member nor any other person shall without the written permission of the Governor publish or disclose to any person otherwise than in exercise of his functions under these Regulations the contents of any documents, communication or informa tion whatsoever which has come to his notice in the course of his duties under these Regulations or the Constitution [title 2 item 1] in respect of any matter re ferred to the Commission or dealt with by an officer holding a delegated authority, and any person who knowingly acts in contravention of this regulation commits an offence:

Punishment on summary conviction: imprisonment for 1 year or a fine of $720 or both such imprisonment and fine.

(2) If any person having possession of any information which to his knowledge has been disclosed in contravention of paragraph (1) pub lishes or communicates to any other person otherwise than for the pur pose of any prosecution or proceedings under these Regulations any such information, he commits an offence:

Bermuda Consolidated Legislation

Public Service Commission Regulations 1968