SHE WON HER CASE. THEY TRIED AGAIN. SHE WON AGAIN. NOW THE PENSION BOARD IS TRYING TO CHANGE THE FUND'S REGULATIONS....
Michelle Rockcliffe vs. the United Nations Joint Staff Pension Board
Michelle Rockcliffe vs. the United Nations Joint Staff Pension Board
UNAT Judgment 20181201 (watch video approx.
minutes 31 to 37, link below, or read transcript).
When Michelle Rockcliffe was elected in 2017 to the Pension
Board as a UN Participant Representative, the Pension Board, pushed by the former Fund CEO, tried to block her membership to the Board on grounds of a conflict
of interest. The United Nations Appeal Tribunal found it her favor and she took
her seat on the Board.
The Pension Fund management and the Pension Board, were relentless. Subsequently, with
help from the Ethics Office, the Pension Board again sought to deny her
membership on the Budget Working Group, on the basis of the same grounds of
conflict of interest which had been vacated by the Tribunal. The UNAT has now
ruled that the actions of the Board were “egregious” in failing to comply with
the UNAT order.
Quote: “The Fund’s actions in this regard are egregious. The ruling
of the Tribunal explicitly ordered that Mrs. Rockcliffe should be allowed to
participate and function as an elected member to the Pension Committee in all
relevant areas including the Pension Board’s constituent groups, committees,
and working groups. ....We thus order that Mrs. Rockcliffe be allowed to participate
as an appointed member of the Budget Working Group without prejudice to her
recusing herself when an actual conflict of interest emerges.”
Note that in response to this case, and in its continued
quest to reduce transparency and oversight of its actions, the Pension Board, spurred on by the Fund management and Board Chair, has
continued its attempt to bar Fund staff from being elected to the Board by
proposing a change to Article 6 of the Fund’s Regulations as well as Article
48, where it’s attempting to limit the jurisdiction of the UNAT. The General
Assembly is apparently not so easily hoodwinked. In para. 20 of its resolution
A/73/274 calling for sweeping reforms in Fund governance, it “Requests the
Board to provide further analysis on the impact of the proposed amendment to
Articles 6 and 48 and to report in the context of the next report.”
Unofficial transcript:
Pronouncement of synopsis of UN Appeals Tribunal (UNAT) Judgments
Pronouncement of synopsis of UN Appeals Tribunal (UNAT) Judgments
Case no. 20181201, Rockcliffe against the United Nations
Joint Staff Pension Board
The crux for consideration and determination of this
application for execution is whether it falls within the scope of the Appeals Tribunal’s
order in its previous judgment issued on Dec 8 2017. In the previous case, the issue of conflict of
interest alleged arose from the fact that Mrs. Rockcliffe had been elected to
the Pension Committee and consequently to the Pension Board while being a staff
member of the Pension Fund. It was
contended that Mrs. Rockcliffe would be overseeing her own work and that of the
CEO of the Pension Fund as well as approving the budget requests and deciding
on appeals against the Fund.
The main findings of the Appeals Tribunal on the merits was
firstly, there was no law then prohibiting Mrs. Rockcliffe from running for
election to the staff Pension Committee; secondly, she was lawfully elected; and
thirdly, Mrs. Rockcliffe should consequently be accorded the same rights and privileges
as the other duly elected Pension Committee members, including participating in
Pension Board sessions and meetings and its constituent groups, committees and working
groups.
We find that although the Appeals Tribunal did not
explicitly address the issue of conflict of interest in the previous judgment,
it implicitly rejected it by applying the law in force at the time. The Appeals
Tribunal stated that at the time when Mrs. Rockcliffe decided to be a candidate
in the election, there was no law which prevented her from being elected to the
Pension Committee. The Appeals Tribunal then held that the Standing Committee’s
decision to prevent her from participating in any form of preparations for the Pension
Board sessions and meetings and its constituent groups, committees and working
groups is not in accordance with the law and is therefore flawed. It ordered that
she should be allowed to participate and function as an elected member of the Pension
Board in all relevant areas including its constituent groups, committees and wording
groups.
Subsequent to the judgment, Mrs. Rockcliffe as a member of
the Staff Pension Committee was appointed by the Board to be a member of the
Budget Working Group. However, her name was removed from the list of its
members based on an opinion from the UN Ethics Office which by and large
repeated the earlier arguments of the Standing Committee which had been vacated
by the Tribunal.
While the argument of retaliation cannot be considered in
the present application for execution of judgment since it was not dealt with
in the previous judgment and cannot be brought to the Tribunal’s attention at
this stage, the grounds to refuse Mrs. Rockcliffe to participate as an
appointed member to the Budget Working Group are basically the same used with
regard to her participation in the Staff Pension Committee, which had already
been rejected by the Appeals Tribunal.
What the Pension Fund seems to seek with the second decision
based on the same argument of conflict of interest is to revisit the underlying
factor and legal premises applicable to Mrs. Rockcliffe’s situation resulting
from her being a staff member of the Fund. The Fund’s actions in this regard
are egregious. The ruling of the Tribunal explicitly ordered that Mrs.
Rockcliffe should be allowed to participate and function as an elected member
to the Pension Committee in all relevant areas including the Pension Board’s constituent
groups, committees, and working groups.
We consider therefore that the previous order is flawed. By preventing her from serving as a Budget Working
Group member, the Pension Fund failed to comply with the UNAT order. Instead
the Pension Fund erroneously concluded that a possible potential conflict of
interest could justify excluding Mrs. Rockcliffe from participating in any
activity of the Budget Working Group. It would have been a better conclusion to
comply with the UNAT order and allow her to participate in said group entirely.
If any specific circumstance brings about an actual conflict of interest, it should
be dealt with as it arises. If there is
indeed a conflict, Mrs. Rockcliffe can then appropriately recuse herself from
that decision and that would be in keeping with the declaration referred to by
the Pension Fund.
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