A former chief justice has dismissed arguments made by Planning Commission chairperson Elizabeth Ellul in response to the suggestion that she had a conflict of interest when she voted on developments involving property magnate Joseph Portelli.
Ms Ellul was fielding questions in a 15-minute phone conversation on whether her husband’s work on some developments of Mr Portelli’s impinged on her impartiality in voting on other developments by Mr Portelli.
Her explanations ranged from asserting that her husband had “never done any work for Joseph Portelli per se” to insisting that she had no cognizance of her husband’s clients, and that she “never goes to his office.”
“I have no conflict of interest because I do not know who my [husband’s] clients are,” she maintained, adding that she could not be expected to check whether applicants ibefore her would have engaged her husband in other projects in the past.
Former chief justice Vincent Degaetano said that while it was not for him to pass judgment without knowing all the facts, he could comment generally about “a strong, albeit rebuttable, presumption that there was very little that husband and wife do not know about each other, including each other's work”.
He pointed out that Ms Ellul and others on planning boards “perform a quasi-judicial function and have to be assessed in the same way that a judge or magistrate is assessed”.
Ms Ellul has resisted widespread clamour for her resignation, including calls made by MEP Alfred Sant and two environmental NGOs.
Pressure on Ms Ellul increased after a fellow member on the planning board, Alfred Pule, resigned for reportedly selling a plot of land to Mr Portelli two years ago and then voting for Mr Portelli’s controversial Qala pool villa six weeks ago.
When questioned, Ms Ellul said her husband Andrew had not been engaged by Mr Portelli “per se”. Pressed on specific developments designed by her husband that belonged to the Gozitan property magnate, she offered the hypothetical situation of her husband having been engaged as an architect by someone who might have in turn sold the development or property to Mr Portelli.
“If you search for an application of Andrew Ellul on [sic] Joe Portelli, you will not find one,” she said. “If after three days you would have sold it [the project] to Joe Portelli, good luck to you.”
Times of Malta found architectural floor plans and site designs of a block of flats in Mellieħa – Dale Apartments – drafted by the studio of Andrew and Ann Marie Ellul, respectively husband and daughter of the commission chairperson. The plans were put up on the Facebook page of J. Portelli Projects about seven weeks before the planning commission granted a development permit.
The application itself was fronted by Clifton Cassar, a partner of Mr Portelli and a third individual, Duncan Micallef, in three companies set up since April 2016.
The three individuals hold equal shares in one of the companies while Joseph Portelli is the majority shareholder in the other two. All companies are registered at the offices of J. Portelli Projects.
The three partners have also publicly been identified as the owners of the so-called Crypto Hotel, a 10-storey office block in St Julian’s that was also designed by Ms Ellul’s husband and fronted in the development application by Mr Cassar.
Ms Ellul maintained that she recuses herself in projects designed by her family members. She was not present in sittings on Dale Apartments and Crypto Tower.
Answering questions about her potential conflict of interest over the Qala pool villa, Ms Ellul suggested it had only emerged that the property belonged to Mr Portelli after a permit had been given and “he said he wouldn’t built it”.
It was pointed out that three months before the vote on the application was taken, The Sunday Times of Malta had reported that Mr Portelli was the majority shareholder in the company that owned the property.
“I do not read them [articles] much,” she countered.
Mr Ellul’s commission has granted permission for various developments marketed by J Portelli Projects that spill over sensitive cliff edges and development lines in Gozo, and which were recommended for refusal in the case officer report.
What is objective bias?
At issue is a type of conflict of interest defined as objective bias. This arises in situations where the possibility of bias, or even a perception of bias, casts doubt on an adjudicator’s impartiality. These situations include the personal interests of adjudicators’ close family members.
Chief Justice Emeritus Degaetano said that the Bangalore Principles of Judicial Conduct, which inspires judicial standards worldwide, “is clear as to the test to be applied for conflict of interest”.
He referred to the part about “impartiality in fact and impartiality in the perception of a reasonable observer. In judicial matters, the test for conflict of interest must include both actual conflicts between the judge’s own interests and the duty of impartial adjudication, and the circumstances in which a reasonable observer would (or might) reasonably apprehend a conflict.”
“For example, although members of a judge’s family have every right to be politically active, the judge should recognize that the political activities of close family members may, even if erroneously, adversely affect the public perception of his or her impartiality.”
The rules of objective impartiality led Mr Justice Mark Chetchuti to revoke a permit for the massive DB project in Pembroke last June after it emerged that the company of PA board member Matthew Pace had marketed or sold flats off-plan before the application had been approved.
Mr Justice Chetchuti held that Mr Pace ought to have recused himself, and that failure to do so and vote for the development meant that the board’s decision on that case had to be nullified even though the subtraction of Mr Pace’s vote would not have changed the balance of votes. Mr Pace then resigned from the PA board.
Mr Justice Chetchuti also criticised board members who had expressed their voting intentions prior to the sitting. This has an implicit bearing on Ms Ellul’s position: she had expressed an intention to approve the Qala pool villa last June when the commission was deliberating the application and then eventually voted for the development when the application was reassigned to the planning board, in which she serves as the deputy chairperson.
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