OBA candidate and Shadow Finance Minister Bob Richards. *File photo.
OBA candidate and Shadow Finance Minister Bob Richards. *File photo.

SUNDAY, DECEMBER 16: OBA candidate Bob Richards, embroiled in a row over the declaration of government contracts, could face a retroactive court challenge to his eligibility to stand if he wins Devonshire East in tomorrow’s General Election.

And it is understood that up to five other candidates — including an Independent — might have fallen foul of strict rules governing the pre-election declaration of business interests involving Government.

A court ruling against Shadow Finance Minister Mr Richards — if he wins the seat — could result in the vote being declared void, forcing a by-election.

The matter is not straightforward and it is clear to the Bermuda Sun that different advice has been given by lawyers about the issue.  

Under the Bermuda Constitution, all candidates for political office have to publicize some categories of business links with Government to be eligible to stand.

It is understood that the Parliamentary Registrar’s office sought outside legal opinion and it concluded that Mr Richards should have declared an interest relating to his Bermuda Information Technology Services (BITS) work for Government.

Asked about the matter today, Mr Richards told us: “That’s in the hands of my lawyer and I don’t have any comment.”

Mr Richards does not appear to have declared an interest in the IT company’s Government business prior to this election. The OBA said in a statement on Friday that it was not required under the rules and that legal opinion had backed that up.

It is understood, however, that as election day is so close, the controversy would be dealt with afterwards, in Supreme Court.

A petition to review the constituency result could be lodged by any member of the public or by the PLP.

A spokesman for the OBA said today: “That will happen if it happens — but the election will be going ahead in that constituency.

“We can’t really comment on something which hasn’t happened or may not happen, but if they want to do that, they can do it.”

We asked for comment from Government’s Department of Communications and Information, which handles media enquires on behalf of the Parliamentary Registrar, but none was forthcoming.

We also sought official comment on the latest developments from the Premier and the PLP, but to no avail.

No details were available today on the other five candidates who might have raised a red flag.

Mr Richards, who was MP for Devonshire East in the last Parliament, listed himself as president of BITS in his last declaration in the MPs’ register of interests.

He further lists shareholdings in the company “greater than one per cent of the issued share capital of the company or body”.

He declared the interest prior to the 2007 election, when he stood for the then-UBP, in a newspaper advert, alongside many of his colleagues.

The row was sparked when PLP chairman Anthony Santucci issued a statement on Friday calling into question the eligibility of Mr Richards and Warwick South East OBA candidate Jeff Sousa to stand.

We understand that it has been determined that Mr Sousa is in the clear and did not have to make a declaration.

An OBA statement on Friday night said: “Under the legislature (Qualifications and Disqualifications) Act, One Bermuda Alliance candidates have confirmed to the party that they have no interests to declare.

“More specifically, in light of continuing attacks by Mr Santucci and his colleagues, MR ET (Bob) Richards has taken advice from senior legal counsel and his opinion is that Mr Richards is clearly not disqualified and that the Parliamentary Registrar has no authority to declare him or any other candidate disqualified.”

The statement added: “The continuing PLP campaign of distortion, lies and spin is a desperate attempt to distract voters from the real issues facing Bermuda.

“It is telling these attacks came the same day that Anchor Investment Management’s Bermuda economic update warned of a potential ‘debt crisis’.

“The One Bermuda Alliance will not be sidetracked from our mission to build a better Bermuda based on social and economic equity for all, leaving no one behind, with good-paying jobs, safe neighbourhoods, great schools and making Bermuda affordable.”

The Constitution says: “Subject to such exceptions and limitations as may be prescribed by the Legislature, a person shall not be qualified to be elected as a member of the House of Assembly if he has an interest in any Government contract and has not, within seven days of his nomination as a candidate for election, disclosed the nature of the contract and his interest therein by means of a notice published in the Gazette or in a newspaper published and circulating in Bermuda.”

Section 10 of the Legislature (Qualifications and Disqualification) Act, however, says: “A person who contracts for the supply of goods or services by or to the Government in the ordinary course of conduct of a trade, business or profession, or for the purchase, lease or use of Government property upon terms and conditions which are standard for any member of the public, shall not be deemed thereby to have any interest in a Government contract.”

If a challenge were made to Mr Richards's eligibility after the election, the issue would then have to be decided by the Supreme Court. The court would have to consider whether Mr Richards had retained his interest in BITS and which of the above pieces of legislation governs the position. The outcome is uncertain.

Mr Richards won the Devonshire East seat in 2007 with 402 votes against the PLP’s Neville Tyrrell’s 375. He will face off against Mr Tyrrell again tomorrow.