THE non-disclosure agreement (NDA) that formed part of the $150,000 settlement between the Ministry of Sport and Youth Affairs (MSYA) and former minister Darryl Smith’s sexual harassment accuser, Carrie-Ann Moreau, was designed to prevent any mention of Moreau’s sexual harassment allegations against Smith.
The confidentiality document was prepared by attorney Michael Quamina, who is chairman of Heritage Petroleum Company, and the ministry’s Legal Officer II, Judith Joseph.
It is loosely modelled on a similar document prepared by Quamina for the Ministry of Energy.
And the NDA that gags Moreau also “unusually” muzzles her family as well as officials of the Advocate Trade Union (ATU).
These are among the findings the three-member investigating committee appointed by Prime Minister Dr Keith Rowley to investigate the circumstances surrounding the dismissal and payment of compensation to Moreau and the allegations of sexual harassment against the former sport minister.
The committee found that the idea of an NDA as part of the wrongful dismissal settlement came a mere five days after a conciliation meeting at the Ministry of Labour where Moreau alleged sexual harassment by Smith as the reason for her dismissal as his personal secretary.
The investigators, led by Jacqueline Wilson, identified an e-mail dated August 3, 2016, sent by Senior State Counsel in the Ministry of Energy Louise Poy Wing to Sport Ministry’s Legal Officer II Judith Joseph, which contained a guide for the preparation of the NDA that binds Moreau, her family and the union.
The NDA was executed on January 26, 2017 and remains in effect.
The committee found that the NDA is loosely based on a similar document prepared by Quamina for the Ministry of Energy in 2016.
That document was sent by Poy Wing to Joseph who in turn drafted the Moreau NDA.
Joseph’s draft was revised by Quamina.
In its report submitted to the Prime Minister on June 4, 2018, which has been obtained by the Express, the committee found that the confidentiality agreement contained provisions well beyond the guide e-mailed by Poy Wing.
“We note that the precedent provided by Ms Poy Wing contained only one non-disclosure provision which was similar in terms to that part of clause 6 of the Settlement Agreement...” the committee wrote.
“If the dismissal of Ms Moreau were limited to the facts that it was verbal and summary dismissal (as opposed to sexual harassment), clauses 1 to 4 of the Settlement Agreement would have been superfluous,” the committee analysed. “Clauses 1 to 4 of the Settlement Agreement were required because of the allegations of sexual harassment which Ms Moreau had raised in her trade dispute and particularised in her evidence and arguments which had, by the date of the Settlement Agreement, been filed in the Industrial Court.
“Those clauses were included to prevent any mention by Ms Moreau, her family members and the ATU of her allegations of sexual harassment against the former Minister. In any event, as the subsequent publications in the media showed, the Settlement Agreement was ineffectual for the purposes contemplated,” stated the investigators’ report.
The first mention of Quamina’s involvement in the case came in early August 2016, after the Ministry of Labour’s conciliation meeting at which sexual harassment allegations against Smith were raised by the trade union representing Moreau.
Both then-permanent secretary Joan Mendez and Smith himself testified to the investigators that Quamina was acting for Smith, not the sport ministry.
Quamina, however, testified that he was acting on behalf of the ministry.
The Committee made no finding about whom Quamina was representing, if he was paid, by whom, how much and when.
On October 3, 2016, Quamina met with Moreau and her union representative, Teddy Stapleton, at Quamina’s chamber.
Quamina says he was instructed by MSYA legal officer Judith Jones to offer the $150,000 settlement.
The Committee found Quamina must have known about the sexual harassment allegations against Smith when he became involved in the case.
“The former Minister told us that Mr Quamina was acting for him in the matter. The Settlement Agreement was prepared by Ms Joseph and was revised by Mr Quamina prior to its execution by the parties on the 26th of January 2017. It was Mr Quamina’s impression that the agreement was heavily weighted as a confidentiality agreement and that he considered it necessary to insert provisions for Ms Moreau to release and discharge the MSYA from any further claims by Ms Moreau relating to the termination of her employment.
“We do not accept that the former Minister made no mention to Mr Quamina when he solicited Mr Quamina’s assistance that allegations of sexual harassment had been made against him by Ms Moreau.
“There was no need for Mr Quamina’s involvement otherwise...”
The Moreau NDA
The Settlement Agreement contained the following non-disclosure and confidentiality provisions:
“Confidential Information” means information relating to Trade Dispute 519/2016 including but not limited to the Consent Order and the Settlement Agreement heretofore (in whatsoever form including without limitation orally, written, in electronic, tape, disk, physical or visual form) relating to the Agreement, and all information of any kind (directly or indirectly) disclosed after the date of this Agreement to any person or entity. Confidential Information does not however include the submission of a resignation letter by Ms Moreau and the acceptance of same by the Ministry.
2. UNDERTAKING TO KEEP THE AGREEMENT CONFIDENTIAL
Ms Moreau agrees to procure that the Union and her immediate family comply with the terms of this Agreement as if they were a party to this Agreement. In the case of Ms Moreau’s Union representatives, the fact of and terms of this Agreement can only be disclosed to the extent required by the Union rules so long as those rules only require disclosure to Union officials or advisors and not the wider union membership.
3. EXCEPTIONS TO EMPLOYER’S UNDERTAKING TO KEEP THE AGREEMENT CONFIDENTIAL
The Ministry undertakes to Ms Moreau to keep the existence, negotiations and terms of this Agreement confidential, except for the purposes of human resource management, accounting and audit processes or where required by law, by Parliament or by the Government for Financial Reporting and/or the Chief Personnel Officer and Attorney General of Trinidad and Tobago on settlement agreements.
4. ANNOUNCEMENTS AND RETURN OF INFORMATION
There shall be no disclosure, public announcement or discussions in relation to the Confidential Information unless such announcement or discussion is required by law or regulation.
6, RELEASE AND DISCHARGE
IN FURTHER CONSIDERATION HERETO THE PARTIES HEREBY ACKNOWLEDGE, COVENANT, UNDERTAKE AND AGREE that they will NOT in any way communicate, or correspond or otherwise disclose, make or publish any adverse or negative comment or reflection on each other, or on the manner of Ms Moreau’s former employment with the Ministry including the resignation thereof, the circumstances and/or the negotiations surrounding this Agreement, the fact of this Agreement of Release and Discharge and any of the contents of the same. In particular, the parties agree to use their best endeavours not to make, permit or cause to be made any statement, whether of fact, belief or opinion, which directly or indirectly, disparages, or is inimical to or damages the reputation of either Party.