MEPA whistleblower gets justice in court, 15 years later

This article has been corrected.

It’s been 14 years coming, but a whistleblower who took his own employer to court on various grievances has won his umpteenth court case against the Malta Environment and Planning Authority.

Tony De Gaetano was MEPA’s head of legal services in 2000, but when he decided to take the authority to court for issuing a permit which he believed had been illegal, he ended up being reprimanded and then assigned to handle the authority’s appeals cases while his workload was transferred elsewhere.

Since then, De Gaetano – still a MEPA employee – has won defamation cases against MEPA officials, reversed his reprimand, and finally obtained a court’s confirmation that the MEPA permit issued back in 1998 had in fact been illegal.

His sidelining by MEPA also opened the door to one of the most lucrative legal contracts on the island – President Emeritus George Abela’s (former) legal firm Abela Stafrace & Associates (now Abela Advocates) was given the authority’s caseload, a contract that has been renewed without question since then.

The latest court decision, confirming the illegality of the 1998 permit and exposing the efforts made by MEPA’s officials in covering up its irregularity, had been deferred for years by Mr Justice J.R. Micallef, before finally ending up in Madame Justice Lorraine Schembri Orland’s lap who finally settled the matter last week.

15 years of court action and MEPA’s most lucrative contract

To take in the magnitude of this legal battle, one has to appreciate that De Gaetano was well versed in the law of the land. He decided to wage a campaign that saw him opening him legal cases on every single front: defamation, unjust reprimand, injunctions against MEPA, criminal action against falsification of plans, damages for illegal works… a blitzkrieg of writs, warrants for injunction, and civil and criminal complaints.

The case dates back to 1998, when De Gaetano claimed that the next-door development that left his home wall exposed to the elements had been secured on a MEPA permit based on falsified architectural plans.

De Gaetano filed an ordinary citizen’s complaint to MEPA to report that Raymond Farrugia had filed false plans to secure the permit.

Instead, De Gaetano was accused by the director of planning, and later MEPA director-general Godwin Cassar, of having himself filed a false report – an accusation that was made without any disciplinary hearing, and was also entered into his personal work record.

The gravity of the allegation led De Gaetano to launch two criminal libel cases and also a civil case. In 2005, a magistrate declared that the MEPA lawyer had made “no false, untrue or incorrect reports”; in 2008, a civil court decision that found the accusation was made without fair hearing was confirmed on appeal; and then in 2010, Godwin Cassar (incidentally, brother to current MEPA chairman Vince Cassar) admitted to having accused De Gaetano “incorrectly”.

There was also a police challenge that De Gaetano filed, which in 2005 saw the court finding prima facie evidence that Raymond Farrugia had made false reports and that the police had refused to take action against Farrugia. Under court order, the police started criminal proceedings against the architect.

In the legal battle that ensued, De Gaetano also secured the court’s prohibitory injunction to stop MEPA from regularising Farrugia’s illegal development in September 2000. In two separate decisions in 2001 and 2004, Mr Justice J.R. Micallef rejected all MEPA’s pleas to revoke the injunction, but never took a decision to declare the original MEPA permit illegal.

De Gaetano also filed a civil case against Raymond Farrugia for damages against him and for restoration of damaged property during the execution of the illegal permits. The decision is currently under appeal.

On 27 March 2014, the courts upheld De Gaetano’s plea that the original 1998 MEPA permit was unlawful. The court remarked that even MEPA officials testifying in the case had expressed their surprise at how the MEPA permit was approved on the same day that it was published for notification in the newspapers – on a Saturday, when MEPA offices happen to be closed.

Even more importantly, the court declared that MEPA’s subsequent attempts to rectify the permit were done illegally, with the aid of certain authority officials and in full knowledge that false plans had been submitted for the permit to be issued.

The court annulled all the permits issued on the site since 1998, and called for MEPA to take action in line with the law and follow up on its enforcement.

Lucrative outsourcing

While De Gaetano may wryly toast his 15-year battle with MEPA, his painstaking campaign through the Maltese justice system ambled at a snail’s pace – a reminder of the kind of hardship endured by so many people trying to secure their rights in long, expensive court cases.

MEPA’s umbrage at being challenged by its own head of legal services did not stop it from ‘sidelining’ him to handle appeals cases, while outsourcing its caseload to Abela Stafrace & Associates.

Ian Stafrace was later made chief executive of MEPA in 2010 under the reform led by the Nationalist administration at the time. Abela Advocates were still retained as MEPA’s legal consultants, now led by Robert Abela and his wife Lydia Abela (today secretary of the Labour Party executive committee).

The retainer appears paltry but it is in fact bolstered by a handsome hourly rate that runs into the thousands due to the hours clocked up in during work carried out inside the MEPA offices.

Up until 2015, Abela Advocates will be paid at least €107,000 for its work over three years, excluding an additional €54.99 for each hour of additional work. The contract was extended in 2013 without any public call.

Prime Minister Joseph Muscat, under whose responsibility MEPA falls, told the House in a reply to a PQ that MEPA had extended Abela Advocates’ contract because the original contract, which was for a definite period, included an extension clause. The finance ministry’s approval for the three-year extension was issued in July 2013.

According to official figures laid in the House, Abela, Stafrace & Associates had been paid €1.23 million up until 2011 for handling its caseload.

The firm was originally chosen by MEPA after a call for expressions of interest and the authority retains the right to terminate the appointment at any moment in time. The company is one of two firms conducting legal work at MEPA.

Clarification

It was erroneously stated in this article that Raymond Farrugia - this is incorrect because it inaccurately pointed at a different person in question.