Womens groups want Greene fired for professional misconduct APRIL 3, 2012 | BY KNEWS | FILED UNDER NEWS Members

of womens rights organizations, Red Thread and Help and Shelter,

Members of Red Thread picketing Office of the President yesterday yesterday picketed the Office of the President calling for Police Commissioner, Henry Greene, to be terminated for professional misconduct since he had admitted to having sex with a woman, who had sought assistance from his Office. Last December, a woman alleged that she was raped by the Commissioner of Police after she sought his assistance in a police matter that she was engaged in. The Commissioner maintained that the sex was consensual. After weeks of investigation by independent investigators from the Jamaica Constabulary Force and amidst much speculation and anxiety, the Director of Public Prosecution Shalimar Ali-Hack advised that Green be charged with rape. However, the Commissioner moved to the High Court to challenge the decision by DPP that he be charged for rape. Chief Justice Ian Chang, who heard the challenge, reviewed the evidence and gave his ruling. The outcome of that ruling has stalled the institution of the rape charge against Greene. According to Red Threads executive member, Karen De Souza, the picketing exercise stemmed from Chief Justice Ian Changs ruling last week that Shalimar Ali-Hack Director of Public Prosecutions recommendation that Greene be charged with rape was irrational. The Chief Justice in his ruling had said, While the complainant did set out circumstances which unequivocally point to Greenes commission of the offence of rape against her, it strains ones credulity to believe that she, succumbing to verbal pressure and any threatening conduct by Greene, came out of a car and

entered the hotel room without seeking to run away or escape from Greene, even though he had expressly made clear to her his intention of having sexual intercourse with her. According to De Souza, the Commissioner has confessed his misconduct and since the Office of the Commissioner of the Police is a constitutional appointment the President (Donald Ramotar) should terminate Greenes appointment. There is provision under the law and constitution for the authorities to address Greenes confessed misconduct When Mr. Greene had sexual intercourse with the woman he knew the police were investigating her There is something seriously irregular in the Police Commissioner soliciting sex from a woman who was vulnerable, De Souza said. She asserted that Red Thread is also disputing the legal ground of the Chief Justice to review the evidence the way he did and arrive at conclusion since nobody was cross-examined. Mr. Chang managed to examine the evidence and presumably dispassionately arrive at a conclusion. Something is severely wrong with that because we are not aware that, that is the way the courts work, she stressed. De Souza noted that Changs ruling has many wondering if the Sexual Offence Act of 2010 was given careful consideration in this case since the Act speaks specifically of consensual sex. She explained that in Greenes affidavit to the court he said that his sexual encounter with the woman was consensual. However, Red Thread believes that such a claim should be determined by a judge and jury and not for Chang to examine. She stated, The Sexual Offences Act is very clear about the circumstance of consent- the fact is if you are in a position of power and authority over somebody like the rape victim then sex cannot be assumed to be consensual and particularly given Greenes admission it is important to us that the matter be given to a jury to determine. De Souza stressed that it was out of order for Chang to make that determination in his own deliberate judgement. I certainly feel that Mr. Greenes position did not weigh heavily in Mr. Changs deliberation and it should have, because every Guyanese in this country knows it is not possible to get a report against the police taken by the police, much less the Commissioner of the Police, she said. De Souza stressed that Chang has dismissed the Sexual Offences Act designed to hopefully increase the rape hearings in the court to create conditions where

women could take their reports to the police. Some placards held by members of Red Thread read: Where is the protection of women from the professional predators; Charge Greene for subverting police investigation; and Henry Greene is guilty of professional criminality. The group plans to protest outside the Ministry of Home Affairs today.

City Contract May Not Be Modified Orally or by Course of Dealing, Court Holds

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February 21, 2011

By Peter K. Zweighaft R&D Consultants, Inc., a civil engineering company, contracted with the City of Carlsbad, California, to redesign a municipal golf course for a fixed price of $556,745. The contract provided that it could be amended only by a written agreement signed by both parties. During construction, the parties entered into four written change orders, increasing the base contract price by $63,525.50. For each, the engineering company submitted a fixed price proposed change order. The citys project manager frequently authorized the engineering company to start on the extra work before the city signed the change order. After those change orders, the engineering company raised concerns about having to perform additional extra work. The city told the engineering company that it believed that all of its needed changes finally had been resolved and asked for a complete and final scope of work and price for it. The engineering company proposed to complete the project for an additional $209,956, which included $69,073 in extra work already completed. The city contended that the price was excessive and included in-scope work and said the price exceeded funds available. The city instructed the engineering company to reduce the price to below $100,000. Ultimately, the parties signed a fifth change order authorizing work to proceed on a time-and-materials basis

for a not-to-exceed price of $99,810. The change order stated that it covered the engineering companys entire scope of work. Once again, work began before the signed change order was issued. After the project was completed, the engineering company filed a lawsuit seeking to recover an additional $109,093.81 for extra work that it claimed was outside the scope of the contract and the change orders. The city argued that the engineering companys claim was barred because the contract required any modification to be in a writing signed by the parties and by Government Code 40602, which requires the mayor or another officer designated by ordinance to sign all city contracts. The engineering company argued that the written change order requirement was modified by the citys practice of orally authorizing extra work and orally directing that extra work begin before a written change order was signed and issued. There was conflicting testimony about communications between the engineering company and the city after the fifth change order. The trial court instructed the jury that parties to a contract may agree to modify its terms. You must decide whether a reasonable person would conclude from the words and conduct of *the engineering company+ and *the+ City that they agreed to modify the contract. A Contract in writing may be modified by oral agreement to the extent the oral agreement is carried out by the parties. The jury returned a verdict in the engineering companys favor, awarding it the full amount of the damages it sought. The city appealed. The Court of Appeal reversed the award to the engineering company. P&D Consultants, Inc. v. City of Carlsbad, 190 Cal.App.4th 1332 (2010). The Court of Appeal looked no further than the contract to reverse the jurys award: The plain language of the contract limits the Citys power to contract to the prescribed method (a written change order). It added: Unlike private contracts, public contracts requiring written change orders cannot be modified orally or through the parties conduct. The appeals court concluded that the city was not bound by any oral modification to the contract, and if the engineering company performed services in reliance on an oral representation made by the citys project manager, the engineering company acted at its own peril.

Because it considered the contract determinative, the appeals court did not consider whether Government Code 40602 also was applicable. In an effort to find a signed writing supporting its extra work claim, the engineering company cited 4 of the contracts scope of work, which stated: Services not specifically identified in the scope of services above will be considered additional work, and will be authorized by the City as an executed amendment to the contract prior to commencement of work. This work will be based on labor rates of P&D and the project subconsultants at the time of approval by the City. The engineering company argued to the trial court that this clause allowed it to perform extra work orally directed by the city even in the absence of a meeting of the minds regarding the cost of the work. The trial court rejected the argument, noting that the language itself specifically required an executed change order before the start of work. In the Court of Appeal, the engineering company argued that the city breached 4 by failing to negotiate a contract amendment in good faith. Because this theory of liability was not presented in the trial court, the Court of Appeal held that the engineering company could not raise this argument on appeal. The appeals court also affirmed the trial courts nonsuit of the engineering companys claims for quantum meruit and breach of implied contract.