However, they have tendered their resignations from the board, but not with immediate effect. They stated in their letter submitted on November 13 that their resignations were not with immediate effect because they were the only two board members at present, as former board members Humphrey Mesas and Retold Williams had not been reappointed for another four-year term.

 

"We have taken the decision to resign as supervisory directors of the company because we do not think that the way you [the minister, ed.] are handling matters of the company is in the best interest of the company," they said.

 

They stated that they would step down "as soon as the supervisory board consists of a minimum of five members as prescribed by Article 12, Section 1 of the Articles of Incorporation of the company, which members must be duly appointed in accordance with the national ordinance Corporate Governance and the Civil Law Code."

 

Alexander and Bloyden submitted a letter to Pantophlet on Tuesday stating that their dismissal was "invalid because it is in violation of the existing laws of St. Maarten." Copies of the letter also were sent to Governor Eugene Holiday, the Council of Ministers, the Corporate Governance Council and the harbour management.

 

The two board members were asked to make their positions available after the National Alliance (NA)/Democratic Party (DP)/Independent-three (I-3) coalition took office in May. Three other board members have resigned from their posts already. Pantophlet told the media in August that the move was to make way for younger board members.

 

"The consequences of the invalidity of your decision are that both of us are still board members of the St. Maarten Harbour Holding Company NV," Alexander and Bloyden wrote.

 

The two board members, according to their letter, were given a government decree on November 1 with that day's date that would have appointed Pantophlet as shareholder's representative for the harbour group and gave him authority to hold a shareholder's meeting.

 

"In the first place, apparently, the decree which should have been signed by Acting Governor [Reynold] Groeneveldt, yourself [Pantophlet] and by the Minister of General Affairs/Prime Minister was not signed by the prime minister and at that moment was not a valid decree," the board members wrote.

 

Further, they stated that even if the decree were valid the minister was authorised only to hold a shareholder's meeting on November 1.

 

A letter dated October 31, given to the board members together with the decree, stated that on that day "during an extraordinary meeting of the shareholders of the St. Maarten Harbour Holding Company NV, it was resolved to dismiss you from your position as member of the supervisory board of directors effective from November 1, 2012."

 

The board members argued that while Pantophlet was appointed as shareholder's representative as of November 1, the minister took the decision to dismiss them as board members of the company as of October 31 at which time he was not the shareholder's representative and "therefore, could not legally represent the company."

 

Bloyden and Alexander said in their correspondence that they had received "an unsigned copy" of the resolutions from the extraordinary meeting of October 31, informing them that they were no longer board members. They questioned in the letter to the minister: "Did you intend to dismiss us as per October 31, 2012, or November 1, 2012? In any case, the decision taken by you is invalid. ... As a result that we are still board members of the company."

 

That resolution also informed them of the reappointment of Meza and Williams for a four-year term. However, Bloyden and Alexander argued that those appointments were not valid for the same reason their dismissal was null and void.

 

They said another legal argument in their favour was that the minister's letter stated that the dismissal was in accordance with Article 12, Section 3 of the incorporation of the company. That section states at a supervisory director can be dismissed by a shareholders' meeting at any time.

However, they pointed out that article 10 of the national ordinance Corporate Governance "states in short that if government ... wishes to dismiss a supervisory director, it/he must make this intention known to the Corporate Governance Council."

 

The Corporate Governance Council (CGC) must then submit its advice to the shareholder within four weeks. "The council must state in its advice if in its opinion the arguments given by the shareholder's representative could in all reasonableness lead to the dismissal of the supervisory director."

 

Bloyden and Alexander also stated in their letter that the decision to dismiss them also was in conflict with the Civil Code of St. Maarten, in particular Article 21:1. That article states that "a resolution of a corporate body of the legal entity which is in breach of the law or the articles of incorporation shall be null and void, unless the law otherwise provides."

 

They said in their letter that they also wanted "to set the record straight" about a statement made by Pantophlet in correspondence to the Corporate Governance Council that was published in The Daily Herald.

 

On the timing of their appointment, they said this had been as "in the pipelines for several months before the government fell and the new government was installed."

Further: "Since we were duly appointed by the shareholder it was the duty of the managing director [Mark Mingo] to register us at the commercial registry, which he did and there was nothing blatant about that."

According to Bloyden and Alexander, the minister's request to the CGC to put their appointment on hold was asking the impossible of the council "since neither you [the minister] nor the Corporate Governance Council can put an appointment on hold that had already been finalised."

 

They said they had hoped "it would have been possible to use our expertise in the interest of the Harbour Group of Companies. Let it be clear that neither of us needs this function. ... However, the fact that you are apparently being ill-advised as to how state-owned companies should function makes it difficult for us to make a valuable contribution."

 

(The Daily Herald)