PHILIPSBURG--Mark Mingo took the St. Maarten government and his former employer Port St. Maarten to court for wrongful termination, but the Court of First Instance ruled on Tuesday that it was the former chief executive officer (CEO) who acted unlawfully by not following proper payment procedures and allowing large-scale fraud at the government-owned company.
Tuesday’s verdict also obligated Mingo to pay damages to the port. However, the judge did not set an amount, instead ordering an assessment to determine the extent of Mingo’s liability.
After roughly 18 years at the helm, Mingo was officially fired as CEO in April 2020 following his January 2020 conviction for defrauding the port out of approximately US $10 million in the so-called “Emerald” investigation.
However, Mingo was fully acquitted on appeal in June 2022, a positive outcome not shared by Emerald co-defendants O’Neal Arrindell and former Member of Parliament (MP) Frans Richardson.
Mingo filed a civil lawsuit in October 2023, claiming that he had been wrongfully fired and demanding to be reinstated to the port’s top job. He also wanted the court to award him almost $3.5 million in damages and order the port to pay his salary from April 2020 to present.
Alternatively, if the court would not return him to his old post, Mingo demanded about $1.03 million as a severance package.
Mingo and his lawyer Cor Merx argued that the port had fired Mingo too soon, taking the decision while the conviction was still under appeal. This means that Mingo’s termination was unlawful because the higher court later found him not guilty of crimes committed at the government-owned company, they argued.
Mingo claimed that he had suffered reputational and material damage at the hands of the Prosecutor’s Office through a press release that sullied his name and a confiscation order on his house that led him to sell it below market value.
Meanwhile, the port filed a counter-lawsuit for damages, claiming that Mingo had not acted with the proper duty of care required by a CEO.
Although Mingo lost Tuesday's verdict, he still has the right to appeal, which would send the civil case before the Joint Court of Justice.
Not negligent
Siding with the port, the court dismissed Mingo’s demand to be put back into his old job, citing a provision in the Civil Code that states that such a request must come within six months of being fired. The judge pointed out that Mingo’s lawsuit had been filed two years after the six-month period had lapsed.
The court ruled that there was “no evidence of any negligence” in how the port and government had handled Mingo’s dismissal. For example, Mingo had been heard in a shareholders’ meeting – a director’s right as outlined in the port’s statutes – and authorities had even waited until the criminal court’s verdict in January 2020 before making the decision, the judge said.
Additionally, the court ruled that Mingo was wrong for equating his acquittal with wrongful dismissal, pointing out that the criminal appeal judges had not established that the 272 dubious invoices at the heart of the Emerald fraud case were legitimate, just that the prosecution could not prove they had been falsified.
Dismissed
The court dismissed Mingo’s claim for material damages too, ruling that the timeline of events did not support the claim that the confiscation order had led to selling his house for less than its worth.
“The Prosecutor’s Office only levied the seizure [in September 2021 – Ed.] after the plaintiff had already sold the property [in July 2021],” the judge said. “Therefore, the question of the property’s value at the time can remain unanswered.”
The court also ruled that the Prosecutor’s Office could not be held liable for reputational damage because it had only used Mingo’s initials in the press release.
“While many people in Sint Maarten would have immediately understood that it was the plaintiff, this is due to the well-known nature of his position in the port, which cannot be held against the government,” the judge said. “This also explains why the plaintiff was subsequently referred to by his full name in the media, but the Prosecutor’s Office cannot be blamed for this.”
Similarly, the court ruled that the Prosecutor’s Office had done nothing wrong in what it said in the press release.
“The press release states that a criminal investigation was underway against several suspects, including the plaintiff’s initials, that he had been arrested and subsequently released, but that he remained a suspect in the investigation,” the judge said. “This is an objective account and not unlawful.”
Reprehensible
The court did find that Mingo had acted unlawfully towards the port in some of his actions as CEO.
“The criminal investigation and the plaintiff’s own statements show that he deliberately failed to follow the prescribed procedures for approving invoices. He approved invoices without any checks on the invoiced work,” the judge said. “A reasonable director would not have allowed invoices from unknown companies to be paid without a quote, without an order, and without checking the work. The plaintiff did so, and the court finds this to be seriously reprehensible.”
Mingo had argued that he had approved thousands of invoices between 2012 and 2019, and that the 272 that featured in the large-scale fraud case represented only a fraction of the total.
“This does not change the fact that all those other invoices followed the procedurally prescribed route, while the 272 did not,” the judge said.
