County Hall Meltdown - The police, a parallel, and the question of legal advice

Back in November Cllr Darren Price asked at a full council meeting whether or not the police had been in touch, or whether this was going to be a possibility. At the time, those involved were sworn to secrecy although they knew the content of the reports. He didn't get a straight answer of course.

On December 3rd, Kevin Madge told the South Wales Guardian that there was no question of the police becoming involved as a result of the unlawful payments.

Following the publication of the appointed auditor's reports on Thursday, the police confirmed that they are aware of the reports issued by the Wales Audit Office and are in discussions with the auditor and will assess the situation with regards to any appropriate action.

That is the situation so far. Kevin Madge was wrong.

One person who might well be keeping an eye on these unfolding events in Carmarthenshire is the Chief Executive of Caerphilly Council, Anthony O'Sullivan. Mr O'Sullivan, you may remember, is currently suspended on full pay and on police bail, along with his deputy, after being arrested last July on suspicion of fraud and misconduct in public office.
They have not been charged of course but have recently had their bail extended whilst the police continue with their investigations after further revelations emerged during the course of their enquiries.

Here is an extract of the BBC report from July 2013;

"Gwent Police were called in after the critical WAO report said the council had acted unlawfully. 

The report said: "The decision by the Senior Remuneration Committee on September 5, 2012 to approve the pay structure set out in the report of the chief executive was unlawful on a number of grounds. 

"The first is that the meeting of the Senior Remuneration Committee was not properly advertised in accordance with the Local Government Act and neither were agendas for the meeting made available for public inspection as they should have been." 

It also said that certain officers - such as the chief executive - should not have been present at a meeting which approved the salary increases. 

"No declarations of interest were made and these officers did not leave the room while the decision was made," it added. 

"Consequently they participated in the decision-making process when they had a disqualifying financial interest." 

Avon and Somerset Police were asked by the Gwent force to look at the WAO findings on the council because of its "working relationship" with the council."

To say the situation in Carmarthenshire is a mess is the understatement of the year. Not only are the findings of the auditor remarkably similar to those in Caerphilly, in Carmarthenshire, two separate issues have been found to be unlawful.

So far.

In addition, we have the issue of the legal advice. In January 2012 when the libel indemnity was granted, the auditor had "advised the council to take their own legal advice on this particular issue, which they did not do". They used the advice from 2008 which, as we now know had been misrepresented to lead councillors to believe the advice was unequivocal in its support of their actions.

Presumably, with regards to the counterclaim, they went to the High Court in February 2013 knowing that their 2008 legal advice had, in truth urged extreme caution and that their legal basis for the funding was "merely arguable", and also in the full knowledge that they had refused to comply with the concerned advice of the appointed auditor.

Those of us who have observed this council will be familiar with the 'legal advice' argument. We have heard it in relation to the Scarlets and the State Aid issue and of course the Towy Community Church funding, to name but two. The council can of course withhold legal advice under the exemption of legal privilege so it is extremely difficult for anyone other than very senior officials to determine what exactly the advice consists of...

When the acting head of law, Linda Rees Jones confirmed at the November council meeting that Mr Tim Kerr QC had been jointly engaged with Pembrokeshire for legal advice on the auditors findings, she made it clear it was in relation to only one of the findings. This was the pension issue.

It would seem that the only legal advisors over the libel indemnity were Mr James, Ms Rees Jones and the 2008 'sexed-up' dossier.

This was also the legal advice which had been used to amend the Council's Constitution in 2008 to give three senior officials the delegated power to instigate and fund libel claims on behalf of officers. An amendment which I firmly believed was legally flawed and which now appears to be the case.

Any councillors out there who are still undecided over the unlawfulness of these payments need, for once, to ignore the spin and defensive legal posturing from a nervous Kevin Madge and Co, and look at the facts as presented, very clearly, by the Appointed Auditor, a Certified Fraud Examiner.