Friday 27 October 2017

The Caerphilly farce continues. And then there's Carmarthenshire...

The three suspended Caerphilly Council senior officers, still on full pay, are back in the news today, (WalesOnline and BBC) reporting that two of them are set to receive substantial pay offs, and so will the third, the chief executive Anthony O'Sullivan, eventually. The dispute, which started with a Wales Audit Office finding of unlawful payments, in the form of pay rises, and included a lengthy police investigation, is said to have cost the authority over £3m since 2013, which includes half a million in legal costs.

I have drawn parallels with the situation in Carmarthenshire and this blog has followed the dispute in Caerphilly, but, unlike Caerphilly, our CEO was allowed to carry on regardless. Pembrokeshire managed to get shot of theirs but only with a golden handshake of £330k

As I said back in 2015, essentially the three from Caerphilly were alleged, in 2012, to have 'wilfully' prevented proper scrutiny of a pay rise for senior officers, they were alleged to have;

- wilfully misconducted themselves in relation to securing Caerphilly County Borough Council’s approval of a remuneration package for the council’s chief officers from which they stood to gain for themselves. 
- deliberately failed to publish agenda and reports for a meeting of the Council’s Senior Remuneration Committee in advance of a meeting. 
- deliberately introduced gratuitous material into one of the reports that was to be considered at said meeting so as to provide an apparent justification for exempting that report from public consideration. 
- deliberately applying a public interest test notice to the reports that were to be considered at said meeting when none was merited, thereby exempting the reports from public consideration.

In Carmarthenshire, the circumstances surrounding the unlawful, illegal, ultra vires payments, exposed by the Wales Audit Office in 2014, were equally shocking and deliberate. Proper governance was manipulated to avoid the possibility of scrutiny and challenge;

- The chief executive failed to leave the meeting, or even declare an interest when directly gaining personally and financially from the decision to approve his libel indemnity. And discussed and amended the report with the 'author' prior to the meeting. 
- The wording of the minutes of a meeting deliberately masked the true nature of a 'pension arrangement'. The report was authored and presented by a senior officer, the assistant chief executive, with a personal and financial interest in the decision. 
- Failing to publish the pension 'pay supplement' on the executive board agenda, again to avoid scrutiny and challenge. 
- The libel indemnity was omitted from the published agenda on the erroneous grounds it was 'urgent' and thereby removing any possibility that it could be questioned. 
- Misleading the executive board by misrepresenting advice given in a previous legal opinion and so knowingly exposing the authority to the risk of legal challenge and censure. 
- Insisting that the lawyer representing the chief executive and the council in the libel litigation was a source of 'independent' legal opinion - commissioned to give 'impartial' advice to the executive board.

Mr James went further and reneged on an undertaking to his employers, refused to repay the unlawful payments and continues to use council facilities and resources, at will, for his own private purposes.

Rules is rules of course and the only reason the Caerphilly saga has gone on so long is that it is probably easier to unseat the queen of England than a council chief executive in Wales. In most walks of life their behaviour, and that of Mr James, would have resulted, potentially, in instant dismissal for gross misconduct. No one would have pussyfooted around with words like 'unlawful' payments, it would have been 'illegal'; theft and fraud.
The investigation by Gloucestershire police lasted three months during which time they didn't speak to Mark James, or anyone at County Hall, or the CPS for that matter. It took Dyfed Powys Police eighteen months, and a charge, for the CPS to decide there was no case against me.

In part it is the mechanism of the disciplinary process for chief officers which is at fault, a tortuous system of special disciplinary panels, designated independent persons (probably a QC) and basically a lengthy, expensive legal fight. They should, of course have all the usual protections as employees, but it should be the same as it is for everyone else, the 'special protection' afforded to chief officers needs to be urgently reviewed. The expensive farce in Caerphilly is testament to the fact that it can't come quick enough.

* * *

The last full council meeting included an interesting item concerning the council's constitution. To be honest the constitution could be something of a niche interest, but here in Carmarthenshire it has often been suspected that there are two versions, the one published on the website and an official version locked in a drawer in the presidential suite to be tweaked and interpreted by Mr James and Legal Linda lest an awkward matter arises. It also contains the spectacularly unlawful, but currently suspended, unique libel indemnity clause.

Labour opposition leader Jeff Edmunds proposed amending the Standing Orders (meeting rules) to give equal importance to the answer to a councillor question as is currently given to the question. In effect, an answer should be brief and directly relate to the question, ie a straight answer.

Council leader Dole (Plaid) protested that a) it wasn't necessary, b) it was a matter for the Constitutional Review Working Group (CRWG) and c) although he didn't necessarily disagree, Plaid would vote it down so Jeff might as well withdraw it. The chief executive then joined in to say that in all his 15 years at the council, Standing Orders had never been amended by full council, muttering that they could, if they dared wanted...

Once it was confirmed that a CRWG meeting would be held the following week Cllr Edmunds threw in the towel and withdrew the motion. Personally I'd have ploughed on, and asked for a recorded vote.

The background to CRWG, readers may recall, arose originally from the scandalous WAO public interest reports and the damning WLGA review into failed governance in 2014/15. All of which was treated with hostile contempt by the chief executive, and by smug self-satisfied complacency by most of the councillors.

Anyway, part of the 'aim' was for Carmarthenshire Council to be the most 'open' in Wales and toward that aim, you might think that agendas and minutes for these relatively infrequent CRWG governance meetings would be routinely published on the website.

I have been asking the head of legal, Linda Rees Jones, about this since CRWG first evolved, I have requested, and been sent copies of the 'Action Notes' but nothing is published.

The latest reasoning was that as this is a working group, technically speaking, publication is not required.
Never mind good practice, or the farcical aim to be 'transparent'.

I also asked, yet again, when the suspended clause (for well over three years now) would be permanently removed. Ms Rees Jones stated "As you know, we do not regard the libel indemnity provision to be unlawful; we consider it to be lawful. However, as you also know, the provision is marked as “withdrawn” on our Constitution."

I have asked her to define exactly who she means by 'we'. Her and Mr James? The entire council? He's played them like a fiddle and I'm guessing it's staying put, until Mr James goes.

As Cllr Emlyn Dole is the Chairman of CRWG, I have asked him to confirm his agreement with the WAO and the Welsh Government that the clause is indeed unlawful, (you may recall him becoming suddenly and inexplicably 'unaware of any unlawful payments', the u-turn oddly coincidental with his elevation to the position of leader), and to place the issue of its complete removal on the agenda for the next meeting of CRWG.

I await their replies.

As you will be aware, this blog has mentioned the WAO reports, the WLGA review, CRWG and the Caerphilly saga several times on this blog, all can be found by using the search box on the right hand side.


Anonymous said...

Ordinary workers who do their jobs well are made redundant at a whim due to bad management

Senior managers seem to get paid off with big sums for bad management

One rule for them and another for us

Tessa said...

Excellent post.

Keanjo said...

The appointment of Chief Executives in local government has been a dismal failure .In many cases the CE has usurped the powers of the political leader of the council. There is only one sensible solution - to return to the former system and make Chief Executives redundant.

Anonymous said...

There is one more link between Carmarthenshire and Caerphilly

Caerphilly's CEO Mr Burns was at one time a deputy to the Chief Executive of Carmarthenshire

He must have learnt a few lessons there of what not to do!