Saturday 15 February 2014

Council crisis: Stepping aside


Thank you to everyone who has commented on this in the last couple of days, and also for the lively debate about Mr Kerr and his envelope on the previous post.

The threat made in Pembrokeshire would involve formal complaints to the Ombudsman for Public Services alleging breach of the councillors' code of conduct. The last time this was used in Carmarthenshire as far as Cneifiwr is aware was when the chief executive made five separate complaints against Cllr Siân Caiach a couple of years ago. He was unsuccessful on every count.

Mrs Linda Rees Jones hinted that she might have another go when she told Cllr Caiach last week that she should have declared an interest in view of her role as witness in the libel trial.

There was also a hint of what may come in one of the recent flurry of bonkers council press releases when it said:

Can Plaid Cymru not wait to be in possession of all the facts before they make their minds up, or have they already done so?

There will be no need for an envelope in Carmarthenshire, as all of the planning for the extraordinary meeting on 27 February will have been done in off the record meetings and teleconferences well in advance.


It is worth spending a few moments digesting the implications of last night's announcement that Mark James would be stepping aside from his duties as chief executive of Carmarthenshire County Council.

What we have is a very shabby compromise struck to try to keep the Labour-Independent coalition together.

The council's constitution provides for the suspension of senior officers under its Rules of Procedure (Officer Employment):

The Head of Paid Service [i.e. Mr James, ed], Monitoring Officer and Chief Finance Officer may be suspended whilst an investigation takes place into alleged misconduct. That suspension will be on full pay and last no longer than two months. No other disciplinary action may be taken in respect of any of the above officers except in accordance with a recommendation in a report made by a designated independent person appointed by the Council’s Investigation Committee.

Although there is to be an investigation by the police, as far as the council is concerned there is no alleged misconduct, and Mr James has not been suspended.

Mr James will therefore remain on full pay for the duration of the police investigation, and as we have seen in Caerphilly, that could take a very long time indeed.

What has not been made clear by the council is whether he will still have access to the council's IT system or council offices. Because he has effectively taken a prolonged sabbatical without any suggestion of misconduct, there is presumably nothing to prevent him from pulling the strings and managing matters from his new vantage point. Given that the team he hand-picked, promoted and rewarded will now be running the show, Mr James's control is likely to remain undiminished.

That includes the council's acting Head of Law, Mrs Linda Rees Jones, who wrote to councillors last week saying, "As you will know a complaint has been made to the police alleging misconduct in public office by me in connection with this matter". 

That is not enough to prevent her from remaining in post and dispensing advice and warnings from the podium, however. Last week, it will be recalled, she suggested that Cllr Siân Caiach should consider where she stands on the Members Code of Conduct in view of her role as a witness in the libel trial.

Peter Hughes Griffiths, leader of the Plaid group on the council, reacted with the following statement last night:

"Cllr Peter Hughes Griffiths, leader of the Plaid Cymru opposition group on Carmarthenshire CC welcomed the announcement that Chief Executive Mark James is standing down pending the result of a police inquiry, but condemned the failure of the council's Leader, Labour councillor Kevin Madge, to take decisive action.

As a fortnight has passed since the Welsh Auditor published his report accusing the council of two accounts of "unlawful" action, the inquiry could potentially be compromised, said Cllr Hughes Griffiths.
"This confirms the seriousness of the situation and fully justifies the firm stance that Plaid Cymru has constantly taken for the past two weeks.  It would have been totally improper for the Chief Executive to remain at his desk pending the outcome of the police inquiry. 
"However, this development has only happened following intense pressure from Plaid and by public opinion. As Leader, Labour's Cllr Kevin Madge failed to take decisive action when the damning Welsh Audit Office reports were published a fortnight ago, and may have compromised the police inquiry by not suspending the person at the centre of the inquiry. 
"The fact that Mr James is standing down for the duration of the inquiry "by mutual agreement" shows, once again, that the so-called Leader of this council was too weak to suspend him.
Cllr Madge should recognise this and stand down as Leader."

Meanwhile the dust is settling from yesterday's debacle in Pembrokeshire. An acute observer on this blog noted that Mr Kerr's role yesterday was not that of an independent, impartial legal adviser, but counsel for the chief executive and Cabinet.

A day and a night away from the Inns of Court in London will not have been cheap, and Cneifiwr's legal advisers reckon that the going rate for someone like Mr Kerr and what he likes to term his "humble opinion" is between £6,000 and £8,000 for an event of this kind.


Anonymous said...

It seems a perversion of local democracy that a barrister from London can come down and push us around like this. is it not possible for someone at the start of the meeting to propose that he be excluded and a vote taken on this proposal.

The councillors in Pemba were ambushed yesterday with the brown envelope trick but this is a trick that can only be deployed once and our own councillors wil presumably be taking independent advice.

Also is it not strange how the Labour leader in Pembs advocates suspension whilst ournLabour leader does not. where does our own Legal advisor now sit - will she be able to attend the meeting ?

Anonymous said...

Just read Old Grumpy's blog - and appreciate his analysis of the Pembs meeting.
I note "Kerr" is pronounced "Car"? Not "Cur"?

Anonymous said...

This is very curious. On your previous post you mentioned that this was gardening leave. I don't think it is, The definition of that is when an employee gives an employer notice, or an employee resigns, but they are sent home or told to stay away from work for the duration of their notice period on full pay.This seems much more like James basically giving a verbal commitment that he will not be in work whilst the police are poking around Jail Hill. Does this mean for example that he will retain access to council employees, the IT system and could actually walk into the building if he felt inclined to do so. Will he still be returning officer the fees from which, as everyone in the council is aware, are at the root of the pension opt out and what about his gallivanting around Wales? Doesn't he sit on some highfalutin WAG committee up in the capital? If he retains all this he has effectively stitched up poor old Kev who has handed him a constructive dismissal case by intimating in the press release that he is innocent. Isn't that for the police to decide? Confused of Llanelli

Anonymous said...

Anon 7.48

I agree with you the brown envelope trick can only be used once, but have they got any more 'tricks' up their sleeves?

Cneifiwr said...

Anon @ 12.09 Those are all very good questions. I don't think there is really a term for someone agreeing not to come to work without being suspended.

Perhaps we will find out more next week.

Anonymous said...

Handcuff leave?

Anonymous said...

The WAO ought to have something to say about paying someone handsomely to stay away from work. It seems highly improper. What authority does the Council have that allows it to waste public money in this way? The sums involved will soon add up to rather more than the payments the WAO identified as unlawful.

Anonymous said...

Do you know Cneifiwr if Plaid are going to continue with their vote of no confidence against the 3 Executive board members on Monday?

Mrs Angry said...

What if the investigation does, as it may well, take longer than the two month period? Can he 'step aside' for an unlimited period? And what are the positions of other senior officers who are involved in the issues under investigation, such as the head of legal services and monitoring officer? As a matter of procedure,surely all senior officers who have had direct involvement in the payments issue should stand aside during the investigation, not just the recipient of the payments?

Ken Haylock said...

Perhaps the opposition should also move that he is formally suspended, along with the legal officer, just to ensure that these... put kindly... possible ambiguities in his status... are removed. If he still has access to council IT systems, colleagues etc then he's not de-facto suspended at all. It may in fact be that he is de-facto suspended, with the 'voluntary' thing merely being a fig-leaf covering the situation, but given the suspicion that he runs the whole shooting match, it seems prudent for councillors to make sure that he is definitely suspended, no?

Anonymous said...

@ anon 12:09 and Cneifiwr. Given that CCC have not suspended Mark James then as far as I am aware there is no contractual obligation to PAY Mark James for HIS decision to stand down! In respect of the other questions of "will he have access to council employees, the IT system" etc, from a contractual point of view the answer is YES. Think of it as an employee taking a sabbatical. The only difference is that the majority of employees in CCC would not be paid.

Cneifiwr said...

Anon @15.03 I think the motion of no confidence will be presented at the meeting on 27 February. In the meantime I hope everyone will encourage everybody they know to sign the online petition here:

The word coming out of County Hall was that it was all just headlines and the public would soon forget. Show Kevin what you think!

Anonymous said...

I think if I had been in the shoes of those Pembrokeshire Councillors, I would have stood my ground and not left the Chamber.
Doubt whether all of them would be reported for breaching the code of conduct on such a technicality.

Anonymous said...

How do you sack him, if he is proved to have done something illegal, when he has not been suspended? Summary dismissal? He then goes for compensation because he wasn't suspended!

You truy could not make this up. Oh, yes you could - Yes Minister.

Anonymous said...

There is one heck of a difference between suspension and just standing down voluntarily.
Suspension according to CCC rules is the only and proper way to do things.
If we do not push Mr.Madge to suspend Mr.James there could (will) be major problems in the future pipeline.
"Somebody" is surely aware of this !!

Anonymous said...

Many commentators have reached the conclusion that this so-called "stepping aside" is yet another example of the kind of self-serving and perverse decision-making that typifies the current administration.

It is neither one thing or the other, and does not let the Executive Board off the hook. What little confidence the public had in the Board before, must now be fast ebbing away.

A vote of no confidence in the whole shower is much needed. Mr Kerr's "predetermination" gambit seems to me to be over-hyped. I cannot pretend to possess his legal acuity or knowledge of case law. But a quick Google of the subject brings up a host of cases where the courts have been at pains to distinguish between pre-disposition and pre-determination.

The shabby "envelope of evidence" indicated no more than a pre-disposition, which, in the face of a watchdog's finding of unlawful decision-making, must give rise to such a pre-disposition of no confidence in those who made such unlawful decisions.

Friday's Council meeting in Pembrokeshire must have given Mr Kerr one of his easiest days ever as an advocate - laying down the law to lay-people, without even a trainee solicitor to offer an opposing view. Trebles all round!

Catherine said...

Looks like Mr Kerr QC will be given the opportunity to make another easy £6,000 or £8,000 by spending a few hours at the Carmarthenshire Extraordinary meeting as well!

Presumably the brown envelope trick won't be used again but he could still try frightening councillors with the pre-disposition/pre-determination waffle stuff, ably backed - as in Pembrokeshire - by a compliant monitoring officer.

Will the Opposition Group be allowed to employ a QC at taxpayers' expense in order to counteract Mr Kerr's "expert advice"?

Anonymous said...

If you were NOT predisposed to disagree with acts you believed to be unlawful then you would be predisposed to agree with them. The QCs i tervention was just plain scare- mongering with absolutely no badis in law.

The only CRIMINAL act a councillor can be guilty of is failing to disclose a pecuniary interest. All other matters are civil matters and would be dealt with in a civil court.

Who would prosecute them? Why, their own council! Anothet job for an ambulance-chasing QC perhaps. Snd can you see the furore of po,ice being callec by the Minitoring Officer to arrest a large number of councillors!

This just gets sillier and sillier Mr Madge. Time to go.

Anonymous said...

From 14th February 2014 any employee subject to a police investigation within the council shall be subject to the following disciplinary sanctions -
1. They will be allowed to write a press release protesting innocence in advance of the police undertaking a formal investigation of said employee.
2. The full weight of the councils HR and Legal expertise will be placed at the employees disposal.
3.They will be ever so politely requested to spend less time within the council "mutually agreed" with the Executive board. It is however deemed reasonable that said members of that board (particularly from the Trimsaran Ward) shall actively keep the employee fully up to date with all developments of the police investigation.
4. The employee will have full access to the councils  IT system and may feel free to destroy any E Mails that show the employee in a less favourable light.
5. The employee will not be suspended but take a "investigation sabbatical" with full pay and be granted an indemnity to fight any moves by the council to sanction him. (Please note as recognised by the WAO the new policy only applies to men although dispensation will be made for the monitoring officer)
6. That the employee be allowed to accumulate full leave provisions in addition to potentially unlimited time off for the "investigation sabbatical".
7. That work related to election duties are a dispensation particularly in order to raise staff morale when said employee performs the Welsh Language at the count.
8. That provision be made for a big party if said employee returns to work to be held in an appropriately sized local phone box.
9. It should be noted that this is a time limited policy. Whilst it obviously applies to all council employees to trigger its commencement you must earn £170,000 or over.

10. The policy can only be sanctioned by the councils statutory Head of Paid Service - Mr Mark James

Signed in the presence of Councillor Kevin Madge "Leader" of the Council

Anonymous said...

As I said, I would not have left the meeting. You have to make a stand at times and stick to your guns - it's called guts.