Tuesday, 18 February 2014

The Stench of the Cleddau

An otherwise productive meeting of Pembrokeshire Council on the damaging
Wales Audit Office reports descended into an unedifying farce.
(Pic : BBC Wales)

As much of the focus regarding the recent Wales Audit Office reports into unlawful payments has been on Carmarthenshire – due to culminate next week - it's only fair I turn my attentions to their equally-ripe neighbour, Pembrokeshire Council (PCC), which held an extraordinary council meeting to discuss unlawful pension payments to their chief executive and one other senior officer last Friday.

Extensive coverage of the goings on there has been provided by Cllr. Jacob Williams (Non-affiliated Ind, East Williamston) and Cllr. Mike Stoddart (Non-affiliated Ind, Milford Hakin).

Auditor Anthony Barrett's findings (pdf) were very similar to those in Carmarthenshire – which is unsurprising as it was effectively a joint-arrangement. The main difference is the numbers involved and some of the titles of the relevant committees. Pembrokeshire also didn't have any libel indemnity issues.
  • The agreement to pay cash sums instead of pension payments to senior staff who opted-out of the Local Government Pension Scheme (LGPS) - to mitigate effects of changes to tax relief on pensions - was ultra vires (beyond their power).
  • The Senior Staff Committee failed to take into account all relevant considerations. They also failed to provide evidence that supported their claims that not approving the cash payments would prevent the recruitment of high-calibre senior staff. The Committee made a decision based off a one page report, which was exempt from publication.
  • They also failed to take equalities duties into account, and the decision "constituted indirect discrimination" on age and sex grounds because senior staff – mostly older men – would benefit disproportionately from the cash payments compared younger staff and women. As nobody complained within the legal timescale, it was "indirect" discrimination rather than outright (same as Carmarthenshire).
  • The report itself was drafted and presented by two senior officers who had disqualifying personal interests as they could've benefited from the cash payments – rendering it an unlawful decision just by their mere presence.
  • Despite claims to the contrary, the payments would have constituted an additional cost to the council based on future actuarial/risk assessments and changes to national insurance contributions. The auditor says the figures were also different to those the Senior Staff Committee decided upon.
  • PCC's Chief Executive, Bryn Parry-Jones, had received £51,011 in payments across 2012-13 and 2013-14. I understand the report implies £28,742 was also paid to an unnamed senior member of staff.

I was home at the time so I caught most of the second half of the meeting. OK, it wasn't the most riveting thing to watch, but it was conducted impressively. Councillors were given the freedom to speak as long as they wanted – often making great contributions – and the chair didn't dominate proceedings.

Hopefully, Bridgend Council will be joining them later this year. It underlines the importance of broadcasting these meetings – as will become more apparent later on.

PCC accepted all four of the Wales Audit Office recommendations, meaning the council will :
  • Stop the payments in lieu of pension contributions.
  • Address procedural weaknesses to avoid a repeat.
  • Ensure that any similar future payments (if possible) are in line with the decision taken by the Senior Staff Committee.
  • Disclose the payments in their 2012-13 financial statement, and the committee responsible should re-approve the accounts.

Then things took a bizarre, sinister turn.

The leader of the opposition in the council, Cllr. Paul Miller (Lab, Neyland West), had tabled a motion calling for PCC to suspend Bryn Parry-Jones on full pay due to the Gloucestershire Police investigation. This is a very different tact to the Labour leader a few miles east.

As you probably know, since then, Carmarthenshire's chief executive Mark James has temporarily stood down while the police investigation continues. Although it's unclear what "stepping down" means as opposed to a formal suspension, he really should've done so days after the original reports were published – for his own sake, really.

Better late than never. The delay deserves criticism, but he's innocent until proven otherwise.

PCC's ruling "Independent" Group, however, were going to defend their man to the end, and boy does he know it.

In a display of pompous bluster, one of the "Independents" stood up, said he had a prejudicial interest as he had called for the chief executive to remain in post in the Western Telegraph, and withdrew from the meeting hoping to take a large chunk of the opposition with him as some sort of matter of honour.

He later snuck back in and withdrew again, each time accompanied by a dramatic closing of his file.

Tim Kerr QC – a name which should be familiar – revealed that a brown white envelope containing newspaper cuttings was left for him in the chauffeur-driven car that picked him up at Port Talbot station. Those local newspaper cuttings contained quotes from councillors who called for Bryn Parry-Jones's suspension.

After pressing from councillors to name names, he began "readink names from ze list". Lo and behold, almost all of them were councillors who had called for the chief executive to be suspended or resign, whether Labour, Plaid or non-affiliated Independents.

Councillors are supposed to vote with an open mind. So proceedings hinged on whether councillors were predispositioned (leaning towards a decision) or predetermined (100% made their mind up) in their voting intentions.

If they were predetermined, and voted that way on the motion, it was implied they would breach the Code of Conduct and be subject to an Ombudsman investigation.

Cllr. Miller said he received legal advice from Welsh Labour's retained lawyers that his group's statements were predispositions and so his group would remain.

However, Tim Kerr believed many of the newspaper quotes constituted predetermination.
It's also worth pointing out that the envelope was left by Pembrokeshire's Monitoring Officer (a senior legal officer and paid member of staff).

Not willing to be subject to their own misconduct investigations, most – but not all – of the opposition councillors withdrew part in protest, part because they had no choice. As a result, the motion calling for the suspension of the chief executive was withdrawn.

However, as Caebrwyn pointed out yesterday, the official guidance within the Localism Act 2011 on predetermination (which applies to Wales as well as England) doesn't prohibit councillors from voting even if they've made public statements supporting a particular position.

So it looks like what happened in Pembrokeshire was a dirty trick and attempt to intimidate.

And, most importantly of all, it happened all on camera.

What should cause bums to squeak across the south west of Wales however, is the news that's broken in the last few hours that Caerphilly Council's former chief executive, Anthony O'Sullivan, and his deputy, Nigel Barnett, have been formally charged with misconduct in public office....having been brought to that point by similar, but not identical, circumstances to those in Pembrokeshire and Carmarthenshire.


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