Agenda item

Appendix A

Minutes:

 

Statement and advice to the Shadow Dorset Council Overview and Scrutiny Committee

 

 

Chairman and members,

Intro

Thank you for giving me the opportunity of addressing you  this morning on a matter of urgency. I intend to present to you the results of my investigation into the allegations made by Cllr Trite to the OS Committee on 31/7/18. He said that  the selection procedure for the interim statutory positions was uneven, unfair and inappropriate. He said that the selection panel was "loaded in favour of certain candidates"

These are extremely serious allegation

 I will set out my reasoning shortly but at the very start I want to make clear that my conclusion and professional advice Cllr Trite is mistaken. This selection was neither uneven, unfair nor inappropriate.

Who I am

I am Stephen Mcnamara, a consultant with VWV solicitors. I am a solicitor of over 35 years' experience including 24 years in local authorities and most recently 16 years as HoLs at BCC. I have been a consultant with VWV for 6 years bar for one year in Myanmar where I was a consultant on a rule of law programme

Why an independent person was appointed

When Jonathan Mair learnt of the allegations he was of the view that this should be immediately investigated. Firstly because of the seriousness of the allegations and also because a selection process is being undertaken for the permanent positions.

 He was rightly of the view that this had to be investigated by an independent person given that he has been appointed as the interim Monitoring Officer. He wanted there to be no possibility that he would be accused of bias

The allegations

I have not had the opportunity of meeting with Cllr Trite (he is now on holiday until 31/8), but on 15/8 he  sent a detailed account of what he said at the meeting on 31/7 to Mr Mair. This explains his reasoning as to why he believes the selection process unfair and includes the text of the statement he made to you on 31/7. I have reached a definitive view on the merits on his allegations on the basis of his letter. I would have liked to have met him, as a matter of courtesy, before giving my advice but the urgency of the matter precludes this.

This is his statement

"Mr Chairman, thank you for allowing me to speak when I'm not a member of this Committee. I feel quite uncomfortable saying this, but I would feel more uncomfortable within myself if I didn't say it. My concern centres on the process recently used for the selection of an Interim Head of Paid Service and an Interim s.151 Officer.

"A senior serving council officer in Dorset has described the composition of the selection panel to me as, in practice, loaded in favour of certain candidates, and I regret to say that I have to agree. If each of the six council leaders who comprised the selection panel had had a separate chief executive and a separate s.151 officer, I would not be sitting here and I'd consider this process an example of the proverbial level playing field. But in fact three of these six leaders on the selection panel had the same chief executive and the same s.151 officer who were candidates for these Shadow Dorset Council positions.

"Given the close, supportive, empathetic and co-operative working relationship which normally exists between leaders and their most senior officers, I believe that the reasonable man or woman in the street would consider that this distinction between leaders within the panel would be wrongful and could, in practice, favour a particular candidate for each of these posts. (And the candidates who work with three of the leaders rather than with one were, indeed, duly appointed.)

"I want to make it absolutely clear here that I'm saying exactly nothing about the respective merits and qualities - or demerits if they have any - of any of the candidates themselves. The personalities concerned are immaterial. It's the skewed realities behind the selection arrangement to which I point, and I know they concern others too. I have heard them described as corrupt. I would not go that far, but I cannot escape the belief that they were uneven, unfair and inappropriate - and something very similar is, I understand, intended for the selection of the actual Chief Executive and s.151 Officer of the new Council very shortly."

 

You will note that he refers to the view of others that the process was "corrupt". He seeks to  distance himself from that allegation

If there had been evidence of corruption ie dishonest or fraudulent conduct by those in power, typically involving bribery, then my intention was to ensure that it was reported to the police

 

His  accusation amounts to an allegation of a biased decision making process.

 

The investigation

My investigation was

·         as to how the interim office holders were selected,

·          whether there was any evidence that that process was flawed

·          whether, in particular, there was any reason to believe  that there might have been bias and

·         whether there was any evidence of corruption

 

On 15/8 I interviewed Nicola Houwayek as the HR consultant supporting the establishment of the new council. She told me that she believed that the practice of the members at the selection panel was exemplary. She told me that, consistently with good practice, candidates were asked the same questions and marked. She had no concerns with the process at all

On 16/8 I interviewed Cllr Flower as chairman of the Selection Panel. He said that he believed it had been a fair and rigourous process and that he did not believe that there had been any bias

On 17/8 I interviewed Bryony Houlden (chief executive of sw council). She acted as independent advisor to the panel. She said that she had no concerns at all about the process. She was impressed by the rigour and care shown by all the members

I reviewed and read every  the marking sheet. These were filled in a thoughtful and reflective fashion

There was no evidence of anything untoward in the behaviour of any of the  members

There was no evidence of anything untoward in the behaviour of any  of the officers

There was no evidence that any candidate had an unfair advantage

There was no evidence that the composition of the selection panel was loaded in favour of certain candidates

There was no evidence of any corruption

The law

My primary interest as a local government lawyer is in decision making. There is a considerable body of law which clarifies that  when a local authority takes a decision it must act in a manner consistent with its statutory duties, that it must take into account what is relevant and discount what is irrelevant, that it must follow proper process etc

An unfair decision is an unlawful decision and a council must not take unlawful decisions

This simple principle bears repeating

An unfair decision is an unlawful decision and a council must not take unlawful decisions

 A biased decision is an unlawful decision

 

There are  requirements which precludes members  or officers from taking part in a decision if they have a financial interest in the decision or if they have predetermined the issue or if they are biased.

Bias arises if the decision to be taken could engage with their personal interests, or with the personal interests of close family members or personal friends

Bias does not arise merely because there exists a professional relationship between individuals . That is not a recognised category of bias

Therefore, as an example, there is no bias if a manager interviews a temporary member of staff for a permanent position

Analysis

I have explained that bias does not arise because of a professional relationship. This means that the argument made in the statement of Cllr Trite is flawed. There is simply no basis for the allegation that the selection panel had some sort of bias built into it merely because some leaders shared a chief executive or s151officer.

Therefore Cllr Trite is mistaken. There is no evidence that this was not a level playing field.. There is simply no ground for the assertion that the process was unfair

I will also argue this by a different route.  If Cllr Trite were correct, then  a council could not countenance any selection process where an interviewer had had a professional relationship with an interviewee.

Indeed, in respect of the permanent statutory positions the Cllr Trite argument would  exclude any member being involved who had had any professional relationship with any of the  candidates

And ,as noted  before, a manager could not be involved in interviewed an internal candidate for a permanent position

This again shows that the Cllr Trite argument is flawed

 

Cllr Trite refer to the view of "the reasonable man or woman". Reference to a hypothetical observer is sometimes helpful in understanding the law. The reference is  best construed as to an objective and fair minded observer who is not unduly cynical  nor naïve who has some knowledge of law and practice and with familiarity with the law concerning lawful decision making.

 I am afraid that the Cllr Trite "reasonable man or woman" is overly  cynical

 

Conclusion

On occasion lawyers are accused of "sitting on the fence". I am not

My advice is definitive and couched in deliberatively forceful terms. I make no apology for that

I am happy to answer any questions