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