Jacob Williams https://jacobwilliams.com

Last year’s £95k pay-off to Pembrokeshire County Council’s chief executive, Ian Westley, has been deemed unlawful in the first formal reports into the scandal.

The claim is set out in papers published for the authority’s hotly-anticipated October 11th extraordinary full council meeting.

Monday morning’s meeting – which was previously postponed – brings three main items of business before councillors.

Firstly we’re recommended to approve the appointment of deputy monitoring officer, Rhian Young, as interim monitoring officer for up to twelve months until recruitment to the permanent post is conducted.

The vacancy arose on the swift and surprise resignation of Claire Jones, who councillors are being told: “recently left the Council to undertake alternative employment.”

Also on the table is a new disciplinary policy for handling potential accusations against the competence or capacity of the most senior statutory council officers.

But Monday’s main business is titled: “Report of the Deputy Monitoring Officer to Council – Settlement Agreement and Payment to the Former Chief Executive.”

Rather unusually, this is the title of both agenda item 4 – whose papers are all public, and agenda item 6 – whose secret papers have only been issued to councillors.

“Exclusion of the Public” sandwiched in-between at agenda item 5, is self-explanatory.

The keenest Kremlinologists will have noticed, from close reference to the printed page numbers on the documents available on the council’s website, that councillors have access to an additional two documents – seven sheets’ worth from pages 9-15 inclusive, and one of fourteen pages from 16-29 inclusive.

The grounds cited for withholding them from public consumption – and holding the debate on agenda item 6 in private – are: “By virtue of paragraph(s) 12, 14, 15, 16 of Part 4 of Schedule 12A of the Local Government Act 1972.”

Its title makes no reference to the fact, but agenda item 4 clearly constitutes what’s known as a monitoring officer’s formal ‘section 5’ report.

We’re told that such a report, under the Local Government and Housing Act 1989, must be issued by an authority’s monitoring officer “if it at any time appears to them that any proposal, decision or omission by the Authority has given rise to a contravention by the Authority of any enactment or rule of law.”

It’s the first s.5 report in Pembrokeshire County Council’s history.

But it’s not the only PCC first.

Although no public reference is made to it, councillors are also being presented what’s known as a ‘section 114’ report – issued under the auspices of the Local Government Finance Act 1988.

According to this statute: “the chief finance officer of a relevant authority shall make a report under this section if it appears to him” that the council, committee, joint committee or “a person holding any office or employment under the authority” has made, or is about to make “a decision which involves or would involve the authority incurring expenditure which is unlawful.”

Other grounds for a s.114 report are if there appears to be: “a course of action which, if pursued to its conclusion, would be unlawful and likely to cause a loss or deficiency on the part of the authority” or if a council “is about to enter an item of account the entry of which is unlawful.”

Reports issued under s.5 and s.114 must be considered by councillors at a meeting within 21 days.

So why have these statutory reports been issued?

It’s because last year’s £95k departure deal of chief executive Ian Westley appears to the relevant officers to be unlawful.

The public report of the deputy monitoring officer sets out how a “process of externally facilitated negotiation with the former Chief Executive was undertaken, primarily during the summer of 2020,” and culminated in a “Settlement Agreement.”

No circumstances or reasons for the secret departure discussions have ever been revealed.

Famously, a gagging clause is among the stipulations of the settlement agreement, which was signed on 27th August 2020 by the council’s leader, Cllr. David Simpson.

Accordingly, within the agreement he and Mr. Westley signed, Cllr. Simpson is “described as being duly authorised to sign for and on behalf of the Authority.”

In public meetings to date, Cllr. Simpson has always maintained that, prior to signing anything, he sought specific legal advice on whether he had the authority, and was advised that he did.

Concluding the deal, a few days later finance chief Jon Haswell issued a decision notice paying £95,000 to Mr. Westley – who went on to depart the council on 30th November, 2020.

Interestingly, a distinction is drawn between the departure deal’s written contract – the settlement agreement – and the directly-associated £95k pay-off.

Although Mr. Haswell’s role in signing off the payment isn’t referred to by name or job title, we’re told that each of these acts “gave rise to a contravention of an enactment,” according to the deputy MO.

Her frank discussion of “The legal issue,” which cites the breached laws, is summed up with:

“For these reasons, it is considered that under the relevant legislation the decision to enter into the Settlement Agreement with the former Chief Executive (and to make the associated Payment) was not one which could properly be taken by the Leader or any other individual councillor, and was one which needed to be taken by Full Council. Since this did not occur, there was no proper authority at the relevant time, either for the Settlement Agreement to be entered into on behalf of the Authority, or for the Payment to be made to the former Chief Executive.”

That’s pretty much all the public at this stage is told – other than that:

“The Authority must now consider what steps it deems appropriate to take in respect of the Settlement Agreement at this point. This will require further consideration both of the nature of the Settlement Agreement, and of the legal advice received by the Authority, and more detailed information about these matters is set out in the confidential report.”

And that’s where the private papers take over, potentially to be discussed behind closed doors.

Whilst I’m not at liberty to disclose what’s in the secret report to councillors, the public papers offer hints with statements like: “…it will not be sensibly possible to separate discussion of privileged legal advice from the remainder of the discussion…”

Meanwhile, extracts like the following strongly suggest that councillors are shown some or all of the contentious settlement agreement:

“Although certain key features of the Settlement Agreement (as mentioned above) are already in the public domain, other provisions are not. Whilst (as Members will be able to see from the documents attached to the confidential report) these other provisions are not especially sensitive in nature, it is also apparent that public understanding of the situation will not be much increased by seeing them.”

Next week’s debate of these two statutory reports may or may not be held in secret.

That’s something councillors will have to decide, it isn’t automatic.

As part of this decision, councillors must also consider if secrecy considerations are outweighed by the public interest in open discussion.

And even on this aspect, there’s an interesting twist – very possibly an infinite loop!

Councillors are not only recommended to turf out the public and press for agenda item 6, but in what’s sure to tickle many a local government-watcher, we’re told:

“Should Members consider that any debate is required before deciding whether to go into private session for the substantive consideration of this item, it is recommended that Members should in any case resolve to hold that preliminary debate in private session, so that relevant information is not prematurely disclosed.”

JW is prepared to be persuaded, but this suggestion of a potentially never-ending cycle of votes – where the public wouldn’t even be allowed to see or hear their councillors argue about slamming the council chamber doors in their face – doesn’t seem right, not to mention, practical.

And Monday’s meeting is only a preliminary round in the Westley pay-off saga.

The main event is expected when the statutory auditors’ long-awaited report into the affair is published – nobody seems to know when.

That, too, will be considered at a meeting of all sixty councillors.

Unconfirmed reports are reaching Chez W that the author of that other website, Cllr. Mike Stoddart, has been seen and heard stirring from his long slumber.

October 14th will mark a full two years since Pembrokeshire’s first blogging councillor last posted a column on his OldGrumpy.co.uk website.

Once a regular columnist, writing weekly without fail, the question is: will the old duffer post before Thursday’s morose milestone is reached?

He can hardly claim there’s nothing to write about…

The extraordinary council meeting starts at 10am on Monday, 11th October, and will be live-streamed (and subsequently archived) at this link.

The meeting’s paperwork can be found at this link.