Jacob Williams
Monday, 17th January, 2022

Pay-off probes go public

Pay-off probes go public

Even those with only a passing interest in local politics have wondered why the investigation by Audit Wales into the unlawful £95k pay-off to Pembrokeshire County Council’s former chief executive, Ian Westley, as signed off in 2020 by the authority’s leader, Cllr. David Simpson, took well over a year.

Thursday’s thorough 68-page public interest report (PIR) issued by the statutory auditor may give us a clue – especially this publication’s early disclaimer telling us that:

“The audit has been complex, made more difficult by the failure of the Council to contemporaneously document the basis on which decisions were made. Furthermore, those interviewed sometimes held very different recollections of the same events.”

The report leaves room for interpretation, as does a second, less prominent external review which the council published on the same day, called the Bowles report.

This is the effort of a Mr. David Bowles, a former local government bod who was commissioned by Mr. Westley’s interim successor, Mr. Richard Brown, to independently investigate the saga from an internal management perspective.

We can take a few things from these two assessments.

There was a concerted effort – by all parties – to see that Mr. Westley departed County Hall with a £95k pay-off, for no recorded reason.

External legal advice – which was overridden internally – put senior officers on notice that Cllr. Simpson couldn’t legally approve such a deal on the council’s behalf, and the whole thing went ahead behind backbench councillors’ knowledge, denying us the opportunity to scrutinise it.

The auditor says he is “unable to reach a definitive conclusion” on the “circumstances that led to the Council’s then Chief Executive being offered a termination payment,” which Mr. Westley claims was based on “poor member behaviour towards him over a sustained period, amounting to bullying and intimidation.”

Furthermore, Mr. Westley is sticking by this story despite apparent shyness with supporting evidence, and a failure to pursue such claims through the many relevant formal channels available to him.

Meanwhile, the auditor reports that: “Others, including the Council Leader, maintain that whilst Cabinet members were robust in challenging and scrutinising the way in which the then Chief Executive was performing his role, he was not subjected to bullying.”

There was, however, “consensus that one of the factors that led to the Chief Executive’s departure was that relationships between him and some members of the Council’s Cabinet were, at the very least, strained.”

Whilst he doesn’t rule out the possibility, the auditor doesn’t come to a view on whether Mr. Westley genuinely thought he was being bullied, or, perhaps more accurately, whether he genuinely felt that he had a realistic prospect of pursuing the council for such alleged activity.

Bullying or not, the Audit Wales and Bowles reports both show that the other side of the coin is the suggestion that Mr. Westley and his competence were being seen as an obstacle to progress at the council.

The origins…

November 5th, 2019, and a letter is sent by Mr. Westley to the council’s leader, Cllr. David Simpson.

Mr. Westley’s Guy Fawkes Night letter, which isn’t public, is summarised by the auditor as Mr. Westley: “setting out his concerns regarding the conduct of one Cabinet member,” where: “he reluctantly came to the conclusion that his position as the Council’s Chief Executive had become untenable.”

We don’t know how Cllr. Simpson reacted to this letter, which seemed to follow unspecified in-person discussion between the pair, but the official report leaves a long gap before the next part of the story – which is a meeting in London on March 4th, 2020.

It seems that the advanced purpose of this meeting wasn’t about alleged bullying or potential lawsuits, but how Mr. Westley might leave the council.

Elsewhere it’s revealed – in news to most of us – that Mr. Westley’s time as chief executive may have been short-lived anyway.

As part of an externally-led senior staffing rationalisation review, there was the possibility of his position being ‘deleted’ and the emergence of a new managing director post.

Other potential options, circulated on 29th June, 2020 in “a consultation document to all Directors and Heads of Service” included: “the posts of head of HR and monitoring officer respectively can be deleted if alternative organisational arrangements are put in place.”

It’s not clear if Mr. Westley was aware of these ideas by March 4th, but, on the basis that a cohort doesn’t travel from Pembrokeshire to the big smoke without good reason, the assumption must be that, by this time, Mr. Westley was on his way out of the council in some shape or form, and this meeting was an attempt to carve out some sort of deal that pleased everyone.

Mr. Westley did not attend this meeting held in the London offices of the Local Government Association (LGA), but those who did were:

• The council’s leader, Cllr. David Simpson
• Two officers “from the LGA’s Specialist Employment Team supported the Leader at this meeting” (unnamed)
• Mr. Westley’s trade union representative (unnamed)
• The council’s monitoring officer, Ms. Claire Jones
• The council’s head of human resources, Mr. Ceri Davies

Mr. Bowles’ review says: “I understand the meeting was inconclusive.”

Mr. Davies – who by far and away comes out of this worse than anybody else – presented to the Audit Wales probe “what he maintains were his contemporaneous notes of the meeting of 4 March 2020.”

The head of HR’s notes claimed that the leader, Cllr. Simpson, had confirmed in London “that relations had broken down” and that these crunch talks were “in order to avoid any potential claim or bad publicity” Mr. Westley might bring to bear.

However the auditor says Mr. Davies’ notes were inconsistent with other representations he had made about this same meeting, where he had written that Cllr. Simpson had spoken of “no problems between members/ officers” and “neither were there any specific issues between [the then Chief Executive] and Cabinet members/Leader. [The Leader] also saying he’s happy for [the Chief Executive] to continue in his role as are members.”

Cllr. Simpson’s account of the meeting holds that Mr. Westley wanted to leave PCC “either on the basis of early retirement or by way of voluntary severance.”

The Audit Wales report says: “The Leader told my auditors that whilst relationships were difficult, he did not consider relationships had irrevocably broken down at the time of the meeting of 4 March 2020.”

Cllr. Simpson’s stance on this point is also said to be: “consistent with notes kept of the 4 March meeting by the former Chief Executive’s representative,” who used the forum to propose some options including: “that the Chief Executive could apply for voluntary severance under the Council’s voluntary severance scheme.”

“The former Chief Executive’s representative provided my auditors with notes he took of the meeting. These notes record that he raised concerns regarding the way some members of the Council had treated the then Chief Executive, but that the Leader had responded that he did not believe there was a major problem, and that he and other leading members were happy to continue to work with him.”

Mr. Davies’ involvement, specifically his provision of what he claimed were notes he had taken at the time, led the auditor to take the bold stance: “I have reason to doubt that these notes were in fact contemporaneous” – a strong sentence he also uses in relation to what Mr. Davies claims are “contemporaneous notes” of a “telephone conversation of 12 August 2020.”

Diabolical record-keeping – for which PCC has been excoriated previously in a high-profile losing legal case – meant that the climate was rife, from early on, for wildly differing versions of events to thrive. The secrecy only served to compound it.

The accused…

No names of those who Mr. Westley might have accused of bullying are printed anywhere in either the Audit Wales or Bowles report. What we have to go on are inconsistent characterisations.

There are references to, for example, the very unspecific: “some members of the Council,” to the slightly more specific: “a number of senior elected members,” to the even more specific: “relationships with some Cabinet members had irrevocably broken down,” to the aforementioned but unidentified: “one Cabinet member.”

If there was any merit to Mr. Westley’s bullying claims, his problem wasn’t just with one or possibly more elected members – since the Bowles report broadens the scope to include Mr. Westley’s fellow senior officers as the alleged bullies:

“Allegations were made that at its extreme the Council had created a culture where some officers believed that their interests are best served by aligning themselves to a small number of members, and in that regard made derogatory and undermining comments about their colleague officers, including the former Chief Executive.”

I’ve been a councillor for nearly a decade, and this paragraph is not something I even understand, let alone recognise.

On the purpose of the settlement, the auditor reaches the following key view:

“I therefore consider it unlikely that the purpose of the payment made to the former Chief Executive in September 2020 was to settle a potential claim. If I am incorrect on this point, the Council failed to follow its own internal human resources’ policies and procedures for handling potential and actual employment claims.”

Whilst not touching on the merits of bullying allegations, this will surely be considered somewhat vindicating for Cllr. Simpson in all of this – especially since Mr. Westley is still understood to adamantly maintain his £95k was in settlement of potential claims for alleged bullying.

The auditor’s long report shows why he came to his view, including, perhaps most persuasively of all, the fact that: “the Council did not consider whether there was evidence available to support a potential employment claim in respect of the treatment of its then Chief Executive, or to determine that £95,000 was appropriate compensation for any such claim.”

Mr. Davies seems to have been quite zealous in his attempts to persuade the auditor that the pay-off was in settlement of prospective legal action by Mr. Westley.

But these unsuccessful efforts seem to to have backfired, undermined as they were by Mr. Davies’ inconsistencies, the suggestion that he misrepresented evidence, and perhaps another revelation.

Late on in the process, Mr. Davies inexplicably shared the council’s privileged legal advice with Mr. Westley:

“The Head of Human Resources told my auditors that he was given authority to disclose this information by the Council’s external legal advisor, but my auditors have seen no evidence to support this. The legal advice was of a confidential nature, provided for the benefit of the Council. The disclosure of this information had the potential to cause detriment to the Council (by giving the then Chief Executive an advantage in the negotiations, as he had the benefit of knowing what the Council’s legal advice was on certain points, whereas the opposite was not true).”

In a nice touch, the public interest report records that: “The Chief Executive responded to the Head of Human Resources thanking him for sharing the information.”

I bet!

Mr. Davies comes in for further stick for his instructions which procured the draft wording of the settlement agreement.

The audit report says: “the oral instructions given by the Head of Human Resources to the Council’s external legal advisors were not based on established facts,” adding:

“My auditors asked the Council’s Head of Human Resources why he orally instructed the Council’s external legal advisors that the then Chief Executive could potentially bring a constructive dismissal claim against the Council. He told my auditors that he assumed that the payment was for settling a claim but acknowledged that he had seen no evidence to support his assumption.”

Those wondering why the council or leader never assessed the legitimacy of a potential claim by Mr. Westley before giving him £95k of public cash, might be interested to learn:

“The Leader acknowledged that the former Chief Executive informed him that he held files documenting examples of poor member behaviour but did not share the content of these files with him. The Leader told my auditors that in his view the then Chief Executive did not have grounds on which to bring an employment claim against the Council.”

Whether he possessed, and/or shared files constituting credible evidence of bullying, we don’t know.

But the reason Mr. Westley says he didn’t formalise his allegations – through internal protocols, with external legal action, or to make a referral to the councillor standards watchdog, the local government ombudsman – is said by the auditor to be: “because he did not wish to damage the reputation of the Council.”

The very thought!

A deal is struck

It seems that Mr. Westley was angling for a much larger sum than £95k, but that this eventual figure was driven perhaps chiefly by the misapprehension that, as long as it was below £100k, the pay-off didn’t need to go before full council.

The sum seems to have emerged from a meeting on August 12th, 2020, which “took place at the request of the Leader between the then Chief Executive’s Trade Union representative and the LGA Officer,” at which: “No Council officers or members were present.”

The public interest report says:

The LGA Officer told my auditors that the Leader did not instruct him to discuss or negotiate the settlement of potential employment claims with the former Chief Executive’s representative, and in his meeting with the Chief Executive’s representative on 12 August 2020, no claim(s) was presented or discussed. He told my auditors that his understanding was that the Chief Executive was eager to leave the Council, and that some members of the Cabinet did not have full confidence in him. He was therefore seeking, on the instructions of the Leader, to negotiate a voluntary exit “in the interests of the efficiency of the service”.

The LGA Officer also told my auditors that his understanding was that there were potentially two reasons why this agreement was in the interests of the Council:

“the Council did not feel the Chief Executive had the right skills and competencies to take the Council forward on its improvement journey”, and

• the then Chief Executive’s representative maintained “that the Chief Executive had been the victim of bullying by a number of senior elected members and was prepared to pursue a grievance in this context”. The LGA Officer told my auditors that it was therefore deemed that the departure of the Chief Executive was “in the interests of the efficiency of the service”.

Mr. Westley was keen that the departure payment contract – the settlement agreement – should stipulate that it was to settle prospective legal action against bullying.

Indeed, such a clause was initially included based on Mr. Davies’ instructions – but Cllr. Simpson was adamant this should be removed because he says he didn’t believe it was true.

Cllr. Simpson seems to have won because – in perhaps a reluctant compromise on Mr. Westley’s part – no reason for the departure or payment was recorded in the settlement agreement both men signed on 27th August, 2020.

But if this non-inclusion was a victory for Cllr. Simpson, it was to be hollow, and it would play its part in the undoing of their efforts.

Formalising this detail in the settlement agreement wasn’t just something Mr. Westley might have conveniently wanted on record for his pride and peace of mind, nor was it a juicy morsel which might have interested nosey so-and-so councillors or the pesky paying public, but chiefly: it made a sweeping difference for tax purposes.

If it was an early retirement – which Mr. Westley denies – then it would incur more tax than a firing, redundancy or an agreement to settle alleged bullying – which Cllr. Simpson denies was the case.

Much of the audit report is built on this tax arrangement and implications, however it’s dry stuff and, as with the potential pension pot implications, it isn’t mentioned further in this blogpost, but might be in future.

Why is the pay-off deemed illegal?

There are a few reasons the auditor comes to the view that the pay-off is illegal, but as far as corporate governance goes, the prime pitfall is that any sort of pay-off should have been approved by full council – and not by its leader, Cllr. Simpson, as an executive decision on the council’s behalf.

An email available to the auditor and Mr. Bowles as part of their probes shows that: “Cllr Simpson understandably requires assurance that he is permitted to authorise this planned payment.”

External legal advice wasn’t sought on this question, and internal council advice wrongly held that Cllr. Simpson did have such authority to approve the deal as an executive decision (as a cabinet member) rather than being taken at a meeting of all sixty councillors.

But it’s worse than that, because the council’s top external lawyers actually volunteered the key bit of advice on this issue which should surely have prevented the whole saga.

The auditor says that some “ambiguity […] in internal correspondence” over the proposed decision-making process “was picked up by the Council’s external legal advisors,” who told the council that since the pay-off was an “employment matter,” approval of the deal “cannot be an executive decision,” as County Hall was intending.

The council’s internal legal advice was provided by its monitoring officer, Claire Jones, with the concurrence of its legal chief, Claire Incledon.

‘The two Claires,’ as they were known, both quit the council in-between the start of Audit Wales’ investigation and the publication of its public interest report.

Audit Wales “accepts” that Ms. Jones compiled her flawed advice “without notice and within a very short timeframe,” yet noted how four months later – and despite “having re-considered” it – she continued in her defence of its correctness when probed by the investigator.

JW was tickled by the use of these facts in reaching the conclusion: “that if the then Monitoring Officer had been given a longer timeframe to respond, her overall conclusion is unlikely to have been different.”

In the same email in which she agreed with Ms. Jones’ mistaken advice, Mrs. Incledon came what in hindsight could be seen as agonisingly close to averting the whole scandal.

She said the deal: “surely is a matter in the public interest and one that has significant effect on the Authority,” and questioned “if this is indeed a matter that can appropriately be taken by the Leader.”

Mrs. Incledon also: “highlighted that the proposed payment to the then Chief Executive did not appear to be covered within the Council pay policy,” and said: “I am also mindful that scrutiny does have a role to play here,” and that councillors “may well wish to review the severance package or may well call in the decision.”

Her instincts, at least on these points, were bang-on.

Unfortunately, as we know from experience at the Kremlin on Cleddau, the tendency for senior County Hall officers to strongly agree with each other – even in the face of credible doubts – is deeply ingrained, and the two Claires were in unity: “that any decision to make a £95,000 compensatory payment to the Chief Executive is one which the Leader may himself make.”

The significance of this part of the story is emphasised in the public interest report:

“It was on the basis of the advice provided by the then Monitoring Officer that the Leader and those involved in the negotiations were satisfied that the decision to make a termination payment to the then Chief Executive was one that could be taken by the Leader, when in my view the Leader did not have the lawful authority to make the decision.”

The stage was therefore set for Cllr. Simpson to formally approve Mr. Westley’s £95k departure deal on the council’s behalf, rather than by full council or a suitable committee with express delegation.

Ms. Jones’ advice was for the decision to be made by Cllr. Simpson via what’s known as an individual cabinet member’s decision, or an ICM.

We can now see that, even by their own plan, there is evidence – possibly not known of by Ms. Jones – that the ICM was nothing more than a fig leaf, because the decision it would have been pretending to formalise, had ostensibly been made days earlier.

Cllr. Simpson had already placed his signature alongside Mr. Westley’s on the settlement agreement at a time when, elsewhere in emails, Mrs. Incledon is seen discussing the future possibility of drafting up the relevant ICM.

However, in any event, no ICM was ever issued.

Confused?

Mr. Bowles describes this twist in the following terms: “for reasons which are not clear officers ultimately decided that the Leader could sign the agreement without an ICM and the Council could rely solely upon an officer decision notice.”

Audit Wales were able to get more detail – and identified that, in a further, compounding mistake, Mrs. Incledon advised that, since “the matter is dealing primarily with the allocation of financial resources,” there was an opportunity to “obviate the need to go through the ICM process” if it could be made by an officer as a “delegated decision.”

The task of signing off the payment therefore landed in the lap of Jon Haswell, finance director.

As the authority’s section 151 officer, Mr. Haswell joins the two Claires as the third of PCC’s statutory officers to be caught up in the affair.

I was rather impressed by the auditor’s willingness to imply that, even though Ms. Jones’ internal advice was mistaken that an ‘ICM’ was a legal mechanism for making such a decision, the fact that this advice was also ignored, made things even worse, not better.

In my earliest blog coverage, I was struck by how unclear it was who made the decision – was it Cllr. Simpson, or Mr. Haswell?

Although he failed to satisfy himself that everything was above board, the attempt to transform Mr. Haswell into the sole ‘decision-maker’ in all this completely removed the ability for councillors to have any say at all.

Had Ms. Jones’ advice been followed – for Cllr. Simpson to make the decision via an ICM – councillors would at least have been put on advance notice before it was implemented, and been able to call it in to a formal committee meeting for scrutiny.

No such opportunity exists to call-in officer delegated decisions – a fact which might need to be revisited in light of this episode.

It would take quite a charitable sort to think that the catalogue of ‘mistakes’ – all of which went towards centralising power and against involving wider elected member scrutiny – wasn’t without an element of design.

With nearly two decades under his belt as a senior councillor, Cllr. Simpson’s political antennae should have sensed that such an unusual and controversial decision was the council’s to make. All sixty members, and not him alone, even though he was advised wrongly that he could.

Indeed, he even admitted as much to the auditor: “until receiving advice from the then Monitoring Officer, his assumption was that any proposal to make a termination payment to the Chief Executive, regardless of the amount, would need to go to Council “to approve in some way shape or form”.”

Early release

Whilst in a previous blogpost I have suggested that he and Mr. Westley would likely have had their own strong reasons for wanting to avoid full council’s seal of approval, it should have been obvious to everyone that such an under-the-radar manner would attract great controversy.

On that note, the conspiracy theorists might well wonder if what are portrayed as Mr. Westley’s ultimately successful lobbying efforts, to get the cash paid into his account months before it was due, is further evidence of a desire on his part to bypass elected member scrutiny.

As part of this affair, Mr. Haswell says he asked Mr. Westley “for a copy of the Settlement Agreement, but the Chief Executive declined his request on the basis that the Settlement Agreement contained a confidentiality clause.”

Mr. Haswell wanted to know when the payment was due, but because of the aforementioned, said he had to rely on Mr. Westley’s word: “that the payment had to be made within 28 days of the date of the Settlement Agreement.”

Mr. Westley denies he said this – but Cllr. Simpson claims he was present when Mr. Westley said this to Mr. Haswell.

In any case, the report says: “the Settlement Agreement did not require any payment to be made until 30 November 2020,” Mr. Westley’s leaving date.

Mr. Haswell is criticised for not doing “more than seeking oral assurances,” as a result of which: “the payment was made in the week commencing 21 September 2020 whilst the Chief Executive was still employed.”

There may not have been a clandestine plot that allowed Mr. Westley to bank his cash before councillors could do anything about it, and the accounts are of course disputed, but none of it looks great for the authority’s most senior employee.

Of course it takes two to tango, and Cllr. Simpson, who holds the authority’s most senior elected position, seems to have shown little unease over keeping councillors in the dark until the deal was done, and bypassing their ability to have their say.

However, whilst there may be many who think Cllr. Simpson shoulders all the blame, ample evidence is presented in both reports showing how keen council officers – including Mr. Westley – were to bypass councillors and due process.

Obscuring and limiting scrutiny

The Bowles report takes a bit of a wider approach, highlighting the “questionable quality” of advice on times given at PCC.

Cynics may read a lot between the lines of certain aspects of Mr. Bowles’ report’s assessment of the Westley pay-off, such as the following:

• Documents would suggest the Council has left itself open to allegations of trying to minimise public scrutiny, or indeed scrutiny by members of the Council itself.

• Advice given by officers and documentation produced by officers, whether deliberately or otherwise, further obscured the transaction and reduced scope for member involvement.

The following extract of a key exchange, from paragraph 174 of the Audit Wales report onwards, would seem to bolster that view:

174.On 17 August 2020, the Council’s then Head of Legal and Democratic Services emailed the Council’s Head of Human Resources stating: “I have thought through our earlier conversation and despite my enthusiasm based on previous approaches to [Settlement Agreements] I am reminded that someone somewhere needs to make a decision … and as a purely financial transaction I would suggest that the [Individual Cabinet Member] report be authored by [the Director of Resources] and determined by the Leader. I will draft an outline report for you to fill in gaps and share with [the Director of Resources]“. As set out in paragraph 171, the Council’s Constitution sets out that, where the Leader makes any executive decision, he/she shall instruct the Head of Legal and Democratic Services to produce a written statement of that executive decision.

175. The Head of Human Resources responded to the then Head of Legal and Democratic Services, “I understood from our earlier conversation that there was not the need for an [Individual Cabinet Member] report – is that correct? If so, we don’t need to trouble ourselves further on this point (and we could simply ask the Leader to inform [the Director of Resources] on e-mail that there will be a financial element to this [Settlement Agreement] and that he has agreed it). Will wait to hear”.

176. The then Head of Legal and Democratic Services responded, “earlier I was exploring with you whether there were any options around not reporting formally in light of previous decisions, mindful of the potential for issues to arise due to the [Individual Cabinet Member report] being published. Having further considered the position however, I have concluded that there is no way around this decision being appropriately and formally recorded.” The email also states, “I am aware that [the Chief Executive] is particularly anxious about the reporting mechanism and implications”.

177. The content of these emails suggest to me that the then Head of Legal and Democratic Services and Head of Human Resources considered and discussed options to avoid the formal reporting process. The then Head of Legal and Democratic Services and the Head of Human Resources told my auditors that this was not the case and they were not seeking to avoid formally reporting the decision. […]

“The content of these emails suggest to me that the then Head of Legal and Democratic Services and Head of Human Resources considered and discussed options to avoid the formal reporting process.”
— Audit Wales report, P.54
Even if County Hall’s senior officers had the purest of intentions, they do so in the face of these clear emails, “exploring…options around not reporting formally,” saying that there is “not the need for” a formal report, and the seemingly defeatist conclusion that: “there is no way around this decision being appropriately and formally recorded.”

Mr. Bowles says that, “whether intended or not the pattern of officer advice on decision taking has left the Council open to allegations that the Council failed to follow proper process in order to ‘manage’ adverse comment and publicity,” and two of his findings relative to this point are:

h) As the transaction progressed there are officer emails which are open to the interpretation of seeking to adopt an approval process which avoided any involvement of Scrutiny.

i) Documents to support the transaction were drafted, deliberately or otherwise, in a manner which obscured events rather than add clarity.

Gagging clause

Much will be said, interpretations will be made, and sides will no doubt be taken, on whether Mr. Westley was bullied.

It’s something the auditor didn’t set out to determine one way or the other – but the public interest report does confirm that Mr. Westley did not pursue such allegations, nor does he seem to have presented evidence of such a case against the council, unelected officers, or its elected membership.

What he did do was sign a document which released him and his £95k from the council, without enshrining such allegations. A key feature of this agreement was that both parties agreed to keep their lips sealed publicly: the gagging clause.

It’s perhaps unlikely, but we may one day learn that all of these identified issues with the process render the whole of the settlement agreement null and void – and if the gagging clause is no longer binding, it would potentially give Mr. Westley and Cllr. Simpson carte blanche to tell all publicly.

This would of course be in stark contrast to their under-the-table ways which led us to this point.

Mr. Westley might feel hard done by, and Cllr. Simpson may have egg all over his face, but as long as their gagging clause remains in force, the auditor’s probe, with his sweeping legal powers of investigation culminating in his long report, is likely to be the best insight we’ll ever have into this affair.

The end of the saga isn’t nearly over. An extraordinary council meeting has been convened for February 1st, at which Audit Wales’ public interest report will be considered, among other resulting formalities.

Cllr. Simpson has recused himself from previous council meeting discussions relating to this topic on the basis that, as he is directly involved in the subject matter, he is prejudicially interested and would be liable to a code of conduct complaint if he partook in debate.

Whilst this might seem like a convenient get out of jail card for Cllr. Simpson, I cannot argue with the advice he is following – because it was given by a leading London QC, at my insistence, during a public meeting!

It is, however, open to Cllr. Simpson to apply for dispensation from the council’s standards committee for permission to speak on this topic at council meetings.

My record has been clear and consistent on this: councillors must be able to ask questions of Cllr. Simpson, and Cllr. Simpson must be heard!

He would be well advised to make an urgent application for dispensation to address the February 1st meeting on this, the most notable development of public interest of his leadership tenure.

If he dodges this extraordinary council meeting, I have no doubt that the authority’s corporate overview and scrutiny committee – of which I am a member – will force a vote on legally requiring him to come before it to answer members’ questions.

As he would be attending such a meeting under the exercise of legal powers, my understanding is that his prejudicial interest wouldn’t be in play.

Of course, it would be up to him what he says. He may claim he’s hampered by the settlement agreement’s gagging clause – but he must have the chance to hear members’ questions and, one way or the other, I think he’ll have to, whether he wants to or not.

PCC is seeking nominations for two vacancies on its governance and audit committee.

If you’ve read through this far, retained the will to live, and have half an idea of what’s going on – then you sound like you’re just the person! The closing date for applications is Monday, 24th January. Details are available at this page.


46 Comments...

  • Barrie Smith

    Thanks Jacob, as per usual nothing will get done to flush out the problems PCC and the taxpayers of Pembrokeshire will again have to foot the bill for incompetence.

  • Although much will depend on the outcome of the meeting on February 1st, in your opinion do you think Audit Wales will seek, or have grounds for, a declaration of unlawfulness from the courts?

  • Hi. If, as I imagine, the council accepts the public interest report’s findings, I don’t think that’s likely.

    At paragraph 162 the Audit Wales report also says:

    “I recognise that only a court can definitively determine whether the payment made to the former Chief Executive was unlawful but, in my view, payment was unlawful.”

    It seems that despite everything, the matter will conclude on full council’s expected acceptance of the report – save that the council’s accounts will probably be qualified by the auditor for the year of the payment.

    But there could well be other issues besides the PIR which need addressing – including the potential for tax and pension liabilities to emerge in due course.

  • Flashbang

    The usual cover-ups, contradictory legal advice and big spending on top QCs are pretty much hallmarks of PCC in a simple backwater in Wales.

    A quick chat with the man in the street would probably have got clearer and better informed answers.

    Were there big payouts to the 2 Claires before they ran for the hills?

    What is the new broom doing as we haven’t heard a peep out of him since he sat in the chair? Surely his job would entail putting the unnamed councillors and unelected officers into line and has their behaviour been modified since he took over?

    I’m betting 2022 will be more of the same despite public outrage over the way PCC cobbles together and facilitates its slapdash decisions on a daily basis. Let’s see how they are going to run a bus company and how long it takes before they send the county broke.

  • Malcolm Calver

    Surely Cllr Simpson will have the decency to attend and answer questions on the affair from fellow county councillors at the February meeting.

    There are elections coming in May and the electorate need to be made aware that their faith in the leader expressed by their existing existing county councillor in electing him as leader was justified.

    No more closed sessions to cover things up.

  • Keanjo

    It will all be swept under the very dirty carpets in County Hall unless of course IW decides to employ a no win no fee lawyer who should be able to screw another 200 grand in damages.

    Whatever happens, the cost of incompetence will fall on the poor council tax payer.

  • Steve Potter

    Congratulations on such a forensic analysis of a complex report, Jacob. I sometimes despair for Pembrokeshire. I was employed for most of my working life by a large English local authority and when I moved here I was shocked by the contemptuous attitude of some officers, both to elected members and to the public.

  • Arthur Arran

    This stinks, and if anything it’s worse than the BPJ saga, Westley pulled the wool over the eyes of the officers, it looks to me like it was deliberate, where’s the evidence of bullying? He was in a union and there’s agreed procedures for incidents like that.

    To bank the payment while still an employee is beyond, even the most inexperienced council employee surely wouldn’t agree to it.

  • Pembs. Exile

    Will Pembrokeshire County Council be tendering in the near future for the removal of the accumulated under-carpet sweepings? I have a large wheelbarrow and broom!

  • Wynne

    Well done Jacob. Thank you for your forensic analysis in the public interest.

  • John Hudson

    Amidst all of this chaos, this rump of a cabinet is looking at planning towards 2040.

    While a council will go on, the new council will have to redress the deficiencies in corporate governance as a priority.

    I have no confidence, that the collective current membership with a few new councillors, would be able to do this. Neither do I think that senior officers, if there are any left, brought up in its legacy ethos have the will to change.

    After several internal reviews over years, managed by our council, it is time for ministerial intervention and for the new council to be put into temporary special measures.

  • John Hudson

    May I also add my thanks to Jacob for treading a careful line in providing the only impartial commentary on the audit report from a serving councillor.

    I also echo the thoughts of Steve Potter above, I too could not believe what went on in the ‘Wild West’ under the same Local Government legislation in a council dominated by an officer.

  • Michael Hart

    Jacob, an excellent dissection of the reports.

    It looks like the leader started out with a good understanding of what might happen if he left the inhouse plonkers to deal with a difficult situation.

    By going to outside legal professionals and negotiators seems to be a very astute move. However when they somehow got back into the process he somehow seems to have been manoeuvred by the Greeks bearing gifts. Even then he was careful to keep asking if it was lawful to proceed.

    However the reported conduct of the Head of HR seems to go well beyond what might be an error of judgement.

    From providing “evidence” of meeting notes that are different to all the other parties at a meeting. Providing the other party with the councils protected legal advice and emailing the other party certainly needs further examination.

    The report also comments “The Head of Human Resources responded that the Leader’s decision was “regrettable””.

    These are not the comments and actions expected of an officer carrying out their duties but more of a person seeking to undermine the authority and the leader.

    If such officer conduct occurred can members do anything about it, other than other than cringe and whinge?

  • Keanjo

    John, ‘dominated by an officer’ sums up the problem.

    Before the advent of the chief executive, each department was headed by an elected member chairman and committee with a chief officer, all responsible to the county council.

    This system gave elected members involvement but at the same time gave the chief officer full responsibility for progressing an approved programme.

    The appointment of chief executives seems to have weakened the position of departmental heads and reduced the involvement of elected members. Is it possible that the chief executive’s office could and should be dropped?

  • Malcolm Calver

    Keanjo, watching the webcasts I would not have classified Cllr Miller as a “shrinking violet”. Do we really know who allegedly “bullied” who?

  • John Hudson

    Keanjo, the traditional tried and tested committee service based governance system had much to commend it over the cross cutting themes based system we now have. I suspect that committee members were more more closely informed and involved then about their services.

    Did you notice from the Bowles report, that cabinet members now swan off to meet developers without council officers? There do not appear to be any minutes from these meetings.

    I have always thought we do not vote for councillors with a collective policy for the county. Without this collective mandate, we will always end up with officer-promoted initiatives or perhaps ones inspired by WG grant schemes.

  • Jimbo

    Jon Haswell is as much to blame as anyone for signing this off – and he reports he lost his notes to question the pay off.

  • Faux Espoir

    Illegal payment to employee – police should be summoned and investigation undertaken. Oh, hang on, there is some history here.

  • Malcolm Calver

    John, why anyone other than the local member should be involved with a person seeking planning permission beggars belief. There should also be a record/declaration by anyone doing so and whilst we are at it a record should be kept of meetings between both councillors and employees discussing any involvement of the council in any private project.

    Look at the proposal of the council to purchase a bus company, was it the council who approached the bus company or the other way around, and which councillors/employees were involved and when?

  • John Hudson

    Malcolm, one point of properly kept official public documentation, minutes of meetings and decisions etc. is to avoid the public perception of wrongdoing. If called upon, this record can be used in evidence in court.

    Not for the first time, this council’s formal record of events has been found wanting by judicial review and external regulators.

    We might imagine that a public administration would want to avoid any misperception at any cost, not least by keeping a formal record of events.

  • Michael Hart

    Jacob, it is good to see Councillor Simpson has now obtained dispensation from the standards committee to be able to answer questions at the extraordinary council meeting. If he had something to hide he could have easily pulled the prejudicial interest card.

    However there is an ongoing Investigating and Disciplinary Sub-Committee meeting currently sitting who voted to go into secret session to consider the “Preliminary Investigation Report – Statutory Officer Disciplinary Procedure.”

    If this has nothing to do with the business relating to the Audit Wales report I cannot see a problem. However if it is related would the monitoring officer be required to consider if Councillors Jamie Adams, Jon Harvey, David Lloyd, Jonathan Preston, David Pugh, Rob Summons and Tony Wilcox have to absent themselves from the emergency council meeting having seen and discussed this material? (The council website shows they are currently expected to attend this sub-committee meeting).

  • Keanjo

    Jacob, whilst the leader has to share a proportion of the blame, he did consult the relevant chief officers for advice before authorising payment. The advice he was given was incorrect.

    The officers involved are paid generous salaries for their expertise and it would appear they gave incorrect information which resulted in £95,000 of council taxpayers’ money being squandered.

    How can this money be recovered? Can the Officers involved be surcharged? Your views would be appreciated.

  • Mayday

    I wonder if the term ‘omnishambles ‘ (“a situation that has been comprehensively mismanaged, characterized by a string of blunders and miscalculations”) will make a debut during council’s deliberations.

  • Keanjo, as I understand it, the ability to surcharge local government officers and politicians whose actions or failings have contributed to unlawful expenditure or losses has long since passed.

    As for what the council does next in the knowledge that this pay-off has been deemed unlawful, the only thing I can say with some certainty about Tuesday’s extraordinary meeting is that councillors will, as is required, take a vote on whether or not to accept the Audit Wales public interest report.

    You will note that the PIR does not address the recovery of the funds, or what can or should be done about that aspect.

  • John Hudson

    Cipfa’s guidance on the role of the Chief Financial Officer may have some bearing here. This sets the expected recommended standard of financial management in local authorities.

    It points to an extra special duty or responsibility owed by CFOs to council ratepayers in the use of public money, founded on case law dating from the early 1900s.

    Although Mr Westley has been paid, (even if it was before his leaving date) the reason for his leaving is unclear. This reason, it would appear, will determine the amount of payment lawfully able to be paid.

  • John Hudson

    Does the councillor, or councillors, referred to as negotiating directly with developer(s) without officers being present, have an interest to declare, if this aspect is discussed or touched on? Did this have an influence on Mr Westley’s leaving?

  • Martin Lewis

    So, it looks like after all the fuss and expense and time spent on this matter, Audit Wales say the payment was unlawful, but Simpson and the officers get off scot free and Westley gets to keep our £95k and nobody outside of the top echelons really know what it was for?

  • Malcolm Calver

    John, Jacob in his role as chairman of the planning committee asks for interest declarations at the start of the meeting. I am afraid that it is up to the honesty of councillors to declare any interest or not.

    I must say watching the webcasts there seems to be a major input from one or two councillors supporting applications.

    In relation to the cabinet’s recent decision to purchase the bus company, that seems to have been stitched up before the cabinet meeting.

  • Mayday

    So there we have it. Nothing to see here – move on.

    Everything is good in PCC land, lessons have been learnt and governance strengthened. No apparent repercussions for those officers that decided to tough it out despite apparently serious defects in their abilities upto and including sharing legal advice with the departing CEO.

    Watch closely for their quietly arranged early retirement packages! And a “mea culpa” from the leader that amounted to blaming bad advice. Oh and then the revelation that this episode might just have added 1% to your council tax bill. What did our elected representatives just do in our name?

  • Mayday – you are of course correct, but by the time we bog standard councillors became involved it was merely a damage-limitation exercise.

    As I said during the debate, the council’s position was extremely fragile and our only alternative was to follow Denis Healey’s well known law: “When you’re in a hole, stop digging”.

  • John Hudson

    As councillors determined to consider this matter in public, how will officers arrange for the reports held back from publication on the agenda be made available for the public to mull over. Votes were also recorded in a confused manner on the webcast. Will these be listed in written minutes?

    Publication of these matters would be a start in formally recording the audit trail of why decisions were made. No doubt this year’s financial outturn will be affected by the cost of all this, when it is identified as promised.

  • Welshman 23

    Having watched the webcast last evening I have come to the following conclusions:

    1. This authority needs to go into special measures.
    2. The new CEO is a clone of all the previous incumbents, wasting money on consultants etc.
    3. The number of councillors who had zero input into discussions, far too many councillors have been there far too long. These appointments should be restricted to a fixed term, eg 2 elections.
    4. The full cost of this debacle could be £500k.
    5. This expenditure could reflect a 1% increase in council tax.
    6. The leader has fallen on his sword and do us all a favour and resign.
    7. It easy to spend someone else’s money.

  • John Hudson

    With most, if not all, of the senior officers responsible for ensuring the legality of decision making now gone, who is left to advise the council on the new rule book or constitution?

    In-house officers used to working in the legacy “Pembrokeshire way” may not be best placed to impartially advice new and sitting councillors about the provisions to be included in a new constitution.

    External, experienced impartial advisers are available, with more to come aboard.

    Not that anybody read or paid attention to the old constitution. By its absence, it was clear that the leader did not have “plenary” power to approve the settlement, much less the Director of Resources to approve the release of funds and the payment.

    In the present circumstances I rather agree with Welshman 23, the council needs to be put into special measures for our protection, until it can prove itself to be a fit and proper corporate body.

  • Malcolm Calver

    Mike, you might be as you say a bog standard councillor, but the point I noticed was that at every turn Cllr Miller tried to sidetrack the meeting and one wonders what his true role was in this affair and Mr Westley leaving.

  • Pembs. Exile

    I am sure that I am not alone in being utterly bewildered by the the deliberations of the special meeting called to consider the report of the Audit Wales report on payments made to the former Chief Executive.

    I anticipated that this would be a forensic examination of those involved in negotiating and approving this payment. It was nothing of the sort, I heard nothing that remotely answered the issues raised by the report.

    I confess to being a simple soul. The leader of the council submitted that the chief executive had indicated to him that he wished to vacate his post. Regrettable, perhaps. But all that was required was a simple letter of resignation to be submitted.

    It was never made clear as to at what stage, or by whom, the suggestion of the competence of the chief executive was seen as an obstacle to the progress of the council.

    Likewise, when was the poor behaviour of members amounting to bullying first raised? When and how was his authority being undermined by other officers? If these questions did arise why were they not investigated?

    I was left feeling that somebody was scrambling around looking for an issue which could be used to justify a termination payment. It would seem perhaps that the letter by the CEO setting out his concerns, if and when published, will shed some light on question as to why the Audit Wales concluded that the payment was not justified.

    The councillors that represent the Pembrokeshire electorate have, with few exceptions, not learned the lessons of the past.

    What with trips to London to negotiate a settlement, presumably costly, external legal advice which is ignored the voters deserve better.

    Jacob yesterday, for me, the star performance came from your cat. She realised that it was a futile exercise being conducted and had the good sense to sleep through it all.

  • John Hudson

    It will be interesting to see the auditor’s 2020/2021 final accounts audit report.

    Plus of course, the council’s current year 2021/2022 projected outturn report and next year’s proposed budget, with the financial effects of this scandal fully disclosed in each, together with how the council proposes to meet the costs incurred out of its, or rather our, money.

  • Mayday

    Meanwhile, behind the smoke and mirrors of transparency, an assistant CEO was appointed. The vacancy appears to have been limited to the internal talent pool.

  • Pembs. Exile

    Another fine mess! With no one being held accountable.

    In the good “old days”, auditors could hold those responsible accountable for unlawful acts. Who is going to speak for the electorate of Pembrokeshire?

    The local MPs seem to be remarkably silent on this issue. The Welsh Government seems indifferent to what is happening.

    No one has been held accountable, no head has rolled the only people paying the price for the incompetence of the administration governing Pembrokeshire is the ratepayer.

    Time for MPs and the Welsh Government to act in the interest of the people of Pembrokeshire.

  • Keanjo

    I suppose the long silence means that the £95,000 of hard earned council tax payers’ money has disappeared down the administration drain with no one accountable.

    We still have not been informed why it became necessary to gag IW. What did he know which is worth £95,000 to keep him quiet? Which Councillor (s) is involved if any?

    Why are the ‘ordinary’ members not insisting on being fully informed? It is our money being thrown away, we have the right to a full explanation.

  • Oliver Cromwell

    As predicted the ‘silence’ is deafening! The situation has come about due to incompetence. Watching the Council leader’s smug defence of his solo actions as:- ‘It was not me m’lud, it was the advice I was given!’ simply underlined his lack of judgement.

    First: the fact that the CEO and his senior staff wanted the matter to remain confidential, and be kept from members of council, should have rung alarm bells – such matters could only be decided in full council.

    Second: Faced with conflicting advice from expensive lawyers and Senior officers, seeking the opinion of at least his cabinet colleagues should have been his very first reaction. (Although not said, if that was his first thought put under the cloak of secrecy by the officers, even louder alarms should have sounded.)

    Thirdly: If the leader really thought that he had the right to spend in excess of £500,000 of taxpayers’ money on his own, without the authority of full council, and in secret, then his competence is in very serious question.

    Resignation, forthwith, both as leader and as a councillor, is the ONLY honourable course open to him.

    There can be little doubt that the ex-CEO is still laughing!

  • Malcolm Calver

    I note the comment by Pembs. Exile that it is “ime for MPs and the Welsh Government to act in the interest of the people of Pembrokeshire”. That would be a new thing and we have new elections in May so they do not wish to rock the boat.

  • John Hudson

    I hope these councillors will press on our behalf for the council to explain where all our money used for this, all of it, came from.

    It was hardly a budgeted item, and as such would require identification and formal authorisation, according to the constitution and financial regulations. Oh sorry, nobody bothers to read these governance rules approved by the council for the management of its affairs by officers and councillors, let alone abide by them.

  • Keanjo

    Whilst I fully agree with Oliver Cromwell that the leader should resign, the responsibility of the officers who gave him faulty advice cannot be ignored and they should be disciplined appropriately.

    I’m sure every effort will be made to delay any judgement until after the election but I hope a sufficient number of members will be able to ensure the matter is dealt with more urgently.

  • John Hudson

    Given wider events, our domestic problems may be considered trivial in comparison. The independent external audit service is paid for by the corporate bodies they audit, i.e. we ratepayers have to pay for the cost of our independent external audit.

    Our council is always keen to limit the cost of this service, which was questioned by the audit committee before this self-inflicted need for extra cost came to the forefront.

    Is the extent and findings of the independent audit influenced by the fact that the council has to find the money for it?

  • John Hudson

    The long-awaited Audit Wales 2021-2022 audit of accounts report to 31 March 2021, issued in February 2022 has now been published and is to be considered by the full council on Thursday.

    Issues have apparently been discussed with the chief financial officer and apparently an audit can never give complete assurance that accounts are correctly stated.

    Instead, auditors work to a level of materiality, set to try to identify and correct misstatements that might otherwise cause a user of the accounts to be misled. This level is set at £4,158,000.

    The £95,000 we are all interested in is referred to in note 10.9.3, termination benefits, and an amendment being made in the narrative note to correctly disclose the nature of the potentially unlawful termination payment. That’s all right then! No one is accountable.

    The auditor also found that 18 of our 60 Councillors had not completed and submitted their annual declarations of interest returns! Management i.e The council has undertaken to encourage members to complete these within the timeframe required. The forms are to be reviewed and amended (simplified?) if required, to make guidance clearer. New members are to be given training.

  • Keanjo

    That’s it then! Hundreds of thousands spent on legal advice and audit fees to find that the payment to IW was illegally paid and absolutely nothing is done.

    Never mind lads, you can always pass the damage over to the good old council tax payer and if he doesn’t pay you can take him to court.

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