I am determined that this case should not be lost in the chaos and confusion of the Covid-19 pandemic because it is symptomatic of what is wrong with some parts of Shropshire Council.
The parts of Shropshire Council that are right tend to be at the lower operational, individual officer levels, it’s when you start looking at the very top that things start to get a bit questionable – and whilst politics isn’t always to blame there are systemic faults that run to its very core.
The case of what happened to one particular senior officer has a significance that taints everyone by association, not least because as one long-established Tory councillor said to me in a discussion about the issues that have seen Shropshire Council making regular appearances in the ‘Rotten Boroughs’ section of Private Eye: “When we’re elected we hand our reputation to Shropshire Council and have every right to expect them to look after it”.
We’re talking here about how an organisation goes about its business, and that affects everyone engaged with whatever business that organisation is engaged in, severally and collectively, because everyone in that organisation is accountable “by association”.
Everyone. Well, apart from the few who arrogate to themselves the apparently immutable right of privilege they assume comes with the ability to face down anyone who challenges them.
But this is a case deserving of challenge, especially under the present conditions, with everyone’s attention so focused on Covid-19, which is proving to be a carpet big enough to sweep a lot of highly questionable stuff under.
What set it all off.
What made this case go from a curious incident to a worrying case worth looking into was a chance meeting with the person at the centre of it all in, of all places, the dairy aisle of Sainsbury’s in Shrewsbury, when the usual niceties of a chance meeting went from the usual niceties to worrying tales of a betrayal that led to an over-reaction by Shropshire Council’s then Chief Executive that would have significant cost implications, although the extent of those costs wouldn’t become obvious until much later. About eighteen months later in fact.
So, stepping back in time, imagine that you’re engaged in negotiations with colleagues less qualified, less senior and less experienced than you, and there is a disagreement amongst the group about the way to go about making changes to the way the organisation is set up, and one of the more junior colleagues goes to the Chief Executive and complains that you’re “being difficult”, and the Chief Executive calls you in and tells you that, on the basis of that junior colleague’s word, he is suspending you and then emails the wider organisation telling them that he’s suspending you for having committed a very serious breach of some unspecified protocol.
And if, a few months later, your suspension is lifted without so much as a public apology or follow-up statement about the facts of the case, which meant your accuser gets away with having been responsible for adding the insult of that original public statement to the personal injury of impugning a reputation you’d built up over an unblemished career spanning 37 years well, without putting too fine a point on it, you’d be more than a bit pissed off.
But I’m getting ahead of myself.
This is the email, widely distributed to all Shropshire councillors, that started it all off…
From: Clive Wright
Sent: Thursday, August 30, 2018 5:36:12 PM
Subject: Strictly Confidential
This is to advise you that I have suspended (let’s call him ‘Jim Smith’) from his duties at the Council pending an investigation.
The investigation concerns a potentially serious matter which I cannot disclose at this juncture.
The fact that we are investigating does not mean that there is any guilt or wrong doing.
In the meantime the following staff are dealing with operational issues:
[LIST OF STAFF]
For strategic matters please contact me.
Please contact me to discuss any concerns you may have.
Due to the sensitivity of this matter it is extremely important that you do not discuss this further.
I read it again and did a double-take at…
“The investigation concerns a potentially serious matter which I cannot disclose at this juncture.”
“The fact that we are investigating does not mean that there is any guilt or wrong doing.”
So what was with the bit that said: “a potentially serious matter […] does not mean that there is any guilt or wrong doing.”
I thought, OK, so a potentially serious matter? Surely it’s either serious or it’s not, and if there’s potentially no guilt or wrong-doing then:
“…suspended pending an investigation into allegations of a breach of standards”
…would have sufficed?
You’d have thought so. I certainly did. Chief Executive Clive Wright obviously didn’t.
Unless seriously serious, an everyday breach of standards leads to a formal Code of Conduct Complaint which is referred to the council’s Standards Committee, in this case I was surprised that what was being called “a potentially serious matter” wasn’t referred to the police, although in my experience such a referral usually results in the complaint being dropped because of ‘insufficient evidence’, even if it’s actually the case that the law has been broken, because the police aren’t interested in the internal affairs of the council if they lack the “aggravating factors” that would make it a “real” crime; basically, that nobody’s lost out financially. Breaches of the Localism Act being a case in point.
But this “potentially serious matter” wasn’t being referred to either of those two channels. It wouldn’t be the first time in this case that I’d ask: “What’s occurring?”
There are in fact a number of options.
Part 5 of Shropshire Council’s Codes and Protocols says:
Any concerns regarding Members’ conduct in relation to the relevant protocols listed at paragraph 1 above should be considered in the first instance by the Monitoring Officer. If the conduct gives rise to section 151 statutory officer issues, the Monitoring Officer will consult with that officer. Where the concerns relate to potential criminal actions, the Monitoring Officer shall make an immediate referral to the Police. Where there has been a potential breach of the Code of Conduct the “Procedure for Local Assessment and Investigation of Complaints that Councillors have Breached the Code of Conduct” shall be followed.
On completion of the report and any response from any affected Members, the Monitoring Officer will determine whether to:-
i) take no further action
ii) resolve the matter informally
iii) refer the matter to the Assessment Sub-Committee to decide what action to take
iv) refer the matter to any outside agency, e.g. Ombudsman
But not a word followed that original email notification of that senior officer’s suspension.
The officer in question had been central to a lot of stuff going on in my constituency, his name was on a lot of paperwork, including his being copied-in to emails from (civil) partners outside the council who wouldn’t have received that initial email because it was marked “Strictly confidential”.
People needed to be told because business needed to continue, hence on receipt of that email advising of the suspension I wrote to Clive Wright…
31 Aug 2018, 09:19
Jeez! Still reeling.
There is one area that ‘Jim Smith’ was closely involved with and ‘Jim Smith’ would have been First Point of Contact about, issues concerning the Severn Centre.
‘Jim Smith’ was in direct contact with the CEO of Halo Leisure, especially about an ongoing issue. Will correspondence be diverted or can Scott be advised of an alternative contact without revealing details?
And are the parish council clerks ‘Jim Smith’ had direct (not just through the CET) dealings with being advised of “alternative arrangements”?
To which Clive Wright answered…
31 August 2018 09:40
I will do my best to ensure that these loose ends are picked up.
And that’s when it all went quiet. Not a word until, in May 2019, eight months later, the new Senior Management Structure was circulated which clearly showed ‘Jim Smith’ where you’d expect to find him, just below the head of the structure!
So why, as far as anyone knew, was ‘Jim Smith’ still suspended.
What the hell was going on?
Busy with local issues, I left things as they were to see what, if anything, transpired. I hadn’t pushed it further because at this point I was anyway more curious than suspicious.
I checked that management structure diagram again to see whether Shropshire Council’s imported “highly experienced” highways consultant (at £1,000 a day for six months, an unnecessary indulgence given that our own ‘Jim Smith’ was probably equally as “highly experienced”) appeared in a permanent post, he didn’t and, seeing ‘Jim Smith’s’ name still there, I phoned around to ask if anyone knew whether ‘Jim Smith’ was STILL employed by the council. No one knew.
Now that struck me as odd because ‘Jim Smith’ had been heavily involved with a lot of projects in a lot of different departments, he was known and well-liked by everyone he’d worked with, so hardly likely to be overlooked by anyone he was supposed to be working with if he was, as that management structure indicated, still in the building.
This was showing all the signs that I’d seen so many times before in dealings with both elected and salaried members of the Shirehall Establishment, an Establishment so jealous of its power that it would do anything to protect itself from anything that threatened that power. I call it ‘The Purple Cloud of Obfuscation’, but choose any colour you like.
That someone could just disappear seemed a bit ‘Soviet’ to me – ‘Jim Smith’ had been Photoshopped out of the picture.
I don’t like loose ends, so…
22 Dec 2019, 11:13
Good day, Clive.
Given the size of this organisation, it always amazes me that it doesn’t operate like other organisations of its size and complexity, although perhaps I’m unfairly comparing it with organisations I’ve worked with in the past who appreciate how important it is to maintain their management information systems.
Or perhaps ‘Jim Smith’, on the basis of the excellent work he could always be relied upon to do, has been taken back on because according to the attached “Senior Management Structure” dated, note, May 2019, and available on the council’s website, shows either ‘Jim Smith’ or someone with the same name employed by us in the same capacity.
Unsurprisingly, I was not reassured by Clive Wright’s reply…
From: Clive Wright
Sent: 23 December 2019 07:17
To: Dave Tremellen
Cc: Peter Nutting; Claire Porter
Subject: Re: Senior admin roles
Dear Councillor Tremellen
Thank you for your email.
‘Jim Smith’ has not left the organisation and so the organisation structure diagram reflects accurately the current situation.
I assure you that the Council does take seriously the maintenance of its management information systems.
I hope this is helpful.
… not least because of the significant change to the formal form of address: “Dear Councillor Tremellen” instead of “Dear Dave” or just “Dave”. In terms of making me take notice, that was like throwing a brick through a plate-glass window.
So quite apart from the change in tone, we now have Council Leader Peter Nutting and Head of Legal & Democratic Services Claire Porter copied-in and Clive Wright is no longer marking it “Strictly Confidential” which, together with the new players, was significant because the sensitivity that he judged made it “strictly confidential” he no longer thought applied because he wasn’t broadcasting it to all and sundry but just to me, but why would he bring in the big guns and bring them in over a year since the original suspension and 6 months since that Senior Management Structure was published showing ‘Jim Smith’ still in post?
I picked up that email three hours after it was sent and emailed Clive Wright by return…
23 Dec 2019, 10:19
Sorry, how on earth could I have got it so wrong, I must have completely misunderstood the conversation I had with ‘Jim Smith’ in Sainsburys some time back.
Has anyone actually told him that he’s still in post, or are we talking about two different ‘Jim Smith’s?
Independent Member for Highley Ward
I wasn’t expecting a response and didn’t plan to push for one because experience has told me that I’d be wasting my time because above a certain pay grade few consider themselves answerable to anyone, especially not a ‘non executive’ councillor.
But then Clive Wright phoned me.
When I got over my initial surprise, why he was phoning soon became clear, not by what he was saying but by what he wasn’t spelling out whilst at the same time emphasising that “the whole situation was still very sensitive”.
He wouldn’t tell me why.
It was a conversation of about five minutes duration during which the less he said the more uncomfortable he sounded and the more I became convinced that he was trying desperately hard not to say something he’d regret later, something that it was obvious he desperately wanted to tell me but couldn’t.
I said goodbye first to end his misery and sat there frowning at the phone trying to make sense of what had just happened.
When people go out of their way to help you “understand” a situation without actually helping you understand, it’s because “something” is going on and they want you on-side, or at the very least neutralised!
And why copy-in the Leader of the Council and the Head of Legal & Democratic Services, because that last email of mine was in reply to an email that hadn’t been addressed to either the Leader of the Council or the Head of Legal & Democratic Services and which, moreover, on its own would not have made sense to anyone who hadn’t been party to preceding emails.
Conclusion? The Leader of the Council and the Head of Legal & Democratic Services had been party to whatever had been going on up to that point. Whether they had agreed with what had gone on was moot. They may not have been party to that original suspension but it was eminently likely that its consequences were beginning to be felt, sending a shudder right up to the fifth floor.
Some things are more somethings than other things.
It doesn’t take a genius to figure out that in this case the “something” was something legal-ish and, given the dodgy responses, the fact that ‘Jim Smith’ had apparently continued in Shropshire Council’s employ without actually taking up his senior post after being released from suspension without anyone being told…….?
Cue ominous music.
Ominous music indeed because on the 25th February, just two days before Full Council on the 27th, it was announced that Clive Wright had
been summarily dismissed (sorry) “stepped down” at the meeting of the council’s ruling Conservative group on the evening of the 24th.
The reason for his going is still open to speculation. The reason in general circulation at the time had to do with his appearance on TV news saying that Bridgnorth hadn’t experienced flooding as bad as Ironbridge (upriver) or Bewdley (downriver). My own reaction to that as being the reason can be summed up in one naughty word.
The question that should have been asked – was begging to be asked – was:
Did the costs of hiring consultants over recent years (in excess of half a million pounds), added to the costs of what, if the ‘Jim Smith’ case turned out to be more than just a bit of an administrative nuisance, push Peter Nutting and the more conservative of his Conservative Party colleagues to do a few sums and decide that Clive Wright had committed a cash-strapped Shropshire Council to more commitments than it could afford to pay?
Which is when I brought in the guy who can sniff out a fact hiding under a mile-high pile of bullshit, Steve Mulloy, and we started taking a long, hard look at what passed for facts in the case of a council officer suspended for what was allegedly a potentially serious breach of an unspecified protocol that apparently didn’t carry any guilt.
There was a whiff of something in the air and there’s only one thing that carries a more distinctive smell than a case of constructive dismissal and that’s a Non-Disclosure Agreement.
The signs were there.
1. Senior officer suspended from duty for an alleged serious breach of an unspecified protocol that apparently didn’t carry any guilt and then quietly reinstated without his making an appearance, his post remaining open and empty for months.
2. A Chief Executive phoning me to explain things too sensitive to commit to email, but saying what amounted to bugger all.
3. The Council Leader and the Head of Legal & Democratic Services of Shropshire Council now involved.
Just begs a question, doesn’t it.
There had obviously (?) been an awakening to the fact that the sanctioning of ‘Jim Smith’ had consequences that went beyond anything that had been expected when the word of that junior officer had been taken without question, “pending investigation” of course.
So where to go from there? Perhaps an indirect approach might open a few cracks up?
So at the February 2020 Full Council I submitted a written question to no one in particular…
2. Question from Councillor Dave Tremellen Before employing outside consultants, could I, on behalf of what would appear to be a substantial majority of Shropshire residents, respectfully suggest that this Council submits any such proposal to whatever Scrutiny Committee is considered most appropriate so that this Council’s own internal fund of expertise, whether in the form of relevantly experienced officers or elected Members, is first examined to determine whether outside intervention is needed?
The idea was to open the way for the verbal supplementary question you’re allowed in response to the written answer you get to your original written question, which has to be submitted well in advance of the council meeting, in fact well in advance of Clive Wright’s dismissal, as it turned out.
I wasn’t holding my breath for anything other than a stock response and Peter Nutting didn’t disappoint on that expectation, instead of addressing the wider principle I was alluding to he did, as hoped, refer to the most recent highways consultant hiring, but as I said that didn’t matter.
Response from the Leader of the Council COUNCILLOR PETER NUTTING, LEADER
As Members will be aware, this Council rarely engages consultants and only does so if other opportunities have been exhausted. In this case it is obvious to us all that the effective management of our Highways Services has been an issue for some time. Indeed, highways issues is the most complained about in the Council. With respect, the Conservative Party is in power and has been elected to run this Council. Whilst we are open to and welcome challenge through the Scrutiny process we should not, and will not, make decisions through Scrutiny Committees, which, as Members will know, is not a decision-making function of the Council. I believe that our decision to engage this consultant was the best course of action. Whilst the short-term costs are significant, on balance the savings and improvement we are making far out-weigh this and so the arrangement offers value for money on an ‘invest to save basis’. This is the key point I would make to the public, the savings and improvement we will make as a result of engaging this consultant will be far greater than the costs. I want to pay tribute to all of our Highways staff who I know have welcomed the leadership changes we have made. The dedication and commitment this service has shown during the recent storms for example, demonstrates just how fantastic we can be when it really matters, and people are depending on us. Such dedication deserves good leadership. Sometimes when in power, tough and potentially unpopular decisions have to be made. We will not shy away from making these decisions in the best interests of Shropshire and our residents.
My supplementary question, adhering to the Keep-It-Simple-Stupid policy, allowed me to ask…
“Where did I specifically mention highways? But as you’ve raised it: On the matter of employing the highways consultant, my primary concern is whether that consultant was needed given that a traffic engineer with 37 years experience is *still on suspension for an unspecified breach of a standard that has still to be investigated since September 2018.”
* NOTE: Still under the impression that ‘Jim Smith’ was suspended, it was a week after the council meeting that a confidential phone call from a council officer – who didn’t want to be identified – informed me that the suspension had been lifted almost a year earlier. This is how information relating to investigations involving the council often comes to light.
The person who answered the original question has the right of reply to a supplementary question, but Peter Nutting had to leave the meeting to meet a visiting MP, so all he said was that he didn’t think it appropriate to discuss matters relating to an officer who wasn’t present and asked me to speak to his PA to arrange a separate meeting in private. Fair enough. I thanked him and agreed. Under the circumstances and in such a public arena that was a generous gesture, it certainly took me by surprise – and I wasn’t alone in that.
It was reported to me afterwards that the face of the Head of Legal & Democratic Services “was a picture”. She was not happy.
A subsequent meeting was arranged but then the Covid19 lockdown intervened, meaning any meeting was likely to be postponed well beyond the foreseeable future.
Quite apart from Peter Nutting tacitly admitting that there was a matter of high sensitivity concerning the “traffic engineer” I’d referred to in my supplementary question, you don’t have to look far to see the position Peter Nutting had just placed the Head of Legal & Democratic Services in. He had acted like someone who was party to something shifty involving the unnamed person alluded to in my Question, we both knew who I’d been referring to, so did many of the rest of the Council Members. In fact one acquaintance wrote to me afterwards and said: “A number of us were asking ourselves ‘why Dave Tremellen’, why not the other 72 Members?”
The immediate question that sprang to mind that would have been asked had that meeting taken place was, given my earlier reference to the cost to the council of employing consultants at a minimum of over half a million pounds in the very recent past: “IF there IS an NDA, how much is it costing us?”
The focus shifts to the public interest factor.
I asked Steve to look for information on NDAs that might be relevant to this case and he found:
Solicitors engaged in drawing up non disclosure agreements (NDAs} on employment severance settlements have been reminded that, in any conflict of principles, the public interest in the proper administration of justice must came first. The warning appears in a practice note published today entitled Non-disclosure Agreements and Confidentiality Clauses in an Employment Law Context.
The position of the Information Commissioner’s Office (ICO) on ‘The Public Interest Test’ can be found here:
We know the response we’re likely to get from Shropshire Council from the dealings we’ve had with them before, when they’ve actually challenged our insistence that the public interest is best served through openness and transparency. The most obvious case of Shropshire Council’s intransigence on this being the barring of Steve Mulloy from making FoI requests, a move that got them a bollocking off the Information Commissioner’s Office for citing the wrong section of law.
Which leaves us where?
We need to get a response to an FOI request before dissecting all the arguments available in the above so that in the event of Shropshire Council denying the case we can let the Information Commissioner’s Office decide – again!
But come what may, we need to take away the lesson that decisions made by executives should always be open to scrutiny, or at least that executives making decisions should always act as if they are accountable to someone for the consequences of those decisions, and that clear records of those decisions are available for scrutiny in a genuine spirit of openness and transparency, because public interest is a matter for the public to decide, it should never be left to salaried executives or politicians to define.
Steve looked for information that gave us an idea of the prevalence of NDA’s within the local government sector, what came out was surprising – or perhaps not.
“I don’t think I’ve ever done a settlement agreement without a confidentiality clause,” says Siobhan Fitzgerald, partner at law firm TLT. “Confidentiality is nearly always in there.” For instance, a 2016 investigation by BBC Radio 5 Live found that UK local authorities spent more than £225m on settlement agreements between 2010 and 2015 – most of which included an NDA. More than 2,000 agreements totalling £5.5m were attributed to Cardiff Council alone, which had used them routinely following redundancies, though it said that policy stopped in 2015.
What we turned up in Shropshire Council’s case didn’t really surprise us, because whilst out of sight often means out of mind, council’s depending on keeping their murkier stuff out of the public gaze can only bank on that staying the case if the subject is out of record. And whilst that record is often hidden away in some obscure filing cabinet, if someone who knows what they’re doing knows where to look…
In the minutes of Shropshire Council’s meeting of 24 November 2011, a question from a Mrs H Lillington, asked:
- How many employees, faced with redundancy or dismissal from their job with the Authority for any reason, have pursued legal redress through either Employment Tribunal or Civil Court action?
- How many of those cases have resulted in an out of court settlement with the Authority?
- Of these cases, how many out of court settlement agreements have included one or more confidentiality clauses or binding non-disclosure clauses or what is commonly known as a “gagging order”?
- In which year were these settlement agreements made?
- How many employees who have left their job with the Authority, have had additional confidentiality clauses/binding non-disclosure clauses/gagging orders included in their settlement agreement above and beyond those nondisclosure commitments pertaining to the normal and reasonable confidentiality requirements of their job role?
- Have any such confidentiality clauses applied specifically to the settlement agreement rather than to the employee’s job role?
- Has the Authority made any discretionary payments associated with the agreement of such confidentiality clauses?
The question was answered by the then Deputy Leader of the Council, Councillor Ann Hartley (currently Chair of Shropshire Council):
It is quite wrong to refer to confidentiality agreements as ‘gagging orders’. It is
accepted employment practice that, where there is a dispute between an employer and employee, and both parties agree to a settlement of the proceedings without recourse to a full contested hearing, both parties will agree to terms and conditions of settlement which are beneficial to both parties. This often includes a ‘non disclosure’ clause for both parties not to discuss the terms of the agreement, to enable them to resolve disputes without any potential detriment to either party’s reputation.
Settlement agreements are a common practice for all employers and are good employment practice. The Council uses such agreements to assist in maintaining good employer/employee relations, but only a handful of such agreements are completed every year- only four have been used in the past 18 months.
Any settlement agreement relies upon some form of consideration from both parties. However, there is no agreement that has been undertaken by the Council that specifically applies to any employee being offered any settlement money as a consequence of maintaining confidentiality.
It’s that last bit that’s the killer exposé…
“Any settlement agreement relies upon some form of consideration from both parties. However, there is no agreement that has been undertaken by the Council that specifically applies to any employee being offered any settlement money as a consequence of maintaining confidentiality.”
In other words, it doesn’t happen in this Authority.
Then what, precisely, IS going on?
Now there’s a question.