April 4 2006
When I worked at the Mercury, one of the great pleasures in life was to go into the office on a Monday morning and find a large brown envelope on the doormat.
The envelope was instantly recognisable as an offering from my most reliable mole.
In it would be copies of county council pink papers headed "Not for publication".
Nowadays, I notice that the pink papers have the word "RESTRICTED" stamped across them in large type, almost as if they were top secret intelligence documents.
Judging by recent events surrounding the chief executive's pay review, this tactic must be judged a failure because every time I listened to local radio, or picked up a newspaper, the story featured prominently.
And, it would seem, there must be a multiplicity of moles because everyone had a different number for the amount of moolah he was about to receive.
Indeed, the council was leaking so badly, even the Western Telegraph had the story, though Old Grumpy notices that the intricate manoeuvres surrounding the county council's proposed sale of the Mine Depot at Blackbridge Milford Haven to Milford Haven Port Authority seem to have passed beneath the radar of Wales biggest selling weekly snoozepaper (see below).
The absence of the press from the meeting where the chief executive's pay was debated was also noticeable.
Unfortunately, they missed an interesting debate on whether or not the meeting should be held in secret.
The background to this issue is the Local Government (Access to Information) Act 1985, which, among other things, gives members of the public a right to attend council meetings.
The Act contains two exceptions to the general rule.
Firstly, in respect of "confidential information" - defined as information provided by a government body on terms of confidentiality - when the public must (my emphasis) be excluded.
And, secondly, "exempt information" when the council/committee may (my emphasis) resolve to exclude the public.
Exempt information is defined in the 15 paragraphs of Schedule 12A of the act and includes such matters as employment issues, legal advice received by the authority, etc, etc.
It seems to me that the word "may" clearly indicates that the committee/council has a discretion in this matter and that members are perfectly entitled to discuss the issues in public if they judge it appropriate.
Unfortunately, over the years, the exclusion of the public has become automatic whenever exempt information is to be discussed.
There is, occasionally, an attempt by the opposition - as last Thursday - to have the business debated in open session, but they are invariably outvoted by the majority Independent Political (sic) Group.
This probably explains why the local press don't bother to turn up, though it doesn't explain why they don't make a fuss about this institutionalised lack of transparency.
After all, if the press can't get excited about secrecy in government, who can?
As I said earlier, it is within the members' discretion whether or not the public are excluded and we must assume that Parliament used the word "may" rather than "must" because it envisaged situations where, notwithstanding the fact that exempt information would be disclosed, members would wish to allow the public to be present.
There is an interesting rule in this regard in that it has been long held that public officials; charged with ruling on this sort of issue, must not, in the legal jargon, "fetter their discretion" by subjecting the decision to rules, whether written or unwritten.
So a the decision of panel of school governors; set up to hear appeals against pupil exclusions, would be open to challenge if it adopted a policy of always acting in accordance with the head's recommendations.
The principle being that every case should be judged on its own merits.
It was said during the debate that there was "a convention" in Pembrokeshire County Council that salaries are discussed in private session and the leader, Cllr John Davies" is quoted as telling pembrokeshiretv.com that The salaries of all our employees are set in private and this is a practice common to all local authorities.
That sounds like the fettering of a discretion to me.
My own view is that, as an elected member, one of your chief functions is to protect the constitutional rights of the voters, including the right to know what is being done in their name.
So, before curtailing those rights, members should carefully balance the relative weight to be given to the benefits of open, transparent government and the damage to the public interest that might occur if certain exempt information is disclosed.
The fact that disclosure might embarrass the authority should not be a consideration, but often is.
In the present case, the leader claims that the chief executive's salary will be public knowledge once the accounts for the relevant year are published.
If that is true, why the need for secrecy?
However, it is only partially true because the chief executive's 2006 salary will not be published until July 2007 and the figure given will be imprecise (last year's accounts show his salary as being in the band £130,000 - £140,000).
Furthermore, the published amount includes an unspecified sum received in respect of his car leasing arrangements (up to a maximum of 12.5% of his salary).
And, of course, because the meeting was held in secret, the public didn't get to hear about the process by which it was decided to bring in outside consultants rather than follow the guidelines issued by the local authorities' Joint Negotiating Council. (For a report on the almost identical exercise; carried out in 2001, see Fools and our money)
One rule for them . . .
In an effort to make the case for secrecy during the discussion of staffing issues, the leader, Cllr John Davies, alluded to the incident just before the last election when his predecessor Maurice Hughes revealed the sickness record of one of the council's social workers during a council meeting.
The social worker was under attack because she had dared to go on TV and criticise the council.
Cllr Davies said that the former leader: "Had been criticised, and probably rightly so" over that incident i.e. it was wrong to talk about employees in public.
However, Old Grumpy has a good memory and an even better filing system which has enabled me to turn up a copy of the email sent out by the, then, monitoring officer, Huw James, in which it was claimed that Cllr Hughes's revelations were perfectly in order.
In her book The Origins of Totalitarianism, the political philosopher Hannah Arendt described the tendency of those in power to regard as the truth whatever suits their immediate purposes as: "An extreme contempt for facts as such, for in their opinion fact depends entirely on the power of the man who can fabricate it."
Or, put another way: why be concerned with accuracy when you are arguing the case before a six member committee where the votes of yourself and three of your cabinet cronies are already in the bag?
As for the process that led to this salary review, I can't see how that can be exempt information.
It seems the review was initiated by the leader, though I can find nothing in the council's constitution that gives him such powers.
External consultants were then called in by the head of personnel, Francis Maull, who briefed them on the role of the chief executive in Pembrokeshire County Council.
The chief executive is Mr Maull's immediate superior within the organisation.
From what I heard during the meeting, much of this reviewing exercise involves making comparisons with other similar authorities.
Nothing wrong with that you might think!
However, such a system is seriously flawed because, as soon as one perceived anomaly is corrected, others are created by the resulting changes in the pecking order.
Not that any of the participants mind because, in this game of salary-leapfrog, the only way is up.
Hall of fame
It seems like another secret meeting is in the offing when the standards committee meets tomorrow (Wednesday) to consider the Ombundsman's report into the allegation that Cllr Brian Hall brought the office of councillor into disrepute by issuing threats of physical violence against a BBC journalist during a reception at City Hall, St Davids.
As the code of conduct forbids me to divulge the contents of the pink papers, you will have to be satisfied with the transcript of the Dragon's Eye programme that first drew attention to the matter (see Dragon's Eye).
All I will say is that Cllr Hall's defence is in the form of a long letter blaming everyone but himself for the situation in which he finds himself.
According to the papers that are in the public domain, the meeting may be held in private session because of the likely disclosure of exempt information as defined in one of the paragraphs of Schedule 12A of the Access to Information Act.
The relevant paragraph reads:
Any instructions to counsel and any opinion of counsel (whether or not in connection with any proceedings) and any advice received, information obtained or action to be taken in connection with
(a) any legal proceedings by or against the authority, or
(b) the determination of any matter affecting the authority,
(whether, in either case, proceedings have been commenced or are in contemplation).
I must admit that I find it difficult to see what this has to do with the Ombudsman's report into Cllr Hall's behaviour, though no doubt the council's highly paid, highly trained lawyers will come up with something.
The Freedom of Information Act has enabled Old Grumpy to accumulate an impressive pile of documents on Pembrokeshire County Council's most recent attempts to sell the Mine Depot in Milford Haven
It seems that a Mr Peter Scott first contacted the council about the possible purchase of the site on 12 May 2005.
Things seem to have progressed rapidly because just six weeks later the Cabinet agreed to sell the site to an unnamed "property consultant" [Mr Scott/Haven Facilities Ltd] "on terms satisfactory to the director of development [Roger Barrett-Evans]".
However, news of that proposed deal were leaked to the local press and another bidder appeared on the scene.
It was then decided to put the site out to informal tender with a closing date of 31 August 2005.
It seems that, after the tenders were opened, the council had a change of mind and decided to initiate a second tender exercise involving only part of the site.
Some mystery surrounds this decision to retender because all the council can tell me is that it was taken during the "first week of September" by the chief executive, Mr Barrett-Evans and Mr Neville Henstredge (head of property and asset management) at a meeting of which no minutes were kept.
It would appear that Mr Scott got to hear of this development and sent the following fax to the chief executive.
Why Peter faxed Bryn rather than Mr Roger Barrett-Evans, who has responsibility for property disposals, is not altogether clear.
However, what is clear is that the call came because later that same day Peter and Anthony were heading down the M4 in the direction of county hall.
Why the need to go to a second round of offers couldn't be explained over the phone - so avoiding polluting the atmosphere with all those exhaust fumes - is not altogether clear.
And, if the file note accurately records the extent of the discussions, Peter and Anthony must have been asking themselves as they headed back towards Porthcawl: "Was our journey really necessary?"
The bids for the second tender exercise were due in on 7 October 2005.
CEL were the highest bidders in this rerun and that prompted the MHPA, who had been in a sort of loose partnership with Haven Facilities/Peter Scott, to enter the lists.
On October 17, ten days after the closing date for this second round of tenders, MHPA's chief executive Ted Sangster was in county hall for a meeting with the chief executive, Mr Barrett-Evans and Neville Henstredge.
The file note of that meeting reveals that the discussions mainly revolved around the availability of other waterfront sites on the Haven.
Also "MHPA would underwrite PS [Peter Scott of Haven Facilities] or make a bid in their own right. TS [Ted Sangster] to speak to PS"
There are, I know, those who suspect some sort of collusion between the council and MHPA, but they can rest easy because the minutes of the meeting record: "No tender figures were disclosed" and "No figure was suggested except Ted confirmed £1/2 million contribution from Peter Scott."
That notwithstanding, in due course, Ted Sangster did submit an offer and, though the amount of the bid wasn't disclosed, the Cabinet, at its meeting on 6 February 2006, was told that it represented best consideration [more than CEL's tender] and it was agreed to sell to MHPA.
Since then, of course, CEL has submitted an even higher bid and the show goes on.
How the other half lives
One of the advantages of studying law is that you learn a lot of Latin tags that you can drop into the conversation to impress your friends and confound your enemies.
On of my favourites is de minimis non curat lex (the law does not concern itself with trifles).
On reading a district audit service report to the county council it becomes apparent that it not only lawyers that apply the so-called de minimis principle.
The auditors report: "We are required to report to you all unadjusted mis-statements other than those of a clearly trifling nature. A trifling error is an entirely inconsequential error, whether taken individually or in aggregate, and whether judged by any qualitative and/or quantitative criteria. On the basis of our standard methodology, we have assessed the trifling limit for the council at £100,000."
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