“Behaviours” Part 2

The first instalment describing the behaviour of council officers was posted here. This is all material that I provided to the Commissioner for Ethical Standards during the failed complaint by the then 4 most senior council officers. My view was, and remains, that this was a deliberate attempt to shut me up. They hated (and still hate) this blog.

Part 2 of “Behaviours”, the word used pejoratively by Mr Cleland Sneddon about me went out to councillors and the press today, as follows. The preamble to this is the same one as in the first part at this link.

Example 2

I have already stated  that in August 2012, I gave a list of 38 questions to Mrs Loudon relating to what had been happening in Castle Toward, an education property in my ward. The (then) chief executive has consistently refused to reply to any of the questions in that list. The question is why.

Here is an extract from what I gave to Mrs Loudon, raising serious issues about the behaviour of one of the council’s legal staff, a member of staff described later by Mr Hendry as being a “good officer”.  The lack of any reply by Mrs Loudon is most telling. Had she thought for a second that I was out of order for what I had written, surely she would have had something to say about this? Instead, she appears to dodge the issue completely. AR is Actual Reality.

BLANK’s email of 8 August has provoked me to write this. In the last few days, I have rarely seen behaviour of the kind displayed by BLANK. His ability to leave key information out of what he says amounts to an attempt to mislead.

If he is being aided to do this by others then it makes them as culpable as he is. The question is who are these others? There seems to be spin everywhere in what he says and that combined with what to me appears to be an extreme negativity towards AR has produced a situation that is shameful, and I will not be part of that.

The following extract was also in the same list of questions from August 2012. Actual Reality were occupiers of Castle Toward at that point and the paper referred to relates to an attempt by AR to  buy another council property, Ardentinny. The draft paper referred to was written under the direction of, if not by, Mr Hendry. BLANK in the first example will almost certainly have been a co-author. As a new councillor, I was utterly astounded by what I saw as clear and deliberate attempts by officers to mislead elected members.

Why does the draft paper omit any mention of what the AR draft offer describes as “overage provision”, which would provide additional funds to the council in the event AR sold off the 2 houses on the Ardentinny site, the value of which is why AR disagrees with the DV’s valuation. This overage provision seems to me to be material to the AR offer so is this omission not misleading the council?

There will be more to follow on other “behaviours”, some of which are far worse than what’s been told to date.

End of today’s email.

The point of the above is that officers appear to routinely mislead councillors, as certainly happened in this case. Audit Scotland knows all about this but did nothing. It seems that anything goes in Argyll & Bute and that Audit Scotland is too weak and disinterested to act.

 

 

 

Education Inspection Report

Education Scotland today released one of the worst ever inspection reports on an education service. You can read it all at this link:

argyllbuteinea210317

If you want to see the summary assessment only, ie their assessment against the quality criteria, it’s as follows:

inspection summary

Earlier today, the acting executive director covering education issued a quite extraordinary rebuttal of the inspection report to councillors. This was issued before most of them would have read the report. (There will, of course, be many who might never get round to reading it, they are so lazy and disinterested.)  Her rebuttal can be downloaded here: rebuttal

I have raised a number of questions both with Education Scotland and with the acting executive director and I’ll let you see these once I have answers. Meanwhile, Michael Russell MSP has issued a press release on this and it’s reproduced below. More to follow.

Argyll & Bute Education Management savaged in report from Her Majesty’s Inspectors. 4 out of 5 key indicators classed as “weak” 

Commenting on today’s Education Scotland / HMI report on Argyll & Bute Council “s Management  of Education, local MSP Michael Russell said: “This is a deeply worrying and very depressing inspection report.

It is one of the worst ever published about the educational management of a local authority in Scotland.  The collapse in educational management that has been revealed today by Her Majesty’s Inspectors  has  major consequences for staff and pupils.   There are many great teachers in Argyll & Bute and great Head Teachers too but they have been badly let down by their senior management and the extent of that failure is now clear to see.

The hidden cost of these failures  lies in the strain on staff, increased sickness  and absence and great frustration at not having the support they need to do their jobs and serve the young people, and the future, of this wonderful area to their , and their pupils,  full potential.

The two questions that must therefore be addressed with urgency are , firstly, how the situation is to be remedied and secondly how it arose.

As far as the first is concerned it is clear that  Education Scotland must exercise the closest supervision of the Council Education Department from now on and ensure that an improvement plan is brought forward with urgency which  is detailed, well  resourced  and has the active support of the key stakeholders including the staff.  Piecemeal and thoughtless  cutting of education which has been a hallmark of the current Council administration and which is in part to blame needs to stop now.

Obviously leadership and effective management will be a key issue in making sure that any improvement plan works.    However the judgement of the Inspectors is that current leadership at the most senior level is “weak”.    It is therefore at the very least questionable that the current educational key leaders  in the Council’s Senior Management team including the Chief Executive (who was previously the Executive Director of Community Services overseeing Education ) are the right people to take forward the urgent and far reaching  improvements that are needed.

These problems have been made worse by the insistence by the previous Chief Executive and by the current Senior Management team on an excessive and rigidly enforced split between policy and operational management.  That split has diminished effective scrutiny from elected councillors which might have avoided , at least  in part, a situation where four out of the five key educational management indicators in the report are graded as “weak”.

However councillors cannot escape some share of responsibility and in particular those who were , supposedly, overseeing Education in the present Administration including the current Deputy Leader of the Council Ellen Morton,  and the  current Education spokesperson Cllr Rory Colville.  They should be considering their positions as they read this damning report as should the Council Leader, Dick Walsh.   These failures have happened on his  watch.

This report is a wake up call for not just for education but for the entire lack lustre administration of Argyll & Bute Council.   But it is also a clarion call for change  which can – and must –  come at the local elections on the 4th of May.  Today’s inspection report demonstrates that without that change our children, our area and our future will be at grave and growing risk.   “
 

Audit Scotland & Calum McMillan

A number of readers have asked why Audit Scotland has refused to investigate the scandalous waste of money in defending the Calum McMillan case. Remember that in previous posts I said that for an outlay of £50k in cash, this could have been settled in May 2014. Instead, the council has probably spent around £300k of your money on internal staff time and external legal costs. Here is what Audit Scotland said:

On 3 Mar 2017, at 16:12, David McConnell <DMcConnell@audit-scotland.gov.uk> wrote:

the key point at issue is whether  the council should have legally defended the action raised against it by Mr McMillan.  In this I would concur with the view expressed by the council’s Chief Internal Auditor – that the council, and its officers, have a right to defend any case raised against it.  In so doing they would draw upon relevant advice, which is what appears to me to have been done in this case.  Therefore I would not propose to investigate this matter further as part of the external audit process.

I was away for a week’s holiday when this reply came in but Mr McConnell had replied to myself and Michael Russell. Michael replied on 5 March, as follows:

Dear Mr McConnell 

Thank you for copying me into your response to Cllr Breslin and Mr Hendry

I disagree with your  conclusion (above).

I think there are at least five points that need to be considered ,as follows: 

Firstly there is substantial evidence that a negotiated settlement was possible in this case and that therefore the raising of the case was a failure of policy on behalf of the council which either did not try to secure that negotiated settlement or behaved in a way that made that impossible.   

Secondly it is  frequently alleged that there is a policy operated by Council officers to defend all cases no matter the merits and to do so up until the moment at which they are either lost or abandoned.  This policy is explicitly based on blunt use of the financial power of the authority in contrast to the lack of resource available to ordinary citizens who are driven to take actions by , they believe, the Council’s behaviour towards them.   This is contrary to natural justice and is not best practice.     A councillor has indicated that evidence of that policy can be had from a conversation he had with a senior council official about this case and Audit Scotland should investigate.

Thirdly the matter of Rothesay Harbour and the way the issue was handled was central to two sets of serious complaints against Cllr Breslin firstly by senior councillors and then by senior management of the Council.   The fact these these complaints all failed is germane and suggests that the Council  may have been  , at the highest  level ,  very keen to prevent discussion and speculation about the Rothesay harbour issue.  Defending  the case at considerable expense – £145,000 is already admitted to – may have been a manifestation of that same concern.   The public need to know precisely why the Council was so fixated on the matter. 

Fourthly the costs incurred were out of all proportion to the likely cost of a settlement and therefore the decision did not represent best practice or value for money.

Fifthly the “advice” referred to by yourself above has not been made available in full and therefore there has been no transparency about the matter. 

Finally given the many  shortcomings  in operation, accountability and governance  still being demonstrated by Argyll & Bute Council which continue to this day Audit Scotland should be approaching issues arising from complaint about the Council in a much more robust way than is obvious at present.    

I therefore concur with Cllr Breslin’s view that a full investigation is necessary and I am copying in Fraser McKinley so that he is aware of my view. 

When I came back I emailed them to say I agreed with Michael. There has been no reply yet from Audit Scotland:

 

 

 

“Behaviours”, Part 1

To complete the story about Calum McMillan, Audit Scotland has refused to look into the expenditure incurred by the council defending his claim. Further approaches have been made to Audit Scotland by myself and Michael Russell, but we doubt they will heed them.

Anyway, I have just sent the following to all councillors, the 4 officers who made the complaint about me and to the press. It should be self explanatory:

I have delayed and delayed sending this and have tried various means to reach some conclusion to the issues that have arisen during and after the complaint by the council’s then 4 most senior officers. Unfortunately, every attempt to do this has been rebuffed by those officers and just last week matters reached a new low. I will provide details on that new low in a day or so.

I said in my statement issued on 12 December 2016 that I intended to counter the derogatory use of the word “behaviours” by Mr Sneddon in his statement by giving examples of the “behaviours” I encountered from officers. These examples come from my first year as a councillor and it is my position that the “behaviours” I came across had a profound effect on relationships. I was, frankly, astounded at the way in which elected members were treated. Mrs Loudon’s refusal to answer any of my 38 written questions in August 2012 about Castle Toward was astonishing but the rot had started before that, as this first example of “behaviours” will demonstrate. The “mutual trust and respect” in the extract below from the ethical standards protocol, was missing from the “behaviours” of a number of officers, not from me, and therein lies the heart of the problem.

 The examples I intend to provide are all from the case papers which are a matter of public record. In March 2016 I responded to a draft report from the commissioner which concluded with a personal statement from me in which I tried to convince the commissioner of the reasons for the breakdown in relationships. What was made of this personal statement I do not know.

 The quality of the case papers is not great because they were all scanned, page numbered, redacted where the commissioner’s staff thought necessary and then reduced in size as PDFs. I am, therefore, not using that scanned material.  For ease of reading I am using the original content. No changes have been made other than I have inserted the word BLANK where the commissioner has redacted names etc. All of this personal statement will be issued over the next period. Here is the first part.

Personal Statement by Cllr Michael Breslin

Councillors and employees should work in an atmosphere of mutual trust and respect, with neither party seeking to take unfair advantage of their position. (extract from the ethical standards protocol)

This statement has been written to try and demonstrate some of the reasons why mutual trust and respect may have broken down and why trust, in particular, was damaged in my first year as a councillor. This, unlike the earlier part of this response, is written in the first person as it is very much a personal statement to try and convince the Commissioner of my integrity and honesty.

 I had a lengthy telephone conversation with the Controller of Audit in late January or early February 2014. I had agreed to provide him with some examples of why trust had been damaged. Any text in blue has been taken from correspondence between myself and the Controller of Audit of Audit Scotland in March 2014.

Example 1

In June 2012 I was asked to attend a meeting with 2 other councillors, Isobel Strong and John Semple. This was to do with a former teacher who had taken voluntary redundancy some time before and who then had no income, her claim being that she was misled by the council over access to her pension. There was more to this story than that but the point here is what we were told.

 John was the local ward councillor and Isobel had been lead councillor for education at the time this teacher had left the council. I was at that time (June 2012) lead councillor for education. We met with Douglas Hendry and Charles Reppke to find out what was happening with this individual. Douglas and Charles spoke for about 20 minutes or more, with questions from John and Isobel in between. I said nothing but listened carefully. The voluntary redundancy deal at the time was a common one whereby if someone had immediate access to their pension, they would get that access plus their lump sum plus a redundancy payment. If someone did not have access to their pension then there was an enhanced redundancy payment.

 What Mr Hendry told us was that the letter the council had sent this employee had been “ambiguous”.  When I spoke for the first time I asked about this letter and I said it seemed to me that the letter contained 2 material errors. One was it said she had access to her pension (when she was far too young for this) and the other was it offered her the enhanced redundancy payment. Mr Hendry agreed that this was what the letter contained so I asked him how that could possibly be described as “ambiguous”.

Instead of saying 2 mistakes had been made he tried to cover these up with language that misled the 3 elected members. Minor it may be but this kind of thing leads to a lack of trust.

 

 

 

Rothesay Harbour, again

The previous posts on the goings on at Rothesay Harbour are to be found at these links:

Part 1, Part 2, Part 3 and Part 4

The request for internal audit to investigate the council spend on defending the action by Calum McMillan is available again here: request-for-an-internal-investigation-into-the-possible-misuse-of-council-funds

This straightforward request was rejected with the following words:

I refer to your recent correspondence requesting a special investigation into the possible misuse of Council monies.

As you aware, Internal Audit is concerned with matters of governance risk and control and must remain free from interference by any element of the Council, including matters of audit selection, scope, procedures or report content. I wish to advise that having undertaken a scoping review of the issues raised in your request, it is my opinion that there are no grounds to initiate a special investigation with regards to governance, risk or control.

Officers have delegated authority to make decisions whether to defend any action raised against the Council. These decisions are based on professional opinion and judgement, and in this particular case external legal advice which supported the internal advice that the action should be defended.

It is accurate that legal costs (£145k) exceed the proposed settlement offer of £50k payment and £50k berthing fee credit which are outlined in your request document. Officers have indicated that the default position remains whereby the Council will defend any action raised against it where there is a favourable chance of success. As with any business decision where the outcome is not certain there are associated business and financial risk however it is my opinion that there is no material weakness in the approach taken.

I have copied Kirsty Flanagan Head of Strategic Finance, Martin Caldwell Audit Chairperson and David Mconnell Audit Scotland into this communication for their information.

As it turns out, the email ID used for David McOnnell of Audit Scotland was incorrect so I replied to the above as follows, copying in the controller of audit at Audit Scotland, Fraser McKinlay and our MSP Michael Russell:

It will be no surprise that we disagree. We would not have asked for this to be done had we thought officers acted reasonably and had taken best risk practice into account. It is our view they acted unreasonably and recklessly throughout and in so doing exposed this council to greatly increased risk, both financial and reputational.

I now make a formal request to Audit Scotland to investigate this matter. Audit Scotland already has a significant amount of information on this case, a good part of which came from a meeting some time ago between Audit Scotland staff and Mr McMillan’s solicitor.

I then followed this up later with the following:

  1. At no point in all of this shameful saga did any officer ever try to provide an alternative version of events to councillors. We had to assume that all the claims by Mr McMillan were true in the absence of any counter argument. In fact, having cooperated in an enquiry set up by Mr Hendry, we were then denied a copy of the outcome! There was in all probability, therefore, a vendetta against him by a member of the council staff.
  2. Your response does not address why mediation or arbitration were not used and why councillors who advocated this were ignored by officers. On a personal basis, I strongly advocated this approach and in return the former chief executive on more than one occasion twisted this to accuse me of advocating settlement of the claim. To cap it all and to penalise me for my efforts, the 4 senior officers launched an unwarranted complaint against me, which they lost.
  3. It is my view, and I am sure that of others, that the “favourable chance of success” was wholly predicated on the council being able to bring unlimited public funds to bear in dealing with Mr McMillan’s case. I consider that this factor alone allowed officers to a) ignore his concerns for many years (I call this management failure) and b) grind him down by spinning the case out to increase his costs and ours. He, of course, was paying his own costs whereas we were using the public’s funds. That is the reason there may have been a “favourable chance of success”.
  4. My last point is related. I’ve always had a simple maxim about the use of public funds. That is: would I do this if I was using my own funds?  You can bet your last penny that had this been the thought at the forefront of officers’ minds, they would never have allowed it to even get to a formal claim.

The behaviour here at all levels, right up to and including the former chief executive, was utterly disgraceful and there is not a single council tax payer in Argyll & Bute who, if they knew the facts, would think otherwise.

Cllr Bruce Marshall chipped in too, as follows:

I have been acquainted with this issue going way back to I am sure it must be about 2006 or 7 and have always thought that Mr McMillan was being badly done to by the Council and that there appeared to be some sort of vendetta being perpetrated against him for some reason or other.   The time and effort put in by senior and junior officers of the Council over that long period must have been immense.

I replied saying:

You’re right Bruce and much of this well predates my time as a councillor. It’s time to give you this little gem which came from the email archives via an FOI by either Mr McMillan or his solicitor. It kind of says it all really.

The harbour board is supposed to be the decision making body but here we have an officer saying councillors will be told what to do. This appears to make this officer think that banning a customer’s vessel from the harbour is worthy of a nice bottle of wine. Vendetta? What vendetta?

Trebles all round as Private Eye might say. I am sure this would qualify for insertion in their Rotten Boroughs page.

The little gem referred to was this:

email-re-calum

There was further correspondence on this, all of which had Audit Scotland copied in. As of today, there has been no response from Audit Scotland.

 

 

Rothesay Harbour, Part 4

I have published 3 posts on the story of Calum McMillan and Rothesay Harbour. These are to be found here:

Part 1, Part 2, Part 3

As I made clear in Part 3, Calum McMillan had little choice but to abandon his claim given the potentially huge costs of going to a proof in the Court of Session. As soon as the case was abandoned, the nonsense started from both officers and elected members of the council who claimed, repeatedly, that this was a huge victory for them. Common sense should have prevailed by saying little or nothing but the crowing was just stomach turning, especially by Cllr Ellen Morton who wrote at least twice to The Buteman spewing out all sorts of rubbish. What she said had to be rebutted and this was done by Cllr Robert MacIntyre and he did this exceptionally well.

In anyone’s language, what we had was the legal equivalent of a draw. Calum dropped his claim at the suggestion of the council who offered to walk away with each side meeting their own legal costs. The proof of the fact it was a draw can be found in Part 3 but the document that provides the proof is available again here:  offer-to-settle-7-sep-16

Robert MacIntyre and myself both asked what the council’s legal costs were and eventually we were told that they came to £145,000 plus VAT for the external costs incurred, ie with the council’s external legal advisers and for the QC they used. This may or may not be all the external costs because I think the external legal advisers had been used for a significant time before the formal claim was lodged. Let’s accept that figure, though, but to it needs to be added huge volumes of staff time over 10 years or more. That is why I am guesstimating a total cost to the public purse of around £300k. Some victory.

Back in May 2014 at a meeting between council staff and Calum and his solicitor, an offer to settle was made. At that time, Calum’s claim was for £150k. That offer had 3 parts. Part 1 was to waive £50k completely; part 2 was to make a cash payment of £50k to Calum and part 3 was to offset £50k against future berthing  charges at Rothesay which he may or may not have incurred.

The key point was that, at that juncture, £50k in cash would have settled the matter.

Calum’s view was that a deal was reached that day. The council side was to go away and confirm the deal in writing the following day. The confirmation never arrived.

The council’s view is that no deal was reached that day. Seems to me that someone isn’t telling the truth but which side is the liar? Someone is.

Anyway, I decided that with costs of some £300k, £145k of which were proven, there had been an enormous waste of public money. I got a number of councillors to agree to submit a complaint to the council’s internal audit team. What we put to them is at the link below.

In the next part, I’ll give you more detail but I can say now internal audit refused to investigate. More to follow. request-for-an-internal-investigation-into-the-possible-misuse-of-council-funds