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

 

Rothesay Harbour, continued

This is to continue with the saga of Calum McMillan and Rothesay Harbour. The 2 earlier posts on this are here and here.

The long period of being banished from his home port of Rothesay cost Calum McMillan a lot of money. He had additional berthing fees at Ardrossan and then there was the time and travel to and from Bute every time he had to sail. Worse, the vessel had to be provisioned from Ayrshire so there were big costs to the island economy too, all because of behaviour  I believe to have been a vendetta. The council, of course, denies this but in the previous posts you can come to your own conclusions.

When he got back into Rothesay in 2013, there were further issues from time to time which I won’t bore you with but in my view the problems he had continued. Calum took the view that he was due some recompense from the council so at that point in 2013 I thought it wise to not say too much publicly about what was going on. However, he continued to get support from some councillors, me included, culminating in those councillors providing Calum with Affidavits for his court case.  For my part, I had 2 complaints made against me to the Standards Commissioner.

The affidavits can be read in the earlier post.

The preparations for the court case dragged on and on and some of us, me particularly, argued strongly that we as a council should try and settle this by way of mediation or arbitration. I argued this because it seemed to me Calum’s case was strong but I also wanted to ensure that it was settled by mutual agreement and without racking up huge legal & court costs. But racking up huge legal & court costs was exactly what happened. Not only did Calum incur huge costs, so did the council using your money. They spent endless hours of internal staff time as well as paying an Edinburgh law firm and a QC.

The case was scheduled to go to court for a proof at the Court of Session when, out of the blue, the council offered to settle before the proof. However, there was no justice for Calum because the offer was that if he agreed, the case would be over with both parties meeting their own costs. The risk for Calum in proceeding to a proof was that it could have taken a 3 week proof and the court costs, if he lost, would have run to a very large 6 figure sum. Having already spent a lot of money on legal costs, the risk was just too great to take.

The offer to settle can be read at the link below.

offer-to-settle-7-sep-16

You might well wonder why the council would offer to settle at this stage if they thought their case was strong but the real issue, for the next blog, is what it cost the public purse. My estimate is that it cost the public purse the best part of £30ok, or more, if all costs are taken into account. More to follow on this because this is where it gets interesting.

 

Councillor’s council tax arrears

More and more questions are being asked about the above issue which I covered in a post last week.

The National covered the matter for a 2nd time last week, telling us that the police had been notified:

Police are called in as council crisis deepens

An article in the Helensburgh Advertiser last week is worth reading at the following link:

http://www.helensburghadvertiser.co.uk/news/15112078.Councillor__hit_by_family_tragedy_when_he_broke_council_tax_rules_/

I sent the following email this morning to all councillors which outlines some of the questions that arise. It will be interesting to see where this all leads.

I noted the statement attributed to Cllr Robert G MacIntyre in the Helensburgh Advertiser last week, as follows:

It may have been my fault, but I wasn’t advised at the time that voting on council tax while I was in arrears was an offence.

As I may be quoted this week in the same paper, it’s only fair to make you aware of what I said when I was called by the reporter on Friday. I made it clear that a) personal circumstances, no matter what they are, are not an excuse for 2 consecutive years of arrears and b) Robert’s statement cannot be correct, for the following reasons:

  • The issue is clear in the code of conduct.
  • It is reinforced in the guidance on the code of conduct.
  • It is explicit in the council’s constitution.
  • Even if none of the above was read by Robert, ignorance of the law is never an excuse.

I know from Judy Orr that, while she is under no obligation to do this, she checks the arrears position each year and that councillors are alerted to any issues. Here are Judy’s words:

I would only pass on details to senior officers if a councillor was likely to be in arrears at the budget meeting – I won’t pass them on early.

The responsibility always lies with the individual councillor – there should not be any reliance on checks carried out by officers. I just try and be helpful through doing these checks – it’s not an official process.

Judy does more than she is obliged to do I suggest and good on her. The bottom line is as she states, it’s the responsibility of the individual councillor. But her words above beg questions of “senior officers”. That is why I asked the questions below last Wednesday, the day someone in this council decided to contact the police. It made me wonder what was different 4 years ago on Wednesday, or 3 years ago. Were the police only contacted because I released Robert’s name in order to ensure none of the rest of us was tarnished by this? Or were the police informed because of my questions below? Who knows.

My questions, even more relevant given the agenda for this week’s meeting of the PRS committee, were as follows:

For both 2012/2013 and 2013/2014 years:

  1. How many standard reminders were sent to this councillor about his council tax arrears and on what dates please?
  2. How many times and on what dates did you or some other officer(s) alert this councillor to the issue please?
  3. When did this councillor pay off the arrears please and was any external debt collection agency involved?
  4. Apart from you Judy, how many other council officers were made aware of this issue and who were they please?
  5. Did any officer alert the respective council leaders, formally or informally, prior to the 2013 and 2014 budgets, ie Cllr McCuish and Cllr Walsh?
  6. Was any consideration given by officers to alerting the police/CPS/Crown Office once this councillor had voted on the budget? If not, why not please?
  7. Was this matter considered at any meeting of council officers or at any meetings between council officers and senior councillors and if so, can I see the minutes please?

Lastly, I quote below the relevant parts from the latest version of the council’s constitution for your information.

Responsibilities to the Council as a Member of the Public

The law makes specific provision that if a councillor is in two months’ arrears with payment of Council tax that councillor may not participate in certain decisions concerning Council tax issues, in order to preserve public confidence that councillors are taking decisions in the general public interest. Similar considerations should apply in other forms of dealings between you and the Council where indebtedness may arise. Whilst you are a member of the community, you are also a representative of that community and of the Council to which you are elected. As there is potential for public perception of abuse of position and poor leadership, you must seek to avoid being in debt to the Council.

If you owe a debt to the Council, for example, in relation to rent due for a council house or commercial premises where the Council is the landlord, you must put in place at the earliest opportunity arrangements for repayment. You must avoid being in a situation which might lead the public to believe that preferential treatment is being sought. You must not participate in any decision which may create suspicion of a conflict of interest. For example, where you are in arrears of rent for a council house, you must not participate in decisions affecting the levels of rent to be paid by council house tenants.

 

Council Budget tomorrow

As per past year, Cllr Walsh will produce his budget on the day. That means none of us has had the opportunity to see it, so we have no idea what’s in it.

Worse, the Provost has stated that the budget motion will be read out and seconded then any amendment to be read out and seconded. He has stated he will not allow any adjournment “until the motion and all amendments have been stated and tabled”. That means amendments need to be devised without having sight of the budget motion. It’s pretty damned hard to amend something you haven’t seen. That’s why the 2nd clause in our amendment has been inserted but if the Walsh motion was one we did want to support, we simply are unable to. Shocking. Divide and rule.

The way the council constitution works you also can only vote for one thing, ie the motion or any amendments. That deliberately splits the opposition vote if there are 2 amendments.

The whole thing is a travesty of democracy and Walsh is at the heart of all of this. I hope Audit Scotland read this blog because what Walsh is doing is exactly what he was criticised for by them last year. Anyway, below is the link to the amendment from the Reform Group of myself Bruce Marshall and Vivien Dance. This differs a bit from what was drafted on this blog a few days ago but it had to be tweaked a bit to ensure it was competent.

The amendment can be read here. It’s been sent out this evening to all councillors.

amendment-reform-group

 

 

 

 

 

Councillor votes while in arrears over council tax

Before I return with more on the Rothesay Harbour saga, there have been rumours for a while that a councillor had council tax arrears but continued to vote on the council budget, something that is illegal. The National covered the story very well today and you can read it here:

http://www.thenational.scot/news/15107732.Exposed__Cover_up_by_Argyll_and_Bute_after____illegal____vote_on_council_tax_rates/?c=eo7sv

Because I sent out to all councillors what was already information in the public domain, they attacked me and seemed to be public apologists for the guilty party. Cllrs Walsh, McCuish, Devon and A Morton were all involved. The National’s article alleges that this was covered up for 2 years or so and maybe that’s why these gormless councillors attacked me.

Anyway, given their attack and given the fact the guilty party, Cllr Robert G MacIntyre has not even had the decency to hold his hand up, I have today asked the following questions:

For both 2012/2013 and 2013/2014 years:

  1. How many standard reminders were sent to this councillor about his council tax arrears and on what dates please?
  2. How many times and on what dates did you or some other officer(s) alert this councillor to the issue please?
  3. When did this councillor pay off the arrears please and was any external debt collection agency involved?
  4. Apart from you, how many other council officers were made aware of this issue and who were they please?
  5. Did any officer alert the respective council leaders, formally or informally, prior to the 2013 and 2014 budgets, ie Cllr McCuish and Cllr Walsh?
  6. Was any consideration given by officers to alerting the police/CPS/Crown Office once this councillor had voted on the budget? If not, why not please?
  7. Was this matter considered at any meeting of council officers or at any meetings between council officers and senior councillors and if so, can I see the minutes please?

Argyll & Bute’s Budget

Thursday coming is the day the council sets its budget for the coming financial year.

At the moment, the papers for this meeting indicate a budget surplus of £2.893m, assuming a 3% increase in council tax. We have no idea as yet if the administration intend to produce a budget on the day or if the papers already published are the final version. The council was heavily criticised by Audit Scotland for the manner in which the much loved council leader produced last year’s budget (on the day) which left no time for proper scrutiny.

Anyway, myself and Cllrs Dance and Marshall have produced some amendments to the papers that have been published and, while strategic finance staff have still to check these over, it seems timely to publicise these now. They could change, though, depending on what strategic finance say. We shared our thoughts in advance with the SNP Group and distributed what you see below to the SNP and Argyll First groups today.

Our key proposal is to use 100% of the 3% increase in council tax to increase the adult care budget held by the Integrated Joint Board for Health & Social Care. They are under real budgetary pressure and we feel this is the best way we can use the council tax increase, ie to help pay for the care of the elderly people of Argyll & Bute.

Here are our proposals, as they currently stand, and apologies for the size of the text:

budget-1

budget-2

budget-3

budget-4

The above proposals will cost an additional £3.154m but save an extra £1.209m. The next position is shown below and, we believe, offers a balanced budget with a much reduced surplus. It puts more money into care of the elderly and avoids some of the education cuts that we think will work against improving attainment.

Let’s see if other councillors can support these proposals.

budget-5

 

 

 

 

 

 

 

Rothesay Harbour, Part 2

In my last post here, I referred to the sorry saga of Mr Calum McMillan and what he endured as a resident of the Island of Bute and as a customer of Argyll & Bute Council at Rothesay Harbour. If you didn’t read Calum’s affidavit, here is the link again.

affidavit-calummcmillan-v2

He  was eventually allowed to get his vessel back into the harbour in the summer of 2013 but the issues did not end there. Rather than me give you lots more detail, you will get a flavour of what happened from another affidavit, this time from one of Calum’s crew, Nathan Williams. This affidavit was one of many Calum and his solicitor obtained prior to taking his case to the Court of Session.

affidavit-nathan-williams

A number of councillors provided affidavits and the ones used are all set out below. These, together with Nathan’s, demonstrate the extent of the issues. They  won’t take long to read and are well worth the effort. You can imagine how it went down in Kilmory when they heard that councillors were giving affidavits in support of someone making a claim against the council. However, we all firmly believed we had to tell the truth and we all believed Mr McMillan had been treated appallingly. That’s why we provided the affidavits.

Cllr Robert McIntyre knows more about this story than anyone and over a longer period.  His affidavit is a cracker because it not only tells the history, it also refers to the fact that a number of councillors put time and effort into an investigation into what had happened, only to then be denied access to the report! To this day we have not seen it so secrecy continues to rule.

As for councillors, the attitude seems to be that we can be treated any way officers like. After all, we’re only the elected representatives of the people and we don’t really matter.

affidavit-robert-mcintyre

Then we have the affidavits of Cllr Isobel Strong and myself.

affidavit-isobel-strong

affidavit-michael-breslin

There will be more to follow in a few days.

 

 

Rothesay Harbour: A Sorry Saga

I have made a point of not saying much in this blog about the goings on at Rothesay Harbour, for 2 main reasons. One was that part of those goings on was the subject of a legal claim against the council and was a long time in getting to court and the other was that much of the 2 complaints against me related to Rothesay Harbour. The court case has been dropped and the complaint is settled, so I can now give some details.

Because I can now speak more freely about the matter, I  wish to focus on the tale of a Mr Calum McMillan from Bute who owns a commercial vessel berthed in the harbour. I am going to have to tell this tale in a couple of posts on this blog and will start today with Mr McMillan’s allegations. I say allegations but, in all probability, what he alleges was true. This is because at no point were any counter claims made by council officers. Despite this, the claim made by Mr McMillan was defended at huge cost by the council. However, it’s best to let Mr McMillan speak for himself so the link below is to his Affidavit that was lodged with his court papers.

In summary, Mr McMillan alleged that various devices were used to keep him and his vessel out of his home port for a number of years, at a large cost to him, to the council and to the economy of the Island of Bute. Below is Mr McMillan’s Affidavit which I recommend you read in full because in the next several days I will bring you fully up to date with why the court case was dropped and what has happened since then. It is not a happy story.

affidavit-calummcmillan-v2

 

 

Competent? !!

Yesterday’s area committee touched a new low as far as I was concerned. Not only did we hear a very good argument from the public about getting a move on to resurface the Dunoon 5 a side cages, we also got the usual arguments from the council leader as to why we could not do things faster. Things move at Walsh’s pace or not at all, and to hang with local opinion.

However, the worst part was at the end. There is a piece of ground at Graham’s Point in Kilmun which was mistakenly transferred to the housing association ACHA when the council house stock was transferred in 2006. A few months ago this mistake seems to have come to the fore and Cllr Marshall was told that since ACHA owned the land, the council would no longer cut the grass. ACHA neither want the land nor the job of maintaining it as I understand matters.

At the business day in January the issue came up and although I wasn’t there, Cllr Marshall told me that Cllr Walsh opposed any move to rectify the error and take the land back into council ownership thereby unblocking any reason for the council not cutting the grass.

Bruce asked me some weeks ago if I would second a motion asking the council to take the land back into our ownership. It was a very simple and non contentious motion I thought but little did I know what was to come. The motion was accepted by council governance staff and by the chair, Cllr MacNaughton, one of the nodding heads to everything Cllr Walsh wants done. That normally means it’s passed any test of competence. It appeared in the published papers a week ago on Tuesday. You can see it for yourself here:

https://www.argyll-bute.gov.uk/moderngov/documents/g7250/Public%20reports%20pack%20Tuesday%2007-Feb-2017%2009.30%20Bute%20and%20Cowal%20Area%20Committee.pdf?T=10

On Monday, Bruce got an email from a council officer suggesting there might be a conflict of interest since he is on the board of ACHA. For the life of me I could not see why there was any conflict, nor did Bruce. Bruce promptly replied saying so but a few hours later he got another reminder quoting from the code of conduct, but Bruce held his ground. At no point in these 2 emails was there any mention of competence of the motion, nor had there been any mention when it was lodged.

However, out of the blue yesterday when we got to the motion on the agenda, the governance officer advised the chair that it wasn’t competent. A bit of a debate broke out at this but the chair ruled it was incompetent based on the officer’s advice.

Given that this was the first mention of competency, did someone put pressure on governance officers to try the conflict of interest argument first and then, when that failed, were they put under more pressure to ensure the motion wasn’t voted on? Who knows but the people of Kilmun won’t be at all happy.

I think what happened yesterday raises major questions about the governance of the council and I submitted a complaint to the chief executive yesterday afternoon. This has all the hallmarks of a blatant piece of behind the scenes shenanigans that is undemocratic and unacceptable. The smirk on Walsh’s face, directed very deliberately at me when he left the meeting, makes me think he just might be involved. Surely not!