AN EXTRAORDINARY meeting of Pembrokeshire County Council will take place on Monday, November 8. The only agenda item is described as “Settlement Agreement”. The question is: whose?
WHO WANTS TO SETTLE?
East Williamston councillor Jacob Williams revealed the agenda item doesn’t relate to former CEO Ian Westley.
Only senior officers’ payoffs come before the Full Council for discussion.
Bearing in mind the recent formation of a disciplinary panel to deal with senior staff and the expected explosion of activity when the Audit Wales report into Mr Westley’s departure lands, it isn’t unreasonable to state that the proposed settlement agreement must deal with a person who might be subject to the new disciplinary procedure.
That disciplinary procedure encompasses senior statutory officers (posts the Council must have by law).
The statutory officers are the Chief Executive, the Monitoring Officer, the Head of Legal Services, the Chief Financial Officer (usually called the “s151 officer”).
We can discount the Chief Executive (Will Bramble, who has only just taken up his post) and the Monitoring Officer (Claire Jones fell on her sword as soon as she saw the extract of the draft Audit Wales report dealing with her role in Mr Westley’s departure).
A PROCESS OF ELIMINATION
That leaves two officers.
Jon Haswell, the Council’s Finance Director, and Claire Incledon, the Head of Legal Services.
Ms Incledon has been on long-term sick leave since the extract of the draft Audit Wales report landed on her doormat.
Mr Haswell has, however, been ever-present in Council decision making.
It does not take much of a Poirot to work out which of the two officers is more likely to seek a settlement agreement at this time.
Making the educated guess that Ms Incledon is prepared to seek terms and has signalled which terms she wants leaves the Council with interlocking problems impossible to resolve without a cost to the Council taxpayer.
Whichever route the Council chooses, regardless of the senior officer’s identity, presents difficulties.
A LAWYER’S VIEW
We asked a vastly experienced in-house lawyer with particular expertise in public sector employment for their view.
They took it as read that no councillor would discuss the matter in public and described those who would do so in sulphurous terms.
They told us it was a question of how the Council looked at risk and minimising its financial exposure.
In the worst-case scenario, the Council decides not to settle with the officer on any terms and proceeds to a disciplinary procedure involving an independent external investigator (almost certainly a senior lawyer).
The officer subject to the process remains on the Council payroll while the disciplinary procedure takes place. In addition, the Council will have to bear the costs of the procedure both in terms of professional fees incurred to advise the disciplinary panel and the investigating officer.
That sum alone could easily exceed £50,000, and our lawyer said he would not be surprised at a far higher bill.
Suppose the investigating officer finds misconduct short of that justifying dismissal. In that case, the Council is back to square one with an employee that wants away. In short, the Council still faces making a payoff.
It gets worse.
Suppose an investigating officer reaches conclusions that suggest dismissal is the only appropriate remedy. In that case, it is still open to the employee to challenge their conclusions and take their chances at an employment tribunal.
In that instance, there would be massive additional costs and additional litigation risk.
We are at least six months away from that point.
And, as of today, we do not even have the Audit Wales report upon which so much will hinge.
THE AUDIT WALES REPORT
We can only guess at the content of the Audit Wales report regarding individual officers’ conduct during the negotiations surrounding Mr Westley’s departure.
Forget the why; the question before Audit Wales relates only to the process behind the payoff and not its motivations or causes.
We already know several things.
The payment made to Mr Westley was unlawful.
We also know the Leader must have taken legal advice on the content and procedure concerning the former CEO’s departure terms.
We know that advice came from the Council’s officers, particularly the Monitoring Officer and Head of Legal.
We can conclude if the agreement was entered into unlawfully, the advice given about it was in some way defective.
Even Jamie Adams and the Senior Officers’ Fan Club in the IPG must know it beggars belief that either David Simpson or Jonathan Haswell would have signed off on an agreement knowing it was unlawful.
There is also one tactical consideration.
Once the Audit Wales report comes out, whenever that will be, the officer’s hand is likely to be significantly weakened by any criticisms of them contained within it. Once they have the report, its content could considerably harden councillors’ hearts.
POLITICAL CONSIDERATIONS
It is likely, if not certain, the absence of the Audit Wales report will persuade a majority of councillors to hold fire on any negotiations.
It will suit some councillors (especially Jamie Adams) to spin out events as long as possible, leaving matters probably unresolved until after May’s election. At which point, someone as cynical as Cllr Adams knows were he returned as Leader, he’d probably sign a settlement agreement as soon as possible.
Equally, more bullish councillors might want to resist any settlement on the principle that a disciplinary procedure should run its course, regardless of the risks and costs attached.
Yet others might want to keep rocking the boat for their political ends and to keep their name before the public ahead of the next May’s Council elections.
What is certain is that nobody wants to pay off another officer.
It’s equally certain not every officer is prepared to hand in their notice when they’re found to have made an expensive mistake.
This article was originally published in The Pembrokeshire Herald print edition on Friday, November 5, 2021
