Tuesday 23rd October 2018,
North Yorks Enquirer

Formal Complaints? Or Misconduct Grievances?

Formal Complaints? Or Misconduct Grievances?

  • an “In My View” article by NIGEL WARD, responding to readers’ enquiries concerning Scarborough Borough Council’s treatment of one of its own Councillor’s fully-evidenced Formal Corporate Complaints.

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This present article is rather technical and forensic in nature and is best read in conjunction with three recent pieces addressing the unaccountability of Scarborough Borough Council:

NOCK and DILLON: Formal Complaints

and

DILLON: “I Am God” (Part One)

DILLON: “I Am God” (Part Two)

What follows is not ‘light’ reading – it is for the public record – and I apologise, in advance, for its complexity and tedium.

Background

Some months ago, I reproduced some Tweets from Scarborough Borough Councillor Michelle DONOHUE-MONCRIEFF’s Twitter account. Since publication of my article, I have fielded an encouraging number of questions, both from members of the public and Councillors who are unclear about the rules regulating the processing of Formal Corporate Complaints against Directors/Officers of the Borough Council, as opposed to Formal Complaints against Councillors (under the terms of the Councillors’ Code of Conduct)l. I will try to answer these questions now – comfortable in the knowledge that one or another Officer (or Tory Councillor) will gleefully correct me, should I err. Please do.

It is important to note that the procedural matters described below are applicable irrespective of the identity of the Complainant – but NOT irrespective of the rights and needs of the Complainant.

But first a reminder of some of the Tweets that have aroused so much intrigue, always bearing in mind that most Councils and Police Forces accept Freedom of Information requests and Formal Complaints via Twitter:

10:26am

@ScarboroCouncil I put in a complaint about a senior officer on 24th Nov. 2017. Still not had a response. The deputy monitoring officer won’t respond to my emails. Please lodge a complaint for failure to comply with complaints procedure and lack of response to my emails DMO.

[DMO = Deputy Monitoring Officer, (at the time) Mr David P. KITSON, who reported directly to the Monitoring Officer, Mrs Lisa DIXON, who in turn reports directly to the Chief Executive Officer, Mr Jim DILLON.]

11:54am

Yes [redacted 02], I am still an elected member.  It is against a Director so the Chief Executive would have to be involved. @ScarboroCouncil has rules for responding to Councillors which the Dep. Monitoring Officer is ignoring. Clearly knows he can do it without consequences.

05:25pm

Guess what @ScarboroCouncil have just responded to my complaint! More on that soon. So if you want a response from SBC forget procedures just use Twitter! @TheScarboroNews @YorksCoastRadio #Scarborough #Whitby #Filey

05:35pm

Believe it or not the @ScarboroCouncil officer who responded to my complaint reports to the Director about whom the complaint was made! This approach is fundamentally flawed. Is this normal practice? @TheScarboroNews @YorksCoastRadio #Scarborough #Whitby #Filey 

This brief selection suffices to establish a number of emergent points, which I would venture to summarise as follows:

  1. Councillor DONOHUE-MONCRIEFF apparently lodged a Complaint against ‘a Director’ by email with the Deputy Monitoring Officer, at that time Mr David P. KITSON, on Friday 24th November 2017.
  2. Councillor DONOHUE-MONCRIEFF asserted that, as of the time of the Tweet (10:26am on Thursday 1st February 2018), the then Deputy Monitoring Officer (DMO) had not acknowledged or responded to the email during the nine weeks since its transmission. [The suggestion that the then-DMO “Clearly knows he can do it without consequences” is a telling indictment of SBC’s stone-walling mind-set regarding the processing of Complaints. A former Officer told me that he was carpeted for siding with a Complainant and told most emphatically by the Chief Executive that “Every Complainant is an enemy of this Council!”].
  3. Councillor DONOHUE-MONCRIEFF consequently lodged a second Formal Complaint with the DMO, this time against Mr KITSON himself, for his failure to comply with the Council’s Complaints Procedure and failure to comply with the requisite response times as set out in the SBC Guidelines for Elected Members Contacting Officers. [We shall examine this document presently].
  4. Councillor DONOHUE-MONCRIEFF’s Tweet apparently prompted an email response from the DMO to the 24/11/17 Formal Corporate Complaint against “a Director” – a Decision Notice. [This amounts to a tacit admission by the DMO that the 24/11/17 Formal Corporate Complaint had indeed been received, though it was neither acknowledged nor previously pursued to a formal outcome within the prescribed timescales].
  5. Councillor DONOHUE-MONCRIEFF has all but confirmed that the original Complaint was against the DMO’s line-manager, Monitoring Officer and Director of Legal & Democratic Services, Mrs Lisa DIXON – meaning that protocol had not been observed in virtue of the fact that a more junior Officer (Mr KITSON) should never investigate (and sit in judgement upon) a more senior Officer – for obvious reasons.

SBC Complaints Procedure

To begin with, we would do well to consider the current version of the Council’s Complaints Policy document, available here.

In particular, here is the overview and timescale associated with the two stages of a Complaint, as displayed on the SBC web-site:

  • Stage 1 – acknowledge, engage, respond in full in (hopefully) 20 working-days.
  • Stage 2 – appeal (within 30 working-days), acknowledge and escalate, respond in full in (hopefully) 20 working-days (40 working-days in exceptional circumstances).

There were 41 working-days between the date of lodging and the date of response to the SBC Councillor’s 24th November 2017 Complaint.

The DMO was clearly out-of-time. That would be a ‘FAIL’.

There are other reasons to consider in depth the current version of the SBC Guidelines for Elected Members Contacting Officers. The document, in PDF format, may be reviewed and/or downloaded here.

I have prepared images of some passages of special interest which I will include here within this article for convenience of reference.

It is noteworthy that the Guidelines document is reviewed annually and was brought up-to-date as recently as 24th October 2017 (only a month prior to Councillor DONOHUE-MONCRIEFF lodging her Complaint – 24/11/17), by Human Resources Manager Ms Elaine BLADES (whose name and likeness readers may recall from our coverage of the Ben MARRIOTT Tribunal Hearing and his successful Constructive Dismissal action against Scarborough Borough Council), following his unsuccessful Formal Complaints, as a “whistleblower”, of fraud and corruption in the Technical Services and Asset Management Departments of the Council.

It was, of course, the DMO’s responsibility to be au fait with the up-dated Guidelines. Apparently, he was not – and that would be another ‘FAIL’.

Ms BLADES is listed as ‘Author’ of the Guidelines, though it is noteworthy that the Chief Executive (Mr DILLON) is listed as ‘Owner’ – a fine legal distinction that confirms where the buck stops. Keep this in mind.

Section 4.0 of the Guidelines refers to Response Times:

Councillor DONOHUE-MONCRIEFF lodged the Formal Corporate Complaint against “a Director” (now known to be Mrs DIXON) on Friday 24th November 2017, by email. Saturdays and Sundays are not working-days. A generous interpretation of the Item 4.3 “Within no more than 3 working days” would have allowed the DMO until first thing on Thursday 30th November 2017 to respond to Councillor DONOHUE-MONCRIEFF’s email. But apparently he did not comply.

Thus, Councillor DONOHUE-MONCRIEFF asserts – and presumably can prove – that the DMO exceeded his permitted 3 working-days by a factor of almost 14. Fourteen times over the limit, as one might observe with regard to the legal alcohol limit for drivers, certainly rates a ‘FAIL’ for the DMO – but one should not expect him to receive any ‘points on his licence’.

Item 4.4 (above) requires the DMO to acknowledge and, where necessary, provide a revised timescale – ideally within 15 working-days. Relying on the Councillor’s assertion, this rates another ‘FAIL’ for Mr KITSON.

What steps did the DMO take to conduct a diligent investigation of the Councillor’s Formal Corporate Complaint? Here is an ad hoc ten-point check-list:

  • Did the DMO seek advice from the CEO regarding the appropriateness of him investigating a Director above his own rank?
  • Did the DMO examine the electronic record of email correspondence and/or telephone calls between Councillor and Director?
  • Did the DMO interview the IT Manager?
  • Did the DMO prepare a timeline and/or a schedule of evidence?
  • Did the DMO interview the Complainant?
  • Did the DMO interview the Director who was the subject of the Complaint?
  • Did the DMO interview any witnesses? (He did not interview me, or even request to do so).
  • Did the DMO record, or take contemporaneous notes of, his interviews?
  • Did the DMO make, or cause to be made, transcripts of interviews?
  • Did the DMO take steps to preserve the integrity of his investigation to forestall any suggestion of cover-up?

Unless the DMO did pursue (and can demonstrate that he did pursue) a diligent investigation along stringent lines, then it would be difficult for him to assert that he conducted an investigation worthy of that name at all. That would be yet another ‘FAIL’ for Mr KITSON.

Three strikes and you’re out? But surely there have already been five? Perhaps that is why, along with his outrageous misleading of Councillors over the ‘interception of emails’ issue, Mr KITSON has since left the Council to join the Council’s preferred external legal advisors Bevan Brittan LLP. Cosy is as cosy does.

With reference to the Councillor DONOHUE-MONCRIEFF’s original Formal Corporate Complaint against a Director (i.e. Mrs DIXON), her 5:25pm Tweet states “More on that soon” (see above). In my submission, that seems to suggest that the DMO did NOT uphold her Complaint. (How could he? To uphold a Formal Corporate Complaint against one’s immediate superior requires a degree of moral courage, since it could all too easily result in adverse consequences to the Investigating Officer’s own career trajectory – which is precisely why it is not ‘best practice’ and is explicitly forbidden by most credible organisations – though I have been unable, so far, to locate an explicit prohibition at SBC). Perhaps Ms BLADES would care to look into that? Besides, the former DMO has since moved up in the world. So it always seems to go – in the ‘reward for failure’ Wonderland of local government.

The SBC Councillor’s remark “More on that soon” seemed also to suggest that an Appeal under Stage 2 of the Complaints Procedure was imminent or already lodged. I now know that it was indeed already lodged. Appeals must be lodged within 30 working-days of receipt of the Stage 1 Decision Notice and will, in theory, be first acknowledged and then fully reviewed by “an independent complaints board”, who will rule within a further 20 working-days – or 40 working-days, if required – to a maximum of 70 working-days, in total. Add to that the fact that the Councillor may need a few days to draft an Appeal.

So a conclusion to the matter was always unlikely to emerge before mid-May 2018. Yet now, as the end of July approaches, there has still been no satisfactory conclusion.

But we have seen that timescales at Scarborough Borough Council are as long as a piece of string. One can imagine this particular piece of string being stretched out until after the May 2019 local elections, in the hope that Councillor DONOHUE-MONCRIEFF may not contest the election and, instead, drift silently off into the sunset.

There is, however, a far more serious cause for concern about the Deputy Monitoring Officer investigating his own line-manager, the Monitoring Officer. A diligent investigation may have revealed that the Formal Corporate Complaint raised issues of sufficient seriousness to amount to a Disciplinary matter. I am grateful to a former Councillor who sent me this little snippet from a 2015 draft Report:

According to the degree of severity, Disciplinary allegations may give rise to findings of (i) Misconduct or (ii) Gross Misconduct, potentially resulting in dismissal. Such cases are Resolved by a specially-appointed Panel (Committee). This casts Mr KITSON’s departure in a similar light to the notorious commonplace of Chief Police Officers negotiating instant retirement packages to avoid Disciplinary proceedings.

The ‘Regulations’ referred to in the draft Report are contained in Statutory Instrument  2015 No. 881 , The Local Authorities (Standing Orders) (England) (Amendment) Regulations 2015 –  a fascinating document which sets out the terms under which allegations against one (or more) of the three Statutory Officers (the CEO/Head of Paid Service – at SBC, Jim DILLON; the s.151 Financial Director – Nick EDWARDS; and the Monitoring Officer – Mrs Lisa DIXON) are to be investigated and Resolved. Mr KITSON was apparently unaware of these ‘Regulations’ – or willing (or perhaps instructed) to flout them.

Article 1.3 of Schedule 3 of the Instrument states:

(e) “the Panel” means a committee appointed by the authority under section 102(4) of the Local Government Act 1972(d) for the purposes of advising the authority on matters relating to the dismissal of relevant officers of the authority;

and

(g) “relevant officer” means the chief finance officer, head of the authority’s paid service or monitoring officer, as the case may be.

These Regulations are applicable to any Conduct or putative Disciplinary allegations against any of the three Statutory Officers (including, of course, the Monitoring Officer herself – Mrs DIXON).

Should Councillor DONOHUE-MONCRIEFF’s Complaint have been processed under these reguations?

Clearly, the DMO was not “the Panel”. Surely this is another valid reason why the DMO was not the proper person to conduct the Councillor’s Formal Corporate Complaint against the Monitoring Officer in the first place?

Incidentally, how many readers are aware that these three Statutory Officers are costing us over £¼-million per annum in salaries alone – almost as much as all 50 Councillors together receive in Allowances? That is a lot of money, but where is the value?

Out of interest, and for reference, here follows a list of generic Misconduct and Gross Misconduct offences:

I leave it to the reader to form an opinion as to whether or not failing to acknowledge or respond (i.e. evading accountability) would amount to a major procedural failure and/or (depending on content) an unforgivable breach of the Council’s Duty of Care to one of its own Councillors – especially one known to require special consideration.

Does all that go beyond a mere breach of the Guidelines – e.g. failing to respond to an email within 3 working-days? Or is it the case that the Council’s Duty of Care to Councillor DONOHUE-MONCRIEFF demands much more of Mrs DIXON?

Does Mrs DIXON’s apparent lapse/failure in fact transcend the process applicable to a mere breach of the Guidelines and, in fact, achieve (or exceed) the threshold for a full-blown Misconduct allegation? A Gross Misconduct allegation, even?

I invite readers and Councillors to share my view that dealing with any of this was, in any event, somewhat above the then-DMO’s pay-grade.

The Separate Complaint Against the then-DMO

On Thursday 1st February 2018 (but not until 5:25pm – outside of office hours), Councillor DONOHUE-MONCRIEFF lodged a Formal Corporate Complaint against the Deputy Monitoring Officer, Mr David KITSON, on grounds of his failure to comply with the timescales set out in the Guidelines (see above). Under the SBC Guidelines for Elected Members Contacting Officers, a Councillor is entitled to a response within 3 working-days – i.e. Friday 2nd, Monday 4th and Tuesday 5th February 2018, irrespective of the requirements of the Complaints Procedure.

Of course, a Formal Corporate Complaint against the Deputy Monitoring Officer requires investigation by someone senior to him in rank – i.e. one of the four Directors.

It would be interesting to know how any of the Directors would begin to approach drafting a half-plausible Decision Notice in which Councillor DONOHUE-MONCRIEFF’s Complaint against DMO KITSON could be ‘deemed’ NOT UPHELD. Nevertheless, that was my expected outcome. Now, we may never know. The horse has bolted.

But it would be ludicrously circular if Mrs DIXON were to have tasked herself with investigating Mr KITSON in respect of his alleged shortcomings in his investigation of her. “I’ll clear you if you clear me, Duckie”. This would be much, much, much too cosy for fairness to get a look-in.

Of course, the Chief Executive (if not Mr KITSON) will be familar with Bevan Brittan LLP’s advice of March 2015 – “Dismissing Statutory Officers – out with the DIP, in with the IP” – but, come on now – quick show of hands – how many readers believe he shared that crucial information with all Councillors?

The Chief Executive may wish to raise the whole matter (which began in October 2016) with some impartial external body – the Local Government Association, perhaps – as a matter of urgency, being ever mindful of that fundamental legal principle:

I appeal to the patience of readers who await Part Three of my DILLON: “I Am God” series; work in progress. And, thereafter, Part Four.


Related Reading

On the subject of allegations against Senior Council Officers, readers may find the following article reporting on the shenanigans at City of York Council worthy of attention:

Readers who suspect that Senior Officers consider themselves above the reach of democratic mandated Council processes and procedures are also directed to one of my earlier articles:


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