Tuesday 23rd October 2018,
North Yorks Enquirer

OPEN LETTER to SBC Monitoring Officer Mrs Lisa Dixon

An Open Letter from transparency campaigner Geoff PICKERING to Scarborough Borough Council Director of Legal & Democratic Services and Monitoring Officer, Mrs Lisa DIXON, seeking to ensure SBC council tax-payers do not bear the costs of any improper actions on the part of Chief Executive and Head of Paid Service, Mr Jim Dillon.

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FOREWORD

I remind readers and Mrs Dixon that Scarborough Borough Council has formally refused information requested under the FOIA on the grounds that this is privileged legal advice. [1] [2] [3] [4]

Unless that statement is false and is a deliberate misuse of exemptions available under the FOIA, for the express purpose of preventing legitimate access to information, the advice is in the first instance the sole responsibility of the Monitoring Officer.

It follows that Mrs Dixon must therefore be fully aware of the legal basis of the Chief Executive’s actions and, where they are not legal or are a misuse of powers, it is Mrs Dixon’s own duty to act to prevent illegality. The consequences of any omissions reside wholly with Mrs Dixon.


OPEN LETTER to SBC Monitoring Officer Mrs Lisa Dixon

Liability for reckless behaviour of Chief Executive and others

Dear Ms Dixon,

I have, over the past months, endeavoured to obtain information on the powers being exercised by the Chief Executive of Scarborough Borough Council in disbarring an Elected Member of The Council from entering Council premises; attending meetings (of Council or Committees); meeting with, telephoning or emailing Officers and/or members of the Council staff.

This action prevents a Member from exercising their electoral mandate and disenfranchises the residents of the Ward they represent. It is an extremely serious matter for Officers to contrive to interfere with democratic process. It is therefore incumbent on the Council to set out clearly, in the public interest, exactly what powers it is exercising and the reasons in denying 4,065 electors their democratic representation.

It is becoming increasingly evident from the delaying, blocking , failure to respond or inconsistent responses received to the legitimate and rightful requests for information made under the auspices of the Freedom of Information Act 2000 that the Council is unwilling or unable to prove it is acting legally. It is a standard procedure for any Council to divulge and define its powers when exercising them. These powers are public record and there is no legitimate reason they can not be confirmed if they are being properly exercised.

It is a fact that no specific powers exist and that general powers can not be applied in this way. I have had no difficulty in obtaining such confirmation so I am certain any Council Legal Officer has access to the same information.

It is the case that the Chief Executive and others are acting illegally and recklessly.

Due to the serious nature of the Council’s actions, potential misconduct in public office and consistent abuse of process, I am making this letter to you public, as I have no confidence that it will be dealt with at all, let alone treated properly otherwise.

I remind you that the Council has formally refused information on the grounds that it is privileged legal advice. Unless that statement is false and is a deliberate misuse of exemptions to the FOIA to block legitimate access to information, that legal advice must come via yourself as Legal Officer.

You must therefore be fully aware of the lack of legal basis for the Chief Executives actions.

The Council’s specific response to my FOI request included an exemption which can only be invoked where the Council believes that there is a real likelihood of legal action as a result of the disbarment. Since action against the Council is only warranted if the disbarment has no proper legal basis you could not, therefore, successfully defend any such action.

This poses a palpable risk of considerable financial penalty and costs award against the Council.

Please feel free to correct with corroborative evidence any misconception by return;  otherwise the statement of illegality stands as correct.

It is entirely reckless to embark on something so serious as interfering with a member’s and the electorate’s rights to representation without absolute certainty of the legal powers exercised, even more so to persist once questioned and to then pervert the Council’s due processes in covering up the facts to divert challenge.

Examination of your Constitution (Article 5.6.2) reveals that the Council’s indemnity does not cover illegal or reckless behaviour by Officers and/or Members.

The Council could therefore not defray costs arising through its insurers.

It is highly inappropriate that the Taxpayer bear the cost of such illegal or reckless behaviour, especially when they are disadvantaged by it.

The duty of your position is to act to prevent illegality. You therefore face the full consequences of any act or omission on your part.

It is also a duty of your post to prevent or report illegal or reckless activity and so remove the risk to the Council Taxpayer.

Could you please confirm:

(1) that you have already, or will forthwith, fulfill your statutory duty and ensure that all Officers and Members desist from any illegal or reckless act immediately and that the appropriate actions and remedies are put in place to minimise the risk to the Taxpayer, and

(2) Confirm that you will ensure that any costs to the Authority arising from ultra vires illegal or reckless actions of any Officer or Member are recovered through a personal surcharge or other such means against those liable, including the full commercial cost/value of any of the Council’s internal or external legal services or advice.

I look forward to receiving your notification of fulfillment of your duties and assurances that you have removed any risk to the taxpayer, by return.

Yours sincerely

Geoff Pickering

https://democracy.scarborough.gov.uk/documents/s78737/5.6%20-%20Member%20Officer%20Indemnity.pdf

Download the PDF file SBC_CONSTITUTION_5.6.

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