Spotlight

WTC: All Fools’ Day

Nigel July 1, 2024 Whitby Town

WTC: All Fools’ Day

– an “In My View” article by NIGEL WARD, unearthing another inexcusable failure at Whitby Town Council. A highly-detailed Special Report – not intended for the casual reader.

~~~~~

In the aftermath of the resignation of the Whitby Town Clerk & Responsible Financial Officer (the ‘Proper Officer’), Mr Michael KING (see here: http://nyenquirer.uk/wtc-another-resignation/) , I feel moved to offer rather a lot of words in his defence.

I do not seek to withdraw past criticisms I have made of the Clerk/RFO’s professional performance, but I do believe that now is the appropriate time to offer the opinion that he has been badly let down by his masters and employers, Whitby Town Council – and in particular by the outgoing Chair of Human Resources, Councillor Linda WILD, and her fellow Committee members – insofaras Mr KING has been given almost free reign to ‘mark his own homework’. In short, the Human Resources Committee has, in my view (and that of more knowledgeable Councillors) signally failed in its duty to oversee Mr KING’s performance of his (too many?) onerous duties.

We are all human and none of us is perfect. This is why public authorities are tasked with carrying out various checks and balances by means of which human error can (hopefully) be eradicated or, at least, minimised. In the case of the oversight of employees, the responsible body is the Council’s Human Resources Committee.

This oversight cannot be achieved if those who have committed (hence the word Committee) to assume these responsibilities are negligent – derelict, even – in their duty to exercise these very necessary checks and balances.

Allow me to illustrate this point with a pertinent (if slightly technical) example:

On 1st April 2024 (All Fool’s Day) – the very first day of the 2024/25 Council financial year – I submitted a Freedom of Information request to Whitby Town Council via WhatDoTheyKnow.com (archived here):

https://web.archive.org/web/20240605110906/https://www.whatdotheyknow.com/request/rejected_motions

I was dissatisfied with Mr KING’s response. I therefore, in accordance with the legislation, requested an Internal Review (a process previously assigned to Full Council). However, Mr KING chose to refer my request for Internal Review to the Finance, Policy & General Purposes (FP&GPC) – at that time chaired by the above-mentioned Councillor Linda WILD).

In simple terms, the Town Clerk & Responsible Financial Officer, Mr Michael KING, informed members of the FP&GPC that information I had requested under the Freedom of Information Act 2000 via WhatDoTheyKnow.com had been provided IN FULL. In truth (and I shall provide the evidence, below), only HALF of the requested information had been provided; the key part – the critical part – was NOT provided, which resulted in the part which had been provided being rendered quite meaningless. Worse, the members of the Committee took him at his word. They failed to recognise that the Clerk/RFO’s Report – whether deliberately or inadvertently – had misdirected or misinformed the members of the FP&GPC.

Not one of them bothered to check the facts for themselves, which required only to review my FOIA request and Mr KING’s unsatisfactory response – a job of perhaps 15-20 minutes. This omission could be described as a failure of sound ‘internal control’, of significance to the External Auditor. And this despite the fact that the Clerk/RFO had only recently been shown, by the External Auditor, to have misdirected Full Council over last year’s Annual Governance Statement (AGS), which was subsequently shown to have included three FALSE Assertions out of nine, in the process incurring nearly £9K in unnecessary additional Audit Investigation Fees. Again, the FP&GPC (and Full Council) had totally overlooked the Clerk/RFO’s errors. In short, under the External Auditor’s eye there is now pressing urgency to avoid any further displays of incompetence.

By way of explanatory preamble, the circumstances which provoked my FOIA request can be found in WTC’s Standing Orders – specifically, in Standing Order 9. Motions For A Meeting That Require Written Notice To Be Given To The Proper Officer, the Clause which delineates the criteria to which Motions submitted by Councillors must comply in order to achieve inclusion on an upcoming Agenda.

The Clauses which aroused my curiosity are 9 f, g & h – set out below:

Having had previous sight of a number of (intended) Motions – the clear intention of which was to improve the methodology of the Council’s Policies & Procedures – that had subsequently been “rejected” by the Proper Officer (the Clerk/RFO), I wanted to satisfy myself not only that these “rejected” Motions had been dismissed by the Proper Officer on legitimate grounds (which I doubted), but also that each respective “reason for rejection” was genuine and not merely a convenience by way of which the Proper Officer could preserve the status quo in respect of the Council’s Policies & Procedures, thereby saving himself (and the Council) some considerable workload and preserving ultimate control over certain aspects of the Council’s business. (Readers familiar with my article “The Cult of the Clerk” (pub. 27th Oct. 2023) will know exactly what I had in mind).

Readers will note that Standing Order 9 h (see above) requires the Proper Officer to record all “rejected” Motions and to record, for each, an “explanation” of the “reason for rejection”.

Thus, my 1st April 2024 FOIA request specifically requested:

For the time period 1st April 2019 until 31st March 2024, please provide a copy, in e-format (ideally PDF), of all of the recorded “Motions rejected”, in chronological order, together with the respective explanations of their “reasons for rejection”, commensurate with SO9h (above).

Note that there are two (and only two) elements to this request.

A full and lawful response should have been a job of five minutes: i.e. to confirm that the Council held the requested data and to communicate to me a copy of his record of “rejected” Motions and a copy of his record of “explanations” of the “reasons for rejection” which Standing Orders require him to maintain.

On 22nd April 2024, WTC Town Clerk/RFO responded to my FOIA request by sending me the following image. Nothing else. Just this rather unhelpful image:

s.1 of the Freedom of Infoemation Act 2000 demands the following legal requirements:

But the Proper Officer (Mr KING) did not (a) confirm whether or not the requested information was held by the Council, or (b) communicate the information to me.

Thus, the Proper Officer breached the basic requirements of the Act at this very first step.

On 30th April 2024, after the expiry of the statutary 20 working-days, I responded to WTC as follows:

https://www.whatdotheyknow.com/request/rejected_motions#outgoing-1655116

Thank you for your response. Unfortunately, your response does not comply with the requirements of the Freedom of Information Act 2000.

Therefore, I am writing to request an Internal Review to be considered by Full Council, in accordance with precedent.

(The precedent to which I referred was set by a previous request for Internal Review which was referred to Full Council).

On 1st May 2024, I received the following response (https://www.whatdotheyknow.com/request/rejected_motions#incoming-2642661) from the Clerk/RFO who, to his credit, is apparently unashamed to parade his ignorance of the Act:

Thank you for your email. To assist the town council’s consideration of your request, please can you identify why, in your view, the council’s response does not comply with the requirements of the Freedom of Information Act 2000.

Regards

Michael King
Town Clerk

I responded on 3rd May 2024 (https://www.whatdotheyknow.com/request/rejected_motions#outgoing-1657544) to the Clerk/RFO, explaining that his attached logo.gif (see above) did not comply with his legal duty under s.1 of the FOIA (to confirm whether or not the requested data was “held” by the Council), nor had the requested data been “communicated” to me. Fact.

On 7th May 2024, the Clerk/RFO responded (https://www.whatdotheyknow.com/request/rejected_motions/response/2647852/attach/2/240401%20Ward.pdf?cookie_passthrough=1by) providing a PDF letter (dated 22nd April 2024) containing the following Table of ‘Reasons for Refusal’ – but NOT the “refused” Motions themselves, to which the Reasons apply:

This arguably complies with the second element of my request (for the “explanations” of the “reasons for rejection” of the “rejected” Motions – BUT it does not provide the first element of my request – the intended Motions themselves – thus depriving me of my opportunity to examine whether or not these intended Motions had legitimately been deemed invalid in accordance with the law and with the “reasons” provided by the Clerk/RFO.

The Clerk/RFO’s 7th May 2024 contained two further attachments (both marked “Unavailable”):

These second and third attachments are marked ‘Unavailable’.

This was puzzling.

Did it mean that the Clerk/RFO had failed in his duty (under SO 9 h) to record the “refused” Motions?

Or did it mean the Clerk/RFO had no wish to have his work scrutinised by me, having previously experienced three of his nine Annual Governance Statement assertions (33%) determined to be false and invalid by the External Auditor, in direct consequence of the thoroughly-documented 2022/23 Objections to th Annual Accounts?

Why Is All This Important?

The very fact that SO 9 f, g and h together place Councillors’ intentions regarding the business of the Council, going forward, entirely at the mercy of the Clerk/RFO is cause for very serious concern. Effectively, the Clerk/RFO has been granted power of veto over any Motions that Councillors may propose with a view to improving the methodolgy and direction of the Council. Without a proper record of these proposed Motions (that Councillors have attempted – and failed – to bring before Full Council, where they could be approved or rejected by a majority vote), Councillors and members of the public (myself included) have no means of checking whether or not the Clerk/RFO’s “refusal” of Motions was legitimate or was simply a means of maintaining the status quo – warts and all. In my view, this subverts the democratic process. It surely cannot be right or advisable that one unelected employee can determine the trajectory of the Council’s business – and Councillors be left with no visible avenue of challenge. I would contend that this arrangement is a textbook example of unacceptable/inadequate internal control – AGS Assertion 2.

To continue:

I responded immediately to the Clerk/RFO (7th May 2024 – https://www.whatdotheyknow.com/request/rejected_motions#outgoing-1658340) and my response is worth reading and digesting with great care. I would contend that I could not have made it easier for the Clerk/RFO, and Full Council, to understand why I was requesting an Internal Review of his unsatisfactory processing of my request.

Unfortunately, I heard nothing further from the Clerk/RFO until 5th June 2024 (https://www.whatdotheyknow.com/request/rejected_motions#incoming-2673837), as follows:

Thank you for your email of 7 May making a request for an Internal Review of your Freedom of Information request, originally submitted on 1 April 2024.

In accordance with the Council’s policy, your request was considered by the Finance Policy and General Purposes Committee meeting on 4 June 2024.

It was resolved that, ‘the council has provided the information that was requested.’

No, it has not.

Firstly, be it noted that the Clerk/RFO departed from precedent by placing my request for Internal Review not before Full Council, but before the FP&GPC, on 4th June 2024, at Agenda Item 9 – https://web.archive.org/web/20240605142300/https://www.whitbytowncouncil.gov.uk/uploads/240604-fpgp-agenda.pdf?v=1717082828:

9. REVIEW OF DECISION UNDER THE FREEDOM OF INFORMATION ACT (page 21)
Report attached.

The Clerk/RFO’s attached Report reads as follows:

Readers are invited to form their own opinions as to whether the Clerk/RFO’s remarks in the paragraph enclosed in the red box (above) are true – or false. In my view (and the WDTK.com record confirms my view), they are obviously false. The Clerk/RFO also refers, in his Report, to information “provided on 22 April 2024 (attached)”. However, these alleged attachments do not appear to have been included in the Agenda Pack. Thus, the FP&GPC members have been provided with no opportunity to check. Whoops! Nor were they provided to me on 22nd April 2024 – or on any other date.

In fact, the WhatDoTheyKnow.com thread contains no “rejected” Motions – only the Table entitled ‘Reasons for Refusal (plus, of course, the Whitby Town Council logo).

But the Clerk/RFO, in his Report to the FP&GPC, has asserted that “the information originally requested was provided on 22 April 2024” and the Committee, in its infinite wisdom, has taken the Clerk/RFO at his word. How is that for due diligence? Too lazy to follow one URL-link and read a page of content?

Surely, readers will say, the members of the FP&GPC are perfectly capable of reading and digesting for themselves the entire thread of my 1st April 2024 FOIA request, including the Clerk/RFO’s departures from s.1.1(a) and (b) of the FOIA and drawing the obvious conclusion that the “record” of the “refused” Motions has still NOT been provided? But they have not bothered to do so.

Readers may even wonder if the Clerk/RFO’s “record” of “refused” Motions even exists – or, indeed, ever existed. Or should I, perhaps, say “still exists”? For without it, no-one will ever be able to ascertain whether or not the Clerk/RFO did comply with SO 9 h and duly “record” the “refused” Motions – or, indeed, whether or not they were, at one time or another, properly recorded but have subsequently been ‘mislaid’ or wittingly (in an act of spoliation) destroyed, thus precluding any later scrutiny of their validity by me or anyone else.

I am reminded of the conviction of Whitchurch Town Clerk, Nicola YOUNG, for a breach of s.77 of the Freedom of Information Act 2000:

For convenience of reference, s.77 of the Freedom of Information Act is reproduced below – note s.77(3):

Encouragingly, s.100H(4) of the Local Government Act 1972 (as amended) covers a similar offence, but with greater accessibility to the common man:

Councillor WILD is apparently oblivious to these legalities.

However, bridges may already have been burned; the WhatDoTheyKnow.com thread has now (as of 5th June 2024) been updated by the Clerk/RFO as follows:

https://wayback-api.archive.org/web/20240605150702/https://www.whatdotheyknow.com/request/rejected_motions#incoming-2673837

In accordance with the Council’s policy, your request was considered by the Finance Policy and General Purposes Committee meeting on 4 June 2024.

It was resolved that, ‘the council has provided the information that was requested.’

Not to me, it has not! The FP&GPC seems to have missed the fact that the crucial information integral to my request – i.e. the actual “refused” Motions – have yet to be communicated to me. Perhaps the Information Commissioner and/or the External Auditor will have better luck . . .

This rather unpleasant episode raises a number of serious concerns with regard to transparency, governance and accountability at Whitby Town Council:

1) Did the Clerk/RFO comply with SO 9 h and maintain a proper record of refused Motions submitted by Councillors, along with the reasons for which they have been “refused”?

2) Did the Clerk/RFO fail to discharge his duty under s.1(1)(a) and (b) of the FOIA in order to conceal his lack of diligence in regard to SO 9 h?

3) Did the Clerk/RFO place an inadequately structured Report before the ever-malleable Finance, Policy & General Purposes Committee to persuade them to reject my Internal Review?

4) Did the Clerk/RFO fail to comply with SO 9 h (which could explain the inadequate response to my FOIA request?

5) Or did the Clerk/RFO perhaps comply with SO 9 h but then acted in breach of s.77 of the FOIA – and s.100H(4) of the LGA – to conceal or destroy this information?

One might reasonably expect our Councillors (lest we forget, our unchosen representatives – especially the then-members of the FP&GPC) to be monitoring all this flummery.

One might reasonably expect that they should recognise that strict adherence to the law and diligent monitoring of their (and their staff’s) performance is arguably the key element of their duties. One might equally easily expect that, like the overwhelming majority of Enquirer readers, they should grasp the full import of this article.

But these insights would appear to be beyond their competence or intellectual capacity.

They need some very intensive training. I have been trying to educate them. But you know what they say . . .

I attempted to forewarn WTC, both in correspondence and in my article “SLAPP Happy WTC” (pub. 06/11/23), but the know-nowts always think they know better:

As stated, I have tried to educate them . . .

Meanwhile, according to the Yorkshire Post, another Town Council in the Scarborough & Whitby constituency within North Yorkshire – Newby & Scalby Town Council – could be looking down both barrels of a Constructive Dismissal claim from a disgruntled Town Clerk/RFO hung out to dry by a bevy of incompetent geriatric Councillors: