Don’t shoot me, I’m only the Monitoring Officer: Part Two

Further to his recent article Don’t Shoot Me I’m only the Monitoring Officer – Croydon and the Penn Report, it seems that holding officers responsible for governance shortcomings is getting traction, writes Paul Feild.

The Politics of Blaming the Monitoring Officer

Recently we saw the story of Teignbridge District Council resolving to complain to a Monitoring Officer’s professional body following a decision by the Local Government Ombudsman.

A councillor of Teignbridge District Council made an application to the Local Government Ombudsman on the grounds of misjustice by maladministration in how a complaint made against him under the Localism Act 2011was dealt with by the said council. In a nutshell the Ombudsman said that the complaint had to be an allegation in writing as required by section 28(9). From the decision it appears there was no formal complaint. It all looks unfortunate because documents appear to have gone astray. So maladministration was found. The Ombudsman’s decision was reported to full Council [i]. It has been reported that the said full Council on 14 February 2023 [ii] resolved to take action to refer the Monitoring Officer involved in the complaint to the Solicitors Regulatory Authority.

This practice of public criticism of an officer needs to stop in its tracks. Staffing matters are by definition (see schedule 12A Local Government Act 1972) exempt private and confidential items and an officer can hardly respond in a full council meeting.

As readers may recall, the Committee for Standards in Public Life (‘CSPL’) in 2019 published its review of Local Government Ethical Standards. It proposed that the Local Government Ombudsman (the ‘Ombudsman’) be involved in the Councillor Complaints process. On 6 September 2019 in the Local Government Lawyer, I wrote:

The CSPL solution offered for appeals is the use of the Ombudsman. The CSPL has clearly been influenced by the merits of the Northern Ireland Local Government Commissioner for Standards. I notice that the Ombudsman commented on this option and was supportive subject to change in the law and resources arguing the example of Northern Ireland and Wales having similarity (see Submission 126 - 8 May 2018). I note the Ombudsman was also at a stakeholder meeting. Post the demise of Standards Board it is true the Ombudsman is probably best geared up to do the independent investigatory work regarding complaints about members. Further, a serious point in relation to who should investigate ruling party leaders and elected mayors which could have had proper consideration.

But I looked in vain for any discussion within the roundtables on the use of the Ombudsman for Appeals and they are silent on the matter. It did not figure in the consultation either. It is also problematic. If such a measure was introduced. it would run contrary to the whole thrust of the Localism Act being about local resolution of standards issues. A national official being involved in investigation and determination of a suspension (see Recomendations10 & 14) by said official undermines the local democratic process. Far better perhaps to have an appeal by a differently constituted panel of the Local Authority or perhaps alternatively by the County Court?

This latest episode reinforces my opinion these matters are better left local [iii].      

The Turbulent Priest Syndrome

The second matter that occurred in March 2023 relates to a former Chief Executive of Croydon Council. Reports have it that the Council is considering clawing back the settlement payment made to them. Incidentally, I commented on Croydon Council and York City Council and the Local Auditors Report in the Public Interest for Local Government Lawyer on 14 May 2021 Lessons on governance and finance from recent public interest reports (localgovernmentlawyer.co.uk) .

That article discussed the thorny problem of what do you do with senior officers when the politicians don’t like them anymore. Now it is certainly true that the mandatory Standing Orders are supposed to create a form of tenure for the statutory officers of Head of Paid Service, the Chief Finance Officer and the Monitoring Officer so they are not to be dismissed without a process designed to have some objectivity.

But in practice it is simply some extra hurdles to getting rid of them, which raises the price of severance.

The realpolitik is that these officers only survive as long as they have the support of the senior ruling elected members. This is why Richard Penn wrote his report the way he did. He picks up on how the elected membership and the power elite lost confidence in the officers identified. When that happens there is no turning back.

The situation is not unlike Henry II who was recorded as saying:

A man… who has eaten my bread, who came to my court poor, and I have raised him high – now he draws up his heel to kick me in the teeth! He has shamed my kin, shamed my realm; the grief goes to my heart, and no one has avenged me!

Trans Michael Staunton,

The Lives of Thomas Becket,

Manchester: Manchester University Press, 2001, p. 189

So, traditional wishful thinking has it that a statutory officer once appointed by the whole council can be dispatched with a deal. A ‘pay-off’ as the press would have it. Got to be better than a long-protracted process? Well, no you can’t. There are prescribed processes and recent Government Guidance on making payments. See a recent consideration of how to handle this issue in Local Government Lawyer 23 September 2022 [iv] which considered South Somerset’s Local Auditor’s report in the public interest on the subject.

Clearly the agreement(s) that Croydon entered with former employee(s) were made some time before the recent Guidance. It won’t be easy to retrieve payments made to secure a severance agreement, unless it can be shown there was bad faith or concealment of a material matter subsequently discovered or express conditions covered matters which come to light at some later date.

But take a moment to look at three recent observers who have looked at Croydon. Richard Penn’s 2021 report’s title uses ‘collective corporate blindness’. This phrase was first coined by Grant Thornton in their Report in the Public Interest published on 23 October 2020. Furthermore, the Croydon Non-Statutory Rapid Review of 2020 also indicates that there were several persons involved, so singling out one out of many to make an example is maybe not a good idea.

Conclusion

What can we learn from these events? The first and most important is to build and maintain the confidence of elected members and those around you.

Please do read the Local Government Lawyer feature on South Somerset as a starting point on how to manage the removal of statutory officers, as go they must, if they lose the confidence of members.

The days of deals to get rid of statutory officers swiftly are over, the process is fraught with pitfalls and the Local Auditor will be watching. The smart move is to recognise it will be expensive but getting expert advice (and their objectivity) on how to handle it from local government specialist practitioners is a sound investment in easing the passing.

Dr Paul Feild is the Principal Standards & Governance Solicitor working in Barking & Dagenham Legal Services. His 2015 Doctor of Business Administration thesis was ‘How does Localism for Standards Work in Practice? The Practitioner’s View of Local Standards Post Localism Act 2011’. He researches and writes on finance and governance issues and can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..

[i] Report to F Council 14.02.23.pdf (teignbridge.gov.uk)

[ii] The minutes not published yet.

[iii] Why the minister was right (localgovernmentlawyer.co.uk)

[iv] see Severance payments, South Somerset and Best Value (localgovernmentlawyer.co.uk).