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General counsel in the public sector

Arrows 16686301 s 146x219Geoff Wild of Kent County Council considers the multi-faceted role of the general counsel in the public sector at a time of great change.

It is imperative that large organisations in the public sector, as well as the private sector, retain at all times a focus on good governance and upon the lawfulness of their actions.

However, in periods where significant savings need to be achieved and organisational change delivered, it is even more important that law and governance are at the centre of the organisation.

An absence of legal and constitutional input into top tier decision making and discussions leaves Members, Officers and the Local Authority open to risk that could be otherwise mitigated or avoided by early intervention.

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General Counsel (GC) acts as the authority's “conscience”, as a sounding-board and source of sound judgment on questions in which ethical issues often shade legal determinations.

In summary, the GC is the organisation’s navigator when the GPS goes down.

Scope

In many public bodies and private corporations, it has long been evident that a lawyer who serves as an organisation’s chief legal officer or GC typically occupies multiple roles within the organisation.

In a local authority setting, the GC is an employee-officer of the council charged with overall responsibility for how the council’s legal matters are handled, including furnishing legal advice to the council’s chief officers, cabinet and council members generally.

It is vital for the well-being of the organisation and for mitigating risk that GC must be able to participate at an early stage in shaping major transactions and corporate policy. GC is able to bring detached professional judgment to bear in assessing their legality and contribute significantly to the strengthening of the council’s position.

But a contemporary GC needs to occupy other roles as well, each complex and additionally interlinked in many ways. These linkages can be beneficial not only to the council, but to the local community more generally.

Positioned as a chief officer within the council, a GC who is an influential member of its senior management team can help proactively shape the council’s activities and policies in directions that are highly resilient, exercising influence that may extend well beyond the bare bones of legal compliance.

A GC should also be uniquely well-positioned to champion elements of the transformation of the organisational culture that shapes how the council addresses its relationships with law and regulation.

A key role is to ensure that over-dependence by officers on one area of the authority (e.g. the executive) does not call into question the organisation’s capacity to bring an appropriate degree of objective and professional detachment to bear. GC must take the responsibility of ensuring officers do not err by misidentifying their sole authority as individual members of the cabinet in contrast to the council as a whole.

Roles and responsibilities

The four primary roles undertaken by GC are:

(1) senior corporate legal adviser in an individual professional capacity;

(2) member of the corporate management team;

(3) leader and manager of the internal legal department; and

(4) agent of the organisation in dealings with third parties, including external legal advisers retained by the council.

In a local authority setting, to these can be added responsibility for the key statutory and strategic non-legal functions of:

(5) Monitoring Officer;

(6) County Returning Officer;

(7) Senior Information Risk Owner (SIRO);

(8) Responsibility for Democratic Services;

(9) Responsibility for Information Governance.

The ideal arrangement is for a local authority to have an experienced, legally-qualified officer who occupies a sufficiently senior position within the organisation to be able to combine all the various roles outlined above.

The significance of these roles requires the GC to be a full member of the Corporate Management Team (CMT). GC is only fully functional as an adviser to senior management if they are aware of and involved in major ongoing developments. Otherwise there is the risk of being out of informational loops that operate at the senior management level.

GC, in the statutory role of Monitoring Officer, is recognised in law as “one of the key roles within the local authority" alongside the Head of Paid Service and the Chief Finance Officer, and should be effectively involved in all key strategic decision making.

The government’s guidance refers to the Monitoring Officer role as performing:

"a key function in ensuring lawfulness and fairness in the operation of the local authority's decision-making process, including investigation and reporting on issues that embrace all aspects of the authority’s functions". [1]

Recognition of the role played by the three key statutory officers in underpinning the foundations of good governance within the authority (Head of Paid Service – Chief Finance Officer – Monitoring Officer) is a vital measure of the state of any council’s corporate health and will be crucial in ensuring that KCC emerges from this latest round of changes in a healthy state.

Given the proposed changes to the officer and Member structures, the need for GC to be a member of CMT is even greater. If a changed leadership dynamic is adopted, the responsibility for legal and governance adherence becomes all the more important.

The decisions that are most likely to require the input of GC take place at CMT level. The situations where advice and guidance are required are often going to be those that are not contemplated by the CMT, where a discussion in passing could identify a major corporate or legal risk. The absence of GC from CMT leaves the organisation at very real risk of acting unlawfully and ultra vires.

Full membership by the GC/Monitoring Officer of the CMT provides protection to the other members of the team and an assurance to Members that the authority is acting lawfully and proportionately.

Indeed, such is the importance of this nationally that it is seen as good practice by a majority of local authorities to include the Monitoring Officer on their senior management teams.

Corporate governance

Given recent attention on corporate scandals there is increased emphasis on governance issues. Consequently, there is a critical need for an officer who is a member of the senior management team to protect the council from compliance risks.

The dual roles of GC and SIRO serve the council’s need to comply with the law, but they have different functions in that regard. As a lawyer, there is the ethical duty to provide advice on how to comply with the law and the duty to represent the council’s interests zealously.

Meanwhile, as SIRO, the role serves a management function primarily focused on devising, implementing and overseeing organisational processes to educate officers and members to enhance the council’s use of one of its primary assets – information.

Reach and influence

It is critical that GC is provided with unfettered access, and be empowered to present candid reports, to the Cabinet and CMT, in each case with impartiality and without undue influence. The post must be at chief officer level in order to possess the autonomy necessary to effectively function in the role, since history teaches that some of the matters he will be called upon to review or enforce may involve the council’s most senior management.

GC needs access to every part of the Council’s organisation, and to reports, decisions, records and background papers. More importantly, they need to be directly involved and personally consulted in advance of decisions being made, which in many high-performing organisations requires them to be a member of the senior management team.

In practice, the council should recognise that it is better to prevent illegality or a breach of the Code of Conduct for Members, rather than to wait for the illegality or breach of Code to have occurred before taking any action. This protects the organisation from financial and reputational risk and, just as importantly, prevents the organisation from sleepwalking into illegality. Accordingly, GC should ideally seek to position themselves as trusted advisers to senior Members and officers on emerging policy proposals, and to individual Members on standards issues.

They should also set up arrangements to ensure that they are aware of emerging proposals, so that they can offer advice before too much political capital is invested in a particular issue.

Such an advisory role can conflict with the regulatory role on matters on which there has already been legal advice, and so GC should seek to separate themselves from the in-house Legal team and increasingly delegate the casework on individual matters to the Legal officers. Knowledge of emerging policies and proposals and the trust of Members and officers are actually more important and cannot be brought in. It is far more important that individual Legal officers with discrete specialisms are brought in to advise, rather than an overreliance on GC for the legal minutiae.

Conclusion

The post of GC is a vital link in the modernisation of local government generally, and the ethical framework in particular. The responsibilities are substantial and place GC in a pivotal position in relation to the governance of a local authority. A failure to create such a position within the organisational structure could result in a failure on the part of the authority to properly function and fulfil its statutory duties.

The risks to the authority, especially at a time of flux and transition, of maladministration and unlawfulness are high and require a post (and postholder) with the confidence, credibility and status within the authority to be able to be aware of, and have the gravitas to challenge, decision making and decision makers both in what they do and in what they fail to do.

Person specification

In light of the above, what should a local authority expect of its GC? The terms of the person specification should provide someone who:

  • Does not define themselves predominantly as a lawyer. Someone therefore who while being a top class lawyer is very much more: a player whose legal skills are often subliminal and only a small part of an extensive talent armoury;
  • Wins the trust, confidence and respect of key members and officers by being seen as actively wanting to find ways of making things happen rather than reasons to stop them;
  • Forms an effective corporate governance ‘triumvirate’ with the head of paid service and chief finance officer and also establishes effective lines of communication with the external auditor;
  • Is an insightful and effective manager who develops his/her people and unleashes their spectrum of talents (as necessary outside their ‘designation box’) to add value and energy across the authority;
  • Is always able to be part of the genesis of key decisions;
  • Is an advocate throughout the authority of high corporate governance standards and who puts in place comprehensive (but practical and accessible) processes to ensure these are hard-wired into the authority’s culture and arrangements;
  • Reaches out beyond comfort zones of law and administration to add value to corporate objectives and outcomes and who is seen to make a real community difference;
  • ‘Moves and shakes’ externally on behalf of the authority and helps to shape the local government law and policy landscape;
  • Ensures the quality of the outcomes for which they are responsible;
  • Has a strong sense of leadership of place;
  • Sees the need for new definitions of success and status in a rapidly changing public sector environment where increasingly public services will need to be more entrepreneurial and synergise on an area basis;
  • Is therefore not narrowly territorial or self-seeking and does what is necessary as opposed to what may be personally desirable;
  • Engages good people and has in place prudent succession planning;
  • Whilst making a positive difference is also pleasant to be with.

Geoff Wild is Director of Governance & Law at Kent County Council.

Copyright June 2015

[1] New Council Constitutions: Guidance to English Authorities 

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