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Monitoring officer issues section 5 report over re-designation of role

The monitoring officer at Slough, Gurpreet Anand, has issued a statutory report amid claims that the Leader of the borough council unlawfully sought to re-designate the role.

The full council at Slough is due at a meeting tonight (27 September) to consider the appointment of Linda Walker as monitoring officer with effect from 29 September. Walker is currently deputy monitoring officer at the authority.

The report for the meeting says: “In light of a number of issues that have arisen recently, the Council would be better served by a Monitoring Officer who is a Lawyer….[Linda Walker] has a track record working in local government legal services both within local authorities and in the private sector.”

However, Anand, the incumbent monitoring officer and Slough's Assistant Director, Procurement and Commercial Services, has issued a 42-page report under section 5 of the Local Government and Housing Act 1989 ahead of the meeting.

In the introduction to the report Anand pointed out that the designation of the monitoring officer is not an Executive (Cabinet) Function, and that any proposed appointment or removal is reserved for the consideration of and decision by full council.

The Leader of Slough, Cllr Sohail Munawar, had originally proposed that Walker be designated as Slough’s monitoring officer in Anand’s place.

Anand, who sought legal advice from law firm Weightmans and Peter Oldham QC of 11KBW on the situation before issuing the section 5 report, wrote: “The Monitoring Officer is…. not in any way seeking to prevent any proper and lawful scrutiny of his actions or the alleged concerns of the Leader of the Council, but merely seeks to ensure that the Council adopts a lawful approach in doing so, by following the correct procedural rules set out within statutory and constitutional provisions.”

The report presents Anand’s concerns that Slough’s Leader and the Executive were collectively acting ultra vires. “This Section 5 Statutory Report highlights the proposal promoted by the Leader of the Council that the Council re-designates the Monitoring Officer role. The Council may only do this if it does so for lawful reasons. If it does so without any valid reasons or for improper purposes then this will be unlawful and, therefore, in breach of a rule of law,” Anand wrote.

“As set out in this Section 5 Statutory Report, the Leader of the Council has previously purported to re-designate the role acting beyond his powers (ultra vires). The Leader of the Council has, it seems, retracted his attempt to unlawfully re-designate the role after being challenged (as set out in this Section 5 Statutory Report and annexes).”

The report said re-designation of the monitoring officer role must be done for valid reasons. “At this stage despite requesting further information from the Leader of the Council about the reasons for asking Full Council to re-designate the role, no lawful reasons have been advanced,” Anand argues.

“The only reasons that have been suggested are those initially referred to by the Leader of the Council; namely the manner in which the Monitoring Officer dealt with a whistleblowing allegation. These allegations have not been particularised or formally investigated. The Monitoring Officer has had no opportunity to fully respond to these allegations. The allegations amount at most, to disciplinary matters, and even if they are disciplinary matters, they are disciplinary matters which are not being considered through the Council’s disciplinary procedures nor through applying the Local Authorities (Standing Orders) Regulations 2001 as amended.”

The report suggested that in the absence of any proper reasons having been given, “it appears that the proposal to re-designate the Monitoring Officer role is being proposed as a disciplinary action without following disciplinary processes, as a means of avoiding the statutory protection provided by the 2001 Regulations and/or as a means of seeking to legitimise the Leader of the Council’s attempted ultra vires actions. These are not lawful reasons and absent any further proper justification, any such re-designation would amount to an action in breach of a rule of law.”

The report also claimed that:

  • The rationale of the Leader for the change was that Anand had failed to maintain standards of integrity and public confidence and also because the Leader was not satisfied that the monitoring officer had fulfilled his duties in this regard, which the Leader alleged had placed the reputation of both the monitoring officer and the council at risk;
  • Anand had sought to meet with the Leader to be afforded with a rationale for the decision and the evidence substantiating the Leader’s concerns and allegations, but the Leader had refused to meet and so an opportunity for an informal resolution had not been afforded to the monitoring officer;
  • The monitoring officer had made “considerable attempts” to seek clarification from the Leader in terms of the statutory and constitutional provisions that the Leader relied upon to make his decision to remove Anand. “Unfortunately the Leader of the council has failed to justify the rationale for both taking the decision to remove the monitoring officer and also the statutory and constitutional provisions that afford the Leader the authority to do so.”
  • The Leader had failed to act upon guidance from the monitoring officer in terms of the decision taken and proposed by the Leader. This guidance had clearly outlined the unlawfulness of the Leader’s proposed decision.

In his report Anand recommended that the full council: confirm that he should remain as the designated monitoring officer; note the legal advice from Weightmans and Peter Oldham QC; and note that the implementation of any proposal which is the subject of this report is suspended until the end of the first business day after the day on which consideration of the report is concluded by virtue of sections 5(5)(b) and (6) of the Act.

A report prepared in response by Slough's Head of Legal Services, Amardip Healy, advised that "in light of all the facts and circumstances" the council was able to re-designate the role of monitoring officer. Both the Deputy Monitoring Officer and the Head of Legal Services had sought external legal advice on that issue, it said.

Healy said that as the council's professional advisers had not seen the instructions or the full advice provided by Weightmans and Peter Oldman QC, it was "difficult for the council to note advice it has not seen or been able to consider within its full context".

The report acknowledged that a monitoring officer could not be dismissed lawfully without following the procedure in the Local Authorities (Standing Orders) Regulations 2001 as amended, but said dismissal did not include removal of a designation.

It added that the 2001 Regulations, as amended, only applied if alleged misconduct is to be investigated and disciplinary action taken against a monitoring officer. "This is not the case in this instance, and therefore the 2001 Regulations do not apply as no disciplinary action is being taken as no misconduct has been alleged."

Healy's report said there was "no evidence that the Leader was contemplating or that the council is taking any form of disciplinary action. Indeed the email correspondence annexed to the monitoring officer's report goes to quite some lengths to say it was not".

The report also said that no evidence had been presented of capricious reasons for the proposed re-designation, and rejected the suggestion by Anand that he was unaware of what he had done wrong.

It added: "In the circumstances in which the council found itself since the summer, it had become apparent that Mr Anand's lack of previous experience in the role of monitoring officer or any other investigatory or regulatory role, raised doubts as to his ability to fulfil the monitoring officer role to the required standard.

"The correspondence from the Leader refers to 'concerns' and these were in the nature of concerns about the monitoring officer's capability and qualifications to carry out the role, in particular as he is not a qualified lawyer."

The report in response also argued that the statutory report was brought not because the Executive attempted to remove the designation of monitoring officer, but because the interim Chief Executive confirmed on 9 September, that a report would be going to full council.

It also claimed that there was a conflict of interest that Anand had not addressed in his report to explain why he brought a statutory report in his own name in relation to his interests. "The failure to identify and address this personal interest element in the report may be considered an example of the monitoring officer's lack of experience of the requirements of the role."

 

 

 

 

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