Chief executive cleared after investigating QC rejects complaint as "unfounded"

The DIP, Mark Lowe QC of Cornerstone Barristers, was hired by Thanet District Council in July 2014.

This followed a complaint by Green Party councillor Ian Driver about the conduct of the authority’s chief executive, Dr Susan McGonigal, who also sits on the board of East Kent Opportunities (EKO).

The company – a partnership between Kent County Council, Rose Farm Estates and Thanet – had submitted a planning application for 550 homes on a business park in Ramsgate.

Driver’s complaint revolved around McGonigal’s conduct in communicating with the council’s planning manager, Simon Thomas, who was in day-to-day charge of processing and assessing the application in question.

The chief executive had stepped into the matter in May when it appeared that officers for each body (EKO and Thanet) had stalled in their negotiations over the application. She had “sought to see if the issues between them were capable of sensible resolution”, Mark Lowe's report said.

The issue the DIP had to address was whether in seeking to pursue a resolution of these differences between the officers McGonigal put undue pressure on Thomas to produce a favourable recommendation in the report to committee on the application or sought to direct him to the recommendation he should reach on the matter.

In preparing his report Lowe, amongst other things, reviewed a range of communications and meetings that took place at Thanet in May and June this year.

A key issue was the wording of an email McGonigal sent to two officers of EKO in which she asked: “Any news? I have my meeting with TDC planners this afternoon, and I need this to illustrate the argument I want them to use to support the application.” (This was the email that Cllr Driver read after the event)

Lowe said he was satisfied that McGonigal had not confused her role as chief executive of the local planning authority with that of being a member of the applicant body, EKO.

“Her role in this [a key] meeting was essentially that of an honest broker seeing that each side understood and respected the position of the other and took steps to narrow their differences when it was appropriate to do so,” Lowe found.

“She did not use them to act as an advocate for EKO or to browbeat or otherwise seek to influence improperly [Simon Thomas]’s professional judgment on the merits of the application. It was clear from her interview that she was very conscious of the difficulties inherent in ‘wearing two hats’ as she put it and was careful to avoid any position of conflict.”

Lowe said this was clearly supported by the planning manager’s contemporaneous note of the meeting where her introductory remarks addressed this point. The rest of his note confirmed how she remained in the background through most if not all of the debate.

The DIP found that at worst what had happened was that the chief executive made a misjudgment in forwarding a particular email train to Thomas as it gave rise to a concern on his part that would not have arisen had he not read the content of that EKO email.

“It was the result of failing to re-read the email train before it was forwarded and in using sloppy or clumsy language in the first place,” Lowe said.

“These are hardly heinous matters. They result from an assumption that the proprieties in the matter were well understood and as a result of using an instant form of communication. This cannot justify a charge of misconduct or warrant the lengthy disciplinary procedures to which the CE has been subjected.”

In relation to the email at the heart of the complaint, Lowe said earlier in the report: “At best [it] gives rise to the potential for misconduct to have occurred if and only if the chief executive had used her influence to persuade or otherwise cause [Simon Thomas] to hold to a view contrary to his professional judgment.

“There is no evidence of that whatever either from the documents or from the evidence I have received by way of interview. In fact, to the contrary, [Simon Thomas] was always careful of his professional position and at pains to stress his independence in such matters. The chief executive is an experienced and thoroughly professional officer in my judgment and was therefore well aware of the appropriate boundaries to follow and that is what she did.”

He rejected an assertion by the council’s former monitoring officer who considered there to have been collusive conduct to bring improper pressure to bear on Simon Thomas. The ex-monitoring officer’s complaint was not substantiated by the material disclosed during the investigation, Lowe said.

The DIP concluded by saying he made “no finding of misconduct against the chief executive”.

The QC’s report was accepted last week by Thanet’s General Purposes Committee, which also agreed to its publication. It can be viewed here.