Brent Council to instigate recording of legal advice & (some) meetings with developers in response to criticism

The Audit Advisory Committee is not the most high profile of Brent Council committees but is has an important role, not least in these times of controversy.  The Committee has a fairly independent membership so it is to be hoped they give matters a good airing.

Next Wednesday's meeting has three items relating to stories published on Wembley Matters where officers seek, in two of them, to respond to some of the criticisms.

Firstly there are recommendations made by the auditor following his consideration of the objections to Brent Council accounts regarding the payment made to Cara Davani, former Head of Human Resources LINK. Despite not finding for the objectors he did suggest some actions in areas highlighted in their evidence.

Click to enlarge

The report puts on record Brent Council's  view of the initial case in which Cara Davani was found guily by a Watford Employment Tribunal of racial dscrimination and bullying of Rosemarie Clarke:

It remains the Council’s position that the sequence of events resulting in the unfair dismissal of Rosemarie Clarke reflect poorly on the organisation as it then was, and caused harm to the Council’s former employee. Lessons have been learned and new procedures have been implemented and the Council hopes that with this report the long-standing matter may now be brought to a close.

Another controversial issue has been Cllr Butt's meetings with developers, the lack of a note of what took place at the meetings and absence of any officers at these meetings LINK.

The Committee will consider proposed changes to the Brent Planning Code of Practice and will need to ensure that the changes are sufficiently robust as to restore public confidence in the planning process before they go to the Cabinet for approval.

The report states: 

There is a new section on ‘Discussions between members and meetings with developers or their representatives’. This in part incorporates into the code ad hoc advice issued by the Monitoring Officer to Members in the recent past and in part strengthens the Council’s commitment to being seen to be promoting good practice. The requirements aim to strike a proper balance between promoting public confidence in the integrity of the planning process and the legitimate reality of local government life. Of particular note is the requirement that pre-application discussions or discussions about undecided applications between Members and developers (or their representatives), are arranged, attended and documented by an officer.

This is the full section:*

Provided Members comply with the practical requirements  if this code and the Members Code of Conduct, there is no legal rule against Members, whether of the same group or not, discussing strategic planning issues, general policy issues or even future decisions.

Similarly, joint working, both formal and infornal, and dialogue between members of the Planning Commitee and members of the Cabinet is recognised as a legitinate reality of local government life. Members of the Planning Commitee need to ensure that when making planning decisions, they make up their own mind and on the planning merits.

Relevant members of the Cabinet are entitled to meet with developers or their representatives and other relevant stakeholders as part of their role to promote Brent and the regeneration, development and other commercial opportunities available in the borough.  In doing so Members of the Cabinet must always act in the best interests of the council and ultimately in the public interest, and in accordance with the high standards of conduct expected of Members, to ensure that the integrity of the planning process is not undermined and the council is not brought into disrepute.

Reasonable care and judgement should be exercised in relation to such meetings, taking into account the purpose of the meeting, the nature of the issues to be discussed and the timing.  In appropriate circumstances, exercising proper judgement may include ensuring a record is kept of the meeting. Cabinet members should make sure it is understood that their participation in marketing events or commercial discussions is separate from the adminstrative and regulaltory role of Members of the Planning Committee.

Although members of the Cabinet are entitled to express support or opposition to development proposed in the borough, they cannot use their position as a Member improperly to confer on or secure for any person an advantage or disadvantage.

As pre-application discussions or discussions about undecided applications require particular care, the following additional rules apply. An officer must make the arrangements for such meetings, attend and write notes. The meeting arrangements must include agreeing an agenda in advance. (my emphasis)

* The report on the Committee Agenda is a 'tracked changes' Word document converted into a PDF and very hard to read, particularly for anyone not versed in Word. Without a 'clean copy' I find it hard to see how it could receive proper scrutiny. See it HERE  It's ironic that a document trying to increase accountability and transparency is itself not readily accessible.

The last item is controversial and will remain so as Brent Council has restricted public access to the information. There is an update on the issues surrounding the asbestos contamination in Paddington Cemetery, first raised by Cllr John Duffy on this blog LINK but the update is not publicly available and the public will be excluded from the discussion about it.   No glimmer of light here.

Brent Council and Cara Davani – The Last Post...(and, How much should the Council expect to pay for a bucket of whitewash?)

Cllr. Muhammed Butt and Cara Davani
(from a Brent Council photograph celebrating International Women’s Day, March 2015)

Guest post by Philip Grant (please note as this is a long article it has been posted with a continuation page. Click at the end of the article to read all.

On 5 December 2017, three hours before the start of an Audit Advisory Committee meeting, Brent Council’s auditor issued his decision letters on the objections against its 2015/16 accounts over the payment of £157,610 to its former HR Director, Cara Davani. I will ask Martin to attach a copy of the decision letter I received, so that it is in the public domain for anyone to read if they wish to. READ IT HERE

In summary the auditor decided that the payment was not unlawful and that he would not issue a Public Interest Report over the issues the objectors had raised. He did, however, say that ‘there are a number of governance areas that we consider that the Council should strengthen’, and made several recommendations, mainly over keeping formal written records of legal advice given and of meetings (a familiar problem at Brent!).

I am sure that the auditor believes he exercised his professional judgement properly in coming to his decision. According to his “progress report” ahead of the 5 December meeting, he had also submitted his ‘statement of reasons on the objection’ to his Regulator, PSAA (Public Sector Audit Appointments Ltd, a wholly owned subsidiary of the Local Government Association) for comment.

Maybe I am a “loser” who finds it difficult to accept that he was wrong. But I can’t help feeling that I, and the four other local people who objected to the £157k payment, have been let down by a system which is meant to ensure that local electors can challenge the potential misuse of funds by their Council through a ‘fair and impartial process’. I cannot change the auditor’s decision, but I can set out why I think it was wrong. 

At the heart of the objections were two decisions, both made by the then interim Chief Executive, Christine Gilbert. One, in May/June 2015, was to make the £157,610 leaving payment to Ms Davani. The other was not to take disciplinary action against Ms Davani in September 2014, and I will look at how the auditor dealt with that decision first.

Decision not to take disciplinary action against Cara Davani following the Rosemarie Clarke Employment Tribunal judgment in September 2014:

In the course of his “Findings”, the auditor says:

‘I conclude there is nothing to persuade me that this decision was not within the range of broadly reasonable decisions open to the Council.’

In fact, as all five objectors had pointed out to the auditor, the decision was not even ‘broadly reasonable’; it was so unreasonable that no reasonable person, or Council, in possession of the facts could have made it. The auditor had started his paragraph by saying:

‘Whether or not disciplinary procedures against Cara Davani should have been taken following the Employment Tribunal judgment was a decision for her line manager, Christine Gilbert, having regard to internal policies and guidance and taking account of the facts leading up to, and arising from, the hearing. We have been informed there is no documentation recording the decision on this.’

One of my fellow objectors, with experience of employment matters, had told the auditor that the evidence of Ms Davani’s actions in the judgment was ‘sufficient …to justify any reasonable employer to summarily dismiss Ms Davani for gross misconduct.’ The auditor had been given first hand evidence of Carolyn Downs, Brent’s current Chief Executive, admitting privately to the objectors in December 2016, that the Council should have taken disciplinary action against Ms Davani in September 2014, and that if she had been Chief Executive in those circumstances, it would have done.

The auditor had also been shown that Brent’s own Disciplinary Policy and Procedure documents made it clear that if an employee is found to have committed "gross misconduct", this will normally result in dismissal. The types of action by an employee 'which would result in disciplinary action for gross misconduct', as set out  in those documents, included four examples of actions by Ms Davani, made as findings of fact by the Tribunal in its judgment.

Because Christine Gilbert had not kept to Brent’s own policies and guidance when deciding not to take disciplinary action, it was pointed out to the auditor that she had also shown a number of the examples of actions which could have resulted in disciplinary action against her for gross misconduct. So why had she not taken the proper action against Cara Davani, and why was there ‘no documentation recording the decision’?

My submissions to the auditor in August 2017 gave the reasons why, but his decision letter dismisses these, merely saying: ‘whilst I have noted your allegations, I have not seen any supporting evidence.’ I had provided evidence, including text from a written statement made to me in 2016 by a “Civic Centre insider” who was involved at the time, alleging that Ms Gilbert and Cllr. Muhammed Butt had considered the matter in isolation, that they were actively protecting Cara Davani, and that they communicated over it through their private email accounts so that there would be no documentary evidence in the Council’s records.

I had to keep the name of the “insider” secret, as that person did not trust their allegations would be properly investigated, and feared the possible personal / career consequences of having their identity disclosed. I accepted that this meant their evidence was only “hearsay”, but in the absence of any documentary evidence from the Council, their evidence on the matter was also “hearsay”, so why was their version preferred?

Decision to pay Cara Davani £157,610 as “compensation for loss of office” in 2015:

The auditor concludes his “Findings” on this point by saying:

‘There was nothing in the documentation I have seen to indicate that any amounts paid to Cara Davani were unlawful.’ 

He had seen the original documentation held by Brent Council from May and June 2015 in relation to this payment, and received representations on it from the Council, but had not allowed me or the other objectors to see it.

I have already covered the reasons why this ‘material information’ could and should have been shared with us, so that we could comment on it fully, in a previous guest blog LINK . The information included not only legal advice, but also other correspondence and documents which would have set out what information was given to the QC, and what was not, on which the advice the Council relied on justify the payment was based. It was made clear to the auditor that it was impossible for us to support our objections properly without sight of that information.

The auditor’s response to this, in the “Background” section of his decision letter, was:

‘I am satisfied that the provisional views letter sent to you on 3 August 2017 read with the Audit Committee minutes and Conrad Hall’s letter dated 14 December 2016 gave you sufficient information in order to have provided comments to me, such that there has been no unfairness in not sharing the advice.’

In effect, he is saying that the primary documents are not ‘material information’, but that the interpretation of those documents given to him by a Brent Council officer is, and that it:

‘… contains the material facts on which we have relied upon when reaching our decision. For this reason and given that the Council has not waived its legal professional privilege, I have not shared the actual documents containing or recording the legal advice with you.’

In other words, the auditor has reached his decision based on what Brent Council has told him, and has not shared with the objectors any actual documents related to the payment we objected to because Brent Council did not want him to. I am sure any reasonable person will understand why I believe that the process by which the auditor reached his decision was neither fair, nor impartial.

As the auditor would not allow us to see the “material documents”, the objectors had to make their “further comments” on the best information available to them. In his “Background” section the auditor said:

‘Following the Employment Tribunal above, there was a breakdown in trust and relationships between some Members of the Council and Cara Davani.  … This was considered to be an ongoing reputational risk to the Council and that it was difficult to see how Cara Davani could be effective in her role as Human Resources Director, working with Members, going forwards.’

The reputational damage had already been done in September 2014, with the facts about the appalling treatment of Rosemarie Clarke by the Council and Cara Davani receiving wide publicity after the Tribunal judgment was published, and by the failure to take disciplinary action against Ms Davani. Given the situation described, why was nothing done about it until May 2015? My comments gave the auditor evidence of why – showing that Ms Davani was being “protected” by both Christine Gilbert and Cllr. Butt – but that by May 2015 the Council was selecting a new permanent Chief Executive, so that Ms Davani would soon lose that joint protection.

The auditor’s view of the prelude to the “settlement agreement” objected to, following on from the passage quoted above, is described as follows:

‘Meetings took place between the Leader, Chief Executive and various Members to try and resolve the differences but relationships did not improve.  We understand these meetings did not have minutes taken. Following discussions between the Leader and the Chief Executive, it was determined that it would be in the best interests of the Council if Cara Davani and the Council parted company and that legal advice should be sought on possible ways forwards.’

It does not appear that any documentary record exists of those discussions, but the next step is set out in the auditor’s “Findings” as follows:

‘Legal advice was sought in May 2015, which concluded the Council did not have a case to conduct a fair dismissal, noting that Cara Davani had informed the Council that she would take the Council to an Employment Tribunal for unfair dismissal if her employment was terminated.   Given no disciplinary procedures had previously been taken in respect of the findings from the Employment Tribunal, in these circumstances and given the legal advice obtained, it does not appear unreasonable for the Council to decide to proceed with a settlement.’

The ‘legal advice’ referred to was contained in an undated note, made by the Council’s Chief Finance Officer (why was the Council’s Chief Legal Officer, a solicitor, not involved?) about a discussion between Christine Gilbert and a QC, which he had been the only other party to. It was apparently not checked for accuracy by the QC who gave the advice, given the auditor’s recommendation that such advice ‘should be recorded formally immediately after the call and key issues confirmed with the legal adviser.’

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Intriguing item for Tuesday's Brent General Purposes Committee

In the light of the out-standing electors' objections to Brent Council's accounts over the Cara Davani payout these are intriguing items on Tuesday's General Purposes Committee agenda. The Committee is chaired by Brent Council leader Muhammed Butt and consists of 6 other members of the Cabinet plus John Warren, leader of the Conservative Group:

 

7. Exclusion of Press and Public The following items are not for publication as they relate to the following category of exempt information as specified under Section 100A(4) of the Local Government Act 1972, namely: 1. Information relating to any individual. 2. Information which is likely to reveal the identity of an individual. 3. Information relating to the financial or business affairs of any particular person (including the authority holding that information). 4. Information relating to any consultations or negotiations, or contemplated consultations or negotiations, in connection with any labour relations matter arising between the authority or a Minister of the Crown and employees of, or office holders under, the authority. 5. Information in respect of which a claim to legal professional privilege could be maintained in legal proceedings. 6. Information which reveals that the authority proposes – (a) to give under any enactment a notice under or by virtue of which requirements are imposed on a person; or (b) to make an order or direction under any enactment 7. Information relating to any action taken or to be taken in connection with the prevention, investigation or prosecution of crime.

8.

Severance Arrangements View the reasons why item 8. is restricted The paper informs the Committee of the contractual costs of redundancy and early retirement of the Director of HR and OD.

Brent Council and Cara Davani – something has happened!

Guest post from Philip Grant

Wembley Matters readers still following this long-running saga might be interested to know what has happened since the last update I gave at the end of June. LINK

The auditor, Andrew Sayers of KPMG, finally sent his ‘provisional view and material documents’ letters to the five Brent residents, who had objected to the Council’s June 2015 leaving payment of £157,610 to Cara Davani, on 3 August 2017. The final paragraph of his letter reminded me that the “disclosure of information” provisions (Schedule 11) of the relevant legislation still apply to his enquiries. I am therefore restricted as to what I can tell you, as ‘failure to comply with Schedule 11 is capable of amounting to a criminal offence and liable to a fine upon summary conviction.’

When we read his ‘provisional view’, the same word sprang to the minds of three objectors. It was not an expletive, but I can give you a clue without disclosing any of the contents of the letter. The OED definition of the word is: ‘a liquid containing quicklime or powdered chalk, used for painting walls or ceilings etc.’

Still, we were not disheartened, as the auditor’s letter stressed that this was only his provisional view. He had not reached any final view, or decided our objections, and would not do so until he had considered any additional comments or evidence that the objectors or the Council might wish to provide.

However, when I looked at the “material documents” which the auditor had sent with his letter, I found that these did not include any of the documents we had been expecting to receive, since they were handed over to KPMG by the Council last December. There was only one “material document” which did relate to the payment to Ms Davani, and as that document is already “in the public domain” I am allowed to tell you about it, or you can read it for yourself. LINK

Why are the 30 June 2016 minutes of Brent’s Audit Committee a “material document” in considering objections against the £157,610 payment to Cara Davani? Because at item 7 (Draft Statement of Accounts 2015/16) they contain a brief explanation of the reason the payment was made, and of the legal advice on which it was based.

But if a Council Officer had explained everything about the payment in June 2016 (in the first public admission of such a payment, a year after it had been paid), why had five local electors objected in August 2016 to that payment being included in the accounts? Surely the primary documents from May and June 2015 should also be treated as “material documents”, and shown to the objectors so that they could provide comments, and any counter evidence, in support of their objections!

I was not able to persuade the auditor with this argument, when I put it to him on 4 August. Nor did his position on this change when I drew his attention to the relevant guidance issued by the NAO, “Auditor Guidance Note 4” (AGN 04), which he is meant to follow, later in the month. Para. 36 of AGN 04 says:

‘Sharing material information and inviting representations on it is required in public law as the auditor is exercising quasi-judicial powers.’

I was arguing that the primary documents (which the auditor holds) about the £157,610 payment must be “material documents”, so should be shared with the objectors before we made our comments. The auditor said that he would look at our comments (which he had first asked for within three weeks, but then agreed an extra week, with a 31 August “deadline”), and if he then considered those documents to be “material”, he would share them with us and give us the opportunity to comment on them. I summed this up to him as:

‘What you appear to be saying is: 'I won't share material information with you now, but after you have made any representations I might share some of the material information with you (and if I do, I will give you the chance to make some further representations).'

As the “deadline” was fast approaching, the objectors had to submit the best ‘additional comments and evidence’ that we could in the circumstances. One of the points I was able to make was that the summary of the May 2015 legal advice, as given to the Audit Committee, showed that the point the QC had been asked to look at was “unfair dismissal”, if Brent had sacked Cara Davani. At a meeting with the objectors last December, the Chief Executive referred to a document Ms Davani had given to the Council at the time. This strongly suggested that the point the QC should have been asked to look at was “constructive dismissal”, which may well have produced different advice, and not led to any payment to her.

We have not been allowed to see Cara Davani’s “statement of loss”, and even if we had I would not be allowed to tell you what it said, but I did refer to it in a “guest blog” in January. LINK :-

‘We asked for more information about the circumstances which gave rise to Cara Davani leaving Brent. When Ms Downs provided a brief outline of the grounds on which the former HR Director claimed she was entitled to compensation from the Council, the objectors expressed their incredulity. I am sorry that details have to remain confidential for now, but I can say that we asked Ms Downs whether she was joking, and she said that she was not!’

I can assure you that the objectors have done their best to provide the auditor with information about a pattern of abuses of power at the top of Brent Council from 2012 onwards, which came to a head with the, we allege unlawful, payment of £157,610 to Cara Davani in 2015. I have also provided evidence to show why that payment was really made (and how the Officer who provided the “official” explanation to Audit Committee was, like the Council itself, the victim of a deception).

I have been greatly helped in piecing together my researches over Brent Council and Cara Davani by comments, many of them anonymous, which Wembley Matters readers have made in response to blogs by Martin and myself since 2014. Thank you, everyone, for the parts you have played in allowing the objectors to lay the evidence before the auditor. There is a strong case for the auditor to make a Public Interest Report, to bring this matter into the open, so that key figures at Brent Council, past and present, can be asked to explain their actions, and be held to account. We shall have to wait and see whether Mr Sayers will now make that report.

Philip Grant.

Brent Council and Cara Davani – when (if ever) will we really know what happened?

 

Brent and Kilburn Times June 30th 2016

Guest blog by Philip Grant

Cara Davani – didn’t she leave Brent Council two years ago? And it was a year ago that the Council finally admitted that she had been given a “pay-off” (of £157,610). Surely the enquiry into this must have been sorted out by now? I’m afraid not.

When I last gave an update about “progress” on the investigation of objections to Brent’s 2015/16 accounts LINK we had been told by the Auditor that he anticipated sharing material documents with the objectors by the end of June. When the agenda for Brent’s Audit Advisory Committee meeting on 26 June appeared on the Council’s website,  KPMG’s “External Audit Progress Report” said that they expected to share the documents, and other material, ‘in July’.

As the Auditor had agreed to share those material documents (which he received from the Council in mid-December) with the objectors, and we had been expecting to get them early in 2017, I asked to speak about this item on the agenda for Monday evening’s meeting, and the committee Chair (David Ewart, an independent member) agreed in advance that I could. I hope that Martin will be able to attach the text of what I said to this blog, so that you can read it in full if you wish to. There were two points that I wished to raise with the committee, and the Chair asked me to deal with them separately. 

The first was the objectors’ disappointment with the lack of progress in KPMG’s enquiries, and our concern that the investigation process might have been changed, without explanation. We were originally told that we would have the chance to make further comments before the Auditor reached any ‘provisional findings and views’. The latest progress report spoke of sharing ‘our provisional view and material documents’ at the same time. I asked the committee to invite the Auditor to clarify the position, and to encourage him to provide a timetable for the remaining steps in his investigation, through to his final decision on the objections.

The Auditor, Andrew Sayers, did not seem to accept that there was any real change from what his predecessor had set out in November 2016. He thought that knowing what his provisional views were would help us and the Council when he shares those views and material documents with us. He still wants any further comments from us, and assured the meeting that his provisional views will be open to change in the light of any further comments and evidence he receives. On how long it was taking, his response seemed to be that he had to do his job properly [I would agree that he should, but does it really need to take so long?]. 

The Auditor seemed to suggest that the material would be shared in about six weeks (so August, rather than July?), but said the timetable after that would depend on what further comments he receives and what further investigations he may need to make, so he could give no indication of when his final decision might be published.

There were murmurings from the committee over how long his investigation was taking, and what it would cost (Mr Sayers did not know how much it had cost so far, but he would write with a figure that could be passed on to committee members). Cllr. Davidson, in particular, was concerned over the costs, and appeared to suggest that KPMG could be carrying out unnecessary work, just to increase their fees.

My second point, asked the committee to recommend that Council Officers consent to Mr Sayers sharing the legal advice with us "in strict confidence". The papers around that advice comprise very ‘material documents’, as they provide the only evidence in support of Brent’s decision to make the payment to Ms Davani.

The Chair asked Brent's Chief Legal Officer, Debra Norman, to address them. She told the committee, effectively, that "Legal Privilege" was a fundamental principle that should never be breached. She did not appear to consider whether, in the particular circumstances of this investigation, refusal by the Council to allow the objectors access to the documents, in strict confidence, might appear to be unfair.

The Chair asked Mr Sayers whether the lack of consent from the Council was "impeding" his investigation, and the Auditor said that it was not, although it might mean that he had to take legal advice himself over whether to disclose certain documents to the objectors. I am not sure whether committee members realised that this would mean additional costs to the Council for the investigation.

I was allowed a brief reply, but like Mr Sayers, I had to say that I could not disclose the full nature of the allegations in the objection, but that they did involve matters which were 'contrary to law', and that this was more than a possible query over whether a QC's advice was correct.

There was no real discussion or vote on what action the committee should take over my second point. It was almost like a shrug of the shoulders to say "well, we can't go against the advice of the Chief Legal Officer".

I was probably naïve to think that the Audit Advisory Committee might, just might, be persuaded to recommend that the legal advice, which the Council claims as justification for the £157,610 “pay-off” to Cara Davani, could be shared with the objectors. But at least I tried to move things forward towards getting this long-running matter resolved, and the minutes of last Monday evening’s meeting will hopefully record the main points of what was said.

So, Wembley Matters readers, and the rest of Brent’s citizens, will have to carry on waiting for details of why the payment was made, if that is found to be different from the Council version(s), to be officially revealed. You can be sure, however, that the five local electors who objected to Brent’s 2015/16 accounts will do their best to see that the truth comes out, eventually.

Philip Grant.