Recruiting Brent Council's Chief Executive – ‘no illegality in the process’ but...

Guest posting by Philip Grant

Last month’s blog about the permanent Chief Executive job at Brent Council finally being advertised LINK generated a great deal of interest. Among the comments (129 at the last count) some serious concerns were raised, so I wrote to Brent’s Chief Legal Officer, Fiona Alderman, to bring them to her attention. Four weeks later I have received a reply, the key sentence of which is as follows:

‘I have considered the issues which you have raised but am satisfied that there is no illegality in the process currently underway for the recruitment of a Chief Executive.’

Although I have to respect her opinion that there is nothing illegal in the recruitment process, the legality was not what I had written about. The purpose of my email was summarised as follows:

‘It is very important that the appointment of a permanent Chief Executive at Brent Council, to lead by example as Head of Paid Service, is not only conducted fairly, but is seen to be conducted fairly.’

I had referred to several “anomalies” on the practical side of the recruitment process ‘which, if not addressed, are likely to mean that it will not be seen to be conducted fairly.’

There are some aspects of the recruitment process which may already be unfair, but which it is too late to change. The briefing pack issued to potential applicants makes clear that the post has been designed with the current Leader of the Council in mind. Part Four of the “Person Specification”, which candidates must show they meet, is actually headed “Chemistry and ‘fit’ between the Chief Executive and Leader of the Council.” The previous permanent Chief Executive, Gareth Daniel, was in the post for fourteen years and served a number of Council Leaders, from different political parties, before leaving because of irreconcilable differences with Cllr. Muhammed Butt, just four months after he was elected as Leader in 2012. And yet, unlikely as it may seem, Brent Council could elect a different Leader at the same meeting as it is asked to approve the appointment of a new Chief Executive recruited to ‘fit’ with Cllr. Butt’s ways of working.

One source of potential unfairness is the small number of people who will actually have any influence over who is chosen for the post. These will include the current interim Chief Executive, Christine Gilbert, and Director of HR, Cara Davani. Questions have already been raised about appointments of their “cronies” to other senior Brent Council posts LINK  The fortunes of Ms Gilbert and Ms Davani also appear to be closely linked with those of the Leader of the Council, and Cllr. Butt has not yet answered the question of why he is still “protecting” these two senior officers, when he has known about their misconduct in the Rosemarie Clarke Employment Tribunal case since at least September 2014. That question was put to him in February 2015 LINK

Good online detective work by “Wembley Matters” readers has shown that there are close links, during their time at Tower Hamlets Council and at Ofsted, between Ms Gilbert and Ms Davani, and Shahidul Miah of Bloomsbury Resourcing Ltd. That one-man company is one of two recruitment consultants handling the search for Brent’s new Chief Executive, along with Davidson & Partners. It is unclear from the briefing pack what the respective roles of the two consultancies are, but the involvement of Mr Miah does raise concerns that the external and internal sides of the recruitment process may not be independent of each other.

Under the Council’s Constitution (Standing Order 77) the shortlist of candidates who will be interviewed for the post will be drawn up by the (interim) Chief Executive, ‘or another officer nominated by him or her’, most probably the Director of HR. The list is then submitted ‘to the Chair of the Senior Staff Appointments Sub-Committee’. If the Chair agrees the list, ‘then the shortlist prepared by the officer shall stand.’ If not, ‘a meeting of the Senior Staff Appointments Sub-Committee shall be held to determine the shortlist.’ The Council’s website shows that the Chair of this “SSASC” is Cllr. Muhammed Butt, so once again the trio of the Council Leader, Ms Gilbert and Ms Davani hold the power to decide who will, or will not, be considered for the job.

The composition, and Chair, of the SSASC was one of the main points which I raised in my email to Ms Alderman. Under Brent’s Constitution, the SSASC comprises 5 councillors, 'at least one of whom shall be a member of the Cabinet'. This wording appears to have been designed as part of a system of “checks and balances”, to ensure that power over senior staff appointments is shared between Executive and backbench councillors. While it does not say that there should be only one member of the Cabinet on the sub-committee, as the Constitution also gives Cabinet members other rights to object to proposed appointments, it seems odd that the SSASC currently comprises four Cabinet members, plus the leader of the official Conservative group.

As stated above, Cllr. Butt chairs the SSASC (to be fair, his predecessor, Cllr. Ann John, did so before him, although with only one, or at most two, other Executive members, and at least two members from opposition parties on the sub-committee). I have suggested that Cllr. Butt should allow a backbench councillor to replace him as Chair of the SSASC for the recruitment of the new Chief Executive, and that one or two other Cabinet members should appoint non-Cabinet substitute councillors for this process. Brent’s Chief Legal Officer did not comment of this suggestion, other than to thank me ‘for [my] observations’.

The SSASC will interview the shortlisted applicants, and its Chair must then notify to the Council’s Director of HR ‘the name of the person to whom it wishes to make an offer together with any other particulars the sub-committee considers are relevant to the appointment.’ It is at this point that a clear conflict of interests arises, because the HR Director then has to notify every member of the Cabinet of these details, and of ‘the period within which any objection to the making of the offer is to be made by the Leader on behalf of the Cabinet to the [Director of HR] and the Chair of the sub-committee.’

Part of the “checks and balances” on the fair appointment of senior officers built into Brent’s Constitution is to separate the roles of Chair of the SSASC and Leader of the Council, as one heads the sub-committee which choses the preferred candidate, while the other heads the Cabinet which has the right to review and object to that choice (even though that may seem unlikely in practice, when half of the Cabinet are also currently members of the SSASC). If there were an objection, the Leader then has to give notice ‘of any objection which the Leader or any other member of the Cabinet has to the proposed appointment’ to both the HR Director and the Chair of the SSASC (imagine the scene: “I, Cllr. Butt, as Leader of the Council, give you, Cllr. Butt, as Chair of the SSASC, notice …”). In that case, the SSASC would have to reconvene, ‘to consider the objection and to consider whether to confirm the appointment.’

While Brent’s Constitution does not say that the Leader of the Council and Chair of the SSASC cannot be the same person, it is difficult to see how the recruitment process can be seen to be fair if this is the case. It could be argued that having the two roles held by the same person allows the process to dealt with more quickly and efficiently; but that argument could also be used to combine the roles of judge and jury in the criminal justice system, which many would feel could make that system less fair or just.

For the appointment of a Chief Executive, the proposed candidate 'must be approved at a meeting of the Full Council before an offer of appointment is made'. The proposed date, shown in the briefing pack, for the SSASC’s final interview panel is 18 or 19 May, and the next Full Council meeting is the Annual Meeting on 20 May. The final point I made to Ms Alderman was that this would not give the elected members of Full Council given sufficient time to consider properly whether they should approve the proposed appointment. I suggested that the date of the final interview panel should be brought forward by a few days, and that Officers should ensure that all members of the Council are notified with details of the person who it is proposed should be appointed as Chief Executive in good time (at least several days) before the Full Council meeting on 20 May. I do not know whether any changes have been made as a result of these suggestions.

Brent’s Chief Legal Officer is also its Monitoring Officer, a role which includes trying to ensure that the Council’s committees, sub-committees and officers do not act in a way which breaches codes of practice, or which may give rise to maladministration or injustice. I hoped that by bringing the points above to Ms Alderman’s attention, the potential unfairness in the recruitment process for the Chief Executive post could be avoided. It is not my intention to criticise Ms Alderman, who may have done all that she can to achieve this end. The overall responsibility for ensuring a fair appointment lies with the interim Chief Executive and the Leader of the Council.

We will find out next month whether my efforts have helped to produce an appointment which is seen to be fair, or whether those at the top of Brent Council are determined to bring it further into disrepute. If it appears that the person proposed as the new Chief Executive may not have been recruited fairly, I hope that councillors will be prepared to challenge his or her appointment at Full Council, rather than just nod through their approval of it.