An ‘In My View’ article – by Nigel Ward First Published Summer 2012
IN THE PUBLIC INTEREST
The anatomy of a COVER-UP.
Institutionalised ‘Get-Out-of-Jail-Free’ cards?
Over five weeks ago, on Friday 26th October 2012, the Whitby Gazette published an article entitled “Councillors cleared of ‘double-dipping’”. Curiously, when the article appeared on the Whitby Gazette web-site, the title had been amended to “Councillors cleared of ‘double-dipping’ slur” – presumably the Gazette’s facile attempt to discredit the Real Whitby investigative-journalists who have exposed the fact that certain Councillors have been systematically profiteering from a loop-hole in the Broadband Allowances Scheme.
The Gazette article quotes Councillor Joe PLANT, thus:
- “As this has to go through NYCC standards committee I cannot comment further. When that decision is known I will give a frank and honest statement about the whole issue”.
NYCC’s Standards Committee Decision has been known for five weeks. It was taken (and reported) on Monday 29th October 2012 – the next working-day following the Gazette article – but we are still waiting for Councillor Joe PLANT’s “frank and honest statement”.
My information, from within County Hall, is that Councillor Joe PLANT has been urged to keep his mouth shut and not let the silly words fall out again – because saying anything truly ‘frank and honest’ may run the risk of disclosing evidence that could incriminate him.
To be clear, there are three distinct ‘Categories’ of double-dippers, as follows:
- The ten Councilors who received Allowances for Broadband from both SBC and NYCC – double-dipping.
- The four Councillors (Cllrs Derek & Lynne BASTIMAN, Cllr Tom FOX and his wife former-Cllr Ros FOX) who, despite being two cohabiting couples, each couple living in the same house and sharing the same single broadband connection, claimed the full Broadband Allowance individually – double-dipping.
- Councillor Jane KENYON, who received payments from both NYCC and the North Yorkshire Police Authority (NYPA) for a telephone and its call-charges – double-dipping.
Now that both SBC and NYCC have published Decision Notices exculpating the ten ‘Category 1’ Councillors who have received up to around £500 per Councillor per year in excess of their actual expenditure for Broadband connectivity, and having allowed a reasonable time for Cllr Joe PLANT to say his piece, it is time to take a closer look at how this systematic COVER-UP has been orchestrated.
Although the Councils’ enquiries have ostensibly cleared the ten ‘Category 1’ double-dippers, ‘Corruption Buster’ Tim Thorne’s meticulous deconstruction of the Decisions Notices shows that one or more Council Legal Officers colluded with the defendants in the preparation of their defence statements, and SBC Councillor Colin CHALLEN has challenged the validity of the Decision Notices on precisely those grounds.
The SBC investigations into the four ‘Category 2’ double-dippers have yet to be concluded and, contrary to the Gazette headline, they have NOT been cleared. Yet.
It is unclear, now that the NYPA has been abolished, whether the case against the ‘Category 3’ defendant (Cllr Jane KENYON) will ever be properly addressed. Until it is, she has NOT been cleared, either.
It all started in March of this year (2012), when members of the Real Whitby investigative-team – ‘The Corruption Busters’ – began examining the Public Record of the Councillors’ Allowance Schemes at both SBC and NYCC.
It immediately became apparent that only two of the Councillors sitting on both Councils – Cllr Herbert TINDALL and CllrJane KENYON – had correctly evaluated the opportunity (clearly stated in the Councillors’ Allowances Guidance documentation) to ‘renunciate’ (ie relinquish) the £500+ part of their NYCC Basic Allowances intended to cover their Broadband expenditure – as was their legal and moral duty.
Having correctly evaluated it, they opted instead to relinquish the £255 SBC Broadband Allowance, which alone would have been more than sufficient to cover the actual costs, in order that they could accept the £500+ from NYCC and thus neatly (and profitably) evade allegations of double-dipping!
The ten ‘Category 1’ double-dippers (Councillors Andy BACKHOUSE, John BLACKBURN, Bill CHATT, Mike COCKERILL, David JEFFELS, Janet JEFFERSON, Penny MARDSEN, Peter POPPLE, Brian SIMPSON and Councillor Joe PLANT) relinquished nothing.
They just kept quiet – and kept the money – a profit of £500+ per annum each.
I pointed out to NYCC (the Primary Authority) that there was every possibility that dozens of ‘two-hatted’ Councillors from all of the other District/Borough/City Councils in North Yorkshire may also have kept quiet – and kept the money. There has been no response at all on that point, leaving us to ponder just how widespread this whole double-dipping scam has been . . . and how much taxpayers’ money has been siphoned off over the years.
The matter has been complicated by the extraordinary legalistic contortions performed by Legal Officers of both Councils to deflect attention away from the root problem – a problem arising from their own lack of foresight (read; ‘incompetence’ – or ‘deviousness’).
SBC has now admitted that the problem did indeed exist (though they will never thank us for pointing it out) and has now confirmed that it has had to take immediate steps to rectify it and prevent any further profiteering through this type of abuse of the Allowances Scheme, stating:
- “From now on, Allowances paid to Councillors to recompense them for their outlay in obtaining Broadband connectivity are to be paid only in accordance with what has actually been spent.” [ie: paid invoices must be produced]
So the ‘Corruption Busters’ were right all along.
In comparison to the previous regulations, this latest step could be expected to save around £20,000+ at SBC alone over the four-year term of the Council; and who knows how much more when double-dippers are taken into account at all the other Secondary Councils – City of York, Craven, Hambleton, Harrogate, Richmondshire, Ryedale & Selby.
That £20,000+ has, until now, been slipping unnoticed into the pockets of the double-dippers, who have all shamelessly kept quiet and kept the money.
But, whether from oversight or design, there remains a serious problem, unaddressed by SBC: in the revised rules, there is apparently no impediment to Councillors receiving the full NYCC Basic Allowance (including the £500+ Broadband increment) – for which they do not have to produce invoices, leaving them free to submit their Broadband invoices to SBC for reimbursement.
Well, whaddya know? Legalised double-dipping.
The Public Consultation by NYCC in response to the Comprehensive Spending Review (CSR), asked the public to suggest ways for the Council to make substantial savings. How many members of the public made suggestion for cuts in services – only for Councillors to continue to draw triple their actual Broadband costs?
But these ten Councillors nevertheless kept quiet and kept the money.
Legally speaking, much hinges on the omission, by Councillors, to ‘renunciate’ the unnecessary over-payments. For beyond the internal regulations of the Councils, there is a fundamental legal consideration that falls outside of the Councils’ respective remits; the crime of fraud.
The Fraud Act 2006 provides that a criminal fraud may arise in relation to acts both of commission (something the defendant actively did) and of omission (something the defendant did not do, or neglected to do – ie: ‘renunciate’ the unnecessary over-payment of the Broadband increment of their NYCC Basic Allowances, since they were already fully reimbursed for their outlay by SBC).
This is why a former Senior Police Officer has expressed the opinion that those Councillors who omitted to ‘renunciate’ the unnecessary over-payments now stand open to prosecution under the Fraud Act 2006, precisely because, having refused to return the excess payment; instead, they kept quiet and kept the money. By omitting to return the money, they have made a gain dishonestly.
An everyday example serves to explain the rationale behind the Act:
Let us say, hypothetically, that a bank customer accessed an ATM machine, pushed the appropriate buttons to withdraw £100, and the machine then malfunctioned, dispensing not £100 but £300. If the customer then kept quiet and kept the money, he/she would be in breach of the Fraud Act 2006 and therefore liable to prosecution. It is important to note that, in this instance, there is a victim – the bank (in fact, its shareholders). The same may be true of the Council double-dipping. There is a victim – the public purse (in fact, the taxpayer).
The defence of ignorance – ie that the Councillors did not know that it was possible, indeed necessary, to do as Cllr Herbert TINDALL and Cllr Jane KENYON had done and ‘renunciate’ one or other of the unnecessary over-payments – does not hold up for one moment, because most of them were actually present at meetings at which the details of the Councillors’ Allowances Scheme were resolved; the remainder were provided with (and presumably read) the necessary Guidance document.
This is why the Council Legal Officers had to labour for seven months to provide a (barely) plausible explanation to cover the Councillors without exposing themselves to the criticism that they most clearly deserve.
SBC Councillor Colin CHALLEN (Lab.) – a former MP – has publicly stated, on the local Labour Party web-site, that:
“Another issue which emerged out of this hearing was that a County Council official appears to have provided at least four of the eight members with a paragraph long statement which those members then used in response to the County Council’s own investigating officer’s inquiries. This would be like a detective providing you with the answer to his own questions, and clearly this has muddied the essential independence of the officer–councillor relationship. It is a matter which warrants further investigation.”
In plain language, Councillor CHALLEN is alleging that there has been collusion between Officers and Councillors, who were provided with a script for their written defence statements by the Monitoring Officers, in an attempt to protect both parties from the consequences of their respective actions and inactions.
Collusion is defined as “an agreement between two or more persons, sometimes illegal and therefore secretive, to obtain an objective forbidden by law typically by defrauding or gaining an unfair advantage”. Sounds about right.
That certainly is a matter which warrants further investigation – the more so because, prior to both the SBC and NYCC Standards Committee hearings, I informed the respective Legal Officers of both Councils that there were a number of serious factual inaccuracies in their respective Investigating Officers’ Reports, resulting in a bias in favour of sweeping the whole matter under the rug. I was ignored.
On 26th October 2012, I made a FOIA request [FOIA2308] to SBC to establish, amongst other things, just how much of the public purse has been squandered on these so-called ‘Investigations’, and for sight of the correspondence between the ten ‘Category 1’ double-dippers and the Officers – in short, who scripted the defence statements.
My request was acknowledged (by Diane CROSS) that same day. I was told:
- “You may expect to receive a response to your request by 23 November 2012, that is within twenty working days of its receipt by the Council.”
It goes without saying that SBC has not complied with the Act. Once again, no response.
Prior to the hearings, I protested to NYCC CEO Richard FLINTON about the fact that his Head of Legal & Democratic Services Carole DUNN had earlier made the significant error of expressing a predetermination in which she accorded an ‘entitlement’ to Councillors to receive Broadband reimbursement threefold the actual cost. No action taken.
And I protested, too, about the fact that Carole DUNN had delegated the task of compiling the Report to her Deputy Head of Legal & Democratic Services Mr Stephen KNIGHT. I protested because this is the same Stephen KNIGHT who administered the NYMNPA Standards Committee hearing regarding the forged ‘Jane Kenyon’ signature on the Dales Timber Ltd Companies House 288a document in June 2010. But NYCC CEO Richard FLINTON has told me that he was perfectly comfortable with the appointment of Stephen KNIGHT, who he considered ideally qualified for the task – despite the clear conflict of interest. No action taken.
I have, of course, made an FOIA request for sight of Stephen KNIGHT’s Report/Recommendation to the NYMNPA Standards Committee. As yet, no response.
As Deputy Head of NYCC’s Legal & Democratic Services, Stephen KNIGHT had a clear legal and moral duty to report that forgery – a breach of the Companies Act 2006 – to the proper authorities; Companies House and the North Yorkshire Police.
For that matter, the members of the NYMNPA Standards Committee and Councillor KENYON herself also failed to comply with their legal and moral duty to report the crime. Furthermore, there is every indication that they, too, actively colluded in the cover-up of the forgery of the ‘Jane Kenyon’ signature.
The same allegation can be made against Carole DUNN herself, in respect of her inexplicable willingness to accept Councillor KENYON’s word for the fact that she, KENYON, was ‘unaware’ of her Company Secretaryship in Dales Timber Ltd, back in 2007 – a claim entirely disproven by the handwritten letter from Councillor Kenyon reproduced in my article “Jane Kenyon: In Her Own Words”.
Question: What kind of a system is it where the accused are investigated by the accused, and judgement is passed on the accused by the accused?
Answer: One that goes against the principles of natural justice and universally accepted international standards of legal process. In my view, it is a corrupt*** system.
Every Councillor in North Yorkshire (and, at Parish, Borough/District/City and County level, there are several hundred) is required, on election – under Section 83(3) of the Local Government Act 1972 – to sign a Declaration of Acceptance of Office. This is a formal and legally-binding document requiring witnessing by two existing Councillors, a Justice of the Peace or Magistrate or a Commissioner for Oaths. It is far from trivial – as can be judged from its first term (of only two):
- “I, XXX XXXXX, having been elected to the office of XXX Council declare that I take that office upon myself, and will duly and faithfully fulfil the duties of it according to the best of my judgement and ability.”
Moira BEIGHTON, Senior Lawyer (Governance) at NYCC, provided me with that information very promptly. What she has failed to provide, despite numerous follow-up requests, is the following information:
1) What are the consequences of a Councillor standing in breach of this legally-binding obligation to ‘duly and faithfully fulfil the duties’? – and
2) What exactly are those ‘duties’?
I have pointed out to Moira BEIGHTON that only a fool would commit to signing the Declaration of Acceptance of Office without knowing the answer to those two questions. . . .
Nevertheless, no answer has been forthcoming. Moira BEIGHTON tells me only that she is “not aware of any specific ‘guidance’ setting out the consequences of a member breaching the terms” of the Declaration.
Here we go again with ‘not aware’. Ignorance is bliss. And she offers no response at all on the question of precisely what duties must be ‘duly and faithfully’ fulfilled.
Clearly, though, there is some concern at County Hall that although the ten double-dippers have been exonerated, they may have fallen foul of a more fundamental legal requirement. For if Councillors are NOT bound by the first term of the document, then they are NOT bound by the second – the sole ‘duty’ actually defined in the document, namely:
- “I undertake to observe the Code as to the conduct which is expected of Members of North Yorkshire County Council.”
In short, they may do just as the please – or as their consciences dictate, which is probably the same thing – and that portentously-titled ‘Declaration of Acceptance of Office’ is nothing more than a sham.
By now, readers may have concluded that there is a long-standing culture of COVER-UP in our Local Authorities. Me Too!
Some of our elected members view their Allowances (intended to reimburse them for out-of-pocket expenditure incurred in the performance of their ‘duties’) as an income-stream – a livelihood.
Without the Allowances, the ‘career politicians’ amongst them would struggle to maintain the standard of living to which, on the advice of the Monitoring Officers, they have chosen to believe that they have an ‘entitlement’. (Councillor Joe PLANT, for example, drew a total of £16,332.62 last year – though he only turned up at County Hall for three meetings out of every four).
This has been a long and detailed article. I hope it serves to show that the only ‘frank and honest’ statement that these Councillors could conceivably make would have to read something like this:
- “Okay, I did profiteer from my threefold Broadband money – but so what? My mates the Monitoring Officers reckon they’ve ‘fixed it’ for me”.
We will do well to bear that in mind when the NYCC Elections come round next May . . .
- “Okay, I did profiteer from my threefold Broadband money – but so what? My mates the Monitoring Officers reckon they’ve ‘fixed it’ for me”.
He also advised (and this would seem to have been enthusiastically embraced by Carole DUNN, Moira BEIGHTON and Stephen KNIGHT (at NYCC) and Lisa DIXON and Gill WILKINSON (at SBC):
- “First get your facts, then you can distort them at your leisure”. [Mark Twain]
*** – “CORRUPTION is the abuse of entrusted power for private gain. It hurts everyone who depends on the integrity of people in a position of authority” – (Definition: Transparency International)