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Constitutional Change

Constitutional ChangeIn common with other Councils, Fylde Council has a Constitution.

Most people think of a Constitution as being the rules that make up the solid, unchanging framework of an organisation. But in Fylde's case, and in recent times, those rules have been changed with gay abandon, and the framework so fluid it is like liquid.

The latest move is to make it a 'modular' document. That might be to keep parts of it more stable and unchanging, or it might be so parts can be changed even more easily.

In fact, the Constitution is a book of instructions, rules, codes of practice and protocols that Fylde uses as its 'Operating Manual'.

About this time of year, and for the last 8 or 10 years, Fylde's officers have reviewed and (usually) proposed changes to it. Officers describe this annual process using the euphemistic term of 'refreshing' the Constitution. Members of Council are mostly not involved, so they usually don't really understand what's going on, and they simply vote it through, trusting the officer's judgement.

Over the years, and especially recently, we've been critical of some of these 'refreshes'. It's our view that many of the changes were made to well established and trusted principles that were simply inconvenient for the former Commissar. We thought the only checks and balances he wanted to constrain his deluded ambitions were - as he himself referred to them, 'cheques and balances' (and even then, it didn't stop him going wildly overdrawn).

As an example of inappropriate constitutional change, when the Cabinet was shown to have acted with complete financial incompetence as it tried to dispose of the redundant Heeley Road Depot site for a quarter of what it was worth, (and had to back-track on its plans after a public outcry), the constitution was quietly changed to allow disposals to take place out of the public gaze without the need to publicly advertise for competitive bids.

We were very critical of these changes to the land transaction and asset disposal rules (see Extra-ordinary Council). In our book, there is only one way to dispose of surplus land or assets, and that's a process that uses open-to-all competitive sealed tenders. Land and assets being disposed of for 'less than the best consideration' (i.e. for less than it is worth) is likely not to be surplus to requirements, but rather being changed in use for some sort of public service delivery, and that sort of land should be disposed of using a form of tendering restricted to a particular use or purpose, but there should always be competition.

We have also criticised the fact that previous changes to the Constitution have been used to delegate far too much power and decision-making to unelected officers of the Council.

Under the guise of efficiency and speed, and using incremental annual change, Councillors have been emasculated, and milked of their responsibilities.

True to form, Fylde's Council meeting of 30th July considered changes to its constitution.

But this time the background process was a bit different.

Regular readers will remember the Scandal of Melton Grove which we covered in considerable detail. In the aftermath of that scandal, a demanding full Council meeting instructed its Audit Committee to look into eleven measures that ought to help stop such a thing happening again.

But last January, we saw the Audit Committee being bounced into accepting a variation of what Council had instructed.

Quite probably, in order to head off trouble and keep reputations intact, the Council's instruction had been usurped and changed by Officers.

Under the item that should have dealt with the eleven proposals, The Director of Corporate Resources told the Audit Committee there would be an update and revision to the Council's Constitution. She said "We determined an independent review of our Constitution was required" so they had asked an officer from Blackpool to do one, and she intended that a report would come to the March Audit Committee when he had done so.

We say it is not the role of officers - of any officer - to sidetrack the instruction of a Full Council meeting, and we can only assume this one was done with the tacit support of the ruling Conservative group - who had caused the Melton Grove problem in the first place

She went on to say that the Independent reviewer had had a provisional look through Fylde's Constitution and identified some points he wanted to discuss with her, and with particular regard to Melton Grove affair, he would like to interview: her; the solicitor; and the Democratic Services Officer. He would also like to interview Cllr Mulholland, Cllr Eaves and Cllr Singleton.

This was a travesty of what should have happened of course. The reference from Council was about Melton Grove.

As we reported at the time, and as readers can see, the issue was (and still is) being sidelined.

There was a clear instruction from a previous Council, and it was not to review the Constitution, (that had only been reviewed the previous September). It was to refer a specific series of eleven measures, (only one of which specifically sought a change in the Constitution) to the Audit Committee for further consideration of their impact on the Councilís Constitution.

The process was intended to correct for the future those mistakes that had given rise to the scandal that became 'Melton Grove'

But that role had now been usurped by officers.

We said at the time it looked as if this issue was being pushed into the long grass, but only time would tell.

The report from officers was due last March. It's now August, (just before the Council has its summer recess). And the long grass looks very long at this time of year - as we will see.

So what happened?

Well, Fylde's officers invited a chap called Mark Towers from Blackpool Council - he's Blackpool's Monitoring Officer, the equivalent of Ian Curtis at Fylde. The role of the Monitoring Officer is not a job in its own right (well not in a council the size of Fylde), it's a set of legal responsibilities - usually attached to another job - (often that of an solicitor or legal officer), and its purpose is to warn the Council before it acts unlawfully.

Fylde's solicitor was also its Monitoring Officer, and in his own words "The statutory role of the Monitoring Officer is to anticipate possible breaches of the law and instances of maladministration by his local authority and to make a formal report to the executive or the council on those matters. The formal report has the effect of preventing the decision or action being implemented until the member body concerned has considered the report. (See sections 5 and 5A of the Local Government and Housing Act 1989.)"

In the case of Melton Grove, the Council's solicitor and Monitoring Officer was also the Company Secretary to the Directors of Melton Grove, and it was his role to see that the Company was properly administered according to Company Law.

If there was ever a conflict of interest of outstanding proportions this was it. He advised the Directors of Melton Grove about the processes they could use to circumvent the democratic right of Cllr Saint Louis Rigby the Magnificent to refuse to sign Melton Grove to a private developer landlord, (by not signing, he could prevent that asset sale and transfer), whilst at the same time - in theory at least - as Fylde's Monitoring Officer he should have been warning or at least advising the Council what the Directors of the Company (a company that was wholly owned by the WHOLE Council, not just by the ruling group) were planning to do.

The Solicitor's Regulatory Authority has something to say about conflicts of interest. They say "If there is a conflict, or a significant risk of a conflict, between two or more current clients, you must not act for all or both of them unless the matter falls within the scope of the limited exceptions set out at Outcomes 3.6 or 3.7. In deciding whether to act in these limited circumstances, the overriding consideration will be the best interests of each of the clients concerned and, in particular, whether the benefits to the clients of you acting for all or both of the clients outweigh the risks."

They also say "Where two or more Principles come into conflict the one which takes precedence is the one which best serves the public interest in the particular circumstances, especially the public interest in the proper administration of justice. Compliance with the Principles is also subject to any overriding legal obligations."

We accept that this sort of situation (the Melton Grove shenanigans) creates uncomfortable tensions for people from time to time, but they go (or should go) with the turf and, when those who should stand up and be counted   buckle under the pressure, it is democracy itself that suffers, and we are all the poorer for it. That is how tyrants succeed. There is a famous quote - often attributed to Edmund Burke - "All that is necessary for the triumph of evil is that good men do nothing."

And apart from St Louis the Magnificent, a lot of good men, and less good men, and women, certainly did nothing to help stop the scandal of Melton Grove.

So Blackpool's Monitoring Officer Mr Towers was invited to review the constitution by FBC's officers, and to investigate any changes needed as a result of the Melton Grove scandal on the instruction of Council. The addition of the constitutional review would (and has) allowed the focus of what Mr Towers was supposed to do to shift - what the American military call 'mission creep' - and for its importance to be lost in a plethora of miscellaneous constitutional changes.

We said in our report at the time "To be honest, we don't think the Constitution was that much at fault in the issue of Melton Grove (although changes made to it in other areas in recent years have turned it into something of a disaster) The problem was not what was written in the Constitution, it was how people (mostly officers, but also some members) selectively interpreted the Constitution to their own agenda, and whilst those people remain at Fylde, the prospect of selective interpretation is ever present, so changing the Constitution won't make an iota of difference."

We also said "When the Task and Finish Group (who investigated Melton Grove) said the problem was one of governance, we don't think for one minute they meant the Constitution, we think they really meant that officers hadn't behaved as they should have done, and the Directors had, at best, placed far too much trust in the advice given by officers.

So it's behaviour that needs to change, not the rules."

We concluded - somewhat prophetically it turns out - with "Officers have intervened to start what looks like mission creep or worse. We'll bring you more in March.       Maybe...."

The central issue here is not the Council's procedure as such, it is the interpretation of that procedure by the officers in post at the time.

It remains our view that the disgraceful plan to sell Melton Grove was hatched by one or more officers and taken up with enthusiasm by senior Conservative councillors who drove it forward to a pre-arranged agenda in order to fund a £300,000 grant to Lytham Hall as £100,000 pre-election giveaway scheme to support the re-election of Ansdell Ward Councillors by implementing an environmental improvement scheme in 'Ansdell Town Centre' in time for the last elections.

We have no other way of explaining the message passed to us by a council insider in November or December - long before the public knew that Melton Grove was being seriously prepared for sale - the message that said the Conservative group was planning to sell Melton Grove and spend the money on an election war-chest for Lytham Hall and Ansdell. And that's exactly what happened. The public outcry that followed caused a slowdown and delay with the Ansdell scheme, but that is what came to pass.

We might (properly) criticise the Conservative group for the plan they adopted, but, as the ruling group on the Council it is their prerogative to do so - as long as they are prepared to suffer the public outcry and the electoral consequences of such action.

But in our view, the greatest blame lies with the officers of Fylde BC. They are supposed to work for the whole Council, not for a specific political group, and it looks to us (and we have seen a lot of the evidence on this matter) as though partisan working is what happened to far too great an extent.

In our view, two officers in particular, the former Chief Executive and the Council's Monitoring Officer, bore the brunt of responsibility for what the Scrutiny Committee called 'failures of governance.' We would have been more direct and said it was dereliction of the overriding duty and service they owed to the public who pay their salaries.

That said, we do understand these things are never easy. When "the boss" (whoever they are) says 'I want this to happen', it's not easy to say "No", but if you are concerned about impropriety, you can, and should, say 'actually I don't think it's proper to do that, but I will do it on receipt of a written instruction from you.' or words to that effect. It isn't easy, but it's partly the reason for the higher salaries at such levels. It's to do with the responsibility that you carry.

So, we shed no tears when the post of Chief Executive changed hands before Mr Tower's report was published, and we waited with interest for the outcome of his consideration of Fylde's performance on Melton Grove, and his review of the Constitution.

Privately, we'd heard that when he concluded his interviews regarding Melton Grove, and looked at the constitution, he was horrified. We were told he had found instances where the Constitution was actually unlawful.

And so it was, as we shall see.

So what did the report to Council on 30 July 2012 actually say?

Well, it said a number of changes had been proposed in light of the review of the Constitution undertaken by Blackpool Councilís Monitoring Officer. We don't know what those changes were in their entirety - because they have never been published.

When the report was considered in detail at the Audit Committee this June, it was presented by the Director of Resources who said "The report highlighted some proposed changes and invited the committee to recommend to the Council that it formally re-adopts the constitution subject to those changes. She informed the Committee that some of the proposed changes had been put forward by Mark Towers, Blackpoolís Monitoring Officer, in the light of issues some of which relate to Melton Grove."

As we can see from between those lines above,  not all Mr Towers' recommendations have even been published, let alone considered by the Councillors. A cynic might wonder what has been left out.   It also implies that some of the changes proposed come not from Mr Towers but from Fylde's own officers. Again there was no indication of what came from where. We might have hoped all of Mr Tower's recommendations would have been published.

Audit Committee were also told "Members may also wish to note that the Monitoring Officer is able to appoint a Deputy (this being at his/her discretion in terms of appointment) and Mark Towers, has been appointed by the Councilís own Monitoring Officer as her Deputy to assist her in fulfilling her new role."

From this we see that Fylde's solicitor is no longer the Council's Monitoring Officer, that role has been given to Fylde's Director of Resources, and she has appointed the chap from Blackpool as her deputy in this regard. We didn't see the job advertised anywhere, and we don't recall seeing a Council, Cabinet or Committee approve the creation of this new post. So readers will now probably see this move as yet more evidence of what we mean about councillors being milked of their responsibility.

In some ways we're not surprised that the role of Monitoring Officer has been removed from Fylde's former incumbent. The main criticism from the Task and Finish group that investigated the Scandal of Melton Grove was about "a failure of corporate governance".

We have spoken with Councillors who were members of the Task and Finish group that interviewed those involved, and it is evident to us that the Council's Solicitor / Monitoring Officer/ Company Secretary for 'Melton Grove'

  • believed that the responsibility for the sale and finding the buyer was clearly that of Barry Dean, (of 'Morris Dean'), - and thus by implication it was Dean's role to advise the Council, not the Officer's. role. This is nonsense.

  • Even though the final decision and sale to Windmill was not in line with the Fylde's initial requirements or wishes, he did not feel that selling to Windmill was an issue, as it was a board decision, and he saw no legal reason to respond. (Perhaps not in strict legal terms, but in our view he had a duty as their employee and adviser to tell them what the Directors were doing in their name)

  • he saw no reason to intervene in the path that the deal was going along as he did not see his job to step in even though he was aware that 'the plan was derailed' - because he had not been instructed to look at this aspect by the Council

  • it did not occur to him that this disposal was going wrong without the knowledge of leading members of the council.

  • he conceded another officer had raised the sale and some of the process in offering the sale to only one commercial property developer as an issue, but he saw his role as being limited to legalities, and it did not occur to him that Clifton Housing Board was going against the councils initial wishes.

  • It was his view that the buyer asked Fylde's then Chief Executive to intervene when as Fylde's solicitor he raised issue on the covenants and safeguard to residents, and to the council. He told the Task and Finish Group that the CE did intervene and he became concerned at the pressure from CE to complete the sale which, it was believed, the Cabinet was driving. The impression was given that the main reason for this was to ensure FBC got the capital receipt before the rest of the council had a chance to offer a different view.

  • It was also his view that the former CE felt the end decision was the bigger decision and justified many actions, including lack of communication with residents and others who raised issues.

  • Task and Finish members were given the impression that planning permission was unlikely to be granted, and this meant the £125k additional payment from the developer was unlikely to be recovered by council, and this would make the 'Windmill' price lower than competitors who had also bid.

So, with the Task and Finish group members being left with those impressions from his interview, it's hardly surprising to us that the role of Monitoring Officer has been removed from him.

The bit we struggle with is that it now seems to have been given to someone who was at the time Fylde's 'Director of Governance and Partnerships' and - so far as we can tell - Fylde's solicitor and Monitoring Officer was within her department - and thus her overall responsibility - when the Melton Grove issue went wrong.

Ho Hum.

So what did her report to Council include as proposed changes to the Constitution? Well, the main ones were

Well it began by saying Fylde's Constitution was thought not to be 'user friendly' so they planned to change the format to something better. The present one had been laid out following the recommendations of the Department of Communities and Local Government (Rt Hon St Eric Pickles' lot) but the recommendation now was to change it to an earlier model document published back in 2000, when Two Jags Prescott was heading the Department of the Environment, Regions, Transport, (and more or less everything else), and recommending that - like his loose leaf regionalised planning system - Council Constitutions should be in a modular in format.

You can usually tell something is being obscured when you see excessive justification built into Fylde's officer reports. This one said "The Modular Constitutions were designed to meet all the necessary statutory requirements for instruments of governance and to include matters traditionally covered by local authority standing orders, financial regulations, and scheme of delegation and terms of reference."

Of course they were. All local authority constitutions are. The present one does (once the wrong bits have been corrected)

But this change looks to us to be about justifying the making of future changes even easier.

The present Constitution says the Council can change the number of members who will comprise the Executive. It seems the law was changed in 2007 to remove the rights of Council to influence or constrain the appointment or numbers of Cabinet Members. Since then it has been the singular responsibility of the Leader in this awful Cabinet system we have. The Leader personally selects between 2 and 9 councillors to form the Cabinet

The report went on "This is a definite change which must be made to the constitution, as it could be considered unlawful to have this reference in the constitution".

So the unlawful power was removed from the meetings of the Full Council.

This section also said there would be six Cabinet Members unless Full Council said otherwise. Again, this unlawful provision was removed.

The present one fudges what constitutes a "Key decision" in terms of its cost, and the plan is to specify it more clearly.

The present one says the review will be annual. The proposal was to change it to once every 3 years.

The report said that powers currently delegated to officers need to be "moved around" to reflect the re-structurings that have taken place since last year. Two delegations were proposed for deletion altogether.

A new delegated power was added "The Director has delegated authority to respond to consultations from other local authorities together with utility and infrastructure providers and government agencies".

We couldn't help wondering if that was, at least in part, belatedly added in connection with the Council's participation (or lack of it) in the "Fylde Peninsular Water Management Group" which we referred to in "Sewage Sea Shore" - to cover the fact that Council had not received a report, nor had it authorised, nor had it nominated any officer or member to participate and represent FBC on that organisation as is claimed by them.

Time will tell.

But this delegation represents yet another loss of control by the Council itself, and appears to allow unelected officers to advance their view when the Council itself has been consulted.

There were other minor amendments in similar vein.

The Council is often invited to provide a representative on some external body, and rather than do them piecemeal as they come up throughout the year, the change would see them reconsidered just before the Council's Annual Meeting.

The Monitoring Officer has been added to the list of people who can call a special meeting of the council. This seems a very sensible move to us.

The present Constitution says there must be three clear working days notice of a Council meeting, but since 2002 the number of days has changed from three to five clear working days for all meetings, including Council. So again to be legally compliant this change is required.

It's an interesting point that quite possibly, a few of the Council meetings that have taken place since 2002 have been 'unlawful' if they were called with less than the five day's notice, and notably the special council meeting called to debate the Melton Grove will probably have fallen foul of this regulation.

Again Fylde's Constitution was found wanting because it allows the Mayor to invite the Deputy Mayor to conduct a meeting.

If memory serves this was changed after the Worst Ever meeting of FBC when the Conservatives railroaded through the closure of the Swimming Pools, and the nice but not very strong or able Mayor of the day struggled to maintain order. It seems that since 1972 (which is a while ago now) if the Mayor is present at the meeting then they *shall* preside, and the Deputy Mayor shall only preside if the Mayor is absent. So that was another case of an unlawful provision in Fylde's Constitution. No wonder Mr Towers might have been horrified.

The current position is that a motion proposed by a member of Council is referred automatically to Cabinet or Committee unless there is a vote to debate it at the Council Meeting. This has long enabled the ruling group to kick matters into the long grass of a future committee. That's now going to be changed to a default position that it will be debated at the Council meeting itself, and it will require only one duly seconded signatory to the motion to effect that debate. To us, this looks like another good move.

The present default setting is that where there is not likely to be a unanimous vote, all votes are 'recorded'. That is to say the officer calls out the name of the Councillor who responds with yes, no or abstain. This is a most unusual system but we strongly favour it. And, (although it does take time during the meeting), because the minutes are published, it is one of the few ways that members of the public can tell who voted for what, and what their views on that matter are. So in that sense it is a great aid to democracy. The new plan is to revert to the more traditional counted show of hands unless someone calls for a recorded vote to be taken, and that request is then supported by five members.

Again Fylde was found wanting, and would appear to have been out of line since 2001. They need to constitute a "Chief Officer Employment Committee" to deal with the appointment, dismissal and disciplining of Chief Officers. It is also the body where items such as the Pay Policy statement should be taken prior to the full Council meeting each year.

It was proposed that the Council dispenses with the need for pre-qualification questionnaires for lower value contracts (under £100,000) as this tends to discourage smaller businesses from tendering for council business. We're not sure about this. The sentiment is fine and dandy, but in practice, unless there is a detailed specification or some other form of restricted selection is used, the competition may not be a level playing field. We'll keep an eye on how it turns out in practice.

Our hopes were raised and then dashed as it became clear that the only change was to exclude issues concerning the grant, surrender and renewal of leases or tenancies. This was an opportunity to revert to a proper land and asset disposal policy and it was missed.

This looked to be the aspect that Council had actually given instruction about. This report said "The separate review of the recommendations from the Melton Grove Scrutiny identified options for certain issues of misunderstanding to be brought into the constitution. One way that this could occur is to introduce a number of Protocols. This would help define roles in a clearer manner. There were references in nearly all interviews conducted by Mark Towers to issues of interpretation and lack of pro active advice in connection with the Constitution. There is a proposal for the Council to change its Monitoring Officer and the introduction of a Monitoring Officer Protocol would be a good foundation for the new Monitoring Officer to build from and to help clarify roles and functions.

1. Members on Outside Bodies
2. Monitoring Officer Protocol

The proposal was:Ė to introduce a Monitoring Officer Protocol and guide / criteria for members on Outside Bodies.

And with that, The instruction from a previous Council got pushed into even longer grass.

There was no suggestion as to how it should be done, or what should be in it, or even when it should be completed by. So we're not holding our breath. By the time that matter surfaces again everyone will have forgotten what it was all about in the first place, and it will be nodded through.

That's not going to be the case on counterbalance though. We intend to have a deal more to say about the scandal that was Melton Grove, lest we forget those Councillors who were involved in the awful decisions that were made.

The only good thing to come out of this process is that none of the main protagonists from the officer side of things now carries responsibility for that role into the future, and one of them has already left.

That's probably some, but it will be cold, comfort to residents of Melton Grove who were sold down the river for thirty pieces of silver, and whose rents have already dramatically increased since the new landlord took over.

Dated:  5 August 2012


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