“Behaviours” Part 3

I have just sent what follows to all councillors, senior officials and the press:

The same preamble applies as outlined in “Behaviours” Part 1 issued on 17 March, ie all this comes from the case files in the failed complaint against me. Here is part 3 and it’s substantially more serious than parts 1 and 2:

Example 3

This example is also taken from the letter to the Controller of Audit in March 2014 and outlines what appears to be an attempt to “fix” the outcome of 2 items at the council meeting in December 2012. In so doing, council legal staff were also ignoring the advice they had received from their external legal advisers, Brodies. This is provided to demonstrate that 2 of the complainants, Messrs Hendry and Loudon, were behaving in a manner that induced distrust. Mr Reppke is also mentioned in this. As before, the text in blue is taken directly from what was sent to the Controller of Audit.

Some of what follows is fact, some of it theory, but it does require investigation in my view.

1          A member or members of the opposition in late 2012 conspired with senior staff in order to try and thwart the sale of Ardentinny to Actual Reality. (theory) Another view on this might be even more serious, ie there may have been attempt to block this sale in order to pressurise Actual Reality from pursuing any complaint against the council. See point 6 below.

2        This was done by getting senior staff to speak with the then leader of the council prior to the council meeting on 26 November 2012 so that he would agree in advance to what was then agreed at that meeting, see part 2 of my version of events. This was to defer any decision on the sale at the council meeting and to agree to a meeting of the group leaders in order to finalise the sale, again see part 2 of my version of events. Note, please, the comments from Cllr Robb about the lack of democracy in this way of handling things. Note also that the meeting wasn’t minuted etc. [You may wish to note that Mr  Hendry’s November report on the same subject failed to disclose to elected members that he had refused an offer from Actual Reality that would have saved the Council thousands of pounds, see Example 4 below (to follow).]

3        At that meeting, the highly derogatory remark about Actual Reality was made, again see my part 2 of events. The question is this: was this remark made in order to influence those present against selling the property? If not, what was the motive in saying this? Was it personal malice towards the directors of AR for example? Please note that this remark is referred to in paragraph 2 of BLANK’s complaint to the Commissioner for Ethical Standards, a complaint that has not yet been dealt with as I understand matters. The company’s directors heard about this and wrote to me (I was then the Lead Councillor with responsibility for Castle Toward and Ardentinny) and the Leader of the Council objecting in the strongest terms to what had been said.   Councillor McCuish, myself and other senior councillors decided that their protests should be treated as a formal complaint against the Council and, having consulted the Chief Executive of COSLA, took the view that Audit Scotland should be asked to investigate the “complaint” because it concerned the conduct of senior officers (chiefly Mr. Hendry but also Mrs. Loudon) and the then Leader of the Council, Councillor Walsh. You may wish to note that in the last few months, Mrs Loudon is completely denying that there ever was a complaint and much the same has come from the leader and depute leader of the council in what I call a very ill advised letter sent to all elected members of the council in November last year.

4        Without consulting me or Councillor McCuish, the Chief Executive decided at some point in November or December 2012 to seek advice from the Council’s solicitors (Brodies WS) on whether the Council could lawfully sell Ardentinny to Actual Reality until the company’s complaint against the Council had been resolved by the Audit Scotland investigation.   Brodies’ advice, not surprisingly, was that these matters were not connected and, as Mr. Hendry admitted to me in an email dated 24 December “it would be open to the council to conclude the sale”.

5        At its meeting on 20 December, the Council had to consider two reports.   One reported that Actual Reality had met all the conditions set by the ad hoc group for the sale of Ardentinny.   The other contained the Chief Executive’s recommendation, which reflected the view of the Leader of the Council, that Audit Scotland should be asked to investigate Actual Reality’s complaint.   Although by this time officers had Brodies’ advice that these two issues did not need to be linked they were tabled at the Council as linked papers, docketed as items 22a and 22b.   22 (a) concerned the referral to Audit Scotland; 22 (b) dealt with the sale of Ardentinny.    Charles Reppke (the Head of Legal Services) advised members that we must deal with these items in the order in which he had presented them.    He gave no reason for this advice.   He did not inform members that Brodies had been asked for legal advice and that their advice was that the matters were not connected.  There have been other occasions when elected members have been told what the legal advice was but on this occasion we were not even told there had been any. Why?   And why were two items, that Brodie’s had said were separate issues, handed out as the same agenda item and why were we told to deal with them in the order stated?

6        I have no doubt that the way in which Mr. Reppke presented these matters to the Council, the fact that he linked them as two parts of the same numbered item, and that he kept knowledge of Brodies’ advice from the elected members, misled some members into thinking that they ought to consider them as connected matters.   The way in which he submitted the business to elected members allowed Councillor Walsh, seconded by Councillor Mrs. Ellen Morton, to move an amendment to item 22 b which, if passed, would have held up the Council’s decision on the sale of Ardentinny until Audit Scotland had concluded its investigation of Actual Reality’s complaint and the Council had considered Audit Scotland’s response.    If the amendment had passed, the view of the Directors of Actual Reality is that they would have had to withdraw their “complaint” and ask the Council not to seek an investigation by Audit Scotland.   They have explained to me that the Ardentinny negotiations had been extremely protracted, in their view unnecessarily, and that any further significant delay would have created so much uncertainty that there would have been a very serious risk of the company going into liquidation.   Whether Councillors Walsh and Morton understood that the immediate result of their amendment being passed would be that Actual Reality itself would ask for the Audit Scotland investigation to be stopped, is not for me to say.

7        In the event, the amendment was lost by just two votes and then, as you know, Audit Scotland refused to carry out the requested investigation.   However, that does not alter the fact that the way in which Mr. Reppke chose to advise the Council could have had extremely serious consequences for a local business employing about 25 people and may yet have serious consequences for Councillor Walsh, who has been reported to the Ethics Commissioner for failing to disclose to the Council on 20 December that he might have a personal, non-financial interest in the matter of an Audit Scotland investigation.

8        Since the meeting, senior Council officers have resolutely refused to tell me precisely what questions they put to Brodies or to give any explanation of why Mr. Reppke advised members as he did about the order of business.   On 27 December 2012 I asked Mr. Hendry, who is Mr. Reppke’s supervising Executive Director, to give all elected members a summary of Brodies’ advice.   This request was ignored.   Since then both Mr. Hendry and Mr. Reppke have said that they cannot remember why the two matters were linked on the agenda and Mr. Reppke can’t remember who told him that they were to be linked; indeed, he is unable to remember any of the discussions he had about the matter.   Please bear in mind that at the time when I was asking these questions I was the Lead Councillor for Education and so had political responsibility for both Castle Toward and Ardentinny. The former property is also in my ward.


What you need to know is that, although all of the text in blue above went to Audit Scotland, they refused to investigate. The Controller of Audit subsequently confirmed to me that the reason they had not investigated was because “he had seen worse“.

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