Whistleblower reveals “cover-up” over  councillor complaint

The move by an East Sussex County Council committee to keep from public view the finding of a breach of confidentiality against a leading councillor has been scuppered by a whistleblower. Nick Terdre reports.

The unnamed whistleblower has sent an email to all East Sussex county councillors revealing that a complaint of breach of confidentiality against Cllr Rupert Simmons was upheld by the Hearings Sub Committee of the Standards Committee on 25 April.

While deciding that a formal letter should be sent to Cllr Simmons and relevant training should be arranged for him, the sub committee also resolved that the decision should be treated as private and confidential and withheld from publication, according to the whistleblower’s document.

HOT asked for confirmation of this account from the ESCC media office but was told by a spokesperson that, “We are not in a position to be able to confirm this, but can confirm that the council has robust processes in place to ensure that all allegations are dealt with appropriately.”

However HOT has received confirmation of the whistleblower’s account from the complainant, Bernard Brown, and had view of the decision notice which states that “Councillor Simmons failed to comply” with paragraph 4a of the ESCC Code of Conduct which lays down when information given in confidence may be disclosed.

Important questions

The issue raises important questions about the county council’s complaints and whistleblowing procedures and the powers of a sub committee to cloak its decisions in secrecy – information about the complaint and the decision have been withheld even from other members of the Standards Committee, HOT understands.

The whistleblower, signing as Ariolum Veritatis – Truth Teller – asks councillors: “Without this email would you know that the Lead Member for Economy, a Cabinet member, a Senior Experienced Councillor, a previous Chairman of the Council, Councillor Rupert Simmons had breached confidentiality rules – how does that make you feel?”

The whistleblower also reveals that the third party to whom Cllr Simmons passed confidential information is Sea Change Sussex, of which he was ESCC’s representative on the board at the time. He has since been replaced by Cllr Nick Bennett.

Other decisions of the sub committee tone down the gravity of the offence. It found that Simmons had not improperly sought to confer advantage through the breach of confidentiality, that his action was “an honest but mistaken belief that it was not a breach of the Code of Conduct,” and that he “had acted in order assist [sic] the complainant and ensure that answers were provided to the questions raised.” Simmons was not required to apologise for breaking the rules.

Questioned

These findings have been questioned by the whistleblower. “Without this email would you know Councillor Simmons, despite his seniority  claims that this was an honest mistake and that he did not know that passing confidential information given to him in the Public Interest about a Company where he was a Council appointed Director could be a breach of the Code of Conduct.  – how does that make you feel?” asks Truth Teller (emphasis in original).

“One might ask what possible additional training can Councillor Simmonds conceivably need to understand what “Confidential” means or what Paragraph 4 of the Code of Conduct covers?

“…Without this email would not this whole matter have been covered up, the establishment using the system to protect it’s [sic] own?”

Brown also questioned the point of training: “To suggest that someone who has been a councillor for so many years, and has been a member of the Cabinet for years, should need further training about confidentiality just beggars belief.

“And to make it private and confidential, where is the accountability under the Code of Conduct? That fellow councillors didn’t know, how can that be right? ”

Sham

He also called the council’s complaints procedure a “sham.” Among councils in East Sussex ESCC is the only one which does not follow the Local Government Association (LGA)’s model guidance for the Code of Conduct and complaints procedure.

According to Brown, there is a problem with the procedure for dealing with breaches of the council’s Code of Conduct.

The case stems from Brown’s desire to raise questions about ESCC’s relationship with Sea Change – the two parties have worked together for more than a decade on publicly funded contracts worth around £60m. He first took the matter to council leader Keith Glazier, who referred him to Simmons when Brown was dissatisfied with the vague assurances from officers consulted by Glazier that everything was all right.

Although Simmons agreed to Brown’s request that the matters he wished to raise with him be considered confidential, Brown subsequently received at his home address a letter from Sea Change addressing the points he had raised with Simmons.

Violation of rights

As well as a breach of confidentiality, it was a violation of his rights under the General Data Protection Regulation (GDPR), Brown said.

After he lodged his complaint, an independent investigator was assigned to interview both parties and draw up a report for consideration by the Standards Committee. Apparently believing that it was the LGA procedure which applied, the investigator assured Brown he would be sent a copy of the draft report on which he could make comments.

But Brown was later told by ESCC that, in line with the ESCC procedure, he would not be shown the draft report, though the party against whom the complaint had been made  would.

The best he could do, Brown said, was to make a subject data request to see the parts of the report where his name was mentioned – this yielded just a couple of pages out of a total of more than 100.

Inaccuracies

However he was able to identify some blatant inaccuracies, which he detailed in a letter to the sub committee. These included a claim that he had made multiple Freedom of Information requests concerning Sea Change – in fact he had made none prior to lodging the complaint, and only two since then – one to ESCC and one to the South East Local Enterprise Partnership (Selep), the source of much of Sea Change’s public funding.

This claim, he suggested, was aimed at questioning his motivation and undermining the validity of his complaint.

A second claim was that he was acting on behalf of Bartlett’s car business, which has been resisting attempts by Sea Change to persuade it to relocate in order to build the final part of the Queensway Gateway Road over its location. This again was untrue, he wrote.

Had Brown not had a view, albeit restricted, of the draft report, and taken the opportunity to bring these false claims to the sub committee’s attention, they might well have taken a different view of the complaint. Natural justice would seem to demand that the subject of a complaint should not receive privileged treatment compared with the complainant.

Whistleblowing procedure

Truth Teller said the matter could not be raised under the council’s whistleblowing procedure as “the East Sussex CC  handling of this is against the public interest.” Brown concurred – the very people whistleblowers are advised to contact at ESCC are not independent but high-ranking officers in the very departments which would be the subject of the whistleblowing concerns, he said.

The sub committee meeting was only recorded in the ESCC calendar of meetings after the whistleblower’s account had been circulated, and some weeks after it took place. No draft minutes have been posted. Councillors may wish to question whether this amounts to a deliberate move to minimise available information about the matter.

There is also some confusion in the relevant documents about the membership of the sub committee. The minutes of the Standards Committee meeting on 19 April record that the membership of the sub committee would be “Councillors Belsey, Barry Taylor and Webb.”

According to the agenda for the sub committee meeting, the membership was to comprise Cllrs Belsey, Webb and David Tutt. In the decision notice, members present are recorded as Belsey, Taylor and Webb.

Where does the public interest lie?

On the agenda page it is explained that information relating to the complaint is exempt from public disclosure on the grounds that “the public interest in maintaining the exemption outweighs the public interest in disclosing the information.” That is also an assessment which councillors may wish to question, as may members of the public who believe that information about misdemeanours on the part of councillors should be in the public domain.

As the whistleblower also points out, the Department for Levelling Up, Housing and Communities is currently undertaking a “deep-dive investigation” into the £60m worth of contracts on which Sea Change and ESCC have worked together, as was reported to Selep’s Strategic Board meeting in March.

Councillors in receipt of the whistleblower’s account are expected to take up the various issues raised by this matter, though HOT understands no move has yet been made.

They are encouraged to do so by the whistleblower, whose account concludes: “…Now you know you have a clear choice. Support a cover up or support transparency.”

Cllr Simmons has been asked for a comment.

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