Fermanagh Councilors case of misconduct thrown out

Eight years ago Fermanagh District Council appointed Rodney Connor as their new Chief Executive over Danny McSorley. All ten Unionist Councillors voted for Mr Connor, a Protestant, while 11 Nationalist Councillors voted for Mr McSorley, a Catholic. One independent nationalist voted for Mr Connor, and thus the Unionist Chair broke the tie. The Equality Commission took up the case on the grounds of “unlawful discrimination” and in 2005 the Local Government Auditor found Councillors involved guilty of misconduct.

Today in the High Court the case against the Councillors was dismissed. Below is a statement from the Leader of the UUP group, Tom Elliott, which I’m using because I can’t find any online report of the judgement.Ulster Unionist Councillors and former Councillors of Fermanagh District Council have said the judgement made today in the High Court in Belfast has confirmed their stance that they have not been guilty of any wrong doing in the appointment of the current Chief Executive of the Council.

Speaking after the judgement the current leader of the Ulster Unionist Group on the Council and MLA for Fermanagh and South Tyrone Tom Elliott said:

“The Ulster Unionist members have been consistent in their determination that they voted for the person who was the best candidate for the position. Thankfully, that decision has been clarified by the success that the Chief Executive has brought to Fermanagh District Council and now by the Courts.”

“Questions must now be asked of the role of the Local Government Auditor. For what was original cost to the Fermanagh ratepayer £38,178.00, we assume this has now spiralled to what could be in
excess of £200,000.00. Is this good value for money? It is easy for the Auditor to pursue a case like this when it doesn’t cost him or his office any financial burden”.

“I strongly believe that this financial burden should not fall to the Fermanagh rate payers but should be the responsibility of the Local Government Auditor who wrongly pursued this case.”

“The role of the Local Government Auditor must now be investigated and following his incompetent decision, surely the Auditor has no option but to stand down from his position.”

  • Frodo Baggins

    It may be premature to discuss this topic in depth at this time given that the High Court’s judgement has not yet been published online, and that no independant news outlet has reported the outcome. Consequently, we do not know precisely why the High Court made its findings.

    However, it seems to me that despite Mr. Elliot’s attempt to deflect attention onto the Local Government Auditor’s alleged shortcomings, local councillors of all parties and in all councils should not be complacent about this issue.

    This case arose from a decision to appoint one individual over another in a recruitment exercise in which there were indications that a party political vote had taken place. I think Mr. McSorley had reasonable grounds to suspect that he may have been discriminated against on the grounds of religious belief and/or political opinion. There was certainly a prima facie case for Fermanagh District Council to answer.

    It seems that the Council later settled the case before the appropriate authority, the Fair Employment Tribunal, could determine its merits. Nevertheless, the rate-payers of Fermanagh picked up the bill for that settlement, plus the associated legal fees, and that cannot be laid at the door of the Local Government Auditor.

    It is interesting to speculate what might have happened if Mr. McSorley had been appointed instead; for example, if the numbers of Nationalist councillors had been sufficient to out-number the Unionist councillors. In that case the evidence maybe would have given Mr. Connor a prima facie case of religious/political discrimination against the Council. Perhaps it would have been the Nationalist councillors on the receiving end of the Auditor’s wrath on that occasion.

    As it was, it seems that the Nationalist councillors may have voted according to party lines too when they all voted for Mr. McSorley. So, it seems that they got off lightly, simply because their favoured candidate was not appointed on this occasion.

    This was not the first, and perhaps not the last time, that councillors will appear to follow party political lines through bloc voting when appointing Chief Executives. In a previous case, the Fair Employment Tribunal warned Councils about the dangers of discrimination ocurring when this type of voting is used in recruitment exercises. The case in question was named Baird –v- Cookstown District Council and was heard in the early 1990’s [sorry, I can’t provide a hyperlink to the decision]. The Tribunal said that “particular problems can be caused for local government bodies if selection is operated through elected representatives”. It stated, “The employer is liable for the actions of all participants even though the voting on selection reflects party lines. Employment selection panels, howsoever composed, should approach selection without regard to political opinions or religious beliefs, including their own opinions and beliefs.”

    So, to repeat my earlier comment, I think that all councillors of all political parties in all councils should not be complacent about this. It is not sufficient to blame the Local Government Auditor. They should consider their own conduct too.

  • Concerned Loyalist

    Little wonder this case got thrown out of court. The “Equality Commission”, (a gross misnomer) didn’t have a leg to stand on. The vote was a tie, so the chairman/person has to have the deciding vote. If the roles were reversed and the chair was a nationalist, they’d have to take it on the chin.

    £200,000 or so was spent on this debacle. What a waste of time and taxpayers’ money…

  • Michael Shilliday

    Frodo,

    Just one one point, on your terms there were enough nationalist councillors to appoint “their” candidate. One nationalist voted for the individual who was appointed.

  • Frodo Baggins

    Hi Michael,

    The fact that one (Independent) Nationalist councillor voted for Mr. Connor does not necessarily mean that the other Nationalists did not vote against Mr. Connor on the grounds of religious belief or politcial opinion.

    One could envisage a hypothetical situation in which 12 councillors (comprising 6 Unionists and 6 Nationalists) voted for Mr. Connor, while the other 11 (comprising 5 Unionists and 6 Nationalists) voted for Mr. McSorley. In this case the voting pattern would not have supported a suspicion that an act of religious or political discrimination had occurred. There would have been no grounds to bring a discrimination complaint to the Fair Employment Tribunal.

    In stark comparison, if all the Unionists (Protestants)choose the Protestant candidate, and if all the Nationalists (Catholics), bar one, choose the Catholic candidate, then there is certainly a sectarian smell about the whole process. There will certainly be a prima facie case of religious or political discrimination to answer.

    It is important to add, that such a voting pattern does not prove that discrimination actually occurred. The pattern merely raises an inference of discrimination that is rebuttable. The Unionist councillors may well have appointed the best candidate solely on the grounds of merit. If so, it raises the interesting question of why the 11 Nationalist councillors voted as they did. Why did they all fail to see that Mr. Connor was the best candidate? This is meant as a rhetorical question, but I can just picture the likely responses.

    To Concerned Loyalist-

    It is not a question of Unionists or Nationalists “taking it on the chin”. Everyone has the right to seek work and to be considered on their merits regardless of their, or any other person’s, religious beliefs or politcial opinions. No one should have to accept discriminaton with a philosophical shrug of the shoulders while they wait until they can return the disfavour to a member of the other tribe.

  • The Raven

    If I am correct, this is the only position in a Council that Councillors are involved in the decision-making process on – this being because there are no other higher-ranking officers in the Council to be on the panel? My understanding would be that the rule is you cannot be interviewed by any officer who is of a “lesser grade”.

    And if I am also correct, there is usually a representative of the Local Government Staff Commission in on the panel?

    And – and I will stand to be corrected on this – there is usually also another Chief Executive in on the panel too? Usually a retired CEO, or one from across the water?

    Both these would be observers. I’d be interested to see what they had to say about the process.

    Two things.

    Firstly: This underlines that there should be no circumstance in which elected representatives are involved in the selection process. All council staff who wish to be involved in an interview panel must undertake recruitment selection training. I understand they may not sit on a panel if they have not undertaken this training. I believe the same rule is NOT extended to Councillors. Again, if this is incorrect, someone please say so.

    But – and we are well acquainted with the calibre of councillor in this region – are there many Councillors in Northern Ireland who are in a position to interview and judge an individual who ultimately will be running an organisation of anything from 150 – 1000 employees? Very few, I would think.

    Secondly: within the sector, there are several other instances in Northern Ireland where question marks are perceived by those in the sector, to hang over the decisions to hire certain CEOs which suit majority party positions. I couldn’t possibly comment further other than to say that the perceived question marks hang over Councils from both sides of the house.

    I am not surprised that this reached a court scenario. It is perhaps the only interviewing scenario in Northern Ireland where the foot you kick with could, I repeat COULD, influence the outcome of a decision.

    I will say this though. I also had a cursory glance at the online FET decisions from 2007, with specific regard to those listed with Councils as respondents. There are 14 categories of FET listed, with a total of 557 online decisions.

    Of these, only 98 appear to be in the category of religious discrimination/political opinion.

    Of those again, only 4 seem to be lodged against Councils. And unless I did something very wrong, all those decisions listed seem to dismiss the claims.

    Wrong is wrong, and in this day and age, there is no excuse for even ONE case being brought. While certainly something appears to the public eye to be fishy about the above case, one has to wonder why time and again, the case decisions listed (unless I have missed something rudimentary) dismiss case after case after case. One wonders if this type of discrimination – with most areas beneath 5% unemployment, and a continuing demand for people who can “do the job” – is really “there” any more at all?

    None of my remarks should detract from the obvious hurt that one candidate in the aforementioned post has experienced.

  • willowfield

    Appalling spelling and grammar in the title to this thread: “Councilors” should be “Councillor’s”.

  • willowfield

    Having read the piece, it should be “Councillors'”, not “Councillor’s”.

  • Blackmouth

    Willow

    Sure, would you expect any better from an Ulster Unionist? 🙂

  • Frodo Baggins

    To, The Raven,

    You are correct that the Local Government Staff Commission has an oversight role in these processes. They have published a Code of Practice for these matters and it seems that under the current Code (revised in 2005) it is no longer permissible for the entire body of councillors within a Council to sit on these recruitment panels. The new revised Code states-

    “The council will consult with the Staff Commission regarding the composition of the interview panel, which will comprise:

    • the Mayor/Chairperson of the council, or the Chairperson of an appropriate appointment committee of the council

    • not less than 4 and not more than 7 members of the council, appointed by the council

    • the Chairperson of the Local Government Staff Commission

    • the Chief Executive of the Local Government Staff Commission

    • two independent Professional Assessors approved by the Local Government Staff Commission.

    Only the Mayor/Chairperson and the elected members of the council on the interviewing panel will have voting rights.”

    The Code may be downloaded from the website of the LGSC: http://www.lgsc.org.uk

    So, it seems that some reform of the system has taken place since the Fermanagh case arose in 2000. Prior to 2005, the Code permitted the entire body of councillors to sit on selection panels; although, “in the interests of securing fair and equal consideration of applicants and of promoting good practice”, the LGSC advised Councils to delegate the selection process to a smaller group. Clearly the LGSC felt the need to issue stronger guidelines in its 2005 revisions.

    As regards the success rates in discrimination complaints, you need to consider another issue too. This is that many cases are settled by employers before they are considered by the Tribunal. The Equality Commission has published information about the settlements in cases which they have assisted. The reports can be downloaded from the Commission’s website: http://www.equalityni.org

    For example, in the year 2006/07 there were 9 religious or political discrimination cases settled amounting to £112,000 in compensation.

    This is only information on cases in the Equality Commission assisted the complainants. There are likely be other cases in which the Commission is not involved – unfortunately, I do not have any information about these.

  • willowfield

    Sure, would you expect any better from an Ulster Unionist? 🙂

    I would, actually, yes: very disappointed!

  • barnshee

    “This is that many cases are settled by employers before they are considered by the Tribunal”

    There was a subtle change in procedure as far as I am aware. Complainants must now exhaust all internal procedures before proceeding to the EC. (This does not affect their rights since the period consumed by internal procedures extends the time period for complaint to the EC).

    What appears to have happened is that individual ability to wave the EC at an employer as a threat has been reduced- and so apparently have the number of complaints.

  • Concerned Loyalist

    Appalling spelling and grammar in the title to this thread: “Councilors” should be “Councillor’s”.

    Posted by willowfield on Jul 04, 2008 @ 08:27 AM
    Having read the piece, it should be “Councillors’”, not “Councillor’s”.

    Posted by willowfield on Jul 04, 2008 @ 08:49 AM…………………………………………

    Perhaps Shilliday has spent a lot of time in the USA recently?

  • The Raven

    “For example, in the year 2006/07 there were 9 religious or political discrimination cases settled amounting to £112,000 in compensation.”

    Nine? I think that underlines my point even more…

    However, I reiterate my own original point, whereby I do not wish to detract from the obvious fishiness of this case.

  • cynic

    Doesnt this show that the whole proccess of appointments in NI local government is a charade?In this case, almost all the Prods voted for the Prod and vice versa

    Why allow Councillors to appoint anyone? It will never be objective or fair …just a sectarian headcount.

  • The Raven

    “Doesnt this show that the whole proccess of appointments in NI local government is a charade?”

    No. Appointments for Chief Executives are the only time they are involved, IIRC. There are around 9000 local government staff in NI.