081/2013: Review of Chief Police Officer Remuneration Terms and Conditions – 22 November 2013

Executive Summary and recommendation:

Both the Commissioner and the Chief Constable are committed to ensuring that chief officer remuneration terms are clear, lawful and that public policy standards are met.

We have received a Report, containing legal advice, following a Review of the remuneration and other allowances paid to warranted chief police officers in North Yorkshire from 2008-09 up to the end of the 2012-13 financial year. The reason why the review has examined this specific period of time, is that six years is the legal limit for recovery of any money which might be found to have been overpaid, or without a proper legal basis.

This Decision Notice sets out:

1. The Terms of Reference for the Review
2. The Publication Strategy in respect of the Report.
3. A summary of the Recommendations of the Report
4. The Commissioner’s Chief Finance Officer’s formal comments.
5. The Decisions reached

Chief Police Officers, like all police officers, are paid according to specific legal rules, some of which are complex. The extent to which additional benefits can be paid, outside of the Regulations and Determinations, is recognised by the Government to be a matter which can be determined on a local basis. Locally-determined conditions of service have been quite commonly adopted in respect of Chief Police Officers, although it is clear that the former Police Authority in North Yorkshire managed more recently to limit the extent and cost of such payments. Our recent review concludes, however, that there have been several local allowances paid to Chief Police Officers, in the past, which do not appear with hindsight to have been within the power of the Police Authority to pay.

We stress that we are in no doubt that the Members and officers of the former Police Authority, who reached these decisions, did so in good faith.

However, having reviewed the situation, we consider that it is appropriate to take steps to put the situation right, to the extent that the Commissioner has the legal power to do so.

Therefore, initial steps will now be taken to ask the Chief Police Officers concerned for:

• any additional information they may have, which may be relevant, on this topic; and
• for money paid which seems not to have had a basis in law, to be repaid to the organisation.

The Commissioner is seeking further specialist advice about the prospect of successfully taking legal steps to recover money, in the event that it is not voluntarily repaid.

The Commissioner and the Chief Constable are clear that the full report, including their legal advice, will be published as soon as these steps have been completed.

Decisions

1. That Chief Police Officers who have received payments which may have had no basis in law, be sent letters asking them to provide further information and/or to repay money which appears to have been outside of the Police Authority’s power to pay.
2. That specialist Counsel’s opinion be sought, urgently, on the merits of legal steps to recover money paid which may not have had a basis in law.
3. Further investigations take place as follows
   1. further factual information be sought about rented accommodation secured for the use of one particular Chief Police Officer
   2. making an exhaustive search for certain documentary records which were not available during the review
4. That the Commissioner remains committed to not paying, from the police fund, those elements of the Abbey Legal Protection policy maintained by the Chief Police Officers Staff Association (CPOSA) which might cover the cost of proceedings being brought against the organisation. Subject to confirmation being made available to satisfy both Chief Finance Officers, by way of production of a copy of the CPOSA accounts, establishing beyond doubt that any such element is being funded from the CPOSA Members Reserve, the Commissioner consents to the payment of outstanding invoices in respect of CPOSA insurance for DCC Madgwick, ACC Kennedy and ACC Cross. The Commissioner notes that CPOSA subscriptions, along with ACPO membership fees, are not paid by the police fund but are met by serving Chief Police Officers personally.
5. That national policy-development and advice work, in relation to Chief Police Officer professional indemnity, be monitored and its outcome considered at the Executive Board as soon as it becomes available.
6. These decisions be notified by the Commissioner’s Chief Finance Officer to the External Auditor, to Internal Audit and to the Chair of the Joint Independent Audit Committee.
7. That the next steps (including consideration of the responses to correspondence and the remaining legal recommendations) be brought before the next practicable Executive Board.

Signature Date 22 November 2013
Title Police & Crime Commissioner for North Yorkshire

Part 1 – Unrestricted facts and advice to the PCC

1. Introduction and background
   Both the Commissioner and the Chief Constable are committed to ensuring that chief officer remuneration terms are clear, lawful and that public policy standards are met. In September 2013, the Commissioner and the Chief Constable jointly commissioned the Legal Services Department (working in close consultation with the Financial Services Department and the Office of the Police & Crime Commissioner) to undertake a Review of Chief Police Officer Remuneration Terms and Conditions.
2. Matters for consideration
   Terms of Reference for the Review
   The following terms of reference were set for the Review:
   1. To examine the payments made to warranted chief police officers in North Yorkshire during the following financial years;
      1. 2008 – 2009
      2. 2009 – 2010
      3. 2010 – 2011
      4. 2011 – 2012
      5. 2012 – 2013
   2. To set out the dates upon which decisions reached about each element of the payments, by whom the decisions were made and the legal basis of the payments, if apparent from the records.
   3. To summarise any previous specialist advice taken on this topic.
   4. To advise (on a legally professionally privileged basis) as follows
      1. whether there is any doubt about the lawfulness of any element(s) of the payments made and if so what that doubt is;
      2. whether it is in the best interests of the police fund to seek to recover any particular element(s) of payments made
   5. To make recommendations for current/future refinements or alterations to the remuneration arrangements for chief police officers, whether they be under the remit of the Chief Constable or Commissioner.
   6. To advise generally on matters incidental to these terms of reference.

   These terms of reference may be reviewed and expanded by the Commissioner and the Chief Constable if necessary as the review progresses.

The Review period was extended slightly during the course of the work and the report delivered to the Commissioner and the Chief Constable on the agreed date of 4 November 2013.

The full Report, containing legal advice, appears at Part 2 of this Decision Notice, for the reasons set out below.

Recommendations

The Report’s recommendations can be summarised as follows

• Records have not been maintained to a high enough standard. Some paperwork is missing. A better system for Chief Police Officer personnel files, should be adopted.
• Consideration should be given to writing to certain former Chief Police Officers, seeking repayment of some specific sums of money.
• Consideration should also be given to asking for officers who have received medical allowances, to confirm that cover was in place for the period in question.
• More information is needed about rented accommodation arranged for former Chief Constable Maxwell.
• Medical allowances should no longer be paid.
• Remaining issues in relation to professional indemnity insurance for Chief Police Officers, should be resolved by agreement between the Commissioner and the Chief Constable.
• A formal policy is needed in respect of removal and relocation costs.

The Commissioner and the Chief Constable have considered those recommendations at the Executive Board. The Commissioner’s formal decisions are set out in the ‘Decisions’ section above.

Publication Strategy

In order to ensure a full and frank assessment of the situation, the Terms of Reference required that the Report be prepared as legal advice, subject to legal professional privilege. They also stipulated that a report should be prepared for publication purposes within 14 days of the delivery of the main Report.
However, instead of a report for publication purposes, the Commissioner has determined that the full report should be made public as soon as possible – including all the legal advice and supporting documentation.

At this stage a number of outstanding actions remain – namely requests for clarification and (where appropriate) repayment. It is clear that publication of legal advice before, or during, a case is not an appropriate or sensible thing to do as it could jeopardise the chances of success, specifically, in this instance, the recovery of money.

As stated, letters have been sent to the individuals concerned and a reasonable period for responses to be received is required – in this instance 14 days from despatch of the letters. The Commissioner is also urgently seeking specialist Counsel’s opinion on the prospects of steps to compel repayment, if that becomes necessary.

Therefore in order not to compromise any future legal proceedings, the Commissioner intends to wait until actions in respect of recovery are complete and then to publish all of her legal advice – in other words, the full Report and supporting documentation. The Chief Constable supports this approach.

3. Other options considered, if any

None save for those matters discussed above.

4. Contribution to Police and Crime Plan outcomes

None applicable.

5. Consultations carried out

None applicable.

6. Financial Implications/Value for money

Financial Compliance comments – Commissioner’s Chief Finance Officer

The potential for expenditure with no basis in law identified either after the event or in advance of a decision being made requires due consideration of the facts prior to a decision regarding the formal reporting processes.

The requirements for a public body Chief Finance Officer (CFO) in respect of potential expenditure with no basis in law are set out in legislation and the “CIPFA Statement on the role of the chief finance officer of the Police and Crime Commissioner and the Chief Finance Officer of the Chief Constable”. This is a document produced by the Chartered Institute of Public Finance and Accountancy (CIPFA) in July 2012 in advance of the advent of the Police and Crime Commissioners in November 2012.

The facts contained within this Decision Notice identify some items of expenditure that are assessed as having no basis in law and all of these transactions have already occurred. The sums involved with these items of expenditure are not material from a technical Statement of Accounts perspective however in all other respects they are material items. The External and Internal Auditors have been consulted and appraised of this Decision Notice and are in agreement with the work that has been performed and remedial action that is being taken to address the issue.

The Commissioner and Chief Constable have commissioned the required activity to assess the full facts associated with the relevant items of expenditure and a report has been delivered to the Commissioner, Chief Constable and their Statutory Officers accordingly. This Decision Notice sets out the key features of that report. The decisions and recommendations contained within this notice ensure that all necessary remedial action required is progressed.

The Commissioner and Chief Constable are clear that the full report, including their legal advice, will be published as soon as the identified additional steps have been completed as detailed in this Decision Notice. The Commissioner is seeking further specialist advice about the prospect of successfully taking legal steps to recover money, in the event that it is not voluntarily repaid.

On this basis the Commissioners Chief Finance Officer in consultation with the Chief Constables Chief Finance Officer are content that the actions taken and decisions and recommendations contained within this report are taking all necessary steps to resolve the position and recover any money associated with this matter.

7. Legal Implications

Set out in the body text and in Part 2.

Further, having read this report and having considered such information as has been provided at the time of being asked to express this view, the Deputy Force Solicitor is satisfied that legal advice has been provided during the course of the formulation of this Decision Notice, in particular the meaning and effect of waiving Legal Professional Privilege. There are no additional legal matters of concern about these particular decisions at this stage.

8. Equality Implications

None arise.

Public Access to Information

The Police and Crime Commissioner wishes to be as open and transparent as possible about the decisions he/she takes or are taken in his/her name. All decisions taken by the Commissioner will be subject to the Freedom of Information Act 2000 (FOIA).

As a general principle, the Commissioner expects to be able to publish all decisions taken and all matters taken into account and all advice received when reaching the decision. Part 1 of this Notice will detail all information which the Commissioner will disclose into the public domain. The decision and information in Part 1 will be made available on the NYPCC web site within 2 working days of approval.

Only where material is properly classified as restricted under the GPMS or if that material falls within the description at 2(2) of The Elected Local Policing Bodies (Specified Information) Order 2011 will the Commissioner not disclose decisions and/or information provided to enable that decision to be made. In these instances, Part 2 of the Form will be used to detail those matters considered to be restricted. Information in Part 2 will not be published.

Is there a Part 2 to this Notice – YES

If Yes, what is the reason for restriction – Advice subject to legal professional privilege