What is an Officer?

In May 2010, the High Court decision of Pinfold North Ltd v. Humberside Fire Authority clarified an unhelpful uncertainty in the law – does a local authority officer have to be a local authority employee?

There was an issue because the relevant legislation in this case (section 151 of the Local Government Act 1972 and section 112 of the Local Government Finance Act 1988) requires relevant authorities to secure that one of their officers has responsibility for the administration of their financial affairs. Similar wording is used for Monitoring Officers in section 5 of the Local Government and Housing Act 1989, where relevant authorities must designate one of their officers as the person responsible for performing the statutory role.

The problem is that the legislation fails to define the term ‘officer’. Whilst there is no doubt that all local authority employees are officers, the essential question is whether all officers must necessarily be employees. The Oxford English Dictionary, which defines ‘officer’ as a 'person who holds a particular office, post, or place', unfortunately does not advance the matter either way.

In the circumstances, the judge found nothing in the legislation nor in caselaw to restrict the appointment of officers to employees. Although the Local Government Act 1972 refers to the duties and obligations of officers who are employees, there is nothing in the Act that excludes the appointment of an officer who is not an employee. So, whilst council employees are necessarily officers, its officers are not necessarily employees and nor is there any statutory requirement that they should be so.

Pinfold is a useful decision, giving authorities the vital flexibility they need for creative shared service and other innovative or interim arrangements.

The appointment of officers

A council is empowered to appoint such officers as it thinks necessary for the proper discharge of its functions (Local Government Act 1972, s.112).

Every appointment of a person to a paid office or employment by the council must be made on merit (Local Government and Housing Act 1989, s.7).

There are regulations establishing various mandatory standing orders (procedure rules) giving effect to obligations or restrictions on delegation of authority to bring these principles into effect. These rules should be set out within a council’s constitution:

Statutory Chief Officers, Chief Officers, Deputy Chief Officers and other officers

Local government employment rules differentiate between categories of officers. For example, whilst it is commonplace for all posts, it is only a legal requirement for the appointment of Chief Officers or Deputy Chief Officers to be subject to a role description and person specification and, where the appointment is not an internal process, that it must be subject to appropriate advertisement.

Chief Officers are defined in the Localism Act 2011, s.43(2) as:

Head of Paid Service (Local Government and Housing Act 1989, s.4)
Monitoring Officer (LGHA 1989, s.5)
Statutory Chief Officers (under LGHA 1989, s.2(6)):
- Director of Children’s Services (Children Act 2004, s.18)
- Director of Public Health (National Health Service Act 2006, s.73A(1))
- Chief Finance Officer (LGA 1972, s.151)
Non-Statutory Chief Officers (under LGHA 1989, s.2(7)):
- A person for whom the Head of Paid Service is directly responsible;
- A person who reports directly or is directly accountable to the Head of Paid Service; and
- Any person who reports directly or is directly accountable to the local authority itself or any committee or sub-committee of the authority; but
- Excluding any person whose duties are solely secretarial or clerical or are otherwise in the nature of support services.

Governance Chief Officers are:

Head of Paid Service
Chief Finance Officer
Monitoring Officer

They have additional statutory employment protection due to the nature of their roles in having to ‘speak truth unto power’, which is not always welcome. These statutory provisions are adopted by authorities as mandatory standing orders but are also contractually reflected in the JNC conditions of service.

The nature of that employment protection changed with the Local Authorities (Standing Orders) (England) (Amendment) Regulations 2015, moving the involvement of an independent third-party in any proposed disciplinary investigation from the beginning of the process to the end. That was felt by many authorities to be a potentially expensive and retrograde step, failing to address the object of the mischief identified in the Widdecombe Report and addressed in the LGHA 1989. As a result, many authorities have adopted the amended mandatory standing orders but, as the previous and amending standing orders are not mutually exclusive, have also kept the previous provisions in their standing orders (employment procedure rules) and in those officers’ contracts (see SI 2001/3384, reg 6).

Deputy Chief Officers under LGHA 1989, s.2(8) are people who report directly or are directly accountable to one or more of the Chief Officers. This definition is subject to the same exclusion concerning administrative and support staff.

Other statutory officers that most local authorities must have in place include:

Returning Officer (Representation of the People Act 1983, s.35)
Electoral Registration Officer (Representation of the People Act 1983, s.8)
Scrutiny Officer (Local Government Act 2000, s.9FB)
Director of Adult Social Services (Local Authority Social Services Act 1970, s.6(A1))
Chief Inspector of Weights and Measures (Weights and Measures Act 1985, s.72(1)(a))
Public Analyst (Food Safety Act 1990, s.27)
Traffic Manager (Traffic Management Act 2004, s.17(2))
Data Protection Officer (Data Protection Act 2018, s.69)

but these are not Chief Officer posts in their own right.

Who makes the decision?

Where Executive arrangements are in place, the appointment of staff, including their dismissal and the terms and conditions upon which they are appointed, is a function reserved to the Council (see Local Authorities (Functions and Responsibilities) (England) Regulations 2000, Sch 1, section I, para 37). This means that these decisions are either taken by the Council itself, a committee or an officer, although there are a number of exceptions to this introduced by the standing orders referred to above. The result of this is the rules outlined below.

Role of Members

All appointments and dismissals in respect of staff positions that are not Chief Officers, Deputy Chief Officers or political assistants are the responsibility of the Head of Paid Service (SI 2001/3384, Sch 1, Pt.II para 2). Members are not permitted to be involved in these decisions, except insofar as there are arrangements for an appeals committee for staff matters (SI 2001/3384, Sch 1, Pt.II para 7).

The appointment or dismissal of the Head of Paid Service may only be made by a meeting of full Council, which may either be direct or as confirmation of a recommendation from a committee or sub-committee of Council.

Unlike the Head of Paid Service, there is no statutory requirement for full Council to approve appointment or dismissal to other Chief Officer posts, but this is common practice in respect of the Monitoring Officer and Chief Finance Officer across many authorities and is a requirement in their constitutions.

Delegated authority may therefore be granted by full Council to a committee, a sub-committee or the Head of Paid Service in respect of all other Chief Officers and Deputy Chief Officers. This may be authority to discharge the full function of making or confirming appointment or dismissal, or be limited to making a recommendation to full Council.

However, whilst the appointment of the individuals to posts such as the Director of Law & Governance and Director of Finance may be undertaken by a committee, a sub-committee or the Head of Paid Service, the designation of those individuals as Monitoring Officer of Chief Finance Officer must be made by a decision of full Council.

In addition, full Council should be given the opportunity to vote before a salary package in excess of £100,000 is offered in respect of any new appointment (whether Chief Officer, Deputy Chief Officer or otherwise), in accordance with statutory guidance.

Full Council should also approve any discretionary sums of £100,000 or more paid to employees on termination of employment in addition to statutory and contractual redundancy or severance terms, in accordance with statutory guidance.

Involvement of the Leader and Cabinet

Where Leader and Cabinet Executive arrangements are in place, they will be involved in the decisions to appoint or dismiss Chief Officers and Deputy Chief Officers in two distinct ways:

Where a committee or a sub-committee of the council is discharging, on behalf of the authority, the function of appointment or dismissal, at least one member of the Cabinet must be a member of that committee or sub-committee;
Before an offer of appointment or notice of dismissal is issued, Cabinet members must be informed of the prospective decision and the Leader may make representations concerning their 'material and well founded' objections to the decision maker (SI 2001/3384, Sch 1, Pt, II, paras 5-6).

The role and involvement of the Chief Executive (Head of Paid Service)

The role of the Chief Executive in this process is threefold as they have to undertake distinct roles as Head of Paid Service (HoPS).

The HoPS:

Has the role of decision-maker in posts below Deputy Chief Officer (and is the responsible officer concerning the grant and supervision of exemptions from political restriction) (LGHA 1989, s 3A);
Is the principal advisor on staffing matters to the council and therefore the appropriate committee or a sub-committee (except where there would be a conflict of interest in respect of their own pay and conditions of service);
Is responsible for issuing a formal HoPS report (under LGHA 1989, s.4(3)) to inform the council of their proposals concerning:
- the manner in which the discharge by the authority of its different functions is co-ordinated
- the number and grades of staff required by the authority for the discharge of its functions
- the organisation of the authority's staff; and
- the appointment and proper management of the authority's staff

Full Council is then required to consider those proposals. In practice, however, this formal power is seldom, if ever, used but is a blueprint for restructuring reports and the responsibilities of those involved.

Director of Public Health

In addition to the requirements set out above, an offer of employment as Director of Public Health must be made in accordance with the statutory requirements that apply to the post (see the National Health Service (Appointments of Consultants) Regulations 1996 and related government guidance: Directors of public health in local government: roles, responsibilities and context - GOV.UK (www.gov.uk). In particular, any appointment or termination of appointment must be made jointly with the Secretary of State for Health.

Political and Mayoral Assistants

My earlier bulletin covers the specific arrangements, regulations, standing orders and guidance on the appointment of political and mayoral assistants (under LGHA 1989, s.9 and the Local Authorities (Elected Mayor and Mayor’s Assistant) (England) Regulations 2002, Reg.3).

Geoff Wild is a Legal and Governance Consultant. He is celebrating his 40th anniversary as a local government lawyer.

This is the latest in a series of articles Geoff has written – previous contributions

What is an Officer?

Jobs

Poll

Directory