Fire authority breached constitution over suspension of statutory officer, external auditors say

External auditors have issued two statutory recommendations after finding seven "significant" governance weaknesses at West Midlands Fire Authority, which included breaches of the authority's constitution.

Grant Thornton said that the fire authority failed to follow its constitution during a senior officer's appointment and during a separate decision to suspend a statutory officer.

The findings have been detailed in a value for money report was considered by a full authority meeting on Tuesday (25 November).

The authority’s former interim chief executive, Oliver Lee, who has been vocal on social media about governance “frailties” at the organisation disputed the report, describing it as “one sided”.

The report follows news of the fire authority terminating Oliver Lee’s contract and the issuance of a section 5 report, warning that actions at the authority had breached its's constitution and that ultra vires acts had taken place.

Grant Thornton’s audit was launched in March 2024 after the monitoring officer and chair of the authority received an allegation that the former chief fire officer, Wayne Brown, did not hold an MBA qualification listed on his CV.

Sahota helped Grant Thornton carry out the audit.

Brown, who was hired as deputy chief executive in 2019, died in the same month that the allegation against him was made.

He was later replaced in March 2024 by Lee, who became interim chief executive officer.

According to the report, the authority failed to check Brown's CV because he was an internal candidate.

The auditors found significant weakness in the recruitment process and concluded that the fire authority should have carried out checks, given his qualifications were not held on the authority's system and because of the seniority of the position.

Auditors also considered the suspension of an unnamed statutory officer in May 2024.

The suspension was the subject of the monitoring officer's section 5 report, which concluded the decision was procedurally unlawful and breached the fire authority's constitution because it was taken without the consideration of a full authority meeting.

The suspension was later put to the full authority, which approved the move.

Grant Thornton's report found that the decision did not follow provisions in the authority's constitution, which require such decisions to be made by a full authority meeting.

The auditors said this constituted another "significant weakness" and issued a statutory recommendation for the authority to complete an investigation into the suspension as soon as possible.

In addition, the statutory recommendation called on the the authority to ensure that deputy statutory officers are appointed to take over from statutory officers in their absence and that the authority enacts the recommendations in the monitoring officer's section 5 report.

It also recommended the authority reassure itself when reconsidering or ratifying a decision on whether it is appropriate to do so when the appropriate process has not been followed.

The second statutory recommendation was made in relation to the processes behind creating and appointing a 'commercial director of the authority' role, which later assumed section 151 responsibilities.

The position was initially created on the instruction of the interim chief executive, in consultation with the chair of the authority, in line with a section in the constitution that gives the chief executive officer responsibility for the appointment and dismissal of staff "with the exception of brigade managers and statutory officers".

However, the auditors found that the role "was at the equivalent level of a brigade manager based on the seniority and function of the role and the association pay for the role", meaning it should have been considered by the Appointments, Standards and Appeals Committee.

The auditors concluded that the appointment for the role – which commanded a salary of more than £100,000 – did not go through the committee, as required by the constitution.

According to the auditor, the decision also went against openness and accountability in local pay (OALP) guidance, which states that full council meetings should be given the opportunity to vote before large salary packages are offered in respect of a new appointment.

The statutory recommendation said the authority should consider whether the role was required and whether appropriate recruitment decisions were made.

It was also recommended that the authority ensure that regard is given to OALP guidance when appointing employees with salaries over £100,000 and that all senior appointments have an open recruitment process.

In addition, the statutory recommendation urged the authority to put processes and controls in place for the creation and appointment of new roles so that they align with the constitutional requirements and appropriate escalation to the authority's clerk and/or monitoring officer.

Another "significant weakness" meanwhile was found in the lack of recruitment checks on professional qualifications at internal change.

It said that the authority should have carried out a recruitment check on the former chief executive, Wayne Brown, when he moved from deputy chief executive officer to chief executive in 2023. 

According to the report, it was assumed that the checks were carried out when he was initially appointed in 2019.

A fifth "significant weakness" was found in relation to a lack of employment checks on seconded employees.

The auditors said it is important that the authority seeks assurances and confirmations on any secondees' qualifications.

The report recommended that the authority obtain assurance that its recruitment team is undertaking relevant pre-employment checks for all external recruitment and internal promotions.

In addition, the report recommended the recruitment team undertake its own checks of the qualifications of staff who are seconded from other organisations.

A sixth "significant weakness" was found in appointing a new 'Head of Finance and Procurement' in 2023, which did not go to authority.

The role would encompass the responsibilities of the treasurer for the authority and the s151 officer as per the job description. However, the auditors found no evidence that the designation of section 151 officer/treasurer went to the authority as required by the constitution, constituting a breach of the constitution.

In response to this, the report recommended that the authority establish systems and processes to ensure that where specific delegation appointments require approval from the authority, they are completed ahead of the commencement of the role.

It also recommended that the recruitment team be trained on the provisions within the constitution relating to the appointment and designation of statutory officers.

The final "significant weakness" concerned the interim chief executive's postponement of an audit and risk committee in June 2024, which led to the monitoring officer issuing their section 5 report.  

According to the report, the former interim chief executive, with the agreement of the former chair of the authority, postponed the meeting a day before it was set to take place.

"Under the constitution neither the former interim CEO, nor the chair of the authority or the chair of the audit & risk committee have the powers to postpone a statutory decision-making committee meeting where the agenda for that meeting has been published", the report noted.

Oliver Lee said: "I and other senior colleagues dispute the Value for Money report. It is one sided and lacks any context which makes it partial and dangerously misleading.

“I was offered the worthless opportunity to comment on a very early draft of the report, but my requests to comment once the work was much more mature were denied."

He added: “The reality is that each of the decisions in the report from my tenure as Chief Executive was solely designed to safeguard West Midlands Fire Service. They were taken with immense care and total transparency in the face of hugely difficult and worrying circumstances for the organisation and its people.

“Moreover, they were multilaterally taken based on broad discussions and the evaluation of multiple risks, to include on each occasion with the Chair of the Fire Authority.”

A spokesperson for West Midlands Fire and Rescue Authority said: “The Authority take all these issues very seriously and will consider the report and its recommendations in detail at the forthcoming Audit and Risk and Fire Authority meetings.

“Clearly, we have been aware of a many of these issues for some time and know that improvements have already been made to address a number of them, and will ensure further changes are made as necessary.”  

Adam Carey