LEGAL EAGLE FLIES UNDONE

‘We must protect the organisation.’

York Shire President Wallace, in conversation with a ratepayer, 2016.

A lawyer’s letter—every blogger’s dream

Readers may be surprised—and some may be pleased—to learn that I have received from Richard Graham, a defamation lawyer, what is known in the legal trade as a ‘concerns notice’.

Mr Graham is acting for a certain gentleman—hereinafter ‘Mr X’— who used to work for the Shire.

David Taylor has received a similar notice from the same source.

According to the notice sent to me, Mr X is ‘seriously aggrieved’ by various anonymous and pseudonymous comments posted on this blog touching on the circumstances of his departure from the Shire’s employ. 

He claims that imputations contained in those comments have damaged his reputation and that he has suffered loss and damage as a result—not to mention ‘stress, anxiety and depression’.

Mr X is no less aggrieved, it seems, by a report in one of my articles that he had said in the presence of a witness ‘the thing which is not’ regarding the matter of an oversized shed.  

The concerns notice amounts to an emphatic denial of each and every (allegedly) false and defamatory imputation concerning Mr X appearing in the pages of this and David’s blog—especially those pertaining to…well, you know... let’s not cause further embarrassment by spelling it out.

Mr X has instructed his lawyer that ‘each of the imputations…are totally false, without basis and constitute serious defamations of my client [and] that he resigned from the Shire of York due to personal health reasons’. 

(Grammar note: I think that should be ‘is totally false’, because ‘each’ denotes singularity.  You’d think a lawyer would know better.)

So there you have it, folks.  Mr X didn’t do what he was alleged to have done, and he resigned voluntarily because he was unwell, not because he’d done something naughty.

And anybody who says otherwise is lying—or so Mr X implies in his notice of concerns.

I’m sure Mr Graham will have advised Mr X that under section 25 of the Defamation Act 2005 an action for defamation is doomed to fail if the publisher of the ‘defamatory imputations’ is able to show that they are ‘substantially true’.

Making amends

The notice invites me to make by or before 10 January 2018 an offer of amends that would include:

(a) publishing an apology and a retraction on this website;

(b) handing over the names, addresses and email addresses of the authors of the offending comments (something I can’t possibly do, because I don’t know who they are and have no way of finding out—and if I did know, neither thumbscrew nor rack, not even the Spanish Inquisition’s comfy chair, would drag the information out of me);

(c)  removing all (allegedly) false and defamatory statements about Mr. X from this website;

(d) undertaking not to publish any more such statements;

(e) providing a signed apology and retraction which Mr X may publish ‘as he sees fit’;

(f)  paying Mr X’s legal costs; and

(g) paying ‘a reasonable sum’ to compensate Mr X for the damage (allegedly) caused to him by publication of the (allegedly) defamatory statements.

Before deciding whether or not to do any of those things, I thought it would be a good idea to get the Shire’s version of what had occurred. 

My email to CEO Martin

So on 15 December 2017, I emailed CEO Paul Martin for an opinion on the lurid rumours winging wildly through the town and alighting as comments on this blog. 

In my email, I summarised very briefly the general drift of public opinion, as expressed in those comments, regarding Mr X and what he was alleged to have done.

I mentioned public concern regarding allegations—

(a) that CEO Martin had effectively condoned Mr X’s alleged misdemeanours by not reporting them to the police (I had pointed out in blog comments of my own that in my opinion he was under no obligation to do any such thing); and

(b) that after leaving his job Mr X had continued to have access to Shire of York assets and resources—notably, that he had been spotted driving a Shire vehicle in Northam a week or so later.

Rumours

Helpful soul that I am, I took it upon myself to advise CEO Martin of certain rumours relating to whatever steps he may have taken to facilitate Mr X’s remarkably abrupt exit from the service of the Shire.   

One such rumour was that he had required Mr X to resign rather than give him the sack, and had authorised Mr X’s continuing use of a Shire vehicle and accommodation. 

Another—in my view more serious—was that the CEO had put pressure on Shire staff to say nothing to outsiders about the circumstances of Mr X’s departure.  Whether or not he did that, or had reason to do it, it would certainly have been in keeping with the standard bureaucratic view that local government employees should be treated as a protected species and exempted as far as possible from normal processes of public disclosure, prosecution and disgrace.

It would also have been in keeping with the narcissistic local government doctrine that ‘protecting the organisation’ trumps ideas of openness, honesty and accountability in the organisation’s dealings with the people whose rates and taxes keep the rickety vessel afloat and support the grotesquely inflated salaries and emoluments of the crew.

(I should mention in passing that the allegations regarding Mr X emanated directly from members of the Shire workforce.  

Moreover, a relative of a Shire employee asked that employee if the allegations were true.  The employee refused to respond and when pressed, simply walked away.   Make of that what you will.

Mr X says he resigned ‘due to personal health reasons’. But why pull the pin on a lucrative job when all you would normally need to do if in poor health is ask for leave?)

The oversized shed

I also raised in my email the issue of the oversized shed, providing the names and address of the lucky applicants.  I said my concern was that the shed ‘had been approved secretly under delegation to keep it out of the public eye’.

Mr X, I said, did in fact assure me that no such approval had been given, and did so in the presence of a witness, whom I named (and who will if necessary give evidence in court).  

As yet, nothing has happened to convince me that the application went before Council for approval in what used and ought to be the normal way.  

Mr X told me exactly as I recounted that no such application had been made and no such approval given.   The meeting at which he said that took place in the Shire office.  It commenced at 11.30 am on Tuesday 6 June 2017.  Later, I got double confirmation that what he had told me wasn’t true.  He claims I was wrong to accuse him of misleading me, or of lying.

I suppose it’s possible that for some obscure reason the application and its outcome had been hidden from Mr X as it was from the rest of us—but I think that would be very unlikely.

Witnesses

I made it clear in my email that if Mr X carries out his threat to sue me for defamation, I will not hesitate to subpoena as witnesses the young women alleged to have been upset by his alleged behaviour. 

If the allegations are true, I cannot believe that those young women would be willing to perjure themselves for the sake of Mr X. 

I will also subpoena the CEO and other staff who may have played a part in facilitating Mr X’s departure and all relevant documentation, including correspondence, file notes and notes of telephone conversations, if any, with the office of the Minister for Local Government and his Department.

And for good measure, just for the hell of it, I’ll subpoena Shire President Wallace.  I’m sure he was kept fully informed of whatever was going on.

The Shire’s reply, or ‘pop go the weasel words’

It turned out that the CEO was away on annual leave, so the task of responding to my email fell to Suzie Haslehurst as Acting CEO.

This was her reply, which arrived in my inbox on 22 December:

Further to your email regarding a letter received from Mr [X’s] lawyer, I can offer the following;

• Mr [X] resigned from his employment with the Shire of his own accord without any pressure or prompting from Paul Martin and there was no inappropriate use of a Shire vehicle, accommodation or any other Shire assets or resources by Mr [X].  No pressure was put on Shire staff.
• I understand the shed application you refer to was dealt with in the normal way in accordance with Shire practices and procedures.

Regards

Suzie Haslehurst

Acting Chief Executive Officer

That phrase ‘I can offer the following’ is a dead giveaway.  The email has ‘legal advice’ stamped all over it.  Roughly, it means ‘I’m going to tell you something that looks like the truth, and that may have truth in it, but it won’t be the whole truth, which I intend to obfuscate to the best of my ability because that’s what the Shire’s lawyers have instructed me to do’.

On the other hand, if the email was all Suzie’s own work, she’s in the wrong job.  She should join the Noble and Ancient Order of Pettifoggers and start dishing out legal advice instead of taking it.

Anyway, this (here slightly edited) was my response, dated the same day.

Thanks, Suzie.  I'm pleased (but not surprised) that the rumours concerning Paul Martin's involvement are untrue.

I'm still puzzled, though.

Saying that 'there was no inappropriate use of a Shire vehicle or other assets or resources' leaves wide open the question of what use the Shire would consider 'appropriate'.  To put the matter simply: are you saying that Mr [X] did not have access to a Shire vehicle and accommodation after leaving the Shire's employ, and that reports of his being seen driving a Shire-owned vehicle in Northam a couple of weeks later are untrue?

Mr X may well have resigned 'of his own accord', but does that mean that the allegations [made against him] are untrue?  By implication in a letter to David Taylor, the DLG has confirmed that such were indeed the circumstances surrounding his departure.

Finally, if the shed application in question was dealt with 'in the normal way', does that mean it was submitted to and approved by Council like previous oversized shed applications?  If it was, at what Council meeting was it approved?  Or does 'in the normal way' indicate that what's normal now is for such potentially contentious matters to be dealt with under delegation in order to avoid public scrutiny?

Regards and best wishes for Christmas and the New Year.

My fourth paragraph is very imprecisely worded, so I’d better enlarge a little on my reference to the letter to David Taylor from the DLG, which actually wasn’t from the DLG but from the Local Government Minister’s Chief of Staff, Gary Hamley.

David reproduced Mr Hamley’s letter, dated 6 December 2017, in a recent post on his blog.   The rest of the post consists of David’s reply to Mr Hamley.

Mr Hamley’s letter appears to respond to David’s open letter, dated 9 November, to Mr Duncan Ord, Director General of the DLG.  Presumably, Mr Ord referred David’s letter to Minister Templeman.

David’s letter, as is usual with him, pulls no punches.  He makes no secret of what he believes Mr X to have done, what he thinks the Shire and other bodies ought to do about it, and what rather less satisfactory course of action the Shire will likely embark on instead.

And what does Mr Hamley say in reply?  Does he dispute David’s colourful account of what Mr X is alleged to have done?

No, he doesn’t.  This is what he says (emphasis added):

As you would be aware, the management of local government staff is the responsibility of the Chief Executive Officer (CEO), however, I am advised that the Department of Local Government, Sport and Cultural Industries was aware of the matters you have raised and is informed that appropriate action has been taken by the CEO. 

Ah, that weasel word ‘appropriate’ again.  How would they manage without it?

Finally…

One thing I want to make very clear is that I have absolutely no personal animosity towards Mr X.  I met him only a couple of times, quite liked him, and formed the impression that he was good at his job.

It would give me real pleasure to find out that the allegations made against him are completely untrue, as he claims.  If that happens, I will cheerfully make an offer of amends as outlined in the concerns notice.

But until then, I’m not going to allow myself to be bullied into submission by a lawyer’s letter and concerns notice—not even by a writ.  I doubt Mr X will have any more luck with David Taylor.

I was going to disable comments for this post, but have changed my mind.  If you wish to comment, and feel you have to mention Mr X, please refer to him as that and not by his real name. 

Please note, though, that the primary target of this post is the Shire’s cover-up, not Mr X.  Did the CEO act ‘appropriately’?  If so, how?  If not, why? What did he actually do?

NOTE (added New Year's Day):  After consulting my better half—who as many of my readers will know is a paid up member of the Noble and Ancient Order of Pettifoggers—I’ve decided to remove some but not all of the comments to which Mr X, through his lawyer, has objected.

The four comments removed would tend to identify Mr X and to expose him—so to speak—to the world at large as one given to flourishing his flesh in what Suzie Haslehurst might describe as an ‘inappropriate context’.

Let the record show that I declined throughout to be swept up in what I regarded as a tsunami of moral outrage and calls for punishment.  That doesn’t mean I condone in any way what Mr X is alleged to have done.   

In my view, the alleged behaviour is to be thoroughly condemned but is so unfathomable in all the circumstances that it seems to call for therapy rather than a whipping.  At the same time, I understand and respect the opinions of others who view the situation differently.

I have not removed the comments from fear of legal action.  I shall not be taking up Mr X’s invitation to ‘make amends’.  If Mr X wishes to pursue these matters in court, I am willing to oblige him.  I shall be saying that to his lawyer.

Rather, I’ve removed the comments from motives of humanity and compassion.   I realized that if I didn’t remove them, they might follow Mr X around for the rest of his professional life—at any rate, every time he applied for a job.  What he is alleged to have done is bad, but my wife and I agree it doesn’t deserve a life sentence.

Besides, today is the beginning of what I hope will be a bright new year for everyone, including Mr X.  I just hope he is able to recover from whatever it is that ails him and to get his life back on track.

I apologise to readers whose comments I have deleted—especially to the one whose comment I deleted by accident and don’t know how to restore!