Today I have received an e-mail from Thanet Council's Legal Officer. It would appear that Thanet Council, Kent County Council and publically funded property speculators, East Kent Opportunities (EKO), are all considering taking legal action against me. Why? Because I have had the temerity to lodge a complaint with KCC and TDC that a clause in EKO's membership agreement might have been broken, and that any such attempt to break that clause may have been ignored or possibly even aided.
As my previous posting on this subject suggested KCC and TDC, appear very reluctant to investigate my allegations about an organisation which they jointly own and which we as council taxpayers fund. They look as though they intend to use the so-called confidentiality clauses related to the EKO membership agreement, released to me last week, to try to shut me up. This act of desperation is to stop you knowing that my allegations are related to clause 13.3 of the EKO membership agreement which says
""shall not be involved in considering planning applications at KCC or TDC (and if responsible for those involved in considering planning applications shall ensure that suitable arrangements are in place to ensure probity and that no challenge on that basis can successfully be made to any planning permission granted)".
I think everyone agrees that the Council planning application processes must be open, honest, free from improper influence and enjoy the trust of the private individuals and organisations who use these processes . To have a system which might be open to abuse, is a very serious matter and something which Councils should take decisive action to guard against.
Can it really be the case that TDC and KCC would not wish to take immediate action to investigate allegations of probity related planning problems? Can it really be the case that they will use your money to pay for expenses lawyers to injunct, sue and possibly bankrupt me for telling my electors that I believe that this hitherto secret clause of the EKO membership agreement might have been breached, or assisted in its breaching?
Is this what openness, transparency and honesty looks like in Kent local government? Or might this litigious response to my allegations mean that interest in EKOs New Haine Road planning application go much higher up Kent's political food chain than I originally imagined? I feel a Freedom of Information Request coming on.
Enjoy the e-mail exchanges. You couldn't make them up, unless of course Kent was North Korea
Dear Cllr DriverEKO Agreement
I am following up on you e-mail to me from last evening concerning your intention to disclose some or all of the EKO agreement.
I am sure you will appreciate that to disclose any part of the agreement would amount to a clear and unequivocal breach of the confidentiality agreement you signed only a few hours earlier.
This is I understand not the first time you have placed information into the public domain in breach of your duties as a Councillor and these matters will need to be considered with a view to the resulting prejudice that your actions have caused to the Council. I will be reflecting on what action may be appropriate in the circumstances.
Beyond this, however, it is my understanding that EKO are also considering their position and, if they choose to take legal action against you, I would not be able to assist you in respect of that action.
Your assertions as to wrongdoing by employees outside of the Council may also result in legal action being taken by them or their employers and this would also not be something which you could be supported over.
As to your “public interest” justification for taking this step, this would not amount to a defence to a breach, particularly where you are claiming to be the sole arbiter of what may or may not be in the public interest.
I would simply therefore wish to caution you against taking further steps without understanding the consequences to you in person and to confirm that any action you take will not be sanctioned or defended by this Council.
Interim Legal Services Manager and Monitoring Officer
Dear Mr Boyle
Thank you for e-mail.
I am very surprised that your response to my extremely serious allegation of possible misconduct in relation to Thanet Council 's jointly owned property speculating LLP, EKO, has been to raise the possibility of legal action being taken against me. You make no mention whatsoever of my formal complaint and what action you will take as Monitoring Officer to investigate whether my allegations are true or not. I'm afraid that your response suggests to me that Thanet Council is more interested in threatening whistle-blowers and covering up serious allegations, rather than acting decisively to ensure that the probity and honesty of Thanet Council's planning system is protected.
As you aware an agreement to keep information confidential does not remain binding if this confidential information exposes possible misconduct.
Having had no reassurance from yourself as Monitoring Officer that you intend to take any action in connection with my compliant to you, I therefore believe that I now have a right to air my concerns about EKO in the public arena.
Councillor Ian Driver
See letter below - EKO is an organisation owned entirely by Kent County Council and Thanet District Council. Its absolutely astonishing that they require this level of secrecy in relation to a document which contains no commercially sensitive information whatsoever.
Re :East Kent Opportunities LLP (EKO LLP) Members’ Agreement 22nd August 2008 - terms and conditions –
Private and ConfidentialWe refer to the request made for detailed information in regards to the EKO LLP Member’s Agreement, (“The Agreement”) and your request to view certain confidential information concerning the agreement.
On the basis that you do not have any formal rights or hold an elected position on the EKO LLP Management Committee bestowed upon you by Thanet District Council and that such information has been agreed from the outset and formation of the LLP to be kept by both member organisations as confidential and commercially sensitive We have had to take wider legal advice regarding its availability. Release of this information is not likely to be in the public interest, but should this information become public it could significantly disadvantage the company in its commercial dealings.
It is therefore necessary to require a personal undertaking from you that any information provided to you is on restricted terms only (the ‘authorised purpose’).
Accordingly, you may wish to take your own legal advice before commencing with signing this agreement. The authorised purpose is for your own personal individual review and interrogation of the agreement only, so as to understand what business relationship has been entered into between the two Member parties and the objectives and requirements that are set out.
For the purposes of this letter ‘confidential information’ means any and all information relating to “The Agreement” which is disclosed by EKO LLP, either of its Members, or its advisors, other than information which is already in a disclosee’s unrestricted possession or in the public domain, or which comes into a disclosee’s unrestricted possession or the public domain except as a result of a disclosure in breach of the terms of this letter or any other obligation of confidentiality owed to us by any person.
In our agreeing to supply the aforementioned confidential information, you hereby unconditionally agree as follows:
(a) to use the confidential information only for authorised reference purposes;(b) to treat the confidential information as private and confidential and safeguard it accordingly;
(c) not to discuss or disclose or permit to be disclosed the confidential information other than to another disclosee and only with the express consent of EKO’s Executive Officer - a list of other discloses can be provided upon a written request;
(d) not to make copies, reproductions or summaries of the confidential information including any form of, electronic, social or broadcast media;
(e) not to announce or disclose the existence of any of the terms of, the agreement without EKO LLP Executive Officer’s prior written consent, unless such announcement or disclosure is required by any applicable law.
(f) to notify us in writing as soon as reasonably practicable if any legal proceedings are commenced, or action taken which could result in a disclosee becoming compelled to disclose any of the confidential information, to take all available steps at your expense to resist or avoid such proceedings or action, including all steps that we may reasonably request and to keep us fully and promptly informed of all matters and developments relating to it.
(g) if a disclosee is obliged to disclose confidential information to any third party, to disclose to that third party only the minimum amount of information consistent with the satisfaction of the obligation to make such disclosure and to give us prior written notice of the information proposed to be disclosed containing a confirmation that the disclosee’s legal advisers’ opinion is that such disclosure is required upon written demand from us, to:
(i) return to us all confidential information (and any copies of it or of any part of it);(ii) expunge all confidential information from any computer, word processor or other similar device into which it was entered or programmed;
(iii) destroy all notes, analyses or memoranda containing confidential information;
(iv) furnish us with a certificate signed by you confirming your compliance with paragraphs (ii) and (iii) above;
(i) to use reasonable endeavours to procure that each disclosee acts, or omits to act, as if he, she or it had agreed with us in the same terms as this letter; and
(j) to bring to the attention of each disclosee the prohibition on dealings by insiders set out in the criminal justice act 1993)]
2. General matters
You agree:(a) to indemnify us and hold us harmless from and against all actions, claims, costs, proceedings, expenses, loss or damage (including, without limitation, legal costs) which may arise directly or indirectly from the unauthorised disclosure or use of the confidential information by a disclosee or from any other breach of the terms of this letter;
(b) that damages would not normally be an adequate remedy for a breach of the terms of this letter and to waive any rights you may have to oppose the granting of equitable or injunctive relief sought by us in relation to any breach or suspected breach of the undertakings contained in this letter;
(c) that we may exclude from participating further in any discussions or communications with any disclosee who we believe has breached the terms of this letter in a material respect and you hereby undertake to comply forthwith with any such direction from us;
(d) that the furnishing of confidential information will not constitute any agreement by EKO LLP, nor the basis of any contract nor a representation of warranty as to the accuracy, completeness or otherwise of the confidential information;
(e) that we have not made nor will make any representation or warranty as to the accuracy, completeness or otherwise of the confidential information;
(g) no single or partial exercise of, or failure or delay by EKO LLP in exercising any right, power or privilege to which we are entitled shall operate as a waiver of, or impair or preclude any other or further exercise;
(h) the terms of this letter and your obligations and acknowledgements under it may only be:
(i) waived by us in writing and varied in writing signed by both parties;
(i) your interest in the EKO LLP Member’s Agreement is as a principal, on your own behalf and not on account of or with a view to relay to any other person.(j) if any provision of this letter is found by any court or competent authority to be invalid, unlawful or unenforceable in any jurisdiction in relation to us or you, it will not invalidate the remaining provisions or affect the validity, lawfulness or enforceability of the provision in relation to any party or in any other jurisdiction in relation to any party or in any other jurisdiction;
(k) the terms of this letter, your obligations and undertakings under it shall be governed by and construed in accordance with English Law and the English courts shall have exclusive jurisdiction for all matters arising under it;
(l) any requests for further information are to be made to Matthew Hyland on 01622 223423 and to no other persons.
If you accept the terms and conditions of this letter, please indicate your agreement by signing and returning to us the enclosed copy of this letter.