What’s in a whistleblowing report about Wirral Council’s “dismal decade?”

What’s in a whistleblowing report about Wirral Council’s “dismal decade?”

What’s in a whistleblowing report about Wirral Council’s “dismal decade?”

                                 

ICO Information Commissioner's Office logo
ICO Information Commissioner’s Office logo

On the 5th August 2016 a former Wirral Council employee Martin Morton made a Freedom of Information request to Wirral Council for a copy of a report commissioned from Nick Warren on whistleblowing by former Wirral Council employees.

After Wirral Council had ignored his request for a month, Martin Morton requested an internal review on the 6th September 2016.

Wirral Council completed that internal review and communicated the results to Martin Morton on the 3rd October 2016 refusing to supply the report in its entirety.

The refusal was made by Wirral Council’s Monitoring Officer Surjit Tour on the basis that it would prejudice the effective conduct of public affairs (section 36).

Martin Morton then appealed Surjit Tour’s decision to the regulator ICO (the Information Commissioner’s Office).

During the course of ICO’s investigation, Wirral Council apologised for how long it had taken to reply to Martin Morton‘s request, but added an additional reason for refusing some of the information giving personal information (section 40) as a further reason.

On the 27th April 2017 ICO issued a decision notice (FS50649341). The decision notice required some of the information requested to be released to Martin Morton within 35 calendar days as ICO disagreed with Wirral Council and felt there were parts of the report to which neither section 36 nor section 40 applied.

Wirral Council released that information yesterday which comprise paragraphs 1-8 of the report (although part of paragraph 4 is redacted) and paragraph 76. I’ve put in a line break between different pages and in the conversion from print to HTML there may be some minor formatting changes.

I include what has been released below yesterday as it is rather short. A series of XXXX represents the redacted bit. I’ve made two additions. The first is that I’ve linked the words “precise terms of reference” in paragraph 4 to the terms of reference as the report makes more sense when read together with the terms of reference. The second is that I’ve made it clearer that paragraphs 5-75 haven’t been released of the report.



Report


A. INTRODUCTION

  1. This review arises from events which formed part of a dismal decade for Wirral Borough Council (“Wirral”) culminating in a remarkable joint statement from the Leader of the Council and the then Chief Executive (CE) which have accepted a number of failings and recognised the need to improve Wirral’s corporate governance, culture and workforce policies.

  2. Part of the statement concerned the Highways and Engineering Services procurement exercise (“HESPE”). This work was put out to tender; there were bids from the private sector and an in house bid from the Wirral “DLO”. It is convenient to state here some important dates concerning HESPE.







    Dec 2007 Announcement in the Official EU Journal.
    13 March 2008 Qualifying bidders chosen
    2 July 2008 Bidders invited to tender according to a Bill of Quantities.
    4 Sept 2008
    (later extended to
    5 Sept 2008)
    Tender return date.
    16 Oct 2008 Contract formally awarded to COLAS.


  3. The DLO bid was therefore unsuccessful. This meant that the DLO staff would transfer to COLAS from April 2009.



  4. In November 2008 some employees of the DLO made a disclosure on the advice of their Trade Union to Wirral’s CE. I will refer to them collectively as “the Whistleblowers”. They had all worked for Wirral for many years. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX I have been asked to review the treatment of the Whistleblowers. It is not necessary to recite precise terms of reference.

  5. I have interviewed the Whistleblowers and other witnesses and have read a large number of documents provided by Wirral. I thank Wirral staff for the co-operation which I have received. I will not deal with all the evidence because I want to make my report as short and as readable as I can. If required, I can expand on or explore any individual issue.

  6. I have of course used hindsight. That is in the very nature of a review. There is nothing wrong with this provided I do not use it to criticise people or actions unfairly.

    B. WHAT THE WHISTLEBLOWERS HAVE DONE FOR WIRRAL


  7. It took Wirral about four months to respond to the Whistleblowers. They were dissatisfied and went to the Audit Commission. The Commission took the


    unusual step of issuing a public report identifying serious weakness in Wirral’s arrangements for:-

    (a) Declaration of Interests.
    (b) Internal Audit
    (c) Reporting to Elected Members
    (d) Dealing with Whistleblowers
    (e) Evaluating Tenders

  8. As a result Wirral has altered and improved its procedures in these important areas of work. It seems clear that the weaknesses would not have been exposed, nor would the improvements have come about, if the Whistleblowers had not had the courage to speak out. I am not aware that Wirral has acknowledged publicly or privately the contribution which the Whistleblowers thus made to our community.

    (Paragraphs 5-75 are redacted).

    L. CONCLUSION



  1. The Whistleblowers have not received sufficient credit for exposing poor practice within Wirral. The “informal” nature of the first investigation resulted


    in them having to work under great stress for several months. While they were still Wirral employees, their names were disclosed to their new employer as being in some way untrustworthy. Their health and their jobs were adversely affected over an extended period.

    Nicholas Warren 6th October 2015.


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The incredible £20,000 report into Dave Green/Colas that Wirral Council wouldn’t release on “data protection” grounds

The incredible £20,000 report into Dave Green/Colas that Wirral Council wouldn’t release on “data protection” grounds

The incredible £20,000 report into Dave Green/Colas that Wirral Council wouldn’t release on “data protection” grounds

                          

Roadworks on the Wirral from 2011
The Colas contract included maintenance of Wirral’s roads

Three and a half months ago I submitted a FOI request for a dozen documents held by Wirral Council that were given to Richard Penn before writing his thirty-nine page report into Dave Green’s involvement in the Colas contract. Over three months later they have replied, providing a copy of the Council’s conflict of interest policy and conflict of interest procedure.

What’s interesting is what’s in the list of ten documents requested that they refused to supply on “data protection” grounds. One of these was a report that cost Wirral Council £20,000 from their then auditor the Audit Commission. It was a twenty-six page Public Interest Disclosure Act report into what happened during the tendering of the multi-million pound Colas contract. Despite Wirral Council’s reluctance to release it in response to my FOI request it was in fact published on their website as it was considered during an Audit and Risk Management Committee meeting that met in September 2010.

Here are some quotes from that report by the Audit Commission that obviously Wirral Council didn’t want to release in response to my Freedom of Information Act request:

“However, the issues raised were genuine concerns and our review did highlight some weaknesses including a lack of clarity about separation of duties, inadequate records and documentation and the need to clarify corporate systems for raising and recording potential conflicts of interest. There were also examples of a lack of proper consideration of or disregard of procedures, for example meeting with potential tenderers during the period between the post tender qualifying stage and tender
submission.” (page 7)

“These weaknesses potentially left the Council and individuals open to external challenge. If there had been external challenge to the contract by an aggrieved bidder, the remedy could have led to substantial damages being paid and loss of reputation by the Council. Going forward, a new EU Remedies Directive applicable to new procurements advertised after 20 December 2009 means that aggrieved bidders now have tougher remedies against public authorities that break procurement rules. The High Court will be able to set aside signed contracts resulting in delays to services, as well as significant and costly litigation and further procurement costs (see Appendix 3 for further detail).” (page 7)

“As noted at paragraph 1, the PIDA concerns were raised with us following an internal PIDA investigation. The Council needs to continually consider the adequacy of its Whistleblowing procedures and how well they are complied with to ensure that individuals have confidence that issues will be fully investigated and lessons learnt.” (page 7)

“Concerns were raised with us that a meeting was held by the Director of Technical Services and another senior officer with one of the tenderers between the post qualifying stage and tender submission.” (page 11)

“However, the meeting was not minuted and so there is no formal record of what was actually discussed. The Director of Technical Services and the other senior officer indicated that the reason for the meeting was to clarify whether tenderers could bid for both the main tender and for the sub-contract work for the in-house tender. Holding this meeting and failing to record it was clearly inappropriate and contrary to procedure and put the Council at risk of non-compliance with procurement regulations and the tenderer at risk of disqualification.” (page 11)

“The invitation to tender clearly specifies the procedure for enquiries from potential tenderers in order for the process to be open and fair for all concerned and to ensure there is no canvassing which would result in disqualification from the tendering exercise” (page 11)

“Concerns were raised with us that the Director of Technical Services had failed to declare a potential conflict of interest regarding a personal friendship with an individual in one of the firms bidding for the contract.” (page 12)

“Our review confirmed that a conflict of interest form was submitted by the Director but this was done retrospectively. We found no evidence of any information being shared as part of this association.” (page 12)

“The Director of Technical Services completed a conflict of interest declaration on 11 November 2008 and submitted it to the Chief Executive to be considered at his next annual Key Issues Exchange (KIE) meeting which was held in November 2008. However, it was following the award of the contract (16 October 2008) and should have been submitted and discussed with the line manager at the start of the tendering process. In addition, as the tenderer was an existing contractor, there should have been existing annual declarations on file. This retrospective declaration has clearly allowed the relationship between the Director and the individual to be viewed with suspicion.” (page 12)

“The Director of Technical Services indicated that the individual in the firm is an acquaintance who is a close friend of his brother who had previously worked for the firm. Although the Director was aware that the individual worked in the firm he judged that there was no conflict to declare. Once he became aware that the individual would be involved in the contract going forward the Director submitted his conflict of interest form in line with his judgement and his interpretation of the Council’s procedures.” (page 12)

“However, Council procedures clearly state that in order to manage conflicts of interest (including any perception of a conflict), employees should complete the form even if there is nothing to declare and return it to their line manager at the KIE and any amendments should be made immediately. During our review we found no evidence of any annual declarations of interest for the Director prior to the one submitted on 11 November 2008 apart from those covering the period when his brother worked for the firm. However, the absence of annual declarations was not unusual in the Council at that time and was raised as an issue in Internal Audit reports during 2008 and a memo dated March 2009.” (page 12)

“The key issue is whether the Director or his line manager should have made the judgement about whether and when a potential conflict should be declared. Our view is that it was the responsibility of the Director to make the line manager aware of his ‘acquaintance’ when the firm first contracted with the Council and this should have been reviewed when the tendering exercise started and the firm received an invitation to tender. The judgement about whether it was a conflict (or a possible perceived conflict) then rests with the line manager and arrangements could have been put in place to ensure that it was appropriately managed and any ‘perceptions’ of conflicts rebuttable.” (page 13)

“As noted above, the absence of annual and updated declarations as well as poor evidencing of review and consideration by line managers was not unusual within the Council. We also found during this review that there were weaknesses in the procedures around the employment of consultants, for example ensuring sign up to confidentiality clauses and completion of conflict of interest forms and supporting consideration (one of the consultants had previously worked for the winning firm).” (page 13)

“The Council needs to continually consider the adequacy of its Whistleblowing procedures and how well they were complied with to ensure that individuals with genuine concerns have confidence that issues will be fully investigated and lessons learnt.” (page 15)

“During the period when the contract was tendered and let any external challenge by aggrieved bidders could have lead to damages being paid.” (page 23)

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Exclusive: Next 20 Pages of Wirral Council’s Colas Contract (Highways and Engineering Services Term Maintenance Contract)

Exclusive: Next 20 Pages of Wirral Council’s Colas Contract (Highways and Engineering Services Term Maintenance Contract)

Exclusive: Next 20 Pages of Wirral Council’s Colas Contract (Highways and Engineering Services Term Maintenance Contract)

                           

This continues from an earlier blog post with the first twenty pages of the Colas contract. The contract itself is in A5 format, but the version I’ve been given is a copy in A4. As usual you can click-through each thumbnail for more readable versions of each page.

Wirral Council Colas Highways Maintenance Contract Page 21

These pages have screenshots from the Inventory Management Screen and Job Management Screen as well as some instructions on how to use the software.

Wirral Council Colas Highways Maintenance Contract Page 22

These pages have details on Cost Management, Test Management, Customer Care, Mapping Links and some further screenshots of the Customer Care Screen and the Test Management – Unit/Cable Test screen.

Wirral Council Colas Highways Maintenance Contract Page 23

These pages have sections on mobile working (not implemented at Wirral), night scouting, job management, inventory management, gully cleansing, gully cleansing background, gully cleansing assets, contractor data and reports & photographs.

Wirral Council Colas Highways Maintenance Contract Page 24

These pages are about ICT at Wirral Council with sections on Enterprise Resource Planning, Customer Relationship Management, Document Management, GIS, Databases, ICT Infrastructure, Server Equipment and Operating Systems, Desktop Systems, Telecommunications Networks and Network Protocols.

Wirral Council Colas Highways Maintenance Contract Page 25

This continues being about ICT at Wirral Council with sections on Network Protocols, Internal Telephone Network, Network Equipment and Internet Access & Network Security.

Wirral Council Colas Highways Maintenance Contract Page 26

This is a flowchart entitled HESPE (Highways Engineering Services Procurement Exercise) Assets and Work Ordering Interim Position at April 2009.

Wirral Council Colas Highways Maintenance Contract Page 27

These pages have sections on call out/out of hours repairs, works areas and definitions of priorities 1,2 and 3, priority repair times (with definitions of priorities 1 to 5), aggregation of work, discounting of work orders based on value, structural maintenance programme/minor traffic improvement schemes and gully cleansing/minor drainage works.

Wirral Council Colas Highways Maintenance Contract Page 28

These pages have sections on work ordering and the payment process as well as a screenshot of an example highways drainage work order.

Wirral Council Colas Highways Maintenance Contract Page 29

This has a table of incident analysis codes by asset type, asset description, main cause, effect, action and result. It also details who determines the level of service for a work order and a table of the target timescales for various types of highway drainage work.

Wirral Council Colas Highways Maintenance Contract Page 30

These pages have a table detailing which letter (from A to Z) corresponds to which planned gully cleansing round along with a map showing which areas the rounds cover.

Wirral Council Colas Highways Maintenance Contract Page 31

This details the information that Colas is to supply to Wirral Council when it does work on the highway drainage assets (including the car parks). It also details how the Highway Drainage Asset Amendment Form should be used.

Wirral Council Colas Highways Maintenance Contract Page 32

These pages contain a blank Highway Drainage Asset Amendment Form and a section on “Drainage Specials”. Drainage Specials are areas that are particularly susceptible to flooding and/or accumulation of silt and require more frequent cleansing.

Wirral Council Colas Highways Maintenance Contract Page 33

These pages are a table of the Council’s car parks (each is given a number) in the areas of Birkenhead, Liscard, Moreton, New Brighton, Seacombe, Wallasey, Heswall, Irby, Pensby, Hoylake, Meols, West Kirby, Bromborough, Higher Bebington, Eastham, Bebington, New Ferry and Rock Ferry.

Wirral Council Colas Highways Maintenance Contract Page 34

These pages detail bridges, interceptors and culverts.

Wirral Council Colas Highways Maintenance Contract Page 35

These pages have sections on the public rights of way network, painting programmes, winter maintenance arrangements, coast protection minor works and street lighting.

Wirral Council Colas Highways Maintenance Contract Page 36

These pages are a section on depot arrangements and a plan of the main depot building, external stores and canteen.

Wirral Council Colas Highways Maintenance Contract Page 37

These pages contain a map of where the depot is and sections on completion, working with the employer and others, tests, title and the New Roads and Street Works Act 1981.

Wirral Council Colas Highways Maintenance Contract Page 38

These pages have sections on notices, performance bond and performance as well as the cover page for section 2.2 (specification).

Wirral Council Colas Highways Maintenance Contract Page 39

This has the preamble to the “Specification for Highway Works”.

Wirral Council Colas Highways Maintenance Contract Page 40

This has a table of pages and relevant publication dates for the specification for Highway Works. If you’d like me to continue to publish more of the Colas contract then please leave a comment.

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First 20 Pages of Wirral Council’s Colas Contract (Highways and Engineering Services Term Maintenance Contract)

First 20 Pages of Wirral Council’s Colas Contract (Highways and Engineering Services Term Maintenance Contract)

First 20 Pages of Wirral Council’s Colas Contract (Highways and Engineering Services Term Maintenance Contract)

                            

For some reason people seem to like reading about Colas on this blog so here is another blog post about Wirral Council’s relationship with Colas. Wirral Council have a really long contract with Colas (called the Highway and Engineering Services Term Maintenance Contract), that’s over five hundred pages long. Currently the contract (which runs to 2014) is out to tender with Wirral Council’s Cabinet expected to reach a decision on a new contractor (or to bring it in-house) by the end of the year. Colas have already stated they won’t bid for the new contract.

The contract itself is in A5 format, but the version I’ve been given is a copy in A4. As usual you can click-through for more readable versions of each page.

Wirral Council Colas Highways and Engineering Services Contract Page 1

This is a cover page for volume one of the contract, which detail the sections in volume one (forms and certificates, general data and optional statements, additional conditions of contract (Z Clauses), Local Labour, Freedom of Information and TUPE information).

Wirral Council Colas Highways and Engineering Services Contract Page 2

This is the start of the contract. Although the contract ran from the 1st April 2009, the agreement with Colas is dated 17th March 2010. In order to protect itself shouldn’t Wirral Council have made sure they a signed contract in place before work was started?

Wirral Council Colas Highways and Engineering Services Contract Page 3

This is just a cover page for section 1.1 (forms and certificates).

Wirral Council Colas Highways and Engineering Services Contract Page 4

These contain the signature of Colas’ Chief Executive Officer dated the 4th September 2008. These pages are reassurances from Colas made as part of the tendering process to carry out the work if they win the tender and that before the returnable date for the tender that they’ll keep various aspects of their tender confidential.

Wirral Council Colas Highways and Engineering Services Contract Page 5

This is Colas’ tax certificate information and the cover page for section 1.2 (General Data and Optional Statements).

Wirral Council Colas Highways and Engineering Services Contract Page 6

This page details various terms used in the contract even going so far as to define the language of the contract as English and the currency of the contract as pounds sterling!

Wirral Council Colas Highways and Engineering Services Contract Page 7

This deals with risks and insurance, optional statements, Y(UK)2 (please leave a comment if you know what that means) and how prices are to be adjusted for inflation with reference to Baxter indices and Gershon Efficiency Savings.

Wirral Council Colas Highways and Engineering Services Contract Page 8

This has the Baxter (nothing to do with soup) index in the form of a table and sections on performance bond, retention, limitations of liability, key performance indicators and a reference to Y(UK)3 (again if you know what this means please leave a comment).

Wirral Council Colas Highways and Engineering Services Contract Page 9

This is a cover page for section 1.3 (additional conditions of contract – Z clauses).

Wirral Council Colas Highways and Engineering Services Contract Page 10

This has sections on intellectual property rights, corrupt practices, principal contractor, confidentiality, partnering, quality statement, quality management system, named key persons and named sub-contractors.

Wirral Council Colas Highways and Engineering Services Contract Page 11

This part has sections on accidents on site, recovery of sums due from contractor, special requirements of statutory bodies, Construction Industry Scheme, Value engineering, TUPE, Pension Scheme, Two Tier Workforce, Freedom of Information and Provision of Information on Contractor’s Employees for the Purposes of the Transfer of Undertaking (Protection of Employment) Regulations 2008.

Wirral Council Colas Highways and Engineering Services Contract Page 12

This continues the additional contract conditions with sections on audit and ECC Option B Clause 63.13. It also has the cover page for a section on local labour.

Wirral Council Colas Highways and Engineering Services Contract Page 13

The section on local labour is just a blank page, but this also has the cover page for a section on employment and training in the construction industry.

Wirral Council Colas Highways and Engineering Services Contract Page 14

This is the code of practice signed by Colas which includes a signed statement of intent by Colas to “use their best endeavours to ensure that not less than 90% (including those directly employed by us and those sub-contracted to ourselves) will be established residents of the Wirral Borough”. Councillors have asked previously if local labour clauses can be included in other Wirral Council contracts to be told by officers they can’t because it’s “illegal”, the fact it’s in this contract shows it’s not and is a good way that Wirral Council can ensure the money it spends remains within the local economy.

Wirral Council Colas Highways and Engineering Services Contract Page 15

This is the statement of support signed by Colas for the Code of Practice for Employment and Training in the Construction Industry and for its role in “the objective of reducing local long-term unemployment to be publicised in an appropriate manner”. It’s also the cover page for a section on Freedom of Information.

Wirral Council Colas Highways and Engineering Services Contract Page 16

This contains a short, but interesting section on Freedom of Information copied below followed by the cover page for TUPE information:

“FREEDOM OF INFORMATION ACT 2000

STATEMENT OF INTENT

The Council undertakes to use its best endeavours to hold confidential any commercially sensitive information provided in the tender submitted, subject to the Council’s obligations under law, including the Freedom of Information Act 2000. If a tenderer considers that any of the information submitted in the tender should not be disclosed because of its commercial sensitivity or confidentiality, then this should be stated with the reasons for considering the information confidential or likely to prejudice commercial interests if disclosed to the public. The Council will then consult with the tenderer in considering any request received under the Freedom of Information Act 2000 before replying to such a request.”

Wirral Council Colas Highways and Engineering Services Contract Page 17

This just states:

TUPE INFORMATION

The Information on both the HESPE TUPE list schedule and CD (enclosed with hard copy of this contract) relate to current conditions of employment.”

Wirral Council Colas Highways and Engineering Services Contract Page 18

This is the cover page for Volume 2 (Contract Data Part One (ii) Works Information) detailing sections on general description, specification, performance management and standard details as well as the cover page for section 2.1 (general description).

Wirral Council Colas Highways and Engineering Services Contract Page 19

This is a description of the works to be carried out under the contract which are in two packages (package A and B). Package B is minor repairs to coast protection structures, package A is highway works. It has sections on drawings, specifications and method of measurement, indicative annual expenditure by Wirral Council for various types of work, a section on the Contractor’s responsibilities and on working hours.

Wirral Council Colas Highways and Engineering Services Contract Page 20

This continues the section on working hours and starts a section on administration of the contract. This has subsections on existing IT systems, Highways (Field Service Overview) and Street Lighting (HiLight Horizon Street Lighting System).

If you’d like me to publish more of the Colas contract than this please leave a comment.

Continues at Exclusive: Next 20 Pages of Wirral Council’s Colas Contract (Highways and Engineering Services Term Maintenance Contract).

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Incredible: Cllr Foulkes “we seem to have some whistleblowers who are courted, almost feted”

A report on Wirral Council’s Audit and Risk Management Committee Incredible: Cllr Foulkes “we seem to have some whistleblowers who are courted, almost feted”

Incredible: Cllr Foulkes “we seem to have some whistleblowers who are courted, almost feted”

                                                       
The above quote is from Cllr Foulkes at Wednesday’s Audit and Risk Management Committee in a long comment on Wirral Council and whistleblowing which starts here.

His extremely honest comments call for a further report on the BIG & ISUS business grants program, partly because the Council’s auditors won’t sign off on Wirral Council’s accounts until it’s resolved. Surely after spending an estimated £50,000 on reports by Grant Thornton’s forensic department an officer at Wirral Council must have some answers for Cllr Foulkes? He accuses whistleblowers of raising issues that "drag the Council back into the past" and hopes (rather optimistically) that all the outstanding whistleblowing issues will be resolved "simultaneously".

He then went on to say that some whistleblowers were "courted almost feted" whereas others were forgotten, such as the group over the Highways and Engineering Service Procurement Exercise contract. The whistleblowing over the Highways and Engineering Service Procurement Exercise contract hasn’t been forgotten. In that case the name of one of the whistleblowers, who wanted to remain anonymous was published on Wirral Council’s website. The matters raised by that group were written about at length by the independent person, Richard Penn (whose report was published) and although not everyone agrees with Penn’s opinion and interpretation of events, in most people’s minds the matters regarding the senior officer suspensions has been resolved. Colas’s contract ends next year and will be put out to tender with Colas stating that they won’t bid for it.

Cllr Foulkes also believes that "whoever blows the whistle or complains should be taken seriously and dealt with as efficiently and quick but in all senses fairly". He also said he finds the whistleblowing issue "quite worrying". Would whistleblowers be offered and be paid large amounts of money if they had been treated fairly? He also said that they "have to be fair to those in the firing line of a complaint". The whistleblowing concerns of late haven’t been because of one anonymous and unknown Inspector Clouseau type employee that sadly Wirral Council can’t sack, but have been brought about by systemic failings in Wirral Council’s corporate governance systems and its culture. These two areas are the responsibility of many different individuals including its politicians. Cllr Foulkes said that "words I’ve said tonight may be misconstrued".

He said that many councillors found themselves being contacted by people with complaints, complaints that he found the resolution of "almost impossible". He said he "did not believe whistleblowers should ever be used in a political fashion" and that councillors "don’t seem to have an up to date picture" as to how whistleblowers concerns were being resolved.

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