Stony silence has followed the very public disagreement between Warwickshire County Council's political and professional leads over the flying of a flag, with neither justifying a position of authority.

It was reported last Monday that a request from interim leader Cllr George Finch to lower the Progress Pride flag, flying at the council's Shire Hall headquarters until the end of June for Pride Month, had been knocked back by chief executive Monica Fogarty.

The Telegraph published an email attributed to Ms Fogarty stating she would "not be taking the action you are requesting", wording that Reform's Zia Yusuf referred to and then party leader Nigel Farage MP in criticising the chief executive's position in social media videos, including Mr Farage's assertion that it was "time she looked for a new job". 

They referenced Reform UK's commitment prior to May's elections to only fly the Union Jack, the flag of England, the flag of the local area and any armed forces flags from council buildings.

It led to a polarised debate through social media and local and national news outlets over whether a political leader had the right to unilaterally command the council's most senior official to act without referring the matter to other councillors, or whether the chief executive had overstepped the mark or strayed into the political sphere by saying no.

Ms Fogarty politely declined to field questions on the matter and Warwickshire County Council as an entity then refused to engage with any factual questions around due process.

Cllr Finch shared The Telegraph's story on social media, headed with the post: "I have had ENOUGH of non-elected bureaucrats putting democracy aside. We are elected and we are represented to do what the people ask us to do."

Arrangements were made to speak to Cllr Finch with contact briefly established the day after the time arranged. The line dropped shortly into that conversation and further attempts to contact him have yielded no response.

The questions for both centre around which of them had authority to definitively say their position trumped that of the other.

The guiding light on this is Warwickshire County Council's 226-page constitution, the document that lays out rules and principles for all councillors and officers, setting out the parameters of various roles. 

Among its stated purposes is "encourage openness and transparency by ensuring that those who make decisions are clearly identifiable to local people, and that they explain the reason for decisions". It also aims to "provide a means of holding decision makers to public account". 

The email 

When contacted, Warwickshire County Council did not take the opportunity to confirm or deny the authenticity of the email published by The Telegraph and widely referenced in multiple other outlets since.

A screengrab briefly seen in Mr Yusuf's social media video shows a consistent format with council's emails and the telephone number at the foot of it is the matches that published for Ms Fogarty's office – if it was a fake, the council isn't saying so and its creator did a solid job. 

In it, Ms Fogarty is quoted as saying that "this council does not have a formal policy around decision making on the flying of flags" and that she had been left to decide throughout her tenure.

Citing "custom and practice", a principle of business-as-usual for matters that are not catered for in formal policies that, and that can carry a degree of legal weight, it is noted that the pride flag has been flown annually at Shire Hall "for many years". 

The correspondence informs Cllr Finch that "should you wish to promote the introduction of such a policy then this would be a matter to be agreed as an executive decision".

However, it is also mentioned that the flying of the Progress Pride flag had been "agreed with Cllr (Rob) Howard", the Reform UK leader who took office after May's local elections but stood down after 41 days citing health problems. 

Answers… and questions

The constitution allows for Ms Fogarty to take care of the day-to-day business of Warwickshire County Council provided she sticks within the established legal and politically-led local policy framework put forward. 

With the council having no formal policy on flags or such messaging, and the precedent set, the initial decision was hers to take. 

The questions arise out of Cllr Finch's request to take down the Progress Pride flag and Ms Fogarty's response to it. 

The email suggested an executive decision and the council's rules on those state that "any leader or portfolio holder decision shall comply with the procedure for taking key decisions", meaning it should be taken after a five-day notice period, in a public-facing manner and be subject to call-in by an elected councillor who is unhappy with it.

There is precedent for this with Reform UK's flag policy enacted through a cabinet decision at Leicestershire County Council. 

However, the constitution later defines what is meant by key decisions – those likely to increase or decrease spending by more than £1 million, "be significant in terms of its effects on communities living or working in any electoral division in Warwickshire" or to change or introduce a "major" new plan, policy or strategy. They can be made by officers or councillors.

Another of the questions that Warwickshire County Council declined to field was whether the flying of the Pride flag had ever been dealt with as a key decision – if it has not been in the past, why would it be for the current leader? 

The general powers of the leader are listed elsewhere in the constitution, including their right to "exercise any executive power".

"No delegation (permitted) by the leader shall prevent the leader exercising those functions his/herself or withdrawing delegation at any time," it says.

The wider document frequently refers to all councillors and officers playing their part in ensuring the decision making process is public and accountable with elected officials expected to "actively encourage community participation and citizen involvement in decision-making".

The standing orders – the part of the constitution where the definition of key decisions is listed – are referenced in relation to urgent decisions but neither the council nor Cllr Finch has detailed whether the request to take down the flag was put forward as such a decision.

In the context of various parts of the constitution, what happens to a councillor's instruction that does not qualify as an urgent or key decision appears unclear. 

Warwickshire County Council has also declined to respond over whether monitoring officer Sarah Duxbury – the authority's most senior legal professional – has issued any legal advice to any officer or councillor on this matter, or what that advice is.

The political element 

There is an open question as to whether the Progress Pride – or Pride – flag should be seen as a political statement, or indeed whether Reform UK's position on flags pulls it and others into that realm. 

All council officers must be seen to be politically neutral. They work at the council, interpreting and enacting the will of those who have been elected. The higher the rank of the officer, the stricter the rules are on neutrality.

There is an onus on all officers to "show no bias whatever their personal views may (be)" and "ensure their conduct could not give anyone reason to question their motives".

Meanwhile, expectations of councillors include maintaining "effective working relationships with officers within the council and externally" and to "champion the needs of the whole community and all my constituents, including those who did not vote for me".

The email states that Cllr Howard, who also declined to comment, was consulted on the flying of the Pride flag.

That appears to be in line with the constitution's section on delegations to officers related to matters "known to be politically sensitive". It makes clear the duty that "the officer will first consult with the leader and/or portfolio holder as appropriate before exercising the delegated powers".

It does not say what happens if an agreed position cannot be achieved through that consultation and although Cllr Finch is interim leader, the constitution does not differentiate between those permanently and temporarily holding the post.