Complaint about a Councillor - Procedure for dealing with complaints against Councillors

Contents

• Context
• Parish Councils
• How to make a complaint
• Will the complaint be investigated?
• How is the investigation conducted? 
• Publishing of the Investigation Report
• What happens if the Investigating Officer or Monitoring Officer concludes that there is evidence of a failure to comply with the Code of Conduct?
• What is the Standards Sub-Committee?
• What action can the Standards Sub-Committee take where a Councillor has failed to comply with the code of conduct?
• Arranging a Hearing
• What happens at the end of the hearing?
• What sanctions are available following a hearing?
• Can this procedure be changed?
• Can I challenge decisions made under this procedure?
• Appendix 1
• Appendix 2
• Appendix 3
• Appendix 4
• Appendix 5
• Appendix 5a
• Appendix 6

Context

This procedure explains how a person can make a complaint against a Councillor (both District and Parish/Town Councillors).

All Councillors (also referred to as Members) are required to comply with a Councillor Code of Conduct.

The system of regulation of standards of Councillor conduct in England is governed by the Localism Act 2011. Councils must have a Code of Conduct for Councillors, which must be consistent with the “Seven Principles of Public Life”, selflessness, honesty, integrity, objectivity, accountability, openness and leadership. The Bassetlaw Code of Conduct is available from reception and from the District Council’s website. However Town and Parish Councils may either adopt the Bassetlaw Code or one of their own which will be available direct from the relevant Town/ Parish Council upon request. If a person wishes to complain that a Councillor has not complied with the code then this procedure sets out how Bassetlaw District Council will deal with the complaint.

The Localism Act also requires that the Council must have in place a procedure by which allegations can be investigated, and a decision made on such allegations and requires the Council to appoint at least one Independent Person. The Independent Person’s views must be sought by the Council before making a decision on an allegation which it has decided should be investigated. Independent Persons are people who are neither councillors nor officers of the Council (for more on the role of the Independent Person see Appendix 6). The Council may also seek the views of the Independent Person at any other stage of the procedure. The views of the Independent Person may also be sought, at any stage of the procedure, by any Councillor against whom a complaint has been made.

Anyone who considers that a Councillor may have breached the relevant Code of Conduct may make a complaint. The complaint will be assessed by Bassetlaw District Councils Monitoring Officer to see if it falls within the Councils legal jurisdiction. A decision will then be made on whether some action should be taken, either as an investigation or some other form of action.

When a matter is referred for investigation or other action, it does not mean that a decision has been made about the validity of the allegation. It simply means that the Council believes the alleged conduct, if proven, may amount to a failure to comply with the Code of Conduct and that some action should be taken in response to the complaint.

Parish Councils

References to a Councillor or Members in this procedure mean also co-opted Members and to Members or co-opted Members of a Parish Council within the Bassetlaw District. The procedure applies to complaints made about those Members and each Parish Council is required to adopt a Code of Conduct.

Where this procedure notes that the Clerk of the Parish/Town Council is not be notified, and the Clerk is involved in the complaint and notices in will then be sent to the Chair or Deputy of the Council. The Monitoring Officer may set out what action they consider the town or parish council should take (if any) with regards the complaint and requirements related to confidentiality given that town or parish council standing orders may require the clerk to report the complaint to the Council.

A parish or town Council are not required to meet the costs of any investigation into or any costs incurred by the parish or town council in providing advice and assistance with the investigation.

How to make a complaint

Please complete the online form or write or email to:

The Monitoring Officer, 
Bassetlaw District Council,
Queens Buildings,
Potter Street,
Worksop,
S80 2AH.

Email: monitoringofficer@bassetlaw.gov.uk

The Monitoring Officer is a senior officer of the Council. The Monitoring Officer has legal responsibility for maintaining the register of members’ interests and is responsible for administering the Code of Conduct for Councillors and for investigating complaints against Councillors.

To ensure that the Monitoring Officer has sufficient information to process the complaint, the Complainant is asked to please ensure, they provide their name and a contact address or email address. They are also asked to consider including:

1. who they are - for example, a member of the public, fellow Councillor or officer;
2. who the complaint is about and the authority or authorities that the Councillor belongs to;
3. details of the alleged misconduct including, where possible, dates, witness details and other supporting information.

Complaint must be made in writing. If the Complainant has a disability that prevents them from making a complaint in writing they need to contact the Council and support will be provided to enable them (e.g. the need to transcribe a verbal complaint and then produce a written copy for their approval or approval by their appointed representative)

Only in exceptional circumstances will a request for confidentiality be granted. If the Complainant believes there are exceptional circumstances why their identity should not be revealed to the Councillor they are complaining about they are required to provide details in their complaint.

The Council will not usually investigate complaints made anonymously, unless there is a clear public interest in doing so as this will be against the principles of transparency and fairness and make the matter more difficult to investigate. The Monitoring Officer will consider any exceptional compelling reasons why an anonymous complaint could be accepted without detriment to the process and where the allegation can be evidenced without reference to the complainant (e.g. if an anonymous complainant submitted a video showing the Councillor acting inappropriately or sent in documentation disclosing an undeclared directorship in a matter relating to local authority business, it may be considered that the public interest in investigating the allegation outweighed the issue of anonymity).

Please note that anonymity and confidentiality are different concepts. Anonymity means the complainant is not known whereas confidentiality means that the complainant is known to the authority, but their identity has been withheld for a specific reason.

The receipt of the complaint will be acknowledged in writing within 5 working days of receipt. The Monitoring Officer will keep the Complainant informed of the progress of their complaint using the contact details they have provided. 

The Monitoring Officer will write to the Councillor who has been complained about, informing them that a complaint has been received (unless a request to withhold this information has been granted) together with the nature of the complaint. The Councillor will be advised not to contact the Complainant and asked to provide their comments on the complaint. This can help the Council decide whether a matter can be dealt with informally without the need for a formal investigation.

The Councillor will be given 10 working days to comment upon the complaint details. At this stage no judgement has been made whether the allegations are true.

The Monitoring Officer may contact the Complainant for clarification of any matters contained in the complaint and carry out preliminary enquiries such enquiries will remain be limited to readily available public records so as not to extend to a more formal investigation.

The Monitoring Officer will also inform the Leader and Chief Whip of the respective political party (where applicable) that a complaint has been made, the name of the Councillor subject to the complaint and a brief summary of the nature of the conduct complained about. Where the complaint relates to a Parish or Town Councillor the Clerk will be informed that a complaint has been made, the name of the Councillor subject to the complaint and a brief summary of the nature of the conduct complained about.

The Complaints Procedure is set out in the flowchart attached at Appendix 1. A more detailed description of the procedure is set out below.

Will the complaint be investigated?

The Monitoring Officer will review each complaint received under a two-step process,

1. the first stage being ‘can we deal with this complaint? – The Intake Test Appendix 2.
2. the second being ‘should we deal with this complaint? – The Assessment Test Appendix 2.

The Monitoring Officer will consult with the Independent Person before taking a decision whether the complaint passes or fails. If the complaint fails one or both of these tests it cannot be investigated as a breach of the Code of Conduct and the Complainant will be informed that no further action will be taken in respect of the complaint and the reason(s) for this.

Further to application of the tests, the Monitoring Officer can decide the complaint:

• Merits no further action
• Whether to attempt informal resolution
• Merits formal investigation
• Should be referred to the Standards Sub-Committee

This decision will normally be taken within 28 working days of receipt of the complaint. If this takes longer the Monitoring Officer will update the Complainant and the Councillor explaining why.

Even if a complaint seems to be ‘politically motivated’ it may nevertheless be highlighting a potentially significant breach of the Code which cannot be ignored and therefore it will be considered if it is in the public interest to take further action on a complaint.

In appropriate cases the Monitoring Officer may, in consultation with the Independent Person, seek to resolve the complaint informally, without the need for a formal investigation. Informal resolution may involve the Councillor agreeing that their conduct was unacceptable and offering an apology or agreeing to other remedial action by the Council. Where the Councillor or the Council make a reasonable offer of informal resolution, but the Complainant is are not willing to accept the offer, the Monitoring Officer will take account of this in deciding whether the complaint should be investigated further.

If the Monitoring Officer decides to take no action over in relation to the complaint, then as soon as possible after making the decision, both the Complaint and the Councillor will be notified of the decision and the reasons for that decision, including the views of the Independent Person.

Where the Councillor is a Parish or Town Councillor and the authority has decided to take some action with regard to the complaint, the relevant Parish or Town Council will be also be notified via the Clerk. In doing so the Monitoring Officer will need to consider whether any of the information is confidential. Where the Councillor is a Bassetlaw District Councillor and the authority has decided to take some action with regard to the complaint, the relevant political party Leader and Chief Whip (where applicable) will be also be notified. In doing so the Monitoring Officer will need to consider whether any of the information is confidential.

There is no legislative requirement for a decision notice to be published. On a case-by-case basis the Monitoring Officer will consider whether an assessment notice should be published in the public interest or not in the same way as they would if it were a committee decision.

If the complaint identifies criminal conduct or breach of other regulation by any person, the Monitoring Officer will inform the Complainant of this and may notify the Police or other regulatory agencies.

How is the investigation conducted?

The Council has adopted a procedure for the investigation of complaints against Councillors, which is attached as Appendix 3.

If the Monitoring Officer in consultation with the Independent Person decides that a complaint merits further investigation, they may appoint an Investigating Officer. 

If the nature of the complaint is relatively straightforward then the Investigating Officer can be an Officer of the Council or an Independent Person who is has the requisite experience to carry out the investigation.

The Investigating Officer or Monitoring Officer will decide whether they need to meet the Complaint or speak to them. This may help them to understand the nature of the complaint, enable the Complainant to explain their understanding of events and suggest what documents need to be seen, and who needs to be spoken to.

The Investigating Officer or Monitoring Officer will write to the Councillor against whom the complaint is about. The Councillor may be provided with a full copy of the complaint. The Councillor will be asked to provide their view on the complaint, and to identify any documents that may need to be seen.

In exceptional cases, where it is appropriate to keep the complainants' identity confidential (see above) or limit disclosure of details of the complaint to the Councillor as this might prejudice the investigation, the Investigating Officer or Monitoring Officer can delete the Complainants and address from the papers given to the Councillor, or delay notifying the Councillor until the investigation has progressed sufficiently.

Any information received during the course of an investigation will be treated as confidential to the investigative process until the investigation is completed unless there is a statutory requirement to disclose it. All parties involved in the conducting of the investigation are reminded as to the confidential nature of the proceedings.

At the end of their investigation, the Investigating Officer or Monitoring Officer will produce a draft report (“the Investigation Report”). Where the Investigation Report is not prepared by an Investigating Officer who is not the Monitoring Officer, the Monitoring Officer will review the draft report to ensure it is of acceptable quality to be put before the Standards Sub-Committee. If the recommendation from the Investigator is that there is no breach of the Code before any draft report is circulated the views of the Independent Person will be sought on this matter.

Once the draft Investigation Report is finalised a copy will be sent, in confidence, to the Complainant and to the Councillor concerned. This will give both parties an opportunity to identify any matter in the draft report which they disagree with, or they feel requires more consideration. The Investigating Officer or the Monitoring Officer are under no obligations to accept any comments made but where they do not accept comments they will make a note explaining why. Where there have been significant changes a second draft Investigation Report can be issued at the discretion of the Monitoring Officer.

Having received and taken account of any comments which the Complainant and to the Councillor concerned may make on the draft Investigation Report the Monitoring Officer or Investigating Officer will prepare a final report. The Investigation will be regarded as complete with the Monitoring Officer receives the final report and accepts no further investigation is necessary.

A copy of the Final Investigation Report will be sent to:

• the Councillor;
• the Complainant;
• the relevant Independent Person;
• the relevant town or parish council if the Councillor is a town or parish Councillor; and/or
• The relevant Leader and Chief Whip of the political party if the Councillor is a District Councillor.

On completion of an investigation, the Monitoring Officer may decide:

• to take no further action;
• to seek to resolve the matter informally; or
• to refer the matter to the Standards Sub-Committee

In doing so the Monitoring Officer will consult with the Independent Person.

What happens if the Investigating Officer or Monitoring Officer concludes that there is no evidence of a failure to comply with the Code of Conduct? 

If the Monitoring Officer (after consultation with the Independent Person) is satisfied that there is no evidence to support a failure to comply with the code of conduct, the Monitoring Officer will write to the Complaint and to the Councillor concerned, notifying the Complainant that they are satisfied that no further action is required.

Where an Investigating Officer has been appointed, and Monitoring Officer is not satisfied that the investigation has been conducted properly, the Monitoring Officer may ask the Investigating Officer to reconsider their report before doing so the Monitoring Officer will consult with the Independent Person.

Publishing of the Investigation Report

Where a matter has been referred to the Standards-Sub Committee the report will not be published as the report will be considered at the hearing.

Where the Monitoring Officer has concluded that there has been no breach, that no further action is needed, or the matter has been resolved in some other way the report will not be published, but the matter will be reported to the Audit and Governance Committee.

If the matter has generated local interest the Monitoring Officer may consider putting out a brief statement explaining the outcome and their reasoning.

What happens if the Investigating Officer or Monitoring Officer concludes that there is evidence of a failure to comply with the Code of Conduct?

Where the Investigation Report demonstrates evidence of failure to comply with the code of conduct the Monitoring Officer will then either send the matter for a hearing before a Standards Sub-Committee or, in consultation with the Independent Person, seek an informal resolution.

Informal Resolution - The Monitoring Officer may consider that the matter can be resolved without the need for a hearing.  In such a case, the Monitoring Officer will consult with the Independent Person and with the Complainant to seek to agree what the Complainant may consider to be a fair resolution which also helps to ensure higher standards of conduct for the future.  Such resolution may include the Councillor accepting that their conduct was unacceptable and offering an apology, and/or agreeing to other remedial action by the Council.  If the Councillor complies with the suggested resolution, the Monitoring Officer will take no further action, other than reporting the matter to the Audit and Governance Committee (and the Parish/Town Council) for information.  

Hearing - If the Monitoring Officer considers that informal resolution is not appropriate, or the Councillor concerned does not agree that the proposed remedial action is appropriate such as giving an apology, then the Monitoring Officer will refer the Investigation Report to a Standards Sub-Committee which will conduct a hearing before deciding whether the Councillor has failed to comply with the Code of Conduct and, if so, whether to take any action in respect of the Councillor.  The Council procedure for hearing complaints is attached at Appendix 4. Once the Monitoring Officer has submitted the Investigation Report to the Standards Sub-Committee the Complainant and the Councillor will not be able to introduce any further points of complaint or evidence without the consent of the Sub-Committee.

Before taking either of the above steps the Monitoring Officer will first consult the Independent Person.

What is the Standards Sub-Committee?

Full details are contained in Appendix 6.

What action can the Standards Sub-Committee take where a Councillor has failed to comply with the code of conduct?

The Council has delegated powers to the Audit and Governance Committee to take charge of standards and Code of Conduct as set out at Appendix 5.

Further, the Council has delegated powers to the Standards sub-committee to take action in respect of individual Councillors. The powers of the sub-committee are set out at Appendix 5a.

Arranging a Hearing

Wherever possible the hearing will take place within 3 months of the date on which the investigator’s report was completed. Where that is not possible, for example because the matter is awaiting the outcome of other matters being dealt with by outside bodies or other investigations into the Councillor, the Monitoring Officer will notify the relevant parties of the reason for the delay and provide an estimated timescale.

The hearing should not take place sooner than 14 days after the Investigation Report has been issued. This is to allow the Councillor sufficient time to prepare their defence and consider any witnesses they may wish to call.

Once a date has been set for a Hearing the Monitoring Officer will notify:

• the Councillor;
• the Complainant;
• the relevant Independent Person;
• the relevant town or parish council if the Councillor is a town or parish Councillor; and/or
• The relevant Leader and Chief Whip of the political party if the Councillor is a District Councillor.

If the Councillor is unable to make the specified date the Sub-Committee may arrange for the hearing to be held on a different date, provided that they are satisfied that the Councillor has given an acceptable reason. Where the s Councillor does not give an acceptable reason or does not reply within a specified time, the panel should proceed with the date and may consider the report in the Councillor’s absence if the Councillor does not go to the hearing. The Councillor should not be able to evade having the case heard simply by refusing to cooperate. If the relevant code is the LGA Model Code this makes failure to cooperate a potential breach.

If one or more witnesses are unavailable on the given date the Monitoring Officer, in consultation with the chair of the Sub-Committee, should decide how material they would be to the hearing and whether another hearing should be re-arranged.

What happens at the end of the hearing? 

At the end of the hearing, the Chair will state the decision of the Standards Sub-Committee whether the Councillor failed to comply with the Code of Conduct and as to any actions which the Sub-Committee resolves to take.

As soon as reasonably practicable thereafter, the Monitoring Officer will prepare a formal decision notice in consultation with the Chair of the Sub-Committee, and send a copy to:

• the Councillor;
• the Complainant;
• the relevant Independent Person;
• the relevant town or parish council if the Councillor is a town or parish Councillor; and/or
• The relevant Leader and Chief Whip of the political party if the Councillor is a District Councillor.

The decision notice will be available for public inspection, published on the Councils website and will be reported to the next convenient meeting of the Audit and Governance Committee.

What sanctions are available following a hearing?

Full details are contained in Appendix 5A.

When deciding on a sanction, the Sub-Committee will ensure that it is reasonable, proportionate and relevant to the Councillors behaviour. Before deciding what sanction to issue, the panel will consider the following questions, along with any other relevant circumstances:

• What was the Councillors intention?
• Did the Councillors know that they were failing to follow the Code of Conduct?
• Did the Councillors get advice from officers before the incident? Was that advice acted on or ignored?
• Has there been a breach of trust?
• Has there been financial impropriety, for example improper expense claims or procedural irregularities?
• What was the result or potential result of failing to follow the Code of Conduct?
• How serious was the incident?
• Does the Councillor accept they were at fault?
• Did the Councillor apologise to the relevant people?
• Has the Councillor previously been warned or reprimanded for similar misconduct or failed to follow the Code of Conduct before?
• Is the Councillor likely to do the same thing again?
• How will the sanction impact on the Councillors' ability to carry out their role?

Sanctions involving restricting access to an authority’s premises or equipment or contact with officers should not unnecessarily restrict the Councillors' ability to carry out their responsibilities as an elected representative or co-opted member.

The Sub-Committee will also consider any aggravating and mitigating factors.

Can this procedure be changed?

The Council will keep under review the Code of Conduct Complaints Procedure and may agree (by resolution) to amend these arrangements.

The Council has delegated to the Chair of Audit and Governance Committee the right to depart from these arrangements where the Chair considers that it is expedient to do so in order to secure the effective and fair consideration of any matter put before them.

Can I challenge decisions made under this procedure?

There are no rights of review of decisions taken under the procedure, other than the right to challenge the process by way of Judicial Review or referral to the Local Government Ombudsman if appropriate.

Appendix 1

Appendix 2

Criteria for Assessment of Complaints against Members relating to the Code of Conduct. 

Initial Intake Test 

Before assessment of a complaint begins, the complaint has to meet the following tests: 

Criteria	Yes	No
It is a complaint against one or more named Councillor(s) of Bassetlaw District Council or one or more named Councillor(s) of one of the Parish/Town Council(s) within the Bassetlaw District Council administrative area.
The Subject Member was a Councillor at the time of the alleged conduct.
The behaviour complained of occurred within the last 3 calendar months (calculated from the date upon which the complaint is received by the Council).
The complainant has given their name and address.
The complaint is an allegation under the Code rather than a service, officer or a statement of policy disagreement,
The complaint is not an allegation that could constitute a criminal offence (Section 34 of the Localism Act 2011)
The complaint is not being dealt with by the police, ombudsman or another complaint process (in this case the complaint will not be processed until after the other process has been completed).
The complaint is not being made within 6 weeks prior to an election (no action will be taken in relation to any complaint within this period).
The complaint is not the same or substantially similar to a complaint that has already been assessed even if this was prior to 1st July 2012.

If the complaint fails one or more of these tests it will not be considered for Assessment and the complainant will be informed that no further action will be taken in respect of the complaint. 

The Councillor(s) concerned will also be told of the complaint and that it had failed the Initial Intake test.

The Monitoring Officer may advise the complainant that the complaint needs to be referred elsewhere, if appropriate.

Assessment Test

The Councillor(s) concerned will be informed of the complaint by being sent a summary or copy of the complaint together with all supporting documentation. They will be asked to give their account in writing withing a specified time period.

The allegations will then be considered by the Monitoring Officer, together with the appointed Independent Person. A complaint will be considered in relation to the following criteria:-

Sufficiency of Complaint

• Does the complaint state sufficient and detailed information as regards the allegation and alleged misconduct to sustain a breach of the Code of Conduct
• Does the complaint and related documents include sufficient independent evidence supporting the claim and establishing the facts on which it is based such as witness statements and documentary evidence to show a reasonable prospect of establishing a breach of the Code of Conduct
• Can it be shown that the Subject Member was acting in a public capacity
• Can it be shown that the behaviour falls within the relevant Code of Conduct

Evidence

• Is the evidence sufficiently reliable i.e. is it first-hand evidence or hearsay evidence
• What weight can be given to the evidence
• Is the evidence relevant to the alleged breach
• Could any further evidence be revealed by an investigation

Suitability for Investigation

• Is it sufficiently serious
• Would an investigation serve any useful purpose
• Have the circumstances changed
• Is it serious enough to warrant a sanction
• Is the conduct seriously and unreasonably disrupting the business of the authority
• How long ago did the alleged conduct occur
• Is an investigation likely to prove on the balance of probability that a breach took place
• Is it likely that an investigation will prove only a technical or inadvertent breach
• Has the same or a substantially similar complaint already been the subject of an investigation
• Is the complaint really about dissatisfaction with a Council decision
• Is the complaint about the administrative practices of the Council rather than a Member’s behaviour

Extenuating Circumstances

• Has the issue been publicised in the local press
• Is the complaint malicious
• Is the complaint minor
• Is the complaint tit for tat
• Is the case politically motivated

Possible Defences

• Was the breach made in all innocence i.e. without knowledge
• Are there strong mitigating circumstances
• Was there provocation

In order to facilitate the making of a decision the following definitions are given:-

• Lack of respect means derogatory comments that are aimed at a person or their personal qualities. However Members should be able to express disagreement publically with each other and have the freedom to disagree with the views and opinions of others.
• Bullying or intimidation means offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate, or injure the recipient (Advisory, Conciliation and Arbitration Service (Acas)). Such conduct is unlikely to be considered as bullying when it is an isolated incident of a minor nature or when the behaviour by both the complainant and the Subject Member contributed equally to the breakdown in relations.

The Monitoring Officer will evaluate and weigh up the above criteria in reaching a decision. 

The Monitoring Officer will make one of the following decisions:-

• No further action
• Attempt informal resolution
• Recommend formal investigation
• Referral to Standards Committee

The complainant, the Councillor(s) concerned, the relevant Parish Clerk and the Leader and Chief Whip of the relevant political party (if applicable) will be informed of the outcome.

There may be certain complaints where the Monitoring Officer feels the need to make a referral to the Standards Sub-Committee.  Such referrals will take place according to the criteria set out below.

Complaints which may be referred to the Standards Sub-Committee

1. It is serious enough, if proven, to justify the range of actions available to the Standards Sub-Committee; or
2. There are individual acts of minor misconduct which appear to be a part of a continuing pattern of behaviour that is unreasonably disrupting the business of the Council and there is no other avenue left to deal with it other than by way of an investigation.
3. When the complaint comes from a senior officer of the Council, such as the Chief Executive or the Monitoring Officer and it would be difficult for the Monitoring Officer to investigate; or
4. The complaint is about a high profile Member such as the Leader of the Council and it would be difficult for the Monitoring Officer to investigate.
5. Such other complaints as the Monitoring Officer considers it would not be appropriate for him to investigate.

Whilst complainants must be confident that complaints are taken seriously and dealt with appropriately, deciding to investigate a complaint or to take further action will cost both public money and officers’ and members’ time. This is an important consideration where the complaint is relatively minor.

Appendix 3

Standards Complaints Investigation Procedure.

A written record will be maintained to demonstrate what was considered at the start of each investigation and plan how the investigator intends to carry out the investigation, the paragraphs of the code that may have been breached, the facts the investigator needs to determine to establish, the evidence the investigator will need to collate, how the investigator plans to gather the evidence and how long it will take the investigator to conclude investigation. There is no provision in the Localism Act 2011 compelling Councillors or witnesses to cooperate with the investigation.

On receipt of instructions to carry out an investigation from the MO/ ensure sufficient detail is received to commence an investigation.

A written Investigation Report will be prepared for consideration by the Council’s Monitoring Officer (MO).

1. On receipt of instructions to carry out an investigation from the Monitoring Officer, ensure sufficient details is received to commence and investigation (acknowledge receipt).
2. Identify:
   1. Whether further information from the complaint is required
   2. What paragraphs of the code are alleged to have been breached 
   3. The facts which need to be determined to establish if the member has breached the code 
   4. The evidence you need to determine the issues 
   5. How you plan to gather the evidence 
   6. How long it is likely the investigation will take
3. Contact the complainant and request any supporting or further documentary evidence relating to the complaint. Contact subject Member with details of the complaint and seek explanation. 

All investigations will bear in mind the following principles:

• Proportionality - That is, the investigation should strive to be proportionate to the seriousness or complexity of the matter under investigation. Where a matter is straightforward or relatively simple, for example where the facts are not in dispute, there may be no need for any formal investigation, but a report can simply be written up (see attached table). Equally not all of the steps in this guidance need be followed in every instance of a formal investigation – a judgment must be made in each case based on its complexity and contentiousness.
• Fairness - The investigation should make sure that the subject member knows what they are accused of and has an opportunity to make comments on the investigation, including on a draft report. Again, this may depend on the nature of the complaint – for example, an alleged failure to declare an interest may be largely a factual matter which needs little or no investigation rather than one that needs to involve evidence from other parties. A councillor quickly admitting to an error may not need further detail to be probed.
• Transparency - As far as is practical and having regard to an individual’s right to confidentiality, investigations should be carried out as transparently as possible – all parties should be kept up to date with progress in the case.
• Impartiality - An investigator should not approach an investigation with pre-conceived ideas and should avoid being involved where they have a conflict of interest.

The Investigator will note the obligations under the Data Protection Act 2018, UK General Data Protection Regulations the Human Rights Act 1998 and other relevant legislation, when carrying out an investigation.

Evidence of new breaches

During the course of an investigation, the Investigator may uncover evidence of conduct by Councillors that breaches the Code of Conduct but extends beyond the scope of the current investigation.

The powers of the Investigator only to the allegation that they have been given. While that means they may consider other parts of the Code than those initially considered if they are relevant to the matter in hand, they may also uncover evidence of a possible breach that does not directly relate to the allegation they are investigating. If this happens, they should tell the person they obtained the information from that you cannot investigate the possible breach as part of your existing investigation. They will tell them that they may wish to make a separate complaint to the Council but it will be dealt with under a separate matter.

Alternatively, if the matters are serious issues in the view of the Investigator they may wish to refer the matters to the Council themselves yourself as a new complaint for them to make an initial assessment on.

Referring cases back to the Council

During the course of an investigation, it may be necessary to review if an investigation remains the right course of action, for example, if:

• The Investigator believes that evidence is uncovered suggesting a case is less serious than may have seemed apparent to the Council originally and that a different decision might therefore have been made about whether to investigate it or not;
• The Investigator concludes after examining the matter in detail that in fact the matters under investigation were not done by the Councillor complained of in their role as a councillor or as a representative of the authority but rather in a private capacity;
• The Investigator has uncovered something which is potentially more serious and the Council may want to consider referring it to the police, for example;
• The Councillor has died, is seriously ill or has resigned from the Council and the Investigator is of the opinion that it is no longer appropriate to continue with the investigation;
• The Councillor has indicated that they wish to make a formal apology which the Investigator considers should draw a line under the matter.

Ultimately it will be for the Monitoring Officer to conclude whether the investigation should continue. In reaching that decision, the Monitoring Officer will consult with the Independent Person before deciding to defer or end the investigation.

Deferring an investigation

An investigation may be deferred when:

• There are ongoing criminal proceedings or a police investigation into the councillor’s conduct;
• The Investigator cannot proceed with their investigation without investigating similar alleged conduct or needing to come to conclusions of fact about events which are also the subject of some other investigation or court proceeding;
• The investigation might prejudice another investigation or court proceeding.
• When there is an ongoing investigation by another regulatory body;
• Because of the serious illness of a key party;
• Due to the genuine unavailability of a key party.

If at any time during the investigation the Investigator becomes aware of any circumstances that will require the investigation to be deferred, they will consult with the Monitoring Officer (if it is not the Monitoring Officer carrying out the investigation). The Monitoring Officer may also wish to consult with the Independent Person before notifying the Complainant and the Councillor of the deferral.

A deferred investigation will be kept under regular review. Once a decision is taken to begin the investigation again the following persons will be notified in writing:

• The Councillor;
• the Complainant;
• the relevant Independent Person; and
• the relevant town or parish council if the subject member is a town or parish Councillor.
• The relevant Leader and Chief Whip of the political party if the Councillor is a District Councillor.

Refusal by the Councillor or other relevant party to cooperate, for example by not making themselves available for an interview without good reason, should not be a reason for delay but will be reflected in the report. If the Councillor refuses to cooperate that of itself is a potential breach of the Model Code (if the LGA Model Code is being used) and may be something that any decision maker in a case may want to take account of.

If the matter has been deferred or ended you should notify the subject member and the complainant of the decision and provide timescales within which the matter will be dealt with if it has been deferred. This would not always be appropriate, however, particularly if the matter has been referred to the police.

Appendix 4

Complaints - Standard Sub-Committee Procedure.

Pre-Meeting

The Sub-Committee Members will hold a private pre-hearing prior to the hearing, this can be done in writing.

The purpose of the pre-hearing process is to allow matters at the hearing to be dealt with more fairly and economically allowing possible areas of difficulty and, if possible, allows them to be resolved before the hearing itself.

The pre-hearing should also decide who will chair the panel.

The Sub-Committee Members will:

• Decide whether any of the findings of fact in the investigation report are in dispute and, if so, how relevant they are likely to be at the hearing.
• Consider any additional evidence it considers is required at the hearing.
• Identify any witnesses it thinks it would want to hear from.
• Decide if witnesses which the Councillor or Investigating Officer may want to call are relevant bearing in mind the nature of the issue and the need for proportionality.
• Consider whether there are any parts of the hearing that are likely to be held in private or whether any parts of the investigation report or other documents should be withheld from the public prior to the hearing, on the grounds that they contain ‘exempt’ material. The presumption should be to hold a public hearing unless there is specific exempt or confidential information as defined by Part VA of the Local Government Act 1972. Identifying this at the pre-hearing will have some bearing on publication of any relevant papers.
• Identify any potential conflicts of interest, for example any close associations with the people involved or potential witnesses. The Monitoring Officer will advise if any conflicts mean that a Councillor should stand down from the Sub-Committee.

At the pre-hearing Sub-Committee Members will not debate the merits of the case.

Hearing

1. Quorum
   
   1. Three Members must be present throughout the hearing to form a quorum.
   2. Members will be drawn from the Audit & Governance Committee, where possible reflect the political balance of the Council. Any Member sitting will have received appropriate training from the Monitoring Officer.
   3. The Sub-Committee shall confirm the Chair for the meeting.
      
      
2. Opening
   1. The Chair explains the procedure for the hearing and reminds all parties to turn off mobile phones, audible alarms and pagers etc.
   2. The Chair asks all present to introduce themselves.
   3. The Councillor will be asked whether they wish to briefly outline their position.
      
      
3. The Complaint
   1. The Investigating Officer shall be invited to present their report including any documentary evidence or other material (and to call witnesses as required by the Investigating Officer).  This report and documentary evidence must be based on the complaint made to the Council – no new points of complaint or evidence which post-dates the Investigation Report shall be allowed without the consent of the Sub-Committee.
   2. The Councillor against whom the complaint has been made (or their representative) may question the Investigating Officer upon the content of their report and any witnesses called by the Investigating Officer. (This is the Councillor’s opportunity to ask questions rising from the Investigators report and not to make a statement).
   3. The Independent Person may question the Investigating Officer upon the content of their report and/or any witnesses called by the Investigating Officer.
   4. Members of the Sub-Committee may question the Investigating Officer upon the content of their report and/or any witnesses called by the Investigating Officer.
      
      
4. The Councillor's Case
   1. The Councillor against whom the complaint has been made (or their representative) may present their case (and call any witnesses as required by the Councillor or their representative).
   2. The Investigating Officer may question the Councillor and/or any witnesses.
   3. The Independent Person (if in attendance) may question the Councillor and/or any witnesses.
   4. Members of the Sub-Committee may question the Councillor and/or any witnesses.
      
      
5. Summing Up
   1. The Investigating Officer may sum up the Complaint.
   2. The Councillor (or their representative) may sum up their case.
   3. The Independent Person will be invited to give their views to the Sub-Committee. This is done in the open session so that all sides can have a chance to challenge them as necessary.
      
      
6. Decision
   1. Members of the Sub-Committee will deliberate in private to consider the complaint. The Monitoring Officer, if they have not been the Investigating Officer will retire with the Sub-Committee to give advice on matters of procedure and law. If the Monitoring Officer is the Investigating Officer independent legal advice will be sourced for the Sub-Committee.
   2. Upon the Sub-Committee’s return the Chair will announce the Sub-Committee’s decision in the following terms:-

      (a) The Sub-Committee decides that the Councillor has failed to follow the Code of Conduct or
      (b) The Sub-Committee decides that the Councillor has not failed to follow the Code of Conduct

      The Sub-Committee will give reasons for their decision.

   3. If the Sub-Committee decides that the Councillor has failed to follow the Code of Conduct the Panel will consider any representations from the Investigator and/or the Councillor as to:

      (a) Whether any action should be taken, and
      (b) What form any action should take

      The Independent Person will be invited to give their views to the Sub-Committee. This is done in the open session so that all sides can have a chance to challenge them as necessary.

   4. The Sub-Committee will then deliberate in private to consider what action if any should be taken.

   5. On the Sub-Committee’s return the Chair will announce the Sub-Committee’s decision (in relation to a Parish/Town Councillor a recommendation to the Parish/Town Council).

   6. On the Sub-Committee’s return the Chair will announce the Sub-Committee’s decision (in relation to a Parish/Town Councillor a recommendation to the Parish/Town Council).

   7. The Chair will confirm that a full written decision shall be issued within 7 working days following the hearing and that the Sub-Committee’s findings to be published.
      
      
7. Miscellaneous Matters
   1. The rules around access to information also apply as they do to other committees – that is the hearing will be in public unless there are lawful reasons for all or part of it to be heard as exempt or confidential matters.
   2. The Sub-Committee does not hear evidence under oath, but it does decide factual evidence on the balance of probabilities.
   3. The panel will work at all times in a demonstrably fair, independent and politically impartial way.
   4. The Councillor may choose to be represented by counsel, a solicitor, or by any other person they wish. This will have been agreed at the pre-hearing and if the Sub-Committee has any concern about the person chosen to represent the subject member, they will have raised this prior to the hearing. The Sub-Committee has the right to withdraw its permission to allow a representative if that representative disrupts the hearing.
   5. If the Sub-Committee Members believes, however, that questions are irrelevant or oppressive then the chair should stop that particular line of questioning.

Appendix 5

Council Constitution. 

Part 3 - Responsibility for Functions - Members. 

Audit and Governance Committee.

Standards of Conduct

39. To promote and maintain high standards of conduct by Members and Co-opted Members of the Council.
40. To advise  and  assist Parish  Council(s)  and  Parish  Councillors to  maintain  high standards of conduct and to make recommendations to Parish Councils on improving standards or on actions following a finding of failure by a Parish Councillor to comply with the Code of Conduct.
41. To conduct hearings on behalf of Parish Councils as and when required.
42. To advise the Council on the adoption or revision of the Members’ Code of Conduct.
43. To receive reports from the Monitoring Officer and assessing the operation and effectiveness of the Members Code of Conduct. The Monitoring Officer shall report the outcome of all complaints to the Committee, including those complaints which failed the Initial Intake Test and Assessment Test.
44. To advise, train or arrange training for Members and Co-opted Members on matters relating to the Members’ Code of Conduct.
45. To hear and determine complaints about Members and Co-opted Members referred to it by the Monitoring Officer in respect of alleged breaches of the Member Code of Conduct.
46. To maintain  oversight  of  the  Council’s  arrangements for  dealing  with  standards complaints.
47. To inform  Council  and  the  Chief  Executive  of  relevant  issues  arising  from  the determination of Code of Conduct complaint.
48. To grant dispensations after consultation with the Independent Person pursuant to S33(2) (b), (c) and (e) of the Localism Act 2011.
49. To hear  and  determine  appeals  against  refusal  to  grant  dispensations  by  the Monitoring Officer pursuant to S33(2)(a) and (d) of the Localism Act 2011.

Other Matters

• Audit and Governance Committee

The Audit and Governance Committee reports to Council.

The Standards sub-committee reports to the Audit and Governance committee.

• Appointment of Substitute Members

Any named Member of the Council, who is not a Member of the Cabinet, may be appointed as a substitute Member of the Audit Governance Committee.

• Sub-Committees/Working/Consultation Groups appointed by and reporting to the Audit and Governance Committee

The Audit and Governance Committee may appoint a sub-committee to conduct a Hearing into an allegation that a Member or Co-opted Member has breached the Authority’s Code of Conduct.

The Chairman and any member of the Standards sub-committee must be a member of the Audit and Governance Committee.

The Audit and Governance Committee may appoint a Constitution Working Group to make recommendations on any potential amendments to the constitution.

• Monitoring Officer

Unless otherwise restricted by legislative or regulatory provision the Audit and Governance Committee may delegate  any  of  its  functions  relating  to Standards to the Monitoring Officer.

• Lead Officers

Director of Corporate Resources and Head of Finance and Property          

Standards Sub-Committee

1. To conduct hearings on behalf of the Audit and Governance Committee following complaints received against district councillors or parish councillors, relating to the Members Code of Conduct.
2. Following a Hearing, the Sub-Committee may make one of the following findings:

• That the Member has not failed to comply with the Code of Conduct and no further action needs to be taken in respect of the matters considered at the Hearing
• That the Member has failed to comply with the Code of Conduct but that no further action needs to be taken in respect of the matters considered at the Hearing
• That the Member has failed to comply with the Code of Conduct and that a sanction and/or an informal resolution should be

The Sub-Committee may impose any action or combination of actions available to it as set out in the Council’s Code of Conduct Complaints Procedure, or impose any informal resolution or  combination of  informal resolutions as are available to it by law or policy.

After making a finding the sub-committee shall, as soon as reasonably practicable provide written notice of its findings and the reasons for its decision to the Member and complainant.

Other Matters

• The Audit and Governance Committee

The Standards Sub-Committee reports to the Audit and Governance Committee.

• Training

A member appointed to the Audit and Governance Committee may not speak and/or vote at a meeting of the Committee of Sub-Committee in relation to an investigation and/or taking action on a complaint until he/she has undertaken appropriate training approved or organised by or on behalf of the Council.

• Lead Officer

The Monitoring Officer

• Lead Officer

The Monitoring Officer

Appendix 5a

The Council has delegated to the Sub-Committee such of its powers to take action in respect of individual members as may be necessary to promote and maintain high standards of conduct.  

There is no definitive list of possible sanctions. If the Sub-Committee finds that a Councillor has failed to follow the Code of Conduct and that they should be sanctioned, it needs to be clear which sanctions it has the power to impose and which matters are reserved to council or need to be referred to a relevant political group.

Accordingly the Sub-Committee may:

1. Publish its findings in respect of member conduct;
2. Recommend to Council that he/she be issued with a formal censure (or to the Parish Council);
3. Issue a formal letter to the Councillor (or Parish Councillor) found to have breached the code
4. Recommend to the member’s Group Leader (or in the case of un-grouped members, recommend to Council or to Committees) that he/she be removed from any or all Committees or Sub-Committees of the Council subject to statutory and constitutional requirements;
5. Recommend to the Leader of the Council that the member be removed from the Cabinet, or removed from particular Portfolio responsibilities;
6. Instruct the Monitoring Officer to (or recommend that the Parish Council) arrange training for the member;
7. Recommend to the Council removal (or recommend to the Parish Council that the member be removed) from all outside appointments to which he/she has been appointed or nominated by the authority (or by the Parish Council);
8. Withdraw (or recommend to the Parish Council that it withdraws) facilities provided to the member by the Council, such as a computer, website and/or email and internet access; or
9. Exclude (or recommend that the Parish Council exclude) the member from the Council’s Offices or other premises, except meeting rooms as necessary for attending Council, Committee and Sub-Committee meetings.

The Sub-Committee has no power to suspend or disqualify the member or to withdraw members’ or special responsibility allowances.

Any decision of the District Council on sanctions in relation to a Parish Council can only in effect be a recommendation to the Parish Council, who must then itself decide whether to accept the recommendation. The District Council could only make a finding of breach/ no breach and then recommend a course of action to the Parish Council.  The Town/Parish Council cannot overturn the finding that there has been a breach of the Code and if they wish to impose a different sanction they should seek advice from the clerk and/or the monitoring officer. The Sub-Committee will ask the Parish/Town council to report back to the Monitoring Officer within three months to confirm that they have met to discuss the sanction, and if necessary, to write again once the sanction has been fulfilled.

Appendix 6

Standards Sub-Committee and the Independent Person.

What are the Audit and Governance Committee and Standards Sub-Committee?

1. The Standards Sub-Committee will comprise a maximum of 3 Councillors drawn from the Audit and Governance Committee.
2. The Independent Person is invited to attend all meetings of the Standards Sub-Committee. Their views are sought and taken into consideration before the Sub-Committee takes any decision on whether the member’s conduct constitutes a failure to comply with the Code of Conduct and as to any action to be taken following a finding of failure to comply with the Code of Conduct.

Who is the Independent Person?

1. The Independent Person is a person who has applied for the post following advertisement for a vacancy for the post, and is appointed by a positive vote from a majority of all the members of Council.
2. A person cannot be “independent” if he/she:
   • Is, or has been within the past 5 years, a member, co-opted member or officer of the authority;
   • (Is or has been within the past 5 years, a member, co-opted member or officer of a parish
   • council within the authority’s area), or
   • Is a relative or close friend, of a person within both paragraphs above. For this purpose, a “relative” means:
     • Spouse or civil partner
     • Living with the other person as husband and wife or as if they were civil partners;
     • Grandparent of the other person
     • A lineal descendent of a grandparent of the other person
     • A parent, sibling or child of a person within paragraphs a) or b); or
     • A spouse or civil partner of a person within paragraphs c), d) or e); or
     • Living with a person within paragraphs c), d) or e) as husband and wife or as if they were civil partners.
3. Independent Members of the Council’s former Standards Committee cannot become an “Independent Person”. However, transitional arrangements permit the appointment of a former member or co-opted member of the Standards Committee as the Independent Person, provided that:
   • The person in question is not a member or co-opted member of the Standards Committee on 1^st July 2012, and
   • The appointment is made before the 1^st July 2013.

The appointment can run on beyond July 2013, provided it is made by then.

 

 

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Last Updated on Tuesday, November 12, 2024