Agenda item

This report deals with the Review of the Case Assessment and Case Hearings review of the Local Assessment Process conducted by Hoey Ainscough Associates (HAA).

The Interim Monitoring Officer introduced this report following a review of the Local Assessment Procedure which had been undertaken as part of the review of the Code of Conduct. 

 

The Interim Monitoring Officer explained that the review of the procedure undertaken formed two parts, the hearing process and the case handling process  Also, to be noted in reviewing this matter was that the Appendices to the report contained tracked changes to highlight points raised by the Council’s Officer team in reviewing the procedure and those raised by Hoey Ainscough Associates (HAA) who had conducted this review.  The purpose was for the Committee to consider the changes and to confirm if these could be accepted.

 

In view of HAA’s role in this review, Mr Hoey was then invited to explain the detail of the draft document produced and to respond to any questions or queries from Members.  He explained that both appendices had been drafted to be used as internal documents and so once approved there would be the need to draft a simplified procedure for public viewing. 

 

The Committee worked through the Appendices to the report section by section with many issues being raised which have been set out below:

 

Appendix 1 – Case Handling Procedure

 

·         On the Initial Assessment – Paragraph 2 - the wording “This will be completed within 28 working days” had been struck out. Since it had been proposed to reduce this to ten days further on in the documents, the question asked was if this was workable and would this place undue stress onto Officers in terms of meeting this deadline?   Mr Hoey provided clarification in that the 10 days referred to and the 28 days referred to were two completely different elements of the process. The 28 days was saying that when a complaint was submitted, the Monitoring Officer (MO) had 28 days to complete the process, to decide if any action should or should not be taken.  The 10 days referred to later formed part of the process where the Subject Member (SM) would be invited to comment on the complaint before them – it was at that time that the SM had 10 days, within the 28 day timeframe to provide their views.

·         Concerns were expressed on this and reassurance was requested that the timeframe for complaints would not be extended to 38 days as this would make it too stressful for those involved. Mr Hoey confirmed that the 28 days was an absolute and that the 10 days were a sub-set within those 28 days. He then reminded Members of the process and the timeline in place for processing and dealing with complaints.  There were Councillors who were not happy with the wording in this section stating that it was not clear.  It was agreed that this would be looked at again and that the wording “This will be completed within 28 working days” should be reinstated in this paragraph.

·            Paragraph 3 stated that anonymous complaints would not be accepted unless the MO concluded that there was a compelling public interest. The rationale behind this was questioned as some Councils did allow these and some didn’t.  Mr Hoey outlined that some Councils had dealt with anonymous complaints as they had sufficient evidence and seriousness that they should and could be investigated as the evidence was sufficient. In most cases, it was not possible to pursue these types of complaints without knowing who the complainant was.

·            A suggestion was made that a simple flowchart be inserted to illustrate the process more simply.  Mr Hoey responded stating that once the procedure was in its final form; this would be a great approach to use with the public facing document.

·            Paragraph 7 – An Independent Person (IP) thought that it might be helpful to set out how and with whom the IP’s confidence in this part of the process was shared in terms of transparency so that it was clear whether the IP’s part in the process was being shared with just the MO or with a wider audience and/or the complainant.  Mr Hoey outlined that there were some Information Commissioner cases around this in terms of at what stage could the IPs views be disclosed. He presented his views confirming at this stage in the process (Initial Assessment) it be kept simple with the complainant being told that an IP had been consulted and had agreed with their views but not disclosing these as they were confidential but later in the process, when an IP was giving views at a hearing, then those views would be public views and needed to be published as part of the decision notice.  Mr Hoey confirmed that he would be happy to reflect this in the process, but caution needed to be raised in terms of it being too open and transparent at this stage in the process.

·            Concerns were expressed on the fact that the Council had no authority to deal with complaints which related solely to a Councillor’s private life or things they did which were not related to their role as a Councillor.  Clarification was sought. Mr Hoey confirmed that the law [the Localism Act 2011] was very clear in that the Code of Conduct could only apply when acting as a Councillor – the law did not allow for investigation into Code of Conduct complaints when these were about a Councillor’s private life or what they may have placed onto social media as an individual rather than a Councillor.  This explanation generated many questions and queries in terms of examples and instances where it had been seen that this was not the case.

·            Lengthy discussion then took place on this matter and it was felt that the final sentence to Paragraph 5 [The Council has no authority to deal with complaints which relate solely to a Councillor’s private life ……. Should be deleted. This was because in the examples discussed, there was no opportunity for such cases to be then investigated further by the MO which was felt to be dangerous and would prevent people from reporting instances and having them heard and then having the judgement made to determine if a breach of the Code had taken place or that the matter was personal and could not be investigated further.

·            On Paragraph 7 – when an IP was invited to take part in an investigation, then that the same IP would be used for all steps in the case handling and hearing parts of the investigation. Mr Hoey agreed that it should be the same IP throughout the process and that this should be made clear in the procedure – he would review and check that this was the case.

·            On Paragraph 10(k) and the additional discretionary factor incorporated around misconduct at formal Council meetings, did this really add anything in terms of picking up additional points and if retained, should it not be made clear that this should apply just as much to Committee meetings not just Council meetings and that it also should apply to Town and Parish Councils, being fairly applied across all tiers of local government. Discussion on this was expanded because this mentioned that the view of the Chairman would be required. What would happen if it was the Chairman of the meeting that was being attacked?  Mr Hoey confirmed that this paragraph had been added at the request of Officers.  The Interim MO outlined that he had been trying to strengthen the role of the Chairman of a meeting [Council or Committee] to make them aware of the sanctions that role had and that they could refer some misconduct to the Standards Committee for investigation.  It was hoped that this might encourage better behaviour and would strengthen the authority of the Chairman of a Committee or Council meeting.  The Interim MO stated that this had been left open for discussion by the Committee.

·            This generated wide discussion with many Members of the Committee not being sure if this should or needed to be included. It was pointed out that there were many differences between being Chairman of the Council and Chairman of a Committee and that these differences needed to be recognised and enforced.

·            Other Members of the Committee were against this being included because in the case of any breach taking place, the process to be followed was clearly set out.

·            Following further discussion, it was agreed that the Interim MO would take another look at this paragraph for the Committee to consider.

 

 Informal Resolution

 

No comments were raised.

 

Investigation

 

·           Paragraph 21 - On the role of IP it was felt by an IP that it should set out exactly what the Subject Member (SM) could seek more from the IP, the role of the IP should be very clearly defined setting out what views the SM could or should be able to consult the IP on and if these should be shared with the MO to reflect good practice.  More clarity on the role and the process for recording such views was thought to be needed.

·           This point was agreed by some Members of the Committee.

·           On Paragraph 22, there were concerns that the SM and the Complainant could speak to the IP – how easy did it then make it for the IP to remain independent?  It was therefore felt that some clarity needed to be applied to Paragraphs 21 and 22 to confirm when a SM or complainant might not have the ability to consult an IP.

·           John Thompson confirmed that this had not at any time been an issue for him during his time as an IP.

·           Mr Hoey confirmed that Paragraph 21 was a statutory requirement and for during the investigation stage. With regard to what the IP could or could not say, he would not wish to write this into the process, however, it was important that there be in place desk instructions that would underline this process; a piece of work to be actioned to ensure that the IP would be aware of what they could and could not say to each party; that it be made clear in any correspondence with the SM that they could consult with the IP.

·           Paragraph 22 was not a statutory requirement meaning that the Council could choose to include this into its processes or not.

·           Arun had four IPs and so it was felt that there was even greater need to fully set out the consistency of the role in relation to Paragraphs 21 and 22 so that it underlined exactly what the IP role was.

 

Hearings Panel

 

·              Paragraph 32 – there was concern from one Member that the word ‘public’ and been crossed out and been replaced with ‘private’.  This was queried as it was this Member’s recollection that hearings in the future should be held in public.  Clarity was requested.  Mr Hoey stated that in his view the law was very clear in that hearings had to be held in public unless there were lawful reasons why a matter needed to be confidential.

·              The Interim MO explained why ‘public’ had been crossed out. He stated that if a hearing was public and papers had been placed into the public domain, if during the course of the hearing there was a need for it to be heard in private session, those papers had already become publicly available. Whereas, if the hearing started in private session, and it was then decided that it could be heard in public, then it could become a public hearing without having put confidential information in the public arena.

·    This response had mixed views and it was felt that perhaps the way the procedure had been written needed to change – it was one Councillor’s view that the hearings should be public.

·    The Interim MO explained the difference at Arun which was the status of the Sub-Committee had been changed to a Panel.  The law required Committees to be open to the public, but Panels could be private bodies. There were some cases when it was clear that the hearing had to be either public or private.

·                     An IP was of the view that it should be public subject to the normal rules being able to be put into place to cover exemption. On Paragraphs 33 [the view of the IP be sought and made public] it needed to be clear in terms of what was meant by ‘public’ – what was the process for this? On Paragraph 36 ‘Sub-Committee’ needed to be changed to ‘Hearings Panel’ to be compatible with the rest of the procedure. Steps for the IPs views to be shared before the Panel retired, also needed to be built into the procedure. This had been built into the procedure later on but not at this point. It was felt that under the procedure for hearings at Paragraph 14 – the IP retiring again to consider what if any sanctions be imposed, needed to be looked at again.

·                      Other Committee Members felt uneasy about hearings being held in public. The minutes which were part of the adjudication process were public documents and this should suffice. Also, a private hearing could become public if it needed to be. The consequences of a holding a hearing in public and the possibility of legal challenge needed to be properly thought through.

·                     A very lengthy discussion followed with the Committee ending up being in the position where it could not agree whether a hearing should be public or private.

·                     It was felt that Paragraph 32 be reworded to reflect the views of the Committee – but the Committee could not agree what its view should be.

·                     Paragraph 33 – it was felt that the IP should retire with the Hearings Panel as the IP had a vital input to the entire process.

·                     It was felt that it should not be for the Hearings Panel to determine if a Panel should be held in public or private session – this should be for the MO to determine.

·                     The draft procedure written made it sound that it was for the Hearings Panel to determine if the hearing should be private or public and there were Members who could not agree to this – referring it to the MO to make that decision.

·                     Mr Hoey to assist explained his understanding of the law and Interim MO explained his.

·                     This left the Committee split in terms of how it should proceed.

 

Following further debate, a consensus decision could still not be reached.  Councillor Bennett then proposed:

 

“Agendas for Hearing Panels shall be published and held in public unless the exemptions set out under the procedure for hearings before a Hearings Panel of the Standards Committee at Paragraph 4 – a) and b) could be applied”

 

Councillor Mrs Warr seconded this proposal.

 

In discussing this amendment, Councillor Bower confirmed that he could not support this and that this would not work and then proposed a further amendment to read:

 

“That the wording as set out at Paragraph 32 under Hearings Panel be accepted, this being that the Hearings Panel will meet in private subject to the normal rules on exempt and confidential information”.

 

Mr Hoey provided further advice and following further debate on Councillor Bennett’s proposal being put to the vote it was declared LOST.

 

The Chairman then returned to Councillor Bower’s counter proposal which he reconfirmed.  Having reconfirmed the wording, the Chairman outlined that this almost duplicated the wording at Paragraph 32, but that with the Committee’s permission, that the wording as follows be added in bold:

 

“The Hearings Panel will meet in private subject to the normal rules on exempt and confidential information being met at Paragraph 4 (a) and (b) of the procedure for hearings. This was agreed by Councillor Bower.  

 

Having got to this stage, Mr Hoey asked if he could provide some further clarity on the views of the Independent Person – as raised by an IP earlier on in the meeting in relation to Paragraph 33. Mr Hoey confirmed that the IP’s views would be given as part of the full session of the Hearing. It was accepted that this did need to be clarified in more detail. He referred to case law confirming that the IP could not then retire with the Hearings Panel.

 

In response, an IP stated that in Paragraph 14 on the procedure for hearings, this stated that the IP would retire again with the Hearings Panel to consider what it any sanction it wished would be imposed.  Mr Hoey outlined that this appeared to be an error and should have read WITHOUT the IP.

 

The Committee then moved on to discuss Annexe 2 – the procedure for hearings and the sanctions available to a Hearings Panel.

 

A query was raised as to whether the SM should remain in the hearing at all times as this had not been listed clearly in the procedure. Mr Hoey confirmed that the SM should be present throughout the hearing so that they could hear the evidence against them. It was agreed that the procedure rules needed to be checked to ensure that this requirement was accurately included.

 

The Chairman made an observation and it was agreed that under Paragraph 35 (j) “if relevant recommend to the Secretary or appropriate official of the Group that the Member be removed as Group Leader of other position of responsibility” should have been carried over to be included in the list of sanctions available to a Hearings Panel”.  This was noted and agreed.

 

The Chairman then returned to the options that were available to the Committee in reviewing the Local Assessment (Case and Hearings) Procedure. 

 

The Committee

 

            RESOLVED 

 

   To adopt the Local Assessment (Case and Hearings) Procedure Review as conducted by Hoey Ainscough Associated Ltd to include the amendments discussed and approved at the meeting.