Introduction
This note sets out the procedure which will be followed in the assessment, investigation and determination of allegations of misconduct by Members. It applies to complaints about the conduct of all who are signatories to Darlington Borough Council’s (“the Council”) Code of Conduct for Council Members. The signatories include elected Members and co-opted Members with voting rights. The note also applies to complaints about the conduct of all who are signatories to the Codes of Conduct of Parish Councils within the Council’s administrative area. The Council has also resolved that the same procedure shall apply to the investigation of allegations of breaches of the Council’s local protocols, insofar as they apply to Councillors. The sanctions under the statutory regulations are not, however, available for breaches of local protocols.
The person making the complaint is referred to in this procedure as the Complainant and the person against whom the complaint is made will be referred to as the Member. No departure will be made from this procedure unless and until the Monitoring Officer (the Borough Solicitor or such other Officer as may be appointed by the Council from time to time) (‘the MO’) has first notified the Member and the Complainant of the proposed variation to the procedure and the reasons for that variation.
2. Brief Summary of the Procedure
When a complaint is made to the Standards Committee about the conduct of a Member, it will first be referred to a sub committee of the Standards Committee, the Assessment Sub Committee. The role of this sub committee is to undertake an initial assessment of the complaint and to decide whether:
· To refer the complaint to the MO for for the complaint to be investigated
· To refer the complaint to the MO for steps other than investigation (such as to seek to effect conciliation or Member re training)
· To refer the complaint to the Standards Board for England (if the Standards Board is the more appropriate body to consider the complaint)
· To ask for additional information from the complainant before concluding the initial assessment
· No action should be taken in respect of the complaint.
If the Assessment Sub Committee decides that there should be no action taken about the complaint the complainant has the right to request a review of the decision. The review will be undertaken by a differently composed sub committee of the Standards Committee, the Review Sub Committee.
The Review Sub Committee will approach the assessment decision afresh and has the same range of possible decisions that it can arrive at as the Assessment Sub Committee.
If a complaint is referred for local investigation then the MO will make arrangements for the compliant to be investigated. This could be undertaken by the MO personally, but will normally be referred to another senior officer or to an external investigator. The investigator will seek to interview witnesses and obtain all relevant papers.
When the investigation is completed a report will be prepared. This will be considered by the Standards Committee. If the Standards Committee determine that there is a case to answer then a formal hearing will be convened to consider the allegation.
At this hearing the investigator will present his report and witnesses may also give evidence and be asked questions. The Member will be present and will be able to ask questions and make representations. At the end of the hearing the Standards Committee will need to decide whether the Member has broken the Code of Conduct. If the Standards Committee decide the Member has broken the Code it will hear representations from the MO and from the Member as to any action which the Committee should take in respect of the Member.
The actions which the Committee may take against the Member may include censuring the Member, requiring a written apology from the Member, requiring the Member to undergo training, requiring the Member to participate in conciliation, imposing restrictions from the Members access to local authority premises or resources for up to 6 months and suspending, or partially or conditionally suspending the Member from being a Member of the Council for a period not exceeding 6 months.
3. Local Assessment and Review
(a) Receipt of Complaint
When a written complaint is received that alleges that a Member has broken the Code of Conduct, the MO will acknowledge receipt of the complaint with the complainant and refer the complaint to the Chair of the Assessment Sub Committee.
(b) The Assessment Sub Committee will be comprised of 3 Members of the Standards Committee. The Chair of the Assessment Sub Committee must be an Independent Member of the Standards Committee. The Assessment Sub Committee must have at least one Borough Council Member. If the Member Complained about is a Parish Councillor then the other Assessment Sub Committee Member must be a Parish Council Member
(c) The Member complained about will not at this stage be notified that a complaint has been received.
(d) The Chair of the Sub Committee will convene a meeting of the Assessment Sub Committee as soon as is practicable. The Assessment Sub Committee should aim to complete the initial assessment within 20 working days from the complaint having been received.
(e) The Assessment Sub Committee will decide whether:
· To refer the complaint to the MO for the complaint to be investigated
· To refer the complaint to the MO for steps other than investigation (such as to seek to effect conciliation or Member re training)
· To refer the complaint to the Standards Board for England (if the Standards Board is the more appropriate body to consider the complaint)
· To ask for additional information from the complainant before concluding the initial assessment
· No action should be taken in respect of the complaint.
In considering the initial assessment decision the Assessment Sub Committee will take into account the Initial Assessment Criteria (see Annex 1), relevant legislation, Guidance from the Standards Board for England and legal advice from the Monitoring Officer
(f) A written decision of the Assessment Sub Committee providing a summary of the main points considered and the conclusion reached will be sent to the complainant, the member and the parish council (if the member is a parish council member).
(g) The written decision will include the name of the member who was the subject of the allegation, unless such disclosure is not in the public interest or would prejudice any investigation.
(h) If the Assessment Sub Committee consider that it is contrary to the public interest or would prejudice any person’s ability to investigate the allegation they may decided not to provide the member (and any parish council they are a member of) with a written summary of the allegation.
(i) If Assessment Sub Committee decided to refer the complaint to the MO for steps other than investigation the MO shall within 3 months of the referral submit a written report to the Sub Committee giving details of the action taken or proposed to comply with the direction.
(j) If the Assessment Sub Committee is satisfied with the steps taken by the MO it shall give written notice to the member (and parish council concerned), the complainant and the standards committee of any other authority concerned.
(k) If the Assessment Sub Committee is not satisfied with the action set out in the report it shall give a further direction to the MO.
(l) Review
If the Assessment Sub Committee decides not to take any action about a complaint then the complainant can request a review of the decision. The request for a review must be made in writing and submitted no later than 30 days after the written decision of the Assessment Sub Committee was made.
(m) When a written request for a review is received, the MO will acknowledge receipt of the review request with the complainant and refer the matter to the Chair of the Review Sub Committee.
(n) The Review Sub Committee will be comprised of 3 Members of the Standards Committee, who have not previously decided how to deal with the complaint as members of the Assessment Sub Committee. The Chair of the Review Sub Committee must be an Independent Member of the Standards Committee. The Review Sub Committee must have at least one Borough Council Member. If the Member Complained about is a Parish Councillor then the other Review Sub Committee Member must be a Parish Council Member.
(o) The Member complained about will not at this stage be notified that a review request has been received.
(p) The Chair of the Sub Committee will convene a meeting of the Review Sub Committee as soon as is practicable. The Review Sub Committee should aim to be able to complete the review within 20 working days from the review request having been received.
(q) The Review Sub Committee will decide whether:
· To refer the complaint to the MO for the complaint to be investigated
· To refer the complaint to the MO for steps other than investigation (such as to seek to effect conciliation or Member re training)
· To refer the complaint to the Standards Board for England (if the Standards Board is the more appropriate body to consider the complaint)
· To ask for additional information from the complainant before concluding the initial assessment
· No action should be taken in respect of the complaint.
In undertaking the review the Review Sub Committee will consider the complaint afresh taking into account the Initial Assessment Criteria (see Annex 1), relevant legislation, Guidance from the Standards Board for England and legal advice from the MO
(r) A written decision of the Review Sub Committee providing a summary of the main points considered and the conclusion will be sent to the complainant, the member and the parish council (if the member is a parish council member).
(s) The written decision will include the name of the member who was the subject of the allegation, unless such disclosure is not in the public interest or would prejudice any investigation.
(t) If the Review Sub Committee consider that it is contrary to the public interest or would prejudice any person’s ability to investigate the allegation they may decided not to provide the member (and any parish council they are a member of) with a written summary of the allegation.
(u) If Review Sub Committee decided to refer the complaint to the MO for steps other than investigation the MO shall within 3 months of the referral submit a written report to the Sub Committee giving details of the action taken or proposed to comply with the direction.
(v) If the Review Sub Committee is satisfied with the steps taken by the MO it shall give written notice to the member, the parish council (if the member is a parish council member), the complainant and the standards committee of any other authority concerned.
(w) If the Review Sub Committee is not satisfied with the action set out in the report it shall give a further direction to the MO.
(x) Referral back by the Standards Board for England
If a complaint has been referred to the Standards Board because if was decided that this was a more appropriate body to consider the complaint, but the Standards Board refer the complaint back then the Assessment Sub Committee must take the assessment decision again
(y) Referral back by the Monitoring Officer
If during an investigation the MO becomes aware of any other matter which is materially more serious or materially less serious than may have been apparent when the original initial assessment decision was made the MO may refer the matter to the Standards Committee. The Assessment Sub Committee will then convene to consider the additional information and will reconsider the initial assessment decision afresh
4. Referral to the to the Monitoring Officer for steps other than investigation
(a) Upon receipt of a direction from the relevant Sub Committee for steps to be taken other than investigation (such as training for the member or conciliation) the MO shall deal with the matter in accordance with the direction.
(b) The MO shall give notice to; the member, the complainant, the parish council (if the member is a parish council member) and the standards committee of any other relevant authority concerned.
(c) Within a period of 3 months, or as soon as reasonably practicable thereafter, the MO will submit a written report to the relevant Sub Committee giving details of the action taken or proposed to be taken.
(d) The MO will respond to any further directions made by the Sub Commiittee
5. Referral to the Monitoring Officer for investigation
(a) Upon receipt of a referral from the relevant Sub Committee , the MO shall conduct an investigation of the allegation and report thereon to the Council’s Standards Committee. The MO may nominate another person to carry out his/her functions where he/she himself/herself ought not to perform particular functions in respect of a referred matter. Such person may be an officer of the authority, an officer of another local authority (a mutual co-operation protocol in this respect is to be entered into by the five Tees Valley Local Authorities), or an external investigator.
The MO and any person appointed by him/her to act in his/her place may appoint persons to assist him/her in the conduct of his/her functions.
(b) Notification to the Member
The MO will then, unless otherwise directed by the relevant Sub Committee that it is contrary to the public interest or would prejudice any persons ability to investigate the allegation shall, notify, in writing, the Member against whom the allegation is made.
(c) Notification of Complainant
The MO will notify the complainant that the matter has been referred to him/her for investigation.
(d) Legal Advice and Support for the Member
General advice and support will be made available on request from a legal officer from one of the other Tees Valley Authorities in accordance with the Protocol agreed between the Authorities – “Ethical Framework – Members’ Code of Conduct – Alleged Breaches”.
In addition to general advice and support, the Council has with effect from 29th November, 2005 taken out legal protection cover for Members with Zurich Insurance Company (Zurich). This does not cover alleged breaches of the Code of Conduct occurring before then. The policy encompasses cover for the cost of legal advice and representation throughout an investigation conducted by an Ethical Standards Officer or the Monitoring Officer following referral to him/her by the Standards Board for England. The policy extends to a hearing of the Standards Committee and in appropriate circumstances to an adjudication conducted by a Case Tribunal or Interim Case Tribunal. It also provides that Zurich will appeal against a decision of a Case Tribunal or Interim Case Tribunal to suspend, partially suspend or disqualify a Member.
A confidential legal advice helpline is available over the phone on a 24/7 basis, provided by DAS - on 0117 9342111.
There is a limit of indemnity of £50k.
IMPORTANT - The Member must repay any legal costs if he/she is found to be in breach of the Code of Conduct.
(e) Notification to the Parish Council Clerk
Where the allegation relates to the conduct of a member of a Parish Council in his/her capacity as such, at the same time as notifying the Councillor, the MO will notify the Clerk of the Parish Council concerned.
(f) Initial Response of the Member
In notifying the Member of receipt of the allegations, the MO will invite the Member to respond, in writing, within 21 days of notification as follows :-
(i) advising the MO whether the Member admits or denies the breach of the Code of Conduct which is the subject of the allegation;
(ii) indicating whether any of the facts set out in the notification to the Member are disputed;
(iii) providing the Member’s reasons for disputing any such facts;
(iv) providing the Member’s reasons for arguing that there has not been a failure to comply with the Code of Conduct either (1) on the basis of the facts alleged to date or (2) on the basis of the facts put forward by the Member in response to the notification;
(v) providing the name and address of any representative of the Member, together with an indication of whether the Member wishes further communications to be sent directly to himself or herself or whether such communications should be sent to any nominated representative;
(vi) listing (and where reasonably practicable, providing copies of) any documents which the Member would wish the MO to take into account in any investigation of the allegation, where possible providing copies of these documents and informing the MO of where the original documents may be inspected; and
(vii) providing the MO with the name, address and telephone number (or other appropriate contact details) of any person or organisation whom the Member would wish the MO to interview in the course of any investigation of the allegation, and any information which the Member would wish the MO to seek from that person or organisation.
6. Conduct of Investigation
(a) Purpose of the Investigation
The purpose of the MO’s investigation is to enable him/her to prepare and present to the Standards Committee a report which will provide the Committee with sufficient information for the Committee to determine whether the Member has acted in a breach of the Code of Conduct and, where there has been a breach of the Code of Conduct, whether any action should be taken in respect of the Member or in consequence of the breach, and what any such action should be.
(b) Termination of the Investigation
The MO may terminate his/her investigation at any point, where he/she is satisfied that he/she has sufficient information to enable him/her to report to the Standards Committee and to enable the Committee to come to a considered decision on the allegation.
(c) Additional Matters
If during an investigation theinvestigation, the MO becomes aware of any other matter which is materially more serious or materially less serious than may have been apparent when the initial assessment decision was made the MO may refer the matter to the Standards Committee. This could include evidence of further breaches or more serious allegations than were originally being investigated. The Assessment Sub Committee will then convene to consider the additional information and will reconsider the initial assessment decision afresh
(d) Evidential Matters
Following notification to the Member, the MO will identify an initial list of persons to be interviewed, organisations from whom information is to be sought and documents to be inspected as part of the investigation. Where the Member has provided the MO with the information requested in accordance with paragraphs 5(f) (vi) and (vii) above, the MO shall include in this list each document, person and organisation referred to in that response, unless he/she is of the opinion that the inclusion of that document, person or organisation is intended to delay the completion of the investigation rather than to contribute to the accuracy of the MO’s final report. The MO may supplement or amend this list at any stage of the investigation.
(e) Production of Documents, Information and Explanations
In the course of the investigation, the MO and any person authorised on his/her behalf may make such enquiries of any person, and request any person to provide any document, information or explanation, as he/she thinks necessary for the purposes of carrying out the investigation. The MO and any person authorised on his/her behalf may require any of the authorities concerned to afford him/her reasonable access to such documents in the possession of that authority as appear to him/her to be necessary for the purpose of conducting his investigation.
(f) Interviews
(i) Requesting Attendance
In the course of the investigation, the MO may request any person to attend and appear before him/her or otherwise provide advice for the purpose of paragraph 6(e), or obtain expert or other advice from any person who, in his/her opinion is particularly qualified to assist as he/she thinks necessary for the purposes of carrying out the investigation.
(ii) Representation
Any person who appears before the MO may arrange to be accompanied at their own expense by a solicitor or friend.
(iii) Notes of Interview
Where practicable, following an interview, the MO shall produce a written note of the material points of the interview, provide two copies of that note to the person interviewed and ask them to return one copy signed as a correct record of the interview, with such corrections or amendments as they may feel necessary for that purpose.
(g) Costs
The MO may, where he/she considers that it is appropriate in order to facilitate the conduct of the investigation, pay to any person who provides any document, information, advice or explanation in response to his/her request, such reasonable fees or allowances as he/she considers to be appropriate subject to the availability of the necessary funds and to any maxima set by the authority.
(h) Reference back to the Standards Board
At any stage in the course of, but prior to the completion of, the investigation, the MO may, suspend his/her investigation and request, in writing, to the Ethical Standards Officer concerned that the matter be referred back to that ESO for him to undertake an investigation, setting out the reasons for making the request.
(i) Where a matter is so referred to an ESO, the ESO must respond to the request within 21 days of its receipt and may :-
(i) direct that the matter be referred to him for investigation in which case the MO shall cease his investigation; or
(ii) direct that the MO continue his investigation in which case the MO shall continue his investigation and may not make any further such request in respect of that matter.
7. Report
(a) After the expiry of the 21 day period referred to in paragraph 5(f) and when the MO is satisfied that he/she has sufficient information to meet the requirement set out in paragraph 6(a), or has obtained as much information as is likely to be reasonably capable of being obtained, he/she shall prepare a draft report setting out :-
(i) a ‘confidential’ marking;
(ii) a ‘draft’ marking;
(iii) the date;
(iv) the legislation under which the investigation is being carried out;
(v) a summary of the allegation;
(vi) the relevant sections of the Code of Conduct;
(vii) the Member’s initial response to the notification of the allegation (if any);
(viii) the relevant information and explanations which he/she has obtained in the course of the investigation;
(ix) a list of any documents relevant to the matter;
(x) a list of those persons whom he/she has interviewed and those organisations from whom he/she has sought information;
(xi) a note of any person or organisation who has failed to co‑operate with the investigation and the manner in which they have failed to co‑operate;
(xii) a statement of his/her draft findings of fact, the evidence in support of those facts and his/her reasoning; and
(xiii) his/her draft finding as to whether :-
- he/she considers that there has been a failure to comply with the Council’s Code of Conduct or the Code of Conduct of any other authority concerned (‘a finding of failure’); or
- he/she considers that there has not been a failure to comply with the Council’s Code of Conduct or the code of conduct of any other authority (‘a finding of no failure’).
(xiv) The draft report should also state that the report does not necessarily represent his/her final finding and explain that he/she will present a final report to the Standards Committee once he/she has considered any comments received on the draft report;
(xv) Any recommendations which the MO is minded to make to any authority concerned for reviewing or reconsidering any decision which was the subject of the breach of the Code of Conduct or local protocol, for rectifying any deficiency in the authority’s decision‑making procedures or for preventing or deterring any breach of the Code of Conduct or local protocol or to remedy the position of any person who may have suffered detriment or injustice as a result of the breach. Where the allegation relates to a Parish Councillor, such recommendations would be recommendations which the MO would recommend that the Standards Committee make to the Parish Council.
(b) The MO shall then send a copy of his/her draft report to the Member and the complainant and relevant parts of that report to any other person who has been interviewed and request that they send any comments, orally or in writing, thereon to him/her within 14 days.
(c) After the expiry of that period (or such reasonable extended period as the MO may allow), the MO shall reconsider his/her draft report in the light of any comments received and, shall produce a final report, which shall include those matters set out in paragraph 7(a). The report shall be marked ‘final’ and include documents relied on in reaching his/her conclusions.
(d) The final report should state that it represents the MO’s final findings and will be presented to the Standards Committee.
(e) The final report will be sent to :-
(i) the Member who is the subject of the allegation;
(ii) the complainant;
(f) Where the report concerns a finding of no breach of the Code of Conduct, the covering letter to the persons set out in (e) above, should explain that the report will be sent to the Standards Committee for consideration.
(g) Where the report concerns a finding of breach of the Code of Conduct, the said covering letter should make it clear that there will be a hearing into the allegation.
(h) The report should be accompanied by information explaining the circumstances under which the Standards Committee may conduct a hearing into the allegations and the procedure for these events.
(i) Where the report concerns a finding of failure, the MO will refer the report to the Standards Committee for a hearing.
(j) Where the report concerns a finding of no failure, the MO will refer the report to the Standards Committee, which will consider the report and make one of the following findings :-
(i) That it accepts the MO’s finding of no failure (‘a finding of acceptance’), or
(ii) That there is a case to answer and the matter should be considered at a hearing of the Standards Committee to make a final determination on whether the Code of Conduct was breached.
(k) As soon as reasonably practicable after making a finding of acceptance, the Standards Committee shall :-
(i) give written notice of that finding to :-
the Member who is the subject of the finding of no failure;
any ESO concerned;
the Standards Committee of any other authority concerned, if not the Standards Committee that made the finding;
any Parish Council concerned;
the complainant;
.
(ii) arrange for a notice to be published in at least one newspaper circulating in the area of the authority concerned, or, as the case maybe, in the area of each of the authorities concerned stating that the Standards Committee have found that there has not been a failure on the part of the Member to whom the finding of no failure relates to comply with the Code of Conduct of the authority concerned or, as the case may be, with the Code of Conduct of any other authority concerned and indicating the reasons for that finding. Arrange for such notice to be published on the authorities website.
(iii) not arrange for such a notice to be published if the Member concerned so requests.
8. Outline of Standards Committee Hearing Procedure
Where the report of the MO concerns a finding of failure or the Standards Committee, having considered a report that concludes there was no breach, decides there is a case to answer, the Standards Committee must hold a hearing in relation to an allegation within three months of the date of completion of the report prepared by the MO.
Following completion of his/her report, the MO must give a copy of that report to the Member whom the allegation has been made about.
Normally, a hearing will take place at least 14 days after the Member whom the allegation has been made about receives a copy of the MO’s report. However, the hearing can be held less than 14 days after the Member receives a copy of the MO’s report if the Member agrees.
If the Member whom the allegation has been made about does not go to the hearing, the Standards Committee may consider the MO’s report in the Member’s absence. If the Standards Committee is satisfied with the Member’s reason for not being able to come to the hearing, it will arrange for the hearing to be held on another date.
If the Standards Committee does not hear the matter within three months of receiving the MO’s report, the Committee will be failing in its legal duty and may face judicial review proceedings.
The Standards Committee may adjourn the hearing in certain circumstances, as set out below.
Members of the Standards Committee are obliged under paragraph 3(a) of the Council’s Code of Conduct not to disclose information that they have received or that has been given to them in confidence.
9. Scheduling a Hearing
Except in complicated cases, the Standards Committee will aim to complete a hearing in one sitting or in consecutive sittings of no more than one working day in total. The Committee will not normally schedule hearings in such a way as to result in late night hearings, as this is not ideal for effective decision‑making.
(a) The Pre-Hearing Process
The Standards Committee will follow a pre‑hearing process to deal with procedural issues only. This process is intended to :-
(i) identify whether the Member whom the allegation has been made about disagrees with any of the findings of fact in the MO’s report;
(ii) decide whether or not those disagreements are significant to the hearing;
(iii) decide whether or not to hear evidence about those disagreements during the hearing;
(iv) decide whether or not there are any parts of the hearing that should be held in private; and
(v) decide whether or not any parts of the MO’s report or other documents should be withheld from the public.
The pre-hearing process will usually be carried out in writing, although occasionally a face‑to‑face meeting between the Chair, the people involved and their representatives may be necessary.
10. The Member’s Response
The officer providing administrative support to the Standards Committee, in consultation with the Chair of the Committee, will write to the Member concerned to propose a date for the hearing, outline the hearing procedure and the Member’s rights. They will also ask for a written response from the Member, within 14 days, to find out whether or not he or she :-
· disagrees with any of the findings of fact in the MO’s report, including the reasons for any disagreements;
· wants to be represented at the hearing by a solicitor, barrister or any other person, indicating the name and address of that representative, together with an indication of whether the Member wishes further communication to be sent directly to the Member or whether such communication should be sent to the nominated representative;
· wants to give evidence to the Standards Committee, either verbally or in writing;
· wants to call relevant witnesses to give evidence to the Standards Committee providing the names of those witnesses and a summary of the evidence they propose to give;
· wants any part of the hearing to be held in private;
· wants any part of the MO’s report or other relevant documentation to be withheld from the public; and
· can come to the hearing, offering an opportunity for the Member to offer alternative dates (with reasons); and
· wants to indicate any factors which the Member would wish the Committee to take into account should the Committee feel that there has been a failure to comply with the Code of Conduct.
Forms to identify any findings of fact that he or she disagrees with (Form A attached), to outline any further evidence for the Standards Committee (Form B attached), and to indicate any factors to be taken into account if the Member is found to have failed to follow the Code of Conduct (Form C attached) (or forms to similar effect), will be sent to the Member, who may opt to use the forms to help in his or her response. The Member will also be invited to complete Forms D and E attached if he or she chooses, to assist the process.
The Member will be asked to make clear all the disagreements with the findings of fact in the MO’s report during this pre‑hearing process. This will allow the Committee to decide what witnesses will be needed. Members will not be allowed to raise new disagreements over the findings of fact in the MO’s report at the hearing unless there are good reasons for doing so, such as new evidence becoming available.
11. The MO’s Response
The Standards Committee will invite the MO to comment on the Member’s response within 10 clear working days, to indicate whether or not he or she :-
· wants to be represented at the hearing;
· wants to call relevant witnesses to give evidence to the Standards Committee;
· wants any part of the hearing to be held in private; and
· wants any part of the MO’s report or other relevant documents to be withheld from the public.