Procedure for local determination of allegations about the personal conduct of Council members (following Investigation by an Ethical Standards Officer)
INTRODUCTION
1. The local determination of complaints by the Standards Committee of South Holland District Council, where the investigation has been completed by an Ethical Standards Officer (ESO) of the Standards Board for England, will be governed by this procedure. It applies to complaints about the conduct of South Holland District Councillors, all Parish Councillors in South Holland district and all co-opted members with voting rights on either the district or parish council.
2. The person(s) making the complaint will be referred to in this procedure as the Complainant and the person against whom the complaint is made will be referred to as the Member.
APPOINTMENT OF REPORTING OFFICER
3. Upon receipt of the ESO's report, the Monitoring Officer will appoint a Reporting Officer to take conduct of the matter and to arrange for the Standards Committee to consider the report to determine the matter. The Reporting Officer may be any appropriate officer.
4. The Monitoring Officer will act as advisor to the Hearing Panel. However, where the Monitoring Officer feels that he has a conflict of interest, or is otherwise unable to act, he may appoint a representative to undertake this role.
NOTIFYING THE MEMBER AND COMPLAINANT
5. Within five working days of the receipt of the ESO's report by the Monitoring Officer, the Reporting Officer shall send a copy of the report to the Standards Committee, the Member and, where possible, the Complainant, making the provision of the report conditional upon an appropriate undertaking of confidentiality. A copy of the report will also be sent to the appropriate Parish Clerk where the complaint relates to a parish councillor.
6. At the same time the Reporting Officer shall identify some provisional hearing dates, outline the procedure to be followed and ask for a written response from the Member, within fifteen working days, stating whether or not he/she:
disagrees with any of the findings of fact in the ESO's report, including the reasons for any disagreements
wants to be represented, at their own expense, at the hearing by a solicitor, barrister or any other person
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
wants any part of the hearing to be held in private (including reasons)
wants any part of the ESO's report or other relevant documents to be withheld from the public (including reasons)
The member will be asked to respond to the evidence contained in the ESO's report, supply details of other relevant evidence, and confirm the arrangements for the hearing.
7. The Reporting Officer will also inform the Member that if, at the meeting of the Hearing Panel, he/she seeks to dispute any matter contained in the ESO's report, without having previously notified the Reporting Officer of their intention to do so, the Hearing Panel may either adjourn the meeting to enable the Reporting Officer to provide a response, or refuse to allow the disputed matter to be raised.
8. Upon receipt of the Member's response the Reporting Officer shall invite the relevant ESO to comment, within fifteen working days, on the Member's response, to say whether or not he/she:
wants to be represented at the hearing
wants to call relevant witnesses to give evidence to the Hearing Panel
wants any part of the hearing to be held in private
wants any part of the ESO's report or other relevant documents to be withheld from the public.
9. Upon receipt of the ESO's response, the Reporting Officer will forward the responses of the Member and the ESO to the Chair of the Hearing Panel (see paragraphs 14 and 15).
10. The Member, the ESO and the Reporting Officer are entitled to request that any witnesses they want should be called. Where appropriate, written evidence may be supplied by witnesses who are unable to appear in person. However, the Chair of the Hearing Panel may limit the number of witnesses, if he/she believes the number requested is unreasonable and that some witnesses will simply be repeating the evidence of earlier witnesses, or else not providing evidence that will assist the Hearing Panel to reach its decision.
11. Nothing in this procedure shall limit the Chair of the Hearing Panel from requesting the attendance of any additional witnesses whose evidence he/she considers would assist the Hearing Panel to reach its decision. However, it should be noted that the Standards Committee does not have the power to insist that any witness appears or gives evidence.
12. The Chair of the Hearing Panel, in consultation with the Monitoring Officer will then:
confirm a date, time and place for the hearing, which must be within three months from the date that the ESO's report was received;
confirm the main facts of the case that are agreed;
confirm the main facts that are not agreed;
confirm which witnesses will give evidence;
outline the proposed procedure for the hearing, specifying which parts, if any, will be considered in private; and
request the Reporting Officer to provide this information, with the Agenda, to everyone involved in the hearing at least two weeks before the proposed date of the hearing.
13. Where appropriate, the Reporting Officer shall arrange for support for an unrepresented Member who wishes to make an oral representation to the Hearing Panel.
THE HEARING PANEL
14. When the ESO's report is sent to the Standards Committee by the Monitoring Officer a sub-committee of the Standards Committee ("the Hearing Panel") shall be formed to consider the complaint and the report.
15. The Hearing Panel shall be chaired by an independent member.
16. The Hearing Panel shall be appointed by the Standards Committee.
17. The Hearing Panel will be composed of three members in total comprising at least one independent member and, where the matter to be considered relates to a parish councillor, one member shall be a parish council representative.
18. Where a member of the Hearing Panel is unable to attend a meeting of the Panel the Reporting Officer shall arrange for a substitute member of the Standards Committee to attend the meeting. The substitute member shall be briefed about the complaint under consideration by the Reporting Officer.
19. The Hearing Panel shall decide, on the balance of probability, whether the grounds of the complaint are upheld. It shall do so by considering the ESO's report and, where appropriate, written or oral representations made by the Member, Complainant, or any witnesses.
20. Each Hearing Panel member shall have one vote, and all matters/issues shall be decided by a simple majority of votes cast. Abstentions shall not be permitted.
21. Administration for the hearing shall be carried out by the Reporting Officer.
22. The meeting of the Hearing Panel will be open to the public and press unless confidential information or exempt information under Schedule 12A of the Local Government Act 1972 and regulations is likely to be disclosed.
PROCEDURE AT THE HEARING
23. The initial order of business at the meeting shall be as follows:
quorum for the Hearing Panel shall be three
declarations of interest
consideration as to whether to adjourn or to proceed in the absence of the Member, if the Member is not present
introductions
any representation from the Reporting Officer and/or the Member as to reasons why the Hearing Panel should exclude the press and public and determination as to whether to exclude the press and public. Where the Hearing Panel decides that it will not exclude press and public, the Reporting Officer shall at this point provide copies of the agenda and reports to any members of the press and public who are present.
24. The purpose of the hearing is to test the robustness of the report of the investigation produced by the ESO, by examining the reasoning contained within the report and the quality of the evidence relied upon. This calls for an inquisitorial approach by the Hearing Panel based on seeking information in order to identify potential flaws in the report and to clarify issues. The Hearing Panel will control the procedure and evidence presented at the hearing, including the questioning of witnesses.
25. The Hearing Panel may at any time seek advice from the Monitoring Officer or his representative. Such advice will on all occasions be given in the presence of the Reporting Officer and the Member.
26. The procedure at the hearing will be as follows, subject to the Chair of the Panel being able to make changes as he or she thinks fits in order to ensure a fair and efficient meeting.
- Examination of report and written representations
The Panel will consider the ESO's report together with any written response from the Member to the report. The Panel may require the Reporting Officer to answer questions put to him or her by members of the Panel regarding the contents of the report. The Panel must establish whether there are any significant disagreements about the facts contained in the ESO's report.
- Oral evidence
If there is any disagreement as to the facts of the case, the Reporting Officer will be invited to make any necessary representations to support the relevant findings of fact in the report, calling supporting witnesses as agreed by the Chair of the Panel (see paragraph 11 above).
Questions may be asked by the Panel at any point. Neither the Member, the Complainant nor any representative of either party will be permitted to directly question the Reporting Officer or the witnesses he/she calls. If the Member, the Complainant or any representative of either party wishes to challenge any oral evidence being presented, then these questions shall be directed through the Chair.
The Member will then be invited to make any necessary representations to support his or her version of the facts, calling supporting witnesses as agreed by the Chair of the Panel (see paragraph 11 above).
Questions may be asked by the Panel at any point. Neither the Reporting Officer, the Complainant nor any representative of either party will be permitted to directly question the Member or the witnesses he/she calls. If the Reporting Officer, the Complainant or any representative of either party wishes to challenge any oral evidence being presented, then these questions shall be directed through the Chair.
27. Where the Member seeks to dispute any matter in the ESO's report which he/she had not given notice of intention to dispute in his/her written statement in response, the Reporting Officer shall draw this to the attention of the Hearing Panel. The Hearing Panel may then decide:
not to admit such dispute but to proceed to a decision
to admit the dispute, but to invite the Reporting Officer to respond
to adjourn the meeting to enable the Reporting Officer to investigate and report on the dispute.
28. Where appropriate the Reporting Officer will make representations on behalf of the Complainant to the Hearing Panel.
DECISION BY THE HEARING PANEL
29. The Hearing Panel will consider in private session which of the following findings to adopt:
that there is no evidence of any failure to comply with the Code of Conduct
that the Member has failed to comply with the Code of Conduct, but that no action needs to be taken
that the Member has failed to comply with the Code of Conduct and should be:
- censured, or
- restricted access to the premises and resources of the authority for a maximum period of three months (but ensuring that such restrictions will not unnecessarily restrict the Member's ability to carry out his/her responsibilities as an elected or co-opted member
- suspended or partially suspended for a maximum period of three months, or
- suspended or partially suspended for a maximum period of three months or until such time as he/she submits a written apology or undertakes any training or conciliation specified by the Hearing Panel.
30. In deciding what penalty to set, the Hearing Panel will consider all relevant circumstances including those covered in the Guidance produced by the Standards Board for England.
31. The Hearing Panel will then return and the Chair will announce the decision of the Panel and the reasons for that decision.
32. If the matter is a complicated one, where the complaint has a number of aspects, the Hearing Panel can decide to consider the evidence and reach a finding on each aspect separately.
33. The Hearing Panel will then consider in open session whether there are any recommendations which the authority should make arising from consideration of the allegation. For example, providing recompense to any person who has suffered detriment as a result of the breach of the Code of Conduct or related matters; for reviewing or reconsidering any decision which was the subject of the breach of the Code of Conduct, for rectifying any deficiency in the authority's decision making procedures or for preventing or deterring any further breaches of the Code of Conduct.
APPEAL
34. Where the Hearing Panel determines that the Member has failed to comply with the Code of Conduct the Monitoring Officer or his representative shall inform the Member of his or her right to appeal against the determination to an appeal tribunal drawn from the Adjudication Panel. The Adjudication Panel can be contacted at 23 Victoria Avenue, Harrogate, North Yorkshire HG1 5RD. Telephone: 01423 538783.
Website: www.adjudicationpanel.co.uk
NOTICE OF FINDINGS
35. The Reporting Officer will make a short written decision available on the day of the hearing and a full written decision in draft will be prepared by the following day.
36. Within two weeks of the end of the hearing the Reporting Officer will circulate the full written decision, in the format recommended by the Standards Board to the Member, the Complainant (where possible), the ESO concerned, the Standards Committee of the Council and any other person or body concerned.
37. At the same time the Reporting Officer shall arrange for a summary of the findings to be published in a newspaper circulating in the area of the Authority and on the Council's website.
38. Where the Hearing Panel determines that there has not been a breach of the Code of Conduct, the notice specified in paragraph 36 shall:
(i) state that the Hearing Panel found that the Member had not failed to comply with the Code of Conduct and shall give its reasons for reaching that finding; and
(ii) not be published in local newspapers if the Member so requests.
39. Where the Hearing Panel determines that there has been a failure to comply with the Code of Conduct but no action is required, the notice specified in paragraph 36 shall:
(i) state that the Hearing Panel found that the Member had failed to comply with the Code of Conduct but that no action needs to be taken in respect of that failure;
(ii) specify the details of the failure;
(iii) give reasons for the decision reached; and
(iv) state that the Member concerned may apply for permission to appeal against the determination.
40. Where the Hearing Panel determines that there has been a failure to comply with the Code of Conduct and that a sanction should be imposed, the notice specified in paragraph 36 shall:
(i) state that the Hearing Panel found that the Member had failed to comply with the Code of Conduct;
(ii) specify the details of the failure;
(iii) give reasons for the decision reached;
(iv) specify the sanction impose; and
(v) state that the Member concerned may apply for permission to appeal against the determination.
41. Copies of the agenda, reports and minutes of a hearing, as well as any background papers, apart from sections of documents relating to parts of the hearing that were held in private, will be available for public inspection for six years after the hearing.
CONFIDENTIALITY AND DISCLOSURE OF INFORMATION
42. Where the Chair of the Hearing Panel considers that the ESO's report and/or any of the written statements in response is likely to disclose "exempt information" (as defined in Schedule 12A to the Local Government Act 1972 and regulations), and in consequence that it is likely that the Hearing Panel will, during consideration of these papers, not be open to the public, he/she shall instruct the Reporting Officer not to provide copies of these papers to the press or public or permit their inspection by the press or public in advance of the meeting.
43. The Hearing will be held in public apart from the following two situations:
- where 'confidential information' is to be revealed, the Hearing Panel must hold such parts of a meeting in private. Confidential information is information provided by a government department under the condition that it must not be revealed, and information that cannot be revealed under any legislation or by a court order.
- where 'exempt information' is to be revealed the Hearing Panel may exercise their discretion in deciding whether or not to exclude the public. The categories of exempt information are set out in Schedule 12A to the Local Government Act 1972 together with additional categories set out in regulation 3(3) of the Local Authorities (Code of Conduct) (Local Determination) Regulations 2003 (SI 1483/2003), and include information relating to the personal circumstances of any person.
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Time line for local adjudication procedure
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day 1 |
Receipt of ESO's report by MO
Within 5 working days (para 5)
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end of week 1 |
Action: Send copy of ESO's report to Member etc and ask Member for response and info
Within 15 working days (para 6)
Guidance: "within a set time" (para 5)
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end of week 4 |
Member provides response and info
Action: Invite ESO to comment on Member's response
Within 15 working days (para 8)
Guidance: "within a set time" (para 6)
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end of week 7 |
ESO's comments received
Action: Chair of Hearing Panel to decide on facts that are agreed and those in dispute and write up hearing summary; and decide on witnesses
- time taken (?not specified in procedure)
Action: Provide notice of hearing date and send hearing bundle
Minimum 2 weeks notice (para 12)
Guidance: "minimum 2 weeks" (para 6)
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end of week 9 |
Date of Hearing
(earliest date of Hearing: 2 weeks after Member is sent copy of ESO report - Reg 6(2)(c)
3 weeks for adjournments etc
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end of week 12 |
Hearing must be completed within 3 months of receipt of ESO's report - Reg 6(2)(b)
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