Tees Valley Town and Parish Councils

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Tees Valley Town and Parish Councils ETHICAL
GOVERNANCE WORKSHOP 8th May 2009
Kirsty Cole - Strategic Director (Customers and
Resources) Newark Sherwood District
Council John Williams Senior Policy
Advisor Standards Board for England
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Background
The image of Local Government
Services or Sleaze?
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Background

• Nolan Committee
• Found standards generally high
• Problem of perception

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• despite instances of corruption or misbehaviour,
  the vast majority of councillors and officers
  observe high standards of conduct
• we are commending a fresh start which gives
  greater responsibility to local government itself
  for devising and regulating standards of conduct,
  within a framework that gives consistency of
  standards and proper enforcement
• Nolan Committee

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Why bother about it ? At the heart of good
local democracy is a bond of trust between
communities and the people who represent them.
High standards of conduct contribute to building
an ethical organisation which can establish that
bond of trust
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The Ethical Framework

• Part III of the Local Government Act 2000
• The Model Code of Conduct
• Standards Committees
• The Standards Board for England
• Adjudication Panel for England
• Part 10 of the Local Government and Public
  Involvement in Health Act 2007
• Locally managed conduct framework
• Revised strategic role for the Standards Board to
  provide supervision, support and guidance for
  local authorities to ensure the effectiveness of
  the local standards framework

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The Standards Board for England

• Promote and maintain high standards of
• Conduct
• ensuring the effectiveness of the local framework
• oversee the Code of Conduct
• carry out investigations that cannot be
  undertaken locally
• provide support and guidance to authorities and
  members regarding ethical behaviour

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Adjudication Panel for England

• Establishes Case Tribunals to hear
• Allegations referred to it by Ethical Standards
  Officers
• Appeals against local determinations
• Cases referred by local standards committees

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Standards Committee Functions

• Hold hearings and determine cases
• Advice to council on adopting a local code of
  conduct
• Monitor the effectiveness of the code
• Train, or arrange training on the code
• Promote and maintain high standards of conduct of
  members
• Help members to follow the code of conduct
• Some standards committees have a developed a
  broader role in governance issues
• e.g., internal and external audit, officer code,
  whistle-blowing, overview of the constitution
• Including town and parish councils

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Wider Regulatory Framework

• Judicial Review
• Human Rights Act
• Civil and Criminal Liability (bribery
  corruption most serious)
• District Audit (financial probity)
• Maladministration (Local Government Ombudsman)
• NOTE jurisdiction only extends to principal
  authorities

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Workshop Session One

• In small groups, discuss what you understand by
  the terms ethical behaviour and high standards
  of conduct.
• Why do you think ethical behaviours matter within
  your town or parish council?

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What does an ethical organisation feel like?

• Honesty
• Openness and transparency
• Mutual respect
• High standards of behaviour mutual trust and
  confidence
• Courtesy and good manners

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Why is ethical behaviour important?

• Promotes public trust and confidence
• Faith in local democracy
• Protects members from unreasonable expectations
  of behaviour
• Leadership role on behalf of community setting
  an example

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10 General Principles of Conduct in Local
Government
The Standards Board recommends that general
principles be adopted as preamble or annexe to
Code
Selflessness Honesty and integrity Objectivity
Accountability Openness Personal
judgement Respect for others Duty to uphold the
law Stewardship Leadership Statutory
Instrument 2001 1401
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When the code applies

• When you-
• conduct Council business, or act as a
  Council representative in your official
  capacity (on duty)
• Some obligations apply even when you are
  off duty if criminal conviction and
  relate to your office

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Official Capacity

• Where you-
• conduct the business of your authority and/or
  office
• act, claim to act, or give the impression that
  you are acting as a representative of your
  authority

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13 dos and donts

• ? 5 dos
• Treat others with respect - paragraph 3(1)
• Use Council resources properly 6(b) act in
  accordance with councils reasonable
  requirements
• ensure resources not used improperly for
  political purposes
• Follow Local Authority Publicity Code - 6(c)
• Have regard to MO CFO advice 7(1)
• Give reasons for decisions 7(2)
• Not mandatory in the case of town and parish
  councils

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13 dos and donts (contd)

• ? 8 donts
• Dont cause council to breach equality laws -
  3(2)(a)
• Dont bully 3(2)(b)
• Dont intimidate in a standards complaint -
  3(2)(c) ?
• Dont compromise the impartiality of staff
  3(2)(d)
• Dont breach confidentiality 4(a)
• Dont prevent access to information 4(b)
• Dont bring office into disrepute - 5 ?
• Dont use position improperly to obtain
  advantage / disadvantage - 6(a) ?
• ? off duty criminal conviction may breach code

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Confidential Information

• MUST NOT disclose information except where-
• You have the consent of the person authorised to
  give it
• You are required by law to do so
• Disclosure is to a third party to obtain
  professional advice and the third party agrees
  not to disclose to any other person.
• Or
• The disclosure is-
• Reasonable and in the public interest And
• Made in good faith and in compliance with the
  reasonable requirements of the authority

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Personal interests (1)

• You have a personal interest in any business of
  the council where either-
• It relates to or is likely to affect 13 types of
  things, bodies or people
• (the 13 interests), or
• The decision might reasonably be regarded as
  affecting the well-being or financial position of
  you or a relevant person to a greater extent
  than residents of the ward affected
• There are 8 types of relevant person

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Personal interests (2)

• The 13 interests (1/3)-
• Where it relates to or is likely to affect-
• A body which the Council appointed you to
• A body exercising functions of a public nature
• A body directed to charitable purposes
• A body whose principal purposes include
  influencing public opinion or policy (including
  trade unions and political parties)
• Where you are a member or in a position of
  general control or management

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Personal interests (3)

• The 13 interests (2/3)-
• Your employment or business
• Your employer
• Anyone (apart from a council) who paid you
  election or councillor expenses
• A business etc in an area in which you have a
  beneficial interest in 25,000 shares
  (nominal value) or 1/100th of the shares
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  

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Personal interests (4)

• The 13 interests (3/3)-
• A contract between the Council and you, your
  business (or a business in which you have a
  beneficial interest)
• Interests of someone who gave you a gift or
  hospitality of 25
• Land in area in which you have a beneficial
  interest
• Land which you, your business (or a business in
  which you have a beneficial interest) rents
  from the Council
• Land in area which you have a licence to occupy
  for 28 days

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Personal interests (5)

• 8 types of relevant persons-
• Family member
• Person with whom you have a close association
• Their employers or business partners
• Companies in which they own 25,000 shares
  (nominal value)
• Body which the Council appointed you to
• Body exercising functions of a public nature
• Body directed to charitable purposes
• Body to influence public opinion or policy
• Where you are a member or in a position of
  general control or management

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Declaring Personal Interests

• General rule-
• When? - when agenda item comes up (or become
  aware)
• What? I have a personal interest because
• 4 Exceptions-
• If interest relates to your membership of a
  body that the Council appointed you to, or
  one exercising public functions
• Relates to a gift/hospitality registered more
  than 3 years ago
• You reasonably didnt know you / relevant
  person had an interest
• Relates to sensitive information (risk of
  violence etc)

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Prejudicial Interests (1)

• A personal interest which a member of the public
  with knowledge of the relevant facts would
  reasonably regard as so significant that it is
  likely to prejudice your judgment of the public
  interest
• (Clapham Omnibus test)

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Prejudicial Interests (2)

• You dont have a prejudicial interest if-
• Your financial position is not affected, or
• The financial position of any of the 13
  interests or 8 relevant persons is not
  affected, or
• Its not an approval, consent, licence,
  permission or registration (whats left?),
  or
• Council housing and you have a Council house
  (unless it relates particularly to your
  tenancy), or
• Its about the following Council functions-
• - Statutory Sick Pay and you receive or are
  entitled to receive it
• Member allowances, payments or indemnities
• Ceremonial honours
• - Setting the Council Tax or a precept
• But you still have a personal interest to declare
  !

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Prejudicial Interests What you must do

• If you have a prejudicial interest, you must-
• Leave the room and not seek improperly to
  influence the decision unless you have a
  dispensation
• If the public can participate in a meeting, you
  can make representations or give evidence (Note
  This only applies if your council has adopted
  paragraph 12(2) of the code)

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Registering Interests

• Within 28 days of taking office or the code
  being adopted you must register your
  interests in the 13 interests defined in the
  code
• Ongoing requirement to update (within 28 days
  of any change)
• Dont have to include sensitive information
  if MO agrees (potential serious risk of
  violence or intimidation)

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But remember.....Often ethical problems do not
relate to rules and protocols, but to
relationships and behaviours
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Part II Local Assessment De-mystified
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Local Assessment of Standards Complaints

• Moved from a top down approach to a locally based
  regime

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Local Assessment of Standards Complaints

• How does local assessment work?
• Anyone who considers that a member may have
  breached the written code of conduct may make a
  written complaint to the Standards Committee of
  the principal authority.
• The complaint form can normally be downloaded
  from the Councils website

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Local Assessment of Standards Complaints

• What happens when a written complaint is received
  ?
• STAGE ONE
• Determine if complaint actually relates to a code
  of conduct issue
• STAGE TWO
• If the answer is yes, the complaint is referred
  to an Assessment Sub-Committee of the Councils
  Standards Committee.

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Local Assessment of Standards Complaints

• What does the Assessment Sub-Committee do?
• It decides if there is sufficient information
  in the complaint to indicate that there may
  have been a breach of the code of conduct
• If the answer is yes it goes on to decide
  whether
• to instruct the MO to conduct an investigation
• to refer the matter to the Standards Board for
  England for investigation (they may decline to
  accept the case and to refer back to the SC).
• Or
• to take some other form of action

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Local Assessment of Standards Complaints

• What does the Assessment Sub-Committee do?
  (contd)
• If it decides that there is insufficient evidence
  or that it is not in the public interest to
  pursue the matter it may decide that no further
  action be taken
• Councils should adopt local criteria to help
  carry out this process

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Local Assessment of Standards Complaints

• What is the Assessment Sub-Committee?
• A panel or Sub-Committee drawn from the members
  of the Standards Committee
• Normally between 3 and 5 members (quorum is 3)
• At least one is
• A person who is independent of the authority
• A parish representative where the complaint is
  about a parish matter
• An elected member of the principal authority

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Local Assessment of Standards Complaints

• What happens if it decides that no further action
  be taken?
• The complainant can request a review
• This will be heard by a Review Sub-Committee
• The Review Sub-Committee consists of a different
  panel of members from the Standards Committee
• Chaired by an independent member

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Local Assessment of Standards Complaints

• Role of Assessment Sub-Committee and Review
  Sub-Committee
• Purpose is simply to decide whether action should
  be taken on the complaint either as investigation
  or some other action
• DO NOT make findings of fact at this stage
• DO NOT carry out any further enquiries or
  investigations at this stage (BUT MO may have
  obtained some background information such as
  copies of minutes etc)

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Local Assessment of Standards Complaints

• When will the member be told that a complaint has
  been made about them?
• MO has a discretion NOT AN OBLIGATION to
  acknowledge receipt of a complaint and tell the
  subject member that a complaint has been made
  about them including name of complainant (unless
  complainant has requested confidentiality and
  committee has not yet decided whether to grant
  it).

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Local Assessment of Standards Complaints

• When will the member be told that a complaint has
  been made about them?(contd)
• Once Assessment Sub-Committee has reached a
  decision on a complaint it will give a written
  summary of the allegations to the member against
  whom the complaint has been made.

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Local Assessment of Standards Complaints

• When will the member be told that a complaint has
  been made about them?(contd)
• Assessment Sub-Committee should give decision
  with reasons within 5 WORKING DAYS to
  complainant, member subject to complaint and
  parish council (unless it is against the public
  interest or would prejudice any future
  investigation).

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Local Assessment of Standards Complaints

• When will the member be told that a complaint has
  been made about them?(contd)
• Subject member will be informed if a request is
  made for a review of a decision.
• Review Sub-Committee will give its decision
  with reasons within 5 WORKING DAYS to all
  relevant parties

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Local Assessment of Standards Complaints

• Timescales
• Assessment Sub-Committee aims to complete initial
  assessment of an allegation within an average of
  20 working days
• A request for a review of a no action decision
  must be made within 30 days
• A Review Sub-Committee must be held within 3
  months of a review request being made

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Local Assessment of Standards Complaints

• What happens if a case is referred for other
  action?
• May be a more appropriate alternative to formal
  investigation
• May be used where there is-
• - A breakdown of relationships within an
  authority eg factionalised groupings, tit for tat
  complaints, patterns of disrespect
• - Poor understanding of code and/or council
  procedures
• May involve training, mediation, conciliation,
  brokering an apology

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Local Assessment of Standards Complaints

• Are the initial assessment and review meetings
  open to the public?
• No!
• Normal access to information rules do not apply
• However, a written summary of the decision will
  be available for public inspection
• Will give name of subject member unless it is not
  in the public interest or would prejudice any
  subsequent investigation

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Local Assessment of Standards Complaints

• What happens where the complainant withdraws
  their complaint?
• Assessment Sub-Committee decide whether to grant
  request
• Standards Committee should adopt criteria for
  determining such requests

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Local Assessment of Standards Complaints

• What happens then?
• If referred to MO for formal investigation
• MO will inform member subject to allegation and
  complainant (and parish council where
  appropriate)
• NOTE
• (i) matter referred for local investigation by
  ESO, can request that he take matter
  back
• (ii) MO can refer matter back to Standards
  Committee if matter more or less serious or no
  longer in public interest to continue
  investigation (eg member died, resigned,
  seriously ill)

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Local Assessment of Standards Complaints

• On conclusion of investigation
• 1. MO makes finding of either-
• Failure to comply with code (a finding of
  failure) OR
• No failure to comply with code (a finding of no
  failure)
• 2.Written report sent to
• Member against whom complaint made
• Standards Committee

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Local Assessment of Standards Complaints

• What happens to the report?
• The report is considered by Standards Committee
• (may be heard by a considerations sub-committee)
• May accept MOs finding in event of finding of no
  failure (a finding of acceptance) Or
• Decide that matter should be considered at a
  hearing of the Standards Committee Or
• Should be referred to Adjudication Panel for
  determination

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Local Assessment of Standards Complaints

• What happens when there is a hearing?
• May be a hearing panel rather than whole
  Standards Committee
• Should be held within 3 months of receipt of MO
  report

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Local Assessment of Standards Complaints

• What happens if the Member doesnt turn up?
• Hearing may proceed in their absence if committee
  not satisfied that there is sufficient reason for
  non attendance Or
• May be adjourned

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Local Assessment of Standards Complaints

• The Hearing
• Stage 1 - Findings of fact
• Stage 2 - Is there a breach of code?
• Stage 3 - Sanctions
• (maximum 6 months suspension)
• NOTE notification requirements in respect of
  findings

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Local Assessment of Standards Complaints

• Sanctions
• Censure
• Restriction of members access to premises or
  resources of the authority (up to maximum of 6
  months) provided that- - reasonable and
  proportionate to breach - do not unduly restrict
  ability to perform functions as elected
  member
• Suspension or 9artial suspension for up to 6
  months
• Requirement to submit written apology
• Requirement to undertake training
• Requirement to participate in conciliation or a
  combination of these

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Local Assessment of Standards Complaints

• Sanctions
• Sanction may be deferred for up to 6 months
• Periods of suspension or partial suspension do
  not count towards the 6 months limit for absences
  from meetings.

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Local Assessment of Standards Complaints

• Is it possible to appeal?
• Written request within 21 days to President of
  Adjudication Panel
• President, in deciding whether to grant request,
  will have regard to whether there is a reasonable
  prospect of appeal being successful

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Local Assessment of Standards Complaints

• Proposed Revisions to the Code of Conduct
• Consultation document issued October 2008
• Consultation period ended 24th December 2008
• New revised code expected imminently

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Local Assessment of Standards Complaints

• Proposed Revisions to the Code of Conduct
  (contd)
• Revised Format2 section, the first dealing with
  members conduct when in an official capacity,
  (reflecting what is in the current code) and
  second dealing with members conduct in their
  non-official capacity.
• Members code should apply to a limited extent to
  conduct of members in a non-official
  capacityPROPOSAL members must not bring their
  office or authority into disrepute by conduct
  which is a criminal offence
• Definition of criminal offence? Exclude fixed
  penalty offences? Include cautions? Convictions
  abroad?
• Definition of official capacity?
• Should an ethical investigation be deferred until
  criminal process complete?

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Local Assessment of Standards Complaints

• Proposed Revisions to the Code of Conduct
• (contd)
• Paragraph 12(2) should be mandatory for town and
  parish councils (right to make representations
  where prejudicial interest if public can speak)
• Increased limit for gift and hospitality?
• Adding another general principle prohibiting
  members from engaging in conduct constituting a
  criminal offence?
• Proposal to introduce an employee code of conduct

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Local Assessment of Standards Complaints

• Other Key Developments
• Introduction of Regulations-
• Giving SBE powers to intervene
• Enabling the establishment of joint standards
  committees

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• Any Questions?
• And a safe journey home!