Arrangements for dealing with complaints about councillor conduct – local assessment of complaints
Page contents
- Document summary
- 1. Receiving complaints and initial assessment
- 2. Action other than investigation
- 3. Investigation of a complaint
- 4. Hearings
- 5. Withdrawing complaints
- 6. Multiple or vexatious complaints
- 7. Monitoring of complaints
- Appendix 1
- Appendix 2
- Appendix 3
- Appendix 4
Document summary
These arrangements set out how you may make a complaint that a councillor (elected member) or co-opted member of this authority has failed to comply with the Council’s Code of Conduct and set out how the authority will deal with allegations of a failure to comply with the Code of Conduct. See How to complain about the conduct of a councillor.
The Council must have in place arrangements under which allegations that an elected member or co-opted member of the authority has failed to comply with that authority’s Code of Conduct can be investigated and decisions made on such allegations. Such arrangements must provide for the authority to appoint at least one independent person, whose views must be sought by the authority before it takes a decision on an allegation which it has decided shall be investigated, and whose views can be sought by the authority at any other stage.
Making a complaint
If you wish to make a complaint, please write to:
The Monitoring Officer
East Sussex County Council
County Hall
St Anne’s Crescent
Lewes BN7 1UE
Email: Standards Team
The Monitoring Officer is a senior officer of the authority who has statutory responsibility for maintaining the register of members’ interests and who is responsible for administering the system in respect of complaints of member misconduct.
In order to ensure that we have all the information we need to be able to process your complaint, please complete and send us the complaint form ( Complaint form [92.4 KB] [docx]).
Please provide us with your name, a contact address and an email address, so that we can acknowledge receipt of your complaint and keep you informed of its progress. If you want to keep your name and address confidential, please indicate this in the space provided on the complaint form, in which case we will not disclose your name and address to the member against whom you make the complaint, without your prior consent.
1. Receiving complaints and initial assessment
1.1 Any written communications received by the County Council that appear in any way to contain allegations that a member has failed, or may have failed, to comply with the Code of Conduct must, upon receipt, be referred to the County Council’s Monitoring Officer. The complainant will receive an acknowledgment of their complaint and may be asked to provide clarification as to which parts of the Code it is alleged have been breached.
1.2 The Monitoring Officer may, in consultation with the chair of the Standards Committee, agree not to progress a complaint if there appears to be an insufficient basis to refer the matter to the assessment sub-committee of the Council’s Standards Committee. For example:
- It is about someone who is no longer a member of the Council.
- The complaint refers to alleged behaviour/action when the councillor was not acting in their capacity as a councillor.
- There has been a long delay before the complaint was made.
- The complaint appears to be sufficiently minor, politically motivated or not sufficiently serious to warrant further action.
- The complaint relates to a decision taken by councillors rather than the conduct of a councillor
1.3 This list is not intended to be exhaustive and the Monitoring Officer, in consultation with the chair of the Standards Committee, may decide that a complaint does not merit referral to the assessment sub-committee for any other reason which appears to be relevant. Where a decision is made not to progress a complaint, the complainant will be informed of the decision and be provided with the reason. The Monitoring Officer, in consultation with the chair of the Standards Committee, will consider whether the subject member should be informed that a complaint has been submitted and that it has been decided not to pursue the complaint further.
1.4 Where the Monitoring Officer, in consultation with the chair of the Standards Committee, agrees to refer a complaint to the assessment sub-committee the Monitoring Officer will:
(a) write to the complainant confirming that the complaint will be considered at a meeting of the assessment sub-committee. The complainant will be asked to provide any further supporting information they wish the assessment sub-committee to consider regarding their complaint.
(b) write to the member who is the subject of the complaint (provided that to do so would not be contrary to the public interest and/or would not prejudice the ability to investigate the allegation) to inform them:
- that a complaint has been made against them;
- the name of the complainant (unless the complainant has requested anonymity, or to do so would be unlawful);
- the relevant paragraphs of the Code it is alleged they have breached;
- that the complaint will be considered by the assessment sub-committee and the date of this meeting if known; and
- a written summary of the allegation (except where the Monitoring Officer, in consultation with the chair of the Standards Committee, is of the opinion that such notification would be contrary to the public interest or would prejudice the ability to investigate the allegation).
(c) prepare a report regarding the complaint for consideration by the assessment sub-committee.
Procedure for allegations referred to the assessment sub-committee
1.5 The County Council’s assessment sub-committee will be constituted by 3 Members drawn from the Standards Committee, although it will not have fixed membership or a fixed chair, and has a quorum of 2 councillors.
1.6 There is a need for flexibility in relation to the membership of the sub-committee in order to be responsive to the requirement to arrange a meeting date as quickly as possible and to provide an opportunity for all members of the Standards Committee to sit on a sub-committee. When considering the membership of the sub-committee consideration would be given to factors including councillor availability and membership of previous sub-committees. The sub-committee will, wherever possible, be comprised of councillors from more than one political group but the sub-committee is not required to be politically balanced. The sub-committee will, if reasonably possible, meet within 20 working days of a complaint being received.
1.7 Decisions of the assessment sub-committee will be taken by majority vote, with the chair having the casting vote.
1.8 The report considered by the assessment sub-committee including appendices will be marked as exempt and will not be published publicly.
1.9 Meetings of the assessment sub-committee will be held in private and only the following are permitted to attend a meeting of the sub-committee:
- the members of the assessment sub-committee, and
- relevant officers of the County Council.
1.10 In making its assessment of which of the actions set out below to take in respect of an allegation, the assessment sub-committee must have regard to any professional advice from relevant officers of the County Council and the assessment criteria agreed by the County Council’s Standards Committee (see Appendix 1).
1.11 In addition, the views of an independent person appointed by the authority must be sought in relation to an allegation prior to a decision being taken by the assessment sub-committee.
1.12 After having assessed any written allegations before it, the assessment sub-committee must do one of the following:
a) decide that no action should be taken in respect of the allegation
b) refer the allegation to the Monitoring Officer for action other than investigation including, but not limited to, requesting an apology, training or mediation
c) refer the allegation to the Monitoring Officer for investigation.
1.13 Within 5 working days (where reasonably practicable) of making a decision, the assessment sub-committee should produce a written notice of its decision and the reasons for the decision (the Decision Notice). The decision notice must be prepared having regard to any professional advice from relevant officers of the County Council. The decision notice will be sent to the subject member and the assessment sub-committee will consider whether the complainant should receive a copy of the decision notice and whether the Notice should be published. If it is decided that the complainant should not receive the decision notice they will receive a summary of the sub-committee’s decision.
1.14 Where the subject member has already been provided a written summary of the allegation, the decision notice should include:
- a summary of the allegation
- the sub-committee’s conclusion and the reasons for its decision
1.15 Where the subject member has not already been provided a written summary of the allegation the contents of the decision notice will depend upon (i) the extent to which the subject member has been informed of the allegation or any of its details and (ii) any decision of the Monitoring Officer (in consultation with the chair of the assessment sub-committee) as to whether it would, at the time of issuing the decision notice, be contrary to the public interest, or would prejudice the ability to investigate the allegation, to provide any such details.
2. Action other than investigation
2.1 Where the decision of the assessment sub-committee is to refer the allegation to the Monitoring Officer for action other than investigation the Monitoring Officer must arrange the specified action in accordance with the instruction given to them by the assessment sub-committee.
2.2 The Monitoring Officer may refer the matter back to the assessment sub-committee in the light of a change in circumstance such as:
- if, as a result of new evidence or information, the Monitoring Officer is of the opinion that the matter is materially more serious or less serious than may have seemed apparent when the assessment sub-committee made its decision
- if the subject member has died, is seriously ill, or has resigned from the County Council and the Monitoring Officer is of the opinion that, in the circumstances, it is no longer appropriate to continue with the steps proposed by the sub-committee
- the subject member fails to cooperate with the Monitoring Officer
3. Investigation of a complaint
3.1 Where the assessment sub-committee refers an allegation to the Monitoring Officer for investigation the Monitoring Officer will appoint an investigating officer who may be an officer of the authority, an officer of another authority or an external investigator. A summary regarding the conduct of an investigation is set out below. An investigations procedure is attached at Appendix 2 and provides greater detail regarding the process followed during an investigation.
3.2 While an investigation is ongoing the Monitoring Officer may refer the matter back to the assessment sub-committee in the light of a change in circumstance such as:
a) if, as a result of new evidence or information, the Monitoring Officer is of the opinion that the matter is materially more serious or less serious than may have seemed apparent when the assessment sub-committee made its decision; or
b) if the subject member has died, is seriously ill, or has resigned from the County Council and the Monitoring Officer is of the opinion that, in the circumstances, it is no longer appropriate to continue with an investigation.
3.3 At the end of their investigation the investigating officer will produce a report and send the final copy to the Monitoring Officer. The report will set out the details of the allegation, the relevant sections of the Code, the response of the subject member, the evidence taken during the course of the investigation, a statement of his or her findings, and the investigating officer’s conclusion as to whether or not the member has breached the Code.
3.4 The report of the investigating officer and supporting information, including witness statements, will be treated as confidential and will not be published publicly.
3.5 Where a report concludes that there is no evidence of a failure to comply with the Code of Conduct, the Monitoring Officer will refer the report to the assessment sub-committee unless, following consultation with the chair of the Standards Committee, the Monitoring Officer refers the matter to the full committee. The presumption is that the matter would be considered by the assessment sub-committee.
3.6 Where the investigating officer concludes that there has been a failure to comply with the Code of Conduct the County Council has delegated authority to the Monitoring Officer to refer the matter for local hearing before a hearings sub-committee or the Standards Committee. The presumption is that the matter would be considered by a hearings sub-committee.
Referral of the investigating officer’s report to the assessment sub-committee or Standards Committee
3.7 Where the conclusion of the investigating officer is that there has not been a breach of the Code of Conduct the matter will be considered by an assessment sub-committee or the Standards Committee. The investigating officer’s report and the other papers to be sent to and considered by the sub-committee or committee will contain exempt information and will not be published publicly.
3.8 In making its decision as to which of the actions set out below to take, the sub-committee or committee must have regard to the investigating officer’s report; any professional advice from relevant officers of the County Council, and any relevant criteria and factors that the County Council’s Standards Committee determines. The sub-committee would also take into account any views expressed by the independent person.
3.9 After having considered the investigating officer’s report, the sub-committee must by majority decision make one of the following findings:
a) that it accepts a finding of no failure (that is, that the subject member has not breached the Code)
b) that the matter should be considered at a hearing of the hearings sub-committee or Standards Committee. The presumption is that the matter would be considered by a hearings sub-committee.
3.10 Within 5 working days (or as soon as reasonably practicable) after making a finding of no failure, the sub-committee must issue a “Finding of No Failure” decision notice and send this to the subject member. The assessment sub-committee or committee will consider, whether the decision notice should be sent to the complainant and whether it should be published. The subject member may be consulted in relation to the publication of the Notice. If it is decided that the complainant should not receive the decision notice they will receive a summary of the sub-committee’s decision.
4. Hearings
4.1 There is a presumption that hearings will be heard by a hearings sub-committee unless, following consultation with the chair of the Standards Committee, the Monitoring Officer refers the matter to the full committee. A summary regarding the conduct of a hearing is set out below. A hearings procedure is attached at Appendix 3 and provides greater detail regarding the process followed during a hearing.
4.2 The hearings sub-committee will be constituted by 3 councillors drawn from the Standards Committee, although it will not have a fixed membership or a fixed chair. The quorum of the sub-committee is 2 councillors.
4.3 There is a need for flexibility in relation to the membership of the sub-committee in order to be responsive to the requirement to arrange a meeting date as quickly as possible and to provide an opportunity for all members of the Standards Committee to sit on a sub-committee. When considering the membership of the sub-committee consideration would be given to factors including councillor availability and membership of previous sub-committees. The sub-committee will, wherever possible, be comprised of councillors from more than one political group but the sub-committee is not required to be politically balanced.
4.4 Decisions of the hearings sub-committee will be taken by majority vote, with the chair having the casting vote.
4.5 The hearing must take place within 3 months (or, if this is not possible, as soon as is reasonably practicable thereafter) of the date on which the Investigating Officer’s report is completed but must not take place until at least 14 days after the date on which the Monitoring Officer sent the investigation report to the subject member, unless the subject member agrees to the hearing being held earlier.
4.6 The report considered by the hearings sub-committee or the Standards Committee, including appendices, will be marked as exempt and will not be published publicly.
4.7 Meetings of the hearings sub-committee will be held in private and only the following are permitted to attend a meeting of the sub-committee:
- the members of the hearings sub-committee
- the subject member and their representative
- any witnesses
- the independent person
- relevant officers of the County Council
- the investigating officer
4.8 The hearing must be conducted to enable the subject member to have the opportunity to present evidence and make representations at the hearing orally or in writing either personally, by counsel, a solicitor or, with the committee or sub-committee’s consent, by any other representative.
Findings of the committee or sub-committee conducting the hearing
4.9 In making a finding and imposing a sanction, the committee or sub-committee must seek, and take into account, the views of at least one independent person appointed by the authority.
4.10 The committee or sub-committee must reach a decision as to whether the subject member has breached the Code of Conduct. Following a hearing, the committee or sub-committee is entitled to make one of the following findings:
- that the subject member has not failed to comply with the Code
- that the subject member has failed to comply with the Code but that no action needs to be taken; or
- that the subject member has failed to comply with the Code and that a sanction should be imposed. Examples of sanctions that could be considered are set out in the hearings procedure (Appendix 3).
4.11 Any sanction imposed by the committee or sub-committee will take effect immediately, unless the committee or sub-committee specifies a later date on which the sanction(s) should take effect.
4.12 As soon as is reasonably practicable after the hearing, the Monitoring Officer shall prepare a formal decision notice in consultation with the chair of the committee or sub-committee. The decision notice will be sent to the subject member and the committee or sub-committee will consider whether the decision notice or a summary of the decision reached should be sent to the complainant and whether it should be published.
5. Withdrawing complaints
5.1 There may be occasions when the complainant asks to withdraw their complaint prior to the assessment sub-committee having made a decision on it. In these circumstances, the assessment sub-committee will need to decide whether to grant the request. The following considerations may apply:
- Does the public interest in taking some action on the complaint outweigh the complainant’s desire to withdraw it?
- Is the complaint such that action can be taken on it, for example an investigation, without the complainant’s participation?
- Is there an identifiable underlying reason for the request to withdraw the complaint? For example, is there information to suggest that the complainant may have been pressured by the subject member, or an associate of theirs, to withdraw the complaint?
6. Multiple or vexatious complaints
6.1 The Council may receive a number of complaints from different complainants about the same matter. In such cases they should be dealt with in a manner that is a practical use of time and resources. A number of complaints about the same matter may be considered by the assessment sub-committee at the same meeting. If so, the Monitoring Officer should be asked to present one report and recommendation that draws together all the relevant information and highlights any substantively different or contradictory information. However, the sub-committee must still reach a decision on each individual complaint and follow the notification procedure for each complaint.
6.2 Unfortunately, a small number of people abuse the complaints process. The authority’s policies on vexatious or persistent complainants, or to take action to limit an individual’s contact with the authority could be used in such circumstances.
6.3 However, the Standards Committee must consider every new complaint that they receive in relation to the Code of Conduct. If the Standards Committee has already dealt with the same complaint by the same person and the Monitoring Officer does not believe that there is any new evidence, then a complaint does not need to be considered.
7. Monitoring of complaints
7.1 A log of complaints and actions taken in response to these will be maintained by the authority. The Standards Committee will monitor the number of complaints and the outcomes in relation to each complaint in its annual report.
Appendix 1
The flowchart summarises the detailed process outlined in ‘Arrangements for dealing with complaints about councillor conduct’ – please see the full document for more detail about the procedure to be followed at each step.
The flowchart is also available in PDF format with a text equivalent explanation.
Decision flowchart [349.7 KB] [pdf]
Appendix 2
These criteria are intended to reflect local circumstances and priorities and are simple, clear and open. They are to ensure fairness for the complainant and the subject member.
1. Circumstances where the initial assessment sub-committee may decide to take no further action
Where the complaint:
1. does not have enough information to satisfy the sub-committee that the complaint should be referred for investigation or other action
2. is about someone who is no longer a member of the Council
3. has not been received within 3 months of the alleged misconduct unless there are exceptional circumstances
4. or one substantially similar, has already been the subject of an investigation or other action relating to the Code of Conduct or has been the subject of an investigation by other regulatory authorities
5. is believed to be either:
- relatively minor
- tit-for-tat
- politically motivated
- malicious
- not sufficiently serious to warrant further action
6. where the subject member has apologised and or admitted making an error and the matter would not warrant a more serious sanction
7. where it is apparent that the subject member is very inexperienced as a member
8. where it appears that even if the allegations were fully investigated and a breach of the Code of Conduct upheld, training or conciliation would be the appropriate remedy
9. Where the complaint is anonymous (save where it is in the sub-committee’s or Monitoring Officer’s opinion in the public interest to maintain confidentiality)
Whilst complainants must be confident that complaints are taken seriously and dealt with appropriately, deciding to investigate a complaint or to take further action will cost both public money and officers' and members' time. This is an important consideration where the matter is relatively minor. The assessment sub-committee will take into account the public benefit in investigating complaints which are less serious, politically motivated, malicious or vexatious. It will not refer a complaint for investigation where it considers that the public interest in investigating the complaint is outweighed by the cost and resources that would be likely to be involved.
2. Circumstances where the assessment sub-committee may decide to refer the complaint to the Monitoring Officer for local investigation
Where the complaint is sufficiently serious to justify the cost of an investigation and it is in the public interest to investigate.
3. Circumstances where the assessment sub-committee may decide to refer the allegation to the Monitoring Officer for other positive action
1. Where the complaint:
(i) could be dealt with more effectively by:
- requesting an apology
- mediation
- training
- reviewing procedures and protocols
(ii) is part of a continuing pattern of less serious misconduct that is unreasonably disrupting the business of the authority which could be dealt with by:
- mediation
- training
- reviewing procedures and protocols
2. Where it is not in the interests of good governance to undertake or complete an investigation into a complaint.
3. Where the complaint is not sufficiently serious to justify the cost of an investigation.
Notes
(a) The assessment sub-committee must consult the Monitoring Officer before reaching a decision to take other action. It is to be noted that the purpose of this approach is not to determine whether there has been a breach of the Code.
(b) If members decide to refer the complaint to the Monitoring Officer for another form of positive action the following must be considered:
- what is being proposed.
- why it is being proposed.
- why the member should co-operate
- what the sub-committee hopes to achieve
(c) A complaint referred for positive action will not state whether the member breached the Code but that the decision made was an alternative to investigation and that no conclusion was reached on whether the subject member failed to comply with the Code. There will be no opportunity to undertake an investigation into the complaint and it will not be referred back to the Standards Committee even if this action is perceived to have failed.
Appendix 3
Introduction
This document sets out the procedure which will be followed once a decision has been taken that an allegation of misconduct by a member should be investigated.
It should be read in conjunction with the document “Local Assessment of Complaints about Member Conduct”.
The appointment of the investigating officer
Upon deciding to refer an allegation for investigation, the Monitoring Officer will appoint an investigating officer and instruct him or her to conduct an investigation of the allegation and report on it. The Monitoring Officer may appoint a replacement if the investigating officer is unable to complete the investigation. The investigating officer may be an officer of the authority or another authority or an external investigating officer. They should not be connected with the Standards Committee.
The role of the investigating officer
The role of the investigating officer is to ensure, as far as possible, that all the information which is relevant to the allegation is identified and presented in their report.
Subject to the agreement of the Monitoring Officer, the investigating officer may appoint a person or persons to assist him or her in the conduct of his or her functions and may obtain such professional advice as may be necessary for the conduct of the investigation.
Notification requirements
Once they have appointed an investigating officer, the Monitoring Officer will inform the subject member (that is, the member against whom the allegation has been made) who has been appointed to conduct the investigation.
The Monitoring Officer will notify the complainant that an investigation will take place and that they may be contacted in relation to that investigation.
Conduct of the investigation
The investigating officer shall have a broad discretion as to how they conduct the investigation.
They may require the subject member and the complainant to provide them with information and or documents which are relevant to the investigation. They may require them to provide details of other people who may be able to assist with the investigation.
The investigating officer may consult the Monitoring Officer at any stage of the investigation.
The investigating officer may request any person to attend an interview with them and or provide them with documents and or information.
Any person who is interviewed may arrange to have a friend or other person with them (provided they are not connected to any matter under investigation).
The investigating officer will take a note of any interviews that they conduct.
The Monitoring Officer may agree that the authority will pay such expenses, fees or allowances to any persons providing documents, information, advice or explanation, as they consider appropriate.
Referral to the Monitoring Officer
The investigating officer may refer the matter back to the Monitoring Officer if it appears to them appropriate to do so. For example, if the member is seriously ill, the member has resigned from the County Council or the decision to investigate should be reconsidered in the light of new evidence. In such circumstances, the Monitoring Officer may decide to refer the matter back to the assessment sub-committee.
Deferral of investigation
The Monitoring Officer has discretion to defer the investigation if it appears appropriate to do so. For example, if there is a criminal investigation taking place.
Confidentiality
The investigating Officer shall request that anyone contacted in relation to the investigation maintain confidentiality in order to maintain the integrity of the process.
Draft Report
When the Investigating officer is satisfied that he or she has sufficient information, or has obtained as much information as is reasonably practicable to obtain, he or she shall prepare a confidential draft report setting out the details of the allegation, the relevant sections of the code, a summary of the allegation, the response of the subject member, the information, documents and evidence taken during the course of the investigation, a statement of his or her draft findings, and the investigating officer’s conclusion as to whether the member has breached the code.
The draft report should be sent to the Monitoring Officer and the subject member for their comments. The investigating officer may wish to conduct further investigations once he or she has received those comments, before producing their final report.
Final report
The final report should include the same content referred to above in the draft report section and a final conclusion as to whether there has been a breach of the Code.
It may be helpful to include a chronology, summary of disputed facts and or to append witness statements or other documents.
The investigating officer’s report and supporting papers will be considered as confidential in that they may contain exempt information and will not be published publicly.
Action on receipt of report
If the Monitoring Officer is not satisfied that the investigation has been conducted properly, he or she may ask the investigating officer to reconsider his or her report.
If the investigating officer concludes that there is no evidence of a failure to comply with the Code of Conduct, the Monitoring Officer will refer the report to a sub-committee of the Standards Committee or the Standards Committee. The presumption is that the matter would be considered by a sub-committee.
Where the report concludes that there has been a failure to comply with the Code of Conduct the County Council has delegated authority to the Monitoring Officer to refer the matter for local hearing before a hearings sub-committee or the Standards Committee. The presumption is that the matter would be considered by a hearings sub-committee.
The hearings process is the subject of a separate procedure.
More information on the local resolution of complaints can be found in the Local Assessment of Complaints document.
Appendix 4
Hearings procedure
The following process will be followed when a decision has been taken that a hearing, as to whether a member has breached the Code of Conduct, is required.
1. Prehearing process
1.1 The Monitoring Officer will, where possible, arrange for the Standards Committee or hearings sub-committee to meet to hear the complaint within 3 months (or as soon as practical thereafter) of receiving the investigating officer’s report. The Monitoring Officer should aim to arrange a hearing which can take place in one day or consecutive days without the need to have gaps between sittings or lengthy days. Members of the assessment sub-committee can also be members of the hearings sub-committee.
1.2 The Standards Committee and the hearings sub-committee are subject to the normal requirements on confidential and exempt information as any other committee under s100 A to K and Schedule 12A of the Local Government Act 1972. There is a presumption that hearings will be held in private and reports and appendices will be marked as containing exempt information. The Monitoring Officer will consider whether these provisions apply in advance of the hearing.
1.3 The Monitoring Officer will require the subject member to give his or her response to the investigating officer’s report in order to identify what is likely to be agreed and what is likely to be in contention at the hearing. This may, at the discretion of the Monitoring Officer, take the form of a pre-hearing questionnaire.
1.4 If the subject member wishes to rely on evidence, including witnesses, at the hearing, they should provide the evidence and names of any witnesses, to the Monitoring Officer as soon as possible. The investigating officer may have taken a witness statement from them or set out their comments in their report but if the subject member wishes to add to what the investigating officer has written they should provide a witness statement to the Monitoring Officer as soon as possible.
1.5 The committee or sub-committee will not allow new arguments or evidence to be presented at the hearing.
1.6 The Monitoring Officer will decide what evidence will need to be heard, and what written evidence can be read at the hearing. The Monitoring Officer should take account of the views of the witnesses and the subject member in reaching such decisions.
1.7 The Monitoring Officer can consult the chair of the committee if he or she feels their guidance would assist and ask the chair to issue directions in relation to the prehearing process.
1.8 The Monitoring Officer may wish to offer to cover the expenses of witnesses associated with their attendance at the hearing.
1.9 The Monitoring Officer will consider whether it is appropriate to hear 2 complaints together, for example if they relate to the same member, or relate to the same incident or occasion.
1.10 The subject member should be provided with the investigating officer’s report and any evidence which will be heard at the hearing.
1.11 The Monitoring Officer should provide the members of the committee or sub-committee with all the evidence in advance of the hearing so that they can read it to identify any potential conflicts of interest.
1.12 The Monitoring Officer will provide the committee or sub-committee with a report which summarises the allegation. This may include a list of agreed facts and disputed issues and outline the proposed procedure for the hearing.
1.13 The Monitoring Officer will act as a point of contact for the subject member, the complainant, the independent person and any witnesses who will give evidence.
2. The hearing
2.1 An independent person will be invited to attend the hearing and will be given the opportunity comment during the hearing if the committee or sub-committee considers it appropriate and will be asked for their views prior to a final decision being made.
2.2 If the subject member does not attend the hearing, the committee or sub-committee may adjourn the hearing or may continue to reach a decision on the basis of the investigating officer’s report and any evidence they hear, if they decide to hear evidence.
2.3 Whilst the hearing is a meeting of the authority, it is not a court of law. It does not hear evidence under oath. The rules of natural justice should nevertheless be followed and the committee or sub-committee will have due regard to the seriousness of the proceedings for those involved, the Council and the public.
2.4 The committee or sub-committee will decide disputed issues and whether the subject member has breached the code on the balance of probabilities.
3. Representation
3.1 The subject member may choose to be represented by any person they wish. They will have to bear any cost of being represented. The committee or sub-committee may refuse to allow a representative to remain at the hearing if they are disruptive. The committee or sub-committee will have the discretion to hear opening or closing arguments from the subject member and the investigating officer if they feel it would assist them in reaching a decision.
4. Evidence
4.1 The committee or sub-committee will control the procedure and evidence presented at a hearing, including the number of witnesses and the way they are questioned. All matters relating to the evidence and procedure are within their discretion.
4.2 Generally (and subject to paragraph 4.1 above) the subject member will be entitled to present their case as they see fit.
4.3 The committee or sub-committee will usually have regard to submissions from the subject member if they are considering whether to hear particular evidence.
4.4 Witnesses of facts that are disputed would normally be expected to attend to be questioned. Character witnesses will normally provide written evidence which can be read at the hearing.
4.5 Witnesses should be treated with courtesy throughout the prehearing stage and at the hearing.
4.6 Witnesses may be questioned by the committee or sub-committee, the Monitoring Officer and the subject member. This discretion should generally be unfettered by the committee or sub-committee unless there is good reason to do so.
4.7 The onus is on the subject member to ensure the attendance of witnesses who they would like to give evidence to assist them. The committee or sub-committee can limit the number of witnesses or the issues which can be covered by them.
4.8 Neither the committee or sub-committee nor the subject member will have any power to compel witnesses to give evidence.
5. At the hearing
(The procedure to be followed at the hearing will be at the discretion of the chair.)
5.1 At the hearing, the investigating officer will present his or her report, call such witnesses as he or she considers necessary and make representations to substantiate his or her conclusion that the member has failed to comply with the Code of Conduct. The investigating officer may be asked about their report or any matters relating to their involvement.
5.2 The subject member must have the opportunity at the hearing to present evidence and make representations orally or in writing either personally, by counsel, a solicitor or, with the sub-committee’s consent, by any other representative.
6. Role of Monitoring Officer
6.1 References to the Monitoring Officer should be read to include any representative of the Monitoring Officer.
6.2 The Monitoring Officer has a key role in ensuring the smooth running of the prehearing and hearing process. They will remain neutral throughout and will provide independent advice to the committee or sub-committee.
7. Role of the complainant
7.1 The role of the complainant will usually be limited to being a witness and they are not a party to the proceedings. However, the committee or sub-committee may wish to consult them at any stage in the hearing if they feel their comments would assist them.
8. Decision
8.1 The committee or sub-committee must consult the independent person in reaching their decision.
8.2 The committee or sub-committee may wish to retire to consider their decision. The Monitoring Officer may assist them in constructing the reasons for their decision. The Monitoring Officer will not express any view on the evidence heard or the decision to be reached.
8.3 The committee or sub-committee will reach a decision as to whether the subject member has breached the code of conduct. If they decide that the subject member has not breached the code of conduct they will take no further action. If they decide that the subject member has breached the code of conduct they should go on to decide what sanction, if any, is appropriate.
9. Sanctions
9.1 The committee or sub-committee must consult the independent person before imposing any sanction and give the subject member the opportunity to make representations.
9.2 The committee or sub-committee should consider all the mitigating and aggravating circumstances that appear to them to be relevant. For example, they may wish to consider:
- what were the actual and potential consequences of the breach?
- how serious was the breach subject member now? Have they apologised?
- Has the subject member previously been dealt with for a breach of the code?
9.3 The following are example of mitigating and aggravating factors but these lists should not be regarded as exhaustive.
10. Mitigating factors
- An honest but mistaken belief that the action was not a breach of the Code
- A previous record of good service
- Evidence that they were suffering from ill health at the time of the breach
11. Aggravating factors
- Dishonesty
- Continuing to deny the facts or blaming other people
- Evidence of a failure to follow advice or warnings
The priority of the committee or sub-committee should be to ensure that there are no further breaches of the Code and that public confidence is maintained.
12. Sanctions
12.1 The sanctions available to the committee or sub-committee include:
- publish its findings in respect of the member’s conduct
- write a formal letter to the councillor found to have breached the code
- report its findings to Council for information
- seek formal censure of the subject member
- recommend to the member’s group leader (or in the case of ungrouped members, recommend to Council or to committees) that he or she be removed from any or all committees or sub-committees of the Council
- recommend to the Leader of the Council that the member be removed from the Cabinet, or removed from particular portfolio responsibilities
- recommend that the member is removed from outside body appointments to which they have been appointed or nominated by the Council or the Executive
- instruct the Monitoring Officer to arrange training, mediation or other appropriate remedy, for the member including an apology in a form specified by the committee or sub-committee.
13. Notice of decision
13.1 As soon as is reasonably practicable after the hearing, the Monitoring Officer shall prepare a formal decision notice in consultation with the chair of the committee or sub-committee. The decision notice will be sent to the subject member and the sub-committee will consider whether the decision notice, or a summary of the decision reached, should be sent to the complainant and whether it should be available for public inspection.