Agenda item

In accordance with paragraph 7 of the District Council’s Complaints Procedure, the Monitoring Officer is required to refer a matter for a hearing before the Standards Committee, where an investigation concludes that there is evidence of a failure to comply with the Members’ Code of Conduct and the Monitoring Officer has determined informal resolution is not appropriate.

This Part A Report provides background information and advice with regards to the Code of Conduct, legislation and procedures.

It was reported that a complaint had been received in August 2023 from Councillor Ernest Gibson (“the Complainant”), an elected Member of South Tyneside Council and the Chairman of the Local Government Association’s Coastal Special Interest Group, regarding the alleged behaviour of District Councillor Nick Turner under this District Council’s Members’ Code of Conduct.  That Code of Conduct was attached as Appendix A to the Monitoring Officer’s report (A.1).

Members were aware that the Local Government Association (“LGA”) was the national membership organisation for Principal Councils.  In view of the diversity of Councils in membership of the LGA, it had a number of Special Interest Groups (“SIG”).  Through those SIGs, all Councils with common characteristics could form groupings to express a sectional interest.  The LGA website indicated that it had 21 SIGs at present.  The LGA expected SIGs to have at least 10 Councils in membership.    SIGs were able to speak for their interests as part of the LGA provided their policies or statements did not conflict with, or undermine, LGA policy as a whole, or damage the interests of other member authorities. SIGs were able to make representations direct to Government and elsewhere on matters arising directly from their special interest, and to obtain LGA assistance in doing so. The LGA Coastal SIG existed to champion the collective interests of coastal communities by increasing awareness and debate on environmental, economic and social issues at all levels in relation to the coast.  It had a membership of 57 coastal local authorities. Together it covered 60% of England’s coastline and served 16 million people.

The Committee was informed that the aforementioned Complaint had been submitted on 16th August 2023 and referred to the alleged behaviour of Councillor Turner at two virtual meetings of the SIG held on 5th June and 29th June 2023, in that Councillor Turner had contravened this Council’s Members’ Code of Conduct.  Councillor Turner was the sole attendee at those meetings from Tendring District Council. 

Members were reminded that complaints received relating to the Code of Conduct must be dealt with in accordance with the Council’s formally adopted Complaints Procedure, as set out in Part 6 of the Council’s Constitution (Part 6.19 to 6.34). The Complaints Procedure was attached as Appendix B to the Monitoring Officer’s report (A.1), which had been adopted by full Council on 26th November 2013.

Pending completion of an Investigation of the complaint, the Committee was informed that the Leader of the Conservative Group, Councillor G Guglielmi, had suspended Councillor Turner from the Conservative Group and removed him from Committees whilst the investigation takes place. The Leader of the Council had done the same with regards to outside bodies. Since that time, Councillor Turner had left the Conservative Political Group on the Council and had sat as a non-aligned Councillor (i.e. not within a Political Group).

The Committee was made aware that, on 25th August 2023, the Monitoring Officer had decided that it was reasonable and appropriate that the Complaint merited further investigation.  The parties had been informed of this decision and that an external investigator would be appointed.  Section 5 of the Council’s Complaints Procedure set out how an investigation should be conducted and under Section 5.6 that the Investigation Report must contain a conclusion as to whether the evidence supported a finding of failure to comply with the Code of Conduct.  Annex E of the Complaints Procedure set out the Investigation Procedure.

It was reported that, Mr Melvin Kenyon, of Kenyon Brabrook Ltd, had been appointed by the Monitoring Officer as the external investigator for this complaint. Following a thorough investigation, Mr Kenyon had concluded that there was sufficient evidence to show that Councillor Turner, based on a balance of probabilities and the evidence available, had breached Paragraphs 1.1, 1.2, 2.3 and 5.1 of the Council’s Code of Conduct. This conclusion was set out in Mr Kenyon’s Investigation Report.

Members were advised that all parties had had the opportunity to comment on the Investigation Report and the findings contained therein.  The report had been finalised on 10th January 2024.

The Committee was reminded that, if an investigation concluded that there was evidence of a failure to comply with the Code of Conduct, then the Council’s Complaints Procedure at Section 7.1 provided the Monitoring Officer with the authority to obtain an informal resolution, in consultation with the Independent Person, where it could reasonably be resolved without the need for a hearing by the Standards Committee. 

Although the procedure did not require consultation with an Independent Person if the Monitoring Officer considered that informal resolution was not an appropriate course of action, and that the matter should therefore be referred for a hearing before the Standards Committee, it had been considered that seeking their view on this occasion was beneficial prior to making the decision. The Monitoring Officer had noted that Councillor Turner had offer an apology at the outset, when the complaint had been initially received however, the Monitoring Officer’s thoughts had been captured in the Decision Notice dated 25th August 2023, being as follows:-

“Whilst it is acknowledged that Councillor Turner has resigned from the LGA’s Coastal SIG and apologised for an[y] offence given, it is not considered that informal resolution is appropriate in this circumstance. There is a wide difference of opinions between the Complainant and Cllr Turner on the manner of the debate within the meetings. Cllr Turner in his response has acknowledged his comments and not denied them, but the impact of them appears to be unappreciated.”

Having read the Investigation Report, the Monitoring Officer had noted that Councillor Turner had offered a further apology for offence caused by his actions, which he had described as unintended and unconscious on his part. However, the Monitoring Officer had not consider these as being appropriate or proportionate and she had therefore determined to refer the matter to the Standards Committee for a hearing to be undertaken by Members.

Hearing & Decision:

In summary, the Standards Committee conducted a hearing under the Council’s adopted Hearing Procedure before deciding whether the Member had failed to comply with the Code of Conduct and, if so, whether to take any action in respect of the Member.

In accordance with paragraph 7.1.2 of the Council’s Complaints Procedure the Investigator’s Report had been kept confidential, until the day of the hearing in order to protect the parties.

Procedures relating to the hearing were set out within the body of the Monitoring Officer’s report (A.1) and attached as Appendix C thereto. All Hearings would be held in public unless the relevant paragraph of Schedule 12A of the Local Government Act 1972 applied, however the public interest test must be considered and therefore it would only be in exceptional circumstances that the hearing would be held in private.

With regard to the exclusion of the press and public from this Hearing, the Council’s Monitoring Officer’s advice was as follows:-

“Acting in accordance with paragraph 7.1.2 of the Council’s Complaints Procedure the Investigator’s Report will only be kept confidential and remain in Part B, until the day of the Hearing to protect the parties. The Committee is required to decide whether to pass a resolution “under Section 100A(4) of the Local Government Act 1972, for the press and public to be excluded from the remainder of the meeting on the grounds that the conduct of the Hearing will involve the likely disclosure of exempt information as defined in Paragraphs 1 and 5 of Part 1 of Schedule 12A, as amended, of the Act”. In making the decision, the Committee will give consideration to, whether in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information. Article 6 of the Human Rights Act 1998 establishes a presumption that the meeting will be held in public unless a private hearing is necessary for one of the reasons specified in that Article (as set out in Part 5 of the Council’s Constitution - Access to Information Procedure Rules Part 5.4 to 5.6). Consequently, it is recommended that the exclusion of the press and public resolution is not passed, to enable the hearing to proceed with the Investigator’s Report in Public.”

It was also pointed out that, should the Standards Committee determine that the Member had failed to comply with the Code of Conduct they had the power to take action in respect of that Member as may be relevant and proportionate, and necessary to promote and maintain high standards of conduct.  The actions available to the Standards Committee were set out in Paragraph 8.1 of the Complaints Procedure.

The Monitoring Officer also presented an update which had been prepared and circulated following publication of the public documentation pack:for this meeting as follows:-

“AGENDA Item No. 5 – REPORT OF THE MONITORING OFFICER - A.1 – Report Outcome of Members’ Code of Conduct Investigation (Pages 17-172)

Standards Committee Hearing training – page 24

PART 4 - COUNCIL PROCEDURE RULES:

33.3    Training Members of the Audit, Human Resources and Council Tax, Licensing and Registration, Overview and Scrutiny, Planning and Standards Committees

           In addition to specific training required as and when necessary, training shall be provided to all Members appointed to the … Standards Committees on an annual basis at an appropriate date and time after each annual meeting of the Council and such training shall be mandatory.  The Monitoring Officer … decides whether the training offered/provided is/was sufficient and “fit for purpose”.

A Member cannot sit as a member of the Standards Committee unless they have received specific training with regard to the Hearings Procedure and participation in Hearings.

All District Councillors Attended the Mandatory Code of Conduct Training delivered by the Monitoring Officer in June/July 2023.

Specific Standards Committee Hearing training was conducted on 17 January 2024 by Hoey Ainscough Associates Ltd, an external local governance support resource for all tiers of Local Government.  The training was conducted for Standards Committee Members, Independent Persons and Officers.  A recording of the training session was made, and those Members and Independent Persons who were unable to attend the training session, have viewed the full recording and confirmed this in writing.

All Members of this Standards Committee, including named Substitute Members and Independent Persons, have completed the training.

The Monitoring Officer’s advice with regards to the Exclusion of the Press and Public – page 30

Confirmation that the advice as set out on page 30 of the Agenda pack applies to the additional information and updates which have been circulated to Standards Committee Members and the Subject Member, Councillor Turner on blue pages and currently held in Part B.

While an investigation under the Localism Act 2011 is not covered by the right to a fair hearing under Article 6 of the European Convention on Human Rights, as the outcome of any hearing will not impact upon the rights of a councillor to carry on the role as a councillor, any investigation must nevertheless abide by the principles of natural justice.  A hearing is like any other committee of the Council.  The rules around access to information also apply as they do to other committees – in that the hearing will be in public unless there are lawful reasons for all or part of it to be heard as exempt or confidential matters. 

The Guidance on Member Model Code of conduct Complaints Handling published by the LGA, states under its hearing section, “the panel (referring to the Committee) should work at all times in a demonstrably fair, independent and politically impartial way.  This helps to ensure that Members of the public, and Councillors have confidence in its procedures and findings.  Decisions should be seen as open, unprejudiced and unbiased”.

Councillor Turner was asked whether he wished to request any part of the hearing to be held in private, and wants any part of the investigation report to be withheld.  He confirmed he wished the Investigators Report to be retained within Part B and therefore, Councillor Turner should be able to make representations on this point to the Committee before consideration of exclusion of the press and public.”

It was moved by Councillor Baker, seconded by Councillor Alexanderand:-

RESOLVED that the Standards Committee:-

(a)    notes the contents of the report (A.1) in readiness for deciding whether to exclude the press and public before a Hearing is undertaken; and

(b)   notes the Monitoring Officer’s advice in respect of the exclusion of the Press and Public, as contained within the aforementioned report.