Agenda item

Questions asked by the representatives of Councillor Turner

The Investigator’s Responses thereto

[Mr. Cannon] I would like to raise this question of capacity, which this Committee is being asked to resolve. One would have expected that would have been resolved earlier in the proceedings. There is no argument that Cllr. Turner believed that he was acting in capacity but shouldn’t the Investigator have obtained actual proof of that?

If I understand the question correctly that is what I have done in this Report. If I carry out an Investigation the first thing that I have to assure myself of is that the Member in question is acting in capacity. There are occasions on social media use where there can be an issue over that. But in this instance the question revolved around the fact that the Council had not formally recognised Cllr Turner as being in capacity. So it isn’t my job as it were to decide before an Investigation starts whether someone was acting in capacity, It is my job as part of the investigation to decide whether a Member is in capacity and that is what I have done here.

[Mr. Cannon] So it is accepted that there is no actual evidence or proof that Cllr. Turner was acting on behalf of the Council?

He was in capacity based upon the evidence available to me as the Investigator, Councillor Turner was acting in capacity and I think that you have just said that Cllr. Turner has accepted that he was acting in capacity. The argument for his being in capacity I have put forward in my statement of a few moments ago and I have argued more fully in my Report so Councillor Turner was in capacity in my view based on the evidence available to me and the balance of probabilities and I think that you are saying that Cllr. Turner accepts that for the last however many years that he has represented Tendring District Council on the SIG he was acting as a representative of the Council so no argument he was in capacity.

[Mr. Cannon] Could we enquire where Mr. Kenyon set the bar on unacceptable standards of behaviour bearing in mind that it is a very subjective matter and what is acceptable to one person will be unacceptable to another. And why in the final report he did not highlight inconsistencies in the witness statements listed here.

I’ll give the example of “bullying” that is a good yardstick and we are not talking about it here but I’ll give it as a good example. There are those people who believe that it is the case that if someone says “boo” to them then they are being bullied. And the view that I take of that when I carry out an investigation is that I think that we need something rather more than “boo” for someone to be bullied. What I have done is set out in the report is set out the Guidance that accompanies the Model Code that was adopted by the District Council which provides, if you like, a yardstick against which to measure Members’ behaviour and that is what I have relied upon. I think that that Guidance is very helpful. I can’t quote it verbatim but it is there in the report and that helped me decide plus the fact that there were quite a large number of people there who said that his [Cllr Turner’s} behaviour was unacceptable. There were one or two who were not quite as offended but the majority of people to whom I spoke were quite clear that there had been personal abuse and that Cllr. Turner had gone further then what was acceptable in that kind of forum in the words he had used towards people and in his behaviour and so the yardstick if you like is set out in the report and is extracted from the Guidance that accompanies the LGA Model Code which is the Code that Tendring District Council adopted. As far as drawing out inconsistencies I think I did draw that out. I may not have explicitly written a sentence that says that but is quite clear from the evidence, which has not been withheld it is there in the report. As far as I am concerned Cllr. Turner went further than he should have done and breached the Code.

[Mr. Cannon] I would also like to ask Mr. Kenyon the percentage of attendees during the 29^th June meeting that responded. There was a total of nine including Cllr. Turner, one of whom did not “sign off” his statement but it has been included within the report which is a concern. In total, there was 49 attendees at that meeting. Some of the others were contacted, but declined to submit a statement. One, in particular, was at an after meeting discussion between Beccy MacDonald-Lofts and Ross Macleod and she has refused multiple requests to give a statement or attend as a witness. I would like to hear Mr. Kenyon’s views on that please.   

First of all, it’s a question of proportionality. There is a cost to the Council in carrying out an investigation. If I had interviewed all 49 people or attempted to do that I would probably still be interviewing. So that is point number one. Point number two is that I can’t force anybody to, as it were, submit to an interview by me. I can’t do that. And point three is that whether an individual chooses to take part shouldn’t be taken as an indication of anything other than that they’ve got nothing to say or perhaps that they are uncomfortable with the process. I find people who are uncomfortable with the process all the time and just won’t take part even if they are important to the process. I have no power to force them to do it so nine people out of 49 given that there are complaints that I investigate where there are two or three people interviewed, seems to me to be a reasonable number. I did try to interview more but for various reasons given I wasn’t able to do that but I think nine people interviewed as far as the 29^th June meeting is concerned is more than enough to form a judgement and that’s what I have done.

[Mr. Cannon] The next question concerns the format of the meeting. These were online meetings (either Zoom or MS Teams) but the facility to manage these type of online meetings is available to the Administrator. It is very difficult when you have a situation like this to be sure how much was caused by the poor management of the online meeting and the poor chairing of the meeting and how much was down to Cllr. Turner’s exuberance. So could Mr. Kenyon please tell us what allowances he made because these meetings were held online?

I made no particular allowances for these being online meetings. What is true is the secretariat or the constitution of the SIG at that time apparently did not allow them to ‘mute’ individuals. My understanding is that after the second of these meetings, I think in September and I think in response to one of the questions being asked, they changed the constitution/ standing orders or whatever they call them, to enable them to mute or to exclude somebody and that was done in direct response to what had happened on the 5^th and 29^th of June. So I’m afraid that I can’t be in the mind of the secretariat as to why they did or did not try to manage it but it is certainly the case that they believed that they didn’t have, as it were, the formal ability to exclude Cllr. Turner at that time.

[Mr. Cannon] Could I enquire of Mr. Kenyon whether he actually established what facilities they did have? Who was controlling the meeting?

They were using Microsoft Teams. I’m not an expert on Microsoft Teams but I do know, as I said a few moments ago that they did not have or rather they felt that they had not got the right, as it were, to exclude Cllr. Turner. So short of Cllr. Turner switching his own feed off I imagine that they had not got any wherewithal but I’m afraid I’m not a Teams expert.

I would like to enquire how Mr. Kenyon maintained impartiality in his report and avoided favouring the Officers against Cllr. Turner?

It’s what I do. I have no stake in the outcome of these things. It sounds like the wrong words to choose but actually apart from wanting to ensure that the evidence tells the story, I don’t care what the outcome is. I have no skin in the game. So what I do is gather the evidence, I write the evidence up and I draw conclusions based on that evidence. When I carry out investigations and I’ve done a lot of those over the past few years I can confirm that it is not the case that every investigation that I do results in a finding of a breach of the code and so I balance the evidence available to me and as far as I am concerned the clue is in the job title, which is “independent”.  

[Mr. Cannon] The concern is in drawing his conclusions from what had occurred did Cllr. Turner realise that he was in breach of the Code?

I’m sorry but I did not understand the question.

[Mrs. Cannon] The question to the Investigating Officer is – during the investigation and in obtaining the witness statements and in doing the summary of the evidence from the complainants statements, did he not draw a conclusion in relation to whether or not Councillor Turner was aware of the breaches in this alleged behaviour.

If I have understood correctly, I take you back to what Cllr. Turner said in his response to the complaint which was first of all, I think twice, he apologised wholeheartedly for any offence given, and he didn’t really dispute these events had taken place. The question is in his mind I think is whether he had caused offence or not. And the witnesses I spoke to said, most of them, said they had been offended or had seen how offence could have been caused by what he had said. So I think that Cllr. Turner himself has agreed that there is a need to apologise and has used in his defence documents the words “sincere apology” so in answer to your question if he didn’t know it at the time he does now.

[Mrs. Cannon] So at the time of this report being written and this investigation being conducted he wasn’t aware. Do you concur with that conclusion?

I think you would have to ask Cllr. Turner that. I don’t know what was in Cllr. Turner’s mind.

[Mrs. Cannon} I’m asking the Investigating Officer because he had drawn the conclusion. If you don’t know the rule..? 

He had signed his Acceptance of Office, he’d had training on the Code of Conduct and in signing his acceptance of office he had signed up to the Code of Conduct.

[Mr. Cannon] The final question I have to Mr. Kenyon is in relation to the allegations in the witness statements that appear in the final report concerning Cllr. Turner having racist views when there is actually no substantial evidence to support that. Why do they still appear in the final report? There is a reference in Becky MacDonald-Lofts’ statement to a Police referral, which is now contradicted in her answer to our questions, which were subsequently submitted. I believe there was a referral to the Police from the Monitoring Officer but no action, nothing has occurred. So why is that still in the report and now in the public domain?

It was put into the public domain in the first part of this Hearing today. I’m required to investigate it because that was one of the allegations. I said a few moments ago that, on the balance of probabilities, we tend to the conclusion that Cllr. Turner made the remarks he made ‘out of ignorance rather than malice’ and that his language was ‘clumsy and patronising’ rather than being rooted in what may be described as out and out racism. That was the conclusion that I reached in the report. Those who were of the view that Cllr. Turner’s remarks were and there are those who were, let’s say, less convinced, I think I used the words more charitable, the conclusion that I reached was that he said what he said out of ignorance rather than malice, his language was clumsy and patronising rather than being rooted in what may be described as out and out racism. I’m not sure that I can say much more and that is in the Report on Page 77 of your pack. The Police matter is outside the scope of my Investigation.