1 Tees Valley Town and Parish Councils ETHICAL GOVERNANCE WORKSHOP 8 th May 2009 Kirsty Cole - Strategic Director (Customers and Resources) Newark & Sherwood

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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 AdvisorStandards Board for England

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Background

The image of Local Government

Services or Sleaze?

http://www.third-avenue.co.uk/relaunch/index.php?page=library&task=detail&sub_cat_nr=8&main_cat_nr=3&from=browse&_start=1&_image_id=3095&mode=detail&PHPSESSID=a75d649d6094ad4a139348c94462b636

http://www.third-avenue.co.uk/relaunch/index.php?page=library&task=detail&sub_cat_nr=1&main_cat_nr=22&from=browse&_start=2&_image_id=1673&mode=detail&PHPSESSID=a75d649d6094ad4a139348c94462b636

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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”

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 ofConduct

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 councils9

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

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

Selflessness Honesty and integrity

Objectivity Accountability

Openness Personal judgement

Respect for others Duty to uphold the law

Stewardship Leadership

[Statutory Instrument 2001 1401]

The Standards Board recommends that general principles be adopted as preamble or annexe to Code

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

Official Capacity

Where you:-

a) conduct the business of your authority and/or office

b) 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 don’ts

5 dos1. Treat others with respect - paragraph 3(1)2. Use Council resources properly – 6(b)

act in accordance with councils reasonable requirements ensure resources not used improperly for

political purposes

3. Follow Local Authority Publicity Code - 6(c)4. Have regard to MO & CFO advice – 7(1) *5. Give reasons for decisions – 7(2) ** Not mandatory in the case of town and parish councils

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13 dos and don’ts (cont’d)

8 don’ts

1. Don’t cause council to breach equality laws - 3(2)(a)2. Don’t bully – 3(2)(b)3. Don’t intimidate in a standards complaint - 3(2)(c) 4. Don’t compromise the impartiality of staff – 3(2)(d)5. Don’t breach confidentiality – 4(a)6. Don’t prevent access to information – 4(b)7. Don’t bring office into disrepute - 5 8. Don’t 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:-i. You have the consent of the person authorised to give itii. You are required by law to do soiii. Disclosure is to a third party to obtain professional advice and

the third party agrees not to disclose to any other person.

OrThe disclosure is:-a) Reasonable and in the public interest Andb) 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:-

1.It relates to or is likely to affect 13 types of things, bodies or people

(“the 13 interests”), or

2.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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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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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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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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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 didn’t 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”)

Prejudicial Interests (2)

You don’t 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 It’s not an approval, consent, licence, permission or registration (what’s

left?), or Council housing and you have a Council house (unless it relates particularly

to your tenancy), or It’s 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 !

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)

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)

Don’t 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

Local Assessment of Standards Complaints

Moved from a top down approach to a locally based regime

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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 Council’s website

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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 Council’s Standards Committee.

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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: i. to instruct the MO to conduct an investigation ii. 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).

Oriii. to take some other form of action

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What does the Assessment Sub-Committee do? (cont’d)

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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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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What happens if it decides that no further action be taken?

The complainant can request a reviewThis will be heard by a Review Sub-CommitteeThe Review Sub-Committee consists of a different panel of members from the Standards CommitteeChaired by an independent member

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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 actionDO NOT make findings of fact at this stageDO 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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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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When will the member be told that a complaint has been made about them?(cont’d)

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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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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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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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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What happens if a case is referred for “other action”?

May be a more appropriate alternative to formal investigationMay 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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Are the initial assessment and review meetings open to the public?

No!Normal access to information rules do not applyHowever, a written summary of the decision will be available for public inspectionWill give name of subject member unless it is not in the public interest or would prejudice any subsequent investigation

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What happens where the complainant withdraws their complaint?

Assessment Sub-Committee decide whether to grant requestStandards Committee should adopt criteria for determining such requests

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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)


On conclusion of investigation:

1. MO makes finding of either:-a) Failure to comply with code (“a finding of failure”)

ORb) No failure to comply with code (“a finding of no

failure”)2.Written report sent to:

a) Member against whom complaint madeb) Standards Committee

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What happens to the report?

The report is considered by Standards Committee(may be heard by a considerations sub-committee)a) May accept MO’s finding in event of finding of no

failure (a finding of acceptance) Orb) Decide that matter should be considered at a

hearing of the Standards Committee Orc) Should be referred to Adjudication Panel for

determination

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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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What happens if the Member doesn’t 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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The Hearing

Stage 1 - Findings of factStage 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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Sanctions Censure Restriction of member’s 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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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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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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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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Proposed Revisions to the Code of Conduct (cont’d) Revised Format

2 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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Proposed Revisions to the Code of Conduct(cont’d) 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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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!

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Documents

1 Tees Valley Town and Parish Councils ETHICAL GOVERNANCE WORKSHOP 8 th May 2009 Kirsty Cole - Strategic Director (Customers and Resources) Newark & Sherwood