Decision Letter - DOC by Emilymohar


									                                 Full Decision
CASE REF and                          APE 0429 – Former Councillor Bradley
RESPONDENTS:                          APE 0430 – Councillor Pound
                                      APE 0431 – Councillor Davies
                                      APE 0432 – Councillor Gla ze
                                      APE 0433 – Councillor Newbold
                                      APE 0434 – Councillor Pope

HEARING DATE:                         30 July 2009

RE:                                   Reference in relation to a possible failure
                                      to follow the Code of Conduct

RELEVANT AUTHORITY                    Ludlow Town Council

INVESTIGATING OFFICER:                Veronica Calderbank

Case Tribunal Members:
Chairman:                             Simon Bird
Member:                               David Ritchie
Member:                               Stan Szaroleta

1       Preliminary documents

        1.1     In a letter dated 14 April 2009, the Adjudication Panel for England
                received a reference from the Monitoring Officer of Shropshire Council
                pursuant to Regulation 5(1) of The Local Government (Structural
                Changes)(Further Transitional and Supplementary Provision and
                Miscellaneous Amendment) Regulations 2009, in relation to an
                allegation that the above councillors had allegedly disclosed to the
                press confidential information received during closed sessions of
                meetings of the Ludlow Town Councils Staffing and Appeals Sub-
                Committee on 9 October 2008 and of the Policy and Finance
                Committee of 20 October 2008 and in so doing:

                1.1.1   Failed to treat others with respect contrary to paragraph 3(1)
                        of the Code

                1.1.2   Disclosed information given to them in confidence contrary to
                        paragraph 4 of the Code

                1.1.3   Brought their office and authority into disrepute contrary to
                        paragraph 5 of the Code.

                1.1.4   Failed to comply with paragraph 6(a) of the Code

Case Ref: APE 0429 – 0434                                                           1
2       Preliminary Matters

        2.1     At the hearing only Councillors Newbold and Davies appeared.
                Councillors Glaze and Pope had notified the Adjudication Panel that it
                was not their intention to appear but no response had been received
                from Councillor Pound and former Councillor Bradley. There being no
                evidence that any of the documentation sent to the absent councillors
                had been returned and in the light of the clear indication in the
                President’s listing direction that in the absence of any request for an
                adjournment the Case Tribunal would proceed in the absence of any
                of the Respondents, the Case Tribunal continued to hear the

        2.2     In the light of the fact that the reference resulted from a decision of
                the Standards Committee of South Shropshire District Council which
                authority had ceased to exist, Mr Roscoe who appeared on behalf of
                the successor Shropshire council indicated to the Tribunal that the
                position of the new authority was to step aside from the matter and to
                leave the Tribunal to reach its own independent view of the facts,
                whether on those facts any of the Respondents had breached to Code
                and if so, on the appropriate sanction.

        2.3     In accordance with Regulation 5 of the 2009 Regulations it is the duty
                of the Case Tribunal to reach its own decision untrammelled by that of
                the Standards Committee of South Shropshire District Council and to
                that end it considered all of the written evidence before it and heard
                oral evidence from both Councillors Newbold and Davies.

3       The Evidence

        The following facts were undisputed:

        3.1     Councillors Pound, Davies, Glaze, Newbold and Pope (“the
                Respondents”) are and were at all material times, elected members of
                Ludlow Town Council. Former Councillor Bradley resigned as a Town
                councillor on 30 March 2009.

                3.1.1   Ludlow Town Council adopted the Model Code of Conduct in
                        January 2008

                        The Code of Conduct provides inter alia:

                3.1.2   Para 3(1)’ you must treat others with respect

                3.1.3   Para 4’ you must not – disclose information given to you in
                        confidence by anyone, or information acquired by you which
                        you believe, or ought reasonably to be aware, is of a
                        confidential nature, except where –

                        you have the consent of a person authorised to give it; you are
                        required by law to do so; the disclosure is made to a third
                        party for the purpose of obtaining professional advice provided
                        that the third party agrees not to disclose the information to
                        any other person; or the disclosure is – reasonable and in the

Case Ref: APE 0429 – 0434                                                            2
                        public interest; and made in good faith and in compliance with
                        the reasonable requirements of the authority.

                3.1.4   Para 5’ you must not conduct yourself in a manner which could
                        reasonably be regarded as bringing your office or authority
                        into disrepute

        3.2     In the period approaching the end of the 2007/8 financial year the
                Ludlow town clerk identified a lack of income in respect of the
                calendar of events. The town council paid for the costs of the calendar
                but the events group was responsible for invoicing advertisers and
                contributors and the events group then accounted to the town council
                for the income received. Initial investigations by the town clerk
                disclosed that the council’s employee responsible for paying in
                cheques received had failed to pay in any cheques since being
                responsible for doing so and had in fact destroyed them.

        3.3     The town clerk reported the result of this initial investigation to the
                town council’s Staffing & Appeals Sub-Committee meeting on 9
                October 2008. The item was dealt with as a confidential item with
                press and public excluded.

        3.4     It was resolved that “A recommendation be made to the Policy &
                Finance Committee that the town clerk obtain independent support to
                carry out a further stage of the investigation into the financial aspect
                of the production of the calendar of events leaflet, to report back by
                the end of the month. At this time any further action would be
                considered”. Voting was for 2 against 2 abstentions 1 and the
                resolution was carried on the chairman’s casting vote.

        3.5     Councillors Bradley, Glaze, Newbold and Pound were present as
                members of the Staffing and Appeals Sub-Committee. Councillors
                Davies and Pope were in attendance as town council members.

        3.6     The Policy & Finance Committee considered the matter at its meeting
                on 20 October 2008 in confidential session and approved the
                resolution of the Staffing & Appeals Sub-Committee. Councillors
                Bradley, Glaze and Pound sought to have the matter referred to the
                full town council by letter addressed to the Clerk dated 21 October
                2008 but were informed that this would not be possible under the
                council’s standing orders.

        3.7     Councillors Bradley, Pope, Glaze, Newbold, Pound and Davies each
                signed a statement dated 12 November 2008 which read as follows:

                        “We the undersigned Ludlow town councillors would like to
                        publicly announce our condemnation of inappropriate
                        management of public money by a member of staff at Ludlow
                        town council.

                        An investigation into the matter has not been carried out
                        promptly or thoroughly as requested by council at a council
                        committee. This failure makes us feel that the matter must
                        now be investigated by the police who have the powers and
                        authority to act. We also urge that all the staff, including the
                        clerk, fully co-operate with said investigation”

Case Ref: APE 0429 – 0434                                                             3
        3.8     The signatures were in the following form “Cllr M Bradley”, “Cllr
                Amanda Pope”, “Cllr Marie Glaze”, “J Newbold Mayor”, “A J Pound”
                and “D Davies Deputy Mayor”.

        3.9     This signed statement was hand delivered to the town hall.

        3.10    Following an investigation undertaken by the town clerk a meeting to
                hold a disciplinary hearing was convened for 18 December 2008 but
                the council staff member concerned resigned in advance of the
                meeting. In the circumstances it was necessary for the sub-committee
                to meet instead in order to consider the findings of the investigation
                and to decide how to deal with ongoing issues arising from it. The
                sub-committee resolved:

                3.10.1 that having listened to all the circumstances and evidence
                       presented it concluded that there had been serious misconduct
                       on the part of the employee;

                3.10.2 that the failures in management processes within Ludlow Town
                       Council should be urgently addressed; and

                3.10.3 that following a full discussion and taking legal advice, the
                       sub-committee believed that there was no evidence of criminal
                       intent and did not believe further action by the police to be
                       necessary. However, in line with the information sharing
                       protocol the summary report would be made available to the
                       police, and other documents if required.

        3.11    It was clear from the responses given in interview to the Monitoring
                Officer by the Respondents in the course of the investigation of the
                complaint which led to this reference that the Respondents denied
                that they had by their conduct disclosed to the press either
                information received by them in confidence or information of a
                confidential nature. It was in particular denied that any of them had
                provided the press with the signed statement. In the light of this
                dispute of fact, the Tribunal heard evidence from the two
                Respondents who chose to appear before it in relation to this matter.
                It also had the benefit of having received a copy of one of the press
                articles which it had been alleged before the Standards Committee
                evidenced the disclosure of confidential information. This was an
                article which appeared on the front page of the Ludlow Advertiser on
                13 November 2008. Mr Roscoe confirmed to the Tribunal that the
                other alleged article, which may have appeared in the Shropshire Star,
                had not been found after exhaustive searches of all possible sources.

Oral Evidence

        Councillor Newbold

        3.12    At the Staffing and Appeals Sub-Committee meeting on 9 October
                2008 there had been discussion about reporting the circumstances
                outlined by the town clerk to the police but when the issue was
                considered by the Policy and Finance Committee (to whom the sub-

Case Ref: APE 0429 – 0434                                                           4
                committee only had a power of recommendation) they resolved to
                refer the circumstances to an internal investigation. Councillor
                Newbold did not recall the Policy and Finance Committee setting a
                timescale for reporting back.

        3.13    There was pressure by some members for the matter to be referred
                up to full council but this did not happen.

        3.14    He was asked to sign the statement drafted by Mrs Pope whilst he
                was working in his shop. Councillors Pope, Bradley and Glaze came in
                and asked him to sign it because the local police inspector had called
                Councillor Bradley in relation to the complaint he had made to the
                police and said that the town clerk had declined at that stage to give a
                witness statement. It was, he thought, Councillor Bradley who had
                asked Councillor Pope to draft something and, in the light of the
                strained relations between Councillor Bradley and town council staff
                which had led to a number of references to the Standards Board for
                England, they knew that the statement should not refer by name to
                any individual or give details of the alleged wrong doing.

        3.15    Councillor Newbold had looked at the statement, saw that it contained
                no names and thought that it was reasonably all right to sign it. He
                thought, as did everyone else, that it would simply go to the town
                clerk and stand as a record of their desire for the matter to be
                referred to full council for reconsideration of the appropriate way
                forward in the light of the contact between the police and Councillor
                Bradley and to urge co-operation by the town clerk with any police
                investigation. They saw it as a public announcement through the full
                council. It was for the town clerk’s eyes only. The procedures of the
                town council required signatures in order for an item to be put on a
                meeting agenda.

        3.16    The concerns expressed in the statement to the absence of the
                promptness and thoroughness of the internal investigation reflected
                Councillor Bradley’s fears arising from what he had heard about the

        3.17    Councillor Newbold did not at any stage contact the press or supply
                them with a copy of the statement. There was no intention in any of
                the signatories that it should be supplied to the press. All his press
                contacts went through the office.

        Councillor Davies

        3.18    Councillor Davies had been present at the sub-committee meeting of
                9 October in his capacity as Deputy Mayor which entitled him to
                attend meetings of all of the town council’s committees irrespective of
                his membership of them. He also attended the Policy and Finance
                meeting of 20 October 2008.

        3.19    He was asked to sign the statement prepared by Mrs Pope on entering
                her laundrette. He read it but did not study it. He had no problem in
                signing it. He was told that it was to go to the town clerk almost
                straight away and as the statement itself shows he was the last to
                sign it. He was expecting the town clerk to make a note of their

Case Ref: APE 0429 – 0434                                                             5
                concerns and to pass them on to full council. There had been chat
                amongst the members of the town council about the refusal of the
                town clerk at that stage to provide a witness statement to the police
                and he was concerned that an internal investigation was now unlikely
                to have sufficient scope properly to investigate the matter given the
                nature and extent of the mounting public concern over the issue. He
                wanted a reference on the record to the fact that he objected to how
                matters were proceeding. No one mentioned taking it to the press at
                the time it was signed. Councillor Davies had not given it to the press.

        Councillor Bradley’s interview evidence

        3.20    Councillor Bradley acknowledged that he had spoken to Mr Kibbler of
                The Ludlow Advertiser who had told him that he simply confirmed
                what he already knew (see below for what Councillors Bradley and
                Pound were recorded by Mr Kibbler as having said to him). He was
                not going to allow himself to be drawn into a cover up by the town
                council. No admission was made in relation to releasing the statement
                to the press.

        Councillor Pound’s interview evidence

        3.21    Councillor Pound denied that he had breached confidentiality other
                than in the public interest. No admission was made in relation to
                releasing the statement to the press.

        Councillor Glaze’s interview evidence

        3.22    Councillor Glaze was hoping that the town council would do more than
                it had done.

        Councillor Pope’s interview evidence and response to the reference

        3.23    The public announcement signed by herself was done in the public
                interest to ensure a proper external investigation/police investigation
                was conducted. Councillor Pope had written the statement because
                she had fears about the independence of the investigation. She had
                not persuaded the other councillors to sign the statement but asked
                them if they wanted to sign it. She was concerned that unless it was
                written as a “public statement” to the town clerk it would be ignored.
                It was not a press release to the public at large but a strongly worded
                appeal directly to the clerk and only her.

        The content of the Ludlow Advertiser article of 13 November 2008

        3.24    Under the headline “Town councillors call in the police” the article
                written by Mr Kibbler following his contact with Councillors Bradley
                and Pound stated, in so far as is relevant:

                        “Police are investigating alleged financial irregularities at
                        Ludlow Town Council. In a statement West Mercia Police
                        confirmed that it had received a complaint and was looking
                        into it. Town Councillors Michael Bradley and Tony Pound have
                        said that they went to the police to report their concerns. “We
                        had tried to get the matter investigated internally. We felt that

Case Ref: APE 0429 – 0434                                                              6
                        there was no option but to take the matter to the police” said
                        Councillor Bradley.

        3.25    There is no reference in the article to the statement prepared by
                Councillor Pope and signed by the Respondents and no reference to
                any of the Respondents other than former Councillor Bradley and
                Councillor Pound.

4       Findings

        The Case Tribunal has found the following in relation to the disputed facts:

        4.1     On 12 November 2008 Councillor Pope and former Councillor Bradley
                invited the other Respondents to sign the statement which Councillor
                Pope had prepared.

        4.2     The preparation of the statement was triggered by a claim made by
                former Councillor Bradley that an Inspector of the local police to
                whom he had reported the circumstances surrounding the destruction
                of the Calendar of Events cheques had indicated that the town clerk
                had not provided a witness statement to the police.

        4.3     Whilst the statement begins “we the undersigned Ludlow town
                councillors would like to publicly announce” the Tribunal is satisfied
                from all the evidence that it has heard and read that its purpose was
                to act as a strong representation to the town clerk to encourage
                cooperation with the police and for the decision to refer the matter for
                internal investigation to be reconsidered by the full town council. The
                absence of any intention that it should be made available to anyone
                other than the town clerk is supported by the absence of any evidence
                before the Tribunal that the statement was given to the press or
                otherwise appeared in the press and also by the absence of any
                evidence that its contents were in fact communicated to any other

        4.4     Given that the statement contained facts and information which was
                already known to the town clerk through her initial investigations and
                which was not disclosed to any other person, there was as a matter of
                fact no disclosure of confidential information given in confidence or of
                a confidential nature other than to the police by former Councillor
                Bradley and Councillor Pound. The Tribunal consider it more likely
                than not that the matter was reported by them to the police at some
                stage between 20 October and 12 November 2008.

        4.5     The only evidence before the Tribunal of statements made to the
                press by former Councillor Pound and Councillor Bradley as appears
                from the Ludlow Advertiser article of 13 November 2008 contains no
                information of a confidential nature or information disclosed to them
                in confidence at any town council meeting. It simply records the fact
                of a report to the police. Mr Roscoe on behalf of the Standards
                Committee accepted that was the case.

        4.6     In the light of its findings of fact, the Tribunal now turns to address
                whether on those facts, any of the Respondents breached any
                paragraph of the town council’s Code of Conduct.

Case Ref: APE 0429 – 0434                                                              7
5       Case Tribunal Decision

        Official Capacity

        5.1     The statement was signed by the Respondents as “Town Councillors”
                in order to encourage a town council employee to cooperate with any
                police investigation into what was a town council matter and in order
                to seek to have the previous decision to proceed by way of internal
                investigation reconsidered. The Tribunal is satisfied that in these
                circumstances the Respondents were carrying out the business of the
                office to which they were elected and they were therefore acting in
                their official capacity.

        Paragraphs 3(1) and 5 of the Code:            Failure to treat others with
        respect and disrepute

        5.2     Failure to treat others with respect will occur when unfair,
                unreasonable or demeaning behaviour is directed by one person
                against another. The circumstances in which the behaviour occurred is
                relevant in assessing whether the behaviour is disrespectful. The
                circumstances include the place where the behaviour occurred, who
                observed the behaviour, the character and relationship of the people
                involved and the behaviour of anyone who prompted the alleged

        5.3     The Oxford English Dictionary defines disrepute as “lack of good
                reputation or respectability”. A member will have failed to comply with
                the Code if his or her conduct could “reasonably be regarded” by an
                objective observer as bringing the member’s office or authority into
                disrepute. Anything which diminishes the member’s office or their
                authority, or which harms or could harm the reputation of an
                authority, will bring that office or authority into disrepute.

        5.4     It is important that the restraints of the Code where they would
                operate to restrict the right to freedom of expression should not
                extend beyond what is necessary to maintain proper standards in
                public life. Political expression is to be afforded a higher level of
                protection. In the Tribunal’s view, it is important that members should
                be able to express, in robust terms, concerns that they may have
                about any aspect of the running of the council.

        5.5     The concept of “treating others with respect” is one that allows the
                essential balance between the protection of the freedom of expression
                and maintenance of high standards in public life to be performed, as
                does the phrase “bringing his office into disrepute” used in paragraph
                5 of the Code.

        5.6     In the Tribunal’s view, the statement signed by the Respondents was
                a strongly worded statement delivered privately addressing issues of
                legitimate concern to them over the handling of a matter of significant
                import to the town council. Whilst expressed in robust terms, it was
                not intemperate or abusive and does not reach the threshold required
                for a breach of paragraph 3 in so far as it related to the town clerk.

Case Ref: APE 0429 – 0434                                                            8
        5.7     The Tribunal does not consider that the statement failed to treat all
                other members of the town council’s staff with respect by inferentially
                attributing to them misconduct by not naming the individual at the
                centre of the allegation. The statement was not made publicly
                available and the only known recipient of it, the town clerk, knew the
                identity of the employee concerned.

        5.8     As to paragraph 5 of the Code, given the Tribunal has found as a fact
                that the statement was intended as a robust attempt to secure
                cooperation with any police investigation and for the appropriate
                investigatory route to be reconsidered by the council through due
                process and, given the absence of any disrespect or breach of
                confidence, it does not consider that the behaviour of any of the
                Respondents can be said to have breached paragraph 5 of the Code.

        5.9     In consequence the Tribunal finds no breach of paragraphs 3(1) and 5
                of the Code of Conduct.

        Paragraph 4 Disclosure of confidential information

        5.10    The Tribunal has found as a fact that the only disclosure of anything
                of a confidential nature or received by the Respondents in confidence
                was by former Councillor Bradley and Councillor Pound in making their
                complaints to the police. The Tribunal considers that this disclosure
                was made in accordance with their duty as a citizen to report what
                they considered was, potentially, serious criminal conduct to the
                police. The Tribunal considers that such a disclosure was either one
                required by law or alternatively reasonable, in the public interest,
                made in good faith and involving no conflict with the reasonable
                requirements of the town council. It therefore involved no breach of
                paragraph 4 of the Code.

        Paragraph 6 Improper use of position

        5.11    For the reasons it has given in finding no breach of any other of the
                paragraphs of the Code, the Tribunal finds that there was nothing
                improper in the behaviour of the Respondents and therefore no
                breach of paragraph 6 of the Code.

        5.12    The Tribunal finds unanimously that the Respondents did not breach
                the Code.

Simon Bird QC
Chairman of the Case Tribunal
7 August 2009

Case Ref: APE 0429 – 0434                                                            9

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