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					London Borough of Bromley
Report No.LDS06246 PART I – PUBLIC Agenda Item No.: Title: Decision Maker: Decision Type: Budget/Policy Framework: Chief Officer: Contact Officer:

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REVIEW OF THE PROCEDURE FOR LOCAL DETERMINATION OF COMPLAINTS AGAINST COUNCILLORS STANDARDS COMMITTEE Non-Urgent Decision Date: 13th December 2006 Non-Key

Non-Executive

Within budget and policy framework

Director of Legal & Democratic Services Mark Bowen, Director of Legal & Democratic Services Tel: (020) 8313 4355 Email: mark.bowen@bromley.gov.uk N/A

Ward:

1.
1.1

SUMMARY
Following the previous meeting of the Committee, it was agreed that the process for determining complaints against Councillors would be reviewed and any recommendations made to this meeting. Group Leaders have been consulted and any matters they want to raise will be reported to the meeting.

2.
2.1

RECOMMENDATIONS
that the adopted procedure be retained, subject to the following qualifications: a) where there is media contact, the Monitoring Officer be authorised to make a press release in the terms raised in paragraph 3.8. where there is local information which it is considered may influence the decision of the Standards Board for England to refer the matter for investigation, that information be forwarded to the Board by the Monitoring Officer or his nominee. where, following a local investigation the investigating officer’s report concludes that a Member has not breached the Code of Conduct, the Committee agree that a Sub-Committee can consider whether to accept the recommendation or refer for a hearing

b)

c)

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3.
3.1

COMMENTARY
The present system for investigation and determination of complaints against Councillors is a nationally based system in which the Standards Board for England play a key rôle. For example, the Council does not have local powers to filter out complaints as this is undertaken by the Standards Board with the vast majority of complaints being dismissed at this stage. Where the Standards Board for England considers that a complaint requires investigation, it can either do so itself through an Ethical Standards Officer or it may refer the matter to the relevant local authority for local investigation and determination. There are limited powers to refer a matter considered suitable for local determination back to the Standards Board and these are mainly based around conflicts of interest and complaints which, during the investigation, are identified as being more serious than first thought. This Committee adopted procedures to investigate and hear complaints in accordance with guidance produced by the Standards Committee for England. Only one matter has, so far, been referred for local investigation and determination and, as the Committee agreed with the investigating officer’s recommendation that there was no evidence of a breach of the Code of Conduct, it is only the procedures on investigation which have been tested so far. Press articles relating to the complaint appeared shortly after it was made to the Standards Board and at other points during the investigation. The local media will obviously want to run stories which they consider to be of local importance and, as the content will usually be cleared by the paper’s lawyer to ensure there is no defamatory content, it is difficult in a practical sense to stop this from happening. As the Council will be contacted for comment, then the Committee is asked to endorse a brief “standard” response which advises that: a) b) a complaint has been received for local investigation but not naming the Member concerned; that the substance of the complaint be covered by reference to the paragraphs of the Code of Conduct which it is alleged have been breached but making no comment on the facts of the matter; that the fact that a complaint has been made and referred for investigation does not indicate that a Member has breached the Code of Conduct and advising that the majority of complaints are dismissed without a breach having been found and asks the paper to make this clear.

3.2

3.3

3.4

3.5

3.6

3.7

3.8

c)

3.9

The complaint process also indicated that the Council may be privy, through local knowledge, to matters which may have led the Standards Board to have taken a different approach in deciding whether or not to refer a complaint for investigation. It

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is considered that, for the future where the Council is aware of complaints being brought to the Board’s attention, the Monitoring Officer or his nominee should advise the Board of any facts considered material to the Board’s decision. 3.10 The question was also raised on a matter relating to hearsay evidence. The highest standards on hearsay evidence apply in criminal courts. There is, however, some greater flexibility to admit hearsay evidence in civil proceedings and more still before various ad hoc tribunals and hearings. The rules of procedure for the Adjudication Panel for England advise that evidence may be admitted which would not necessarily be admitted in a court of law. However, primacy will always be given to first hand evidence when determining whether there has been a breach of the Code of Conduct. There is also a distinction between the evidential burden in deciding to commence an investigation and that needed to prove a breach. The purpose of an investigation is to establish whether sufficient evidence exists. In the case which was recently considered, there was no first hand evidence of a breach and the investigating officer and the Committee following the investigation quite properly disregarded the second hand evidence which initiated the referral. As indicated above, we are unable to filter out complaints and must undertake a thorough investigation. Failure to do so can lead to the outcome of the process being challenged and further delay and uncertainty for the Member concerned. In this instance the investigating officer had to familiarise herself with the matter and obtain all supporting papers and documents. The number of witnesses we had to interview in this case made the matter unusual. It is not uncommon for investigations to focus on the complainant, the Member concerned and, perhaps, one or two independent witnesses. Here there was a need to interview five witnesses, the complainant and the Member concerned. Many of the interviews had to be dealt with sequentially which meant that a party could not be seen until an earlier interview had been carried out and the person interviewed was satisfied with the statement taken. The availability of individuals in these circumstances will always influence the process as will the time taken for people to satisfy themselves with their statements and this took up a significant amount of time. The matter was referred on 22nd February and all interviews were substantially concluded by 22nd May. Following this, various approvals were sought of the parties and a draft report circulated on 14th July. If local investigating officers had the same powers as Ethical Standards Officers, then the matter could have been concluded in July. However, where the matter is investigated locally and the investigating officer identifies no breach of the Code of Conduct, the matter still has to be signed off by the local Standards Committee or a duly appointed Sub-Committee. Therefore, the next stage in the process, after having prepared a report and submitted it to the complainant and subject Member for comment, was to secure a hearing of the Standards Committee to close the matter off. It would not, given this was our first complaint and the previous media interest, have been appropriate to deal with this during the recess, even if it had been possible to secure a meeting of the Standards Committee during that period. The Standards Committee meeting

3.11

3.12

3.13

3.14

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was fixed for 14th September which was the first available date after the recess. Unfortunately, due to a general commitment to support Members in attending Party Conferences, the meeting was cancelled and re-arranged for 18th October when the matter was concluded. 3.15 Given the number of witnesses involved, the actual time taken to investigate the matter was not unreasonable. That is not to say that lessons learnt on this occasion will not lead to a streamlining of the process in the future as it is important investigations are concluded as quickly as possible. It is unfortunate that the time taken to secure a hearing to sign off the investigating officer’s report was almost as long as the time taken for the investigation itself – however, that arose due to the circumstances outlined above. Agreeing to this rôle being undertaken by a SubCommittee would assist in bringing matters to a swifter conclusion. That SubCommittee could, if appropriate, proceed to hear the complaint if the recommendation of the investigating officer is not accepted

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4.1

FINANCIAL IMPLICATIONS
As long as the present low level of referrals is maintained there will not be any adverse financial implications. However if, due to the volume of complaints or conflicts of interest, there is a need to appoint external investigators then the minimum cost is likely to be £2,000 per investigation. To mitigate cost impact the Council has entered into reciprocal arrangements with the Monitoring Officers at Bexley, Medway and Kent to investigate complaints where there is a conflict of interest

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5.1

LEGAL IMPLICATIONS
The procedures for local investigation and determination of complaints are covered by Sections 60-67 of the Local Government Act 2000, the Local Authorities (Code of Conduct)(Local Determination) Regulations 2003, as amended in 2004 by the Local Authorities (Code of Conduct)(Local Determination)(Amendment) Regulations and Section 113 of the Local Government Act 2003.

Non-Applicable Sections: Policy

Personnel
Background Documents: (Access via Contact Officer)

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