1 Tees Valley Town and Parish Councils ETHICAL GOVERNANCE WORKSHOP 8 th May 2009 Kirsty Cole - Strategic Director (Customers and Resources) Newark & Sherwood District Council John Williams – Senior Policy Advisor Standards Board for England

2 Background The image of Local Government Services or Sleaze?

3 Background Nolan Committee Found standards generally high Problem of perception

4  “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]

5 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 6

The Standards Board for England Promote and maintain high standards of Conduct  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 7

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 8

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 councils 9

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 10

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? 11

12 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 13

14 10 General Principles of Conduct in Local Government SelflessnessHonesty and integrity ObjectivityAccountability OpennessPersonal judgement Respect for othersDuty to uphold the law StewardshipLeadership [Statutory Instrument ] 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 16

13 dos and don’ts  5 dos 1.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 17

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 18

Confidential Information MUST NOT disclose information except where:- i. You have the consent of the person authorised to give it ii. You are required by law to do so iii. Disclosure is to a third party to obtain professional advice and the third party agrees not to disclose to any other person. Or The disclosure is:- a) Reasonable and in the public interest And b) Made in good faith and in compliance with the reasonable requirements of the authority 19

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 20

Personal interests (2) 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 21

Personal interests (3) 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 + 1/100 th of the shares 22

Personal interests (4) 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 + 23

Personal interests (5) 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 24

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) 25

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) 29

But remember..... Often ethical problems do not relate to rules and protocols, but to relationships and behaviours 30

31 Part II Local Assessment De-mystified

Local Assessment of Standards Complaints Moved from a top down approach to a locally based regime 32

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 33 Local Assessment of Standards Complaints

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. 34

Local Assessment of Standards Complaints 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). Or iii.to take some other form of action 35

Local Assessment of Standards Complaints 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 36

Local Assessment of Standards Complaints 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 37

Local Assessment of Standards Complaints What happens if it decides that no further action be taken?  The complainant can request a review  This will be heard by a Review Sub-Committee  The Review Sub-Committee consists of a different panel of members from the Standards Committee  Chaired by an independent member 38

Local Assessment of Standards Complaints 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 action  DO NOT make findings of fact at this stage  DO 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) 39

Local Assessment of Standards Complaints 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). 40

Local Assessment of Standards Complaints 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. 41

Local Assessment of Standards Complaints When will the member be told that a complaint has been made about them? (cont’d) 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). 42

Local Assessment of Standards Complaints When will the member be told that a complaint has been made about them? (cont’d)  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 43

Local Assessment of Standards Complaints 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 44

Local Assessment of Standards Complaints What happens if a case is referred for “other action”?  May be a more appropriate alternative to formal investigation  May 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 45

Local Assessment of Standards Complaints Are the initial assessment and review meetings open to the public?  No!  Normal access to information rules do not apply  However, a written summary of the decision will be available for public inspection  Will give name of subject member unless it is not in the public interest or would prejudice any subsequent investigation 46

Local Assessment of Standards Complaints What happens where the complainant withdraws their complaint?  Assessment Sub-Committee decide whether to grant request  Standards Committee should adopt criteria for determining such requests 47

Local Assessment of Standards Complaints 48 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)

Local Assessment of Standards Complaints On conclusion of investigation: 1. MO makes finding of either:- a)Failure to comply with code (“a finding of failure”) OR b)No failure to comply with code (“a finding of no failure”) 2.Written report sent to: a)Member against whom complaint made b)Standards Committee 49

Local Assessment of Standards Complaints 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) Or b)Decide that matter should be considered at a hearing of the Standards Committee Or c)Should be referred to Adjudication Panel for determination 50

Local Assessment of Standards Complaints 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 51

Local Assessment of Standards Complaints 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 52

Local Assessment of Standards Complaints The Hearing Stage 1 -Findings of fact Stage 2 -Is there a breach of code? Stage 3 -Sanctions (maximum 6 months suspension) NOTE: notification requirements in respect of findings 53

Local Assessment of Standards Complaints 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] 54

Local Assessment of Standards Complaints 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. 55

Local Assessment of Standards Complaints 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 56

Local Assessment of Standards Complaints Proposed Revisions to the Code of Conduct  Consultation document issued October 2008  Consultation period ended 24 th December 2008  New revised code expected imminently 57

Local Assessment of Standards Complaints 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 capacity PROPOSAL: “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? 58

Local Assessment of Standards Complaints 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 59

Local Assessment of Standards Complaints Other Key Developments Introduction of Regulations:-  Giving SBE powers to intervene  Enabling the establishment of joint standards committees 60

Any Questions? And a safe journey home! 61