REVIEWDECISION NOTICE
A BREACH OF THE CODE HAS BEEN FOUND AND
RECOMMENDED ACTION
Reference: / CCN036/13Complainant: / Councillor Anthony Mott, St Kew Parish Council
Subject Member: / Councillor Emma Hambly, St Kew Parish Council
Person conducting
the Review: / Richard Williams, Monitoring Officer
Date of Review: / 21 July 2014
Complaint
On21 July 2014 the Monitoring Officer considered a request to review the complaint from Councillor Anthony Mott concerning the alleged conduct ofCouncillor Emma Hambly of St Kew Parish Council. A general summary of the complaint is set out below.
That the subject member has repeatedly attempted to change the course of Parish Council business through individual actions such as unsolicited e mails sent to Council members; has treated the Clerk, Chairman and Parish Council with disrespect; that the length, high handedness and intimidatory attitude expressed in those e mails have also attempted to highlight shortcomings of individuals and the Parish Council as a whole; has questioned the actions, motives and authority of the Clerk and Chairman; has challenged the Parish Councillors’ competence and integrity; has disrupted the smooth running of the Parish Council and has brought the Parish Council into dispute
The specific paragraphs of the Code of Conduct of St Kew Parish Council to which the complainant has referred are:
failed to treat others with respect
intimidated or attempted to intimidate others
conducted himself in a manner which is contrary to the Council’s duty to promote and maintain high standards of conduct
brought their office or Council into disrepute
failed to have regard to the advice of the ……. Proper Officer
This is the summary used in the original assessment decision and I see no reason not to repeat that summary as it accurately reflects the complaint.
Decision and recommended action
The subject member has breached the Code of Conduct of St Kew Parish Council by failing to treat the Chairman, other members of the Council and the Clerk with respect by virtue of the specific conduct detailed in my reasoning which follows.
The breaches are of such a nature, in the context of the circumstances leading to the complaint, that censure is a disproportionate response. However, I am of the view that it would be beneficial for the subject member along with the rest of the membership of St Kew Parish Council to receive training on the Code of Conduct and consider, as a whole, participating in mediation with a view to addressing the tensions within the Parish Council and moving forward positively for the benefit of the community that the Parish Council represents and serves. I cannot compel anyone to participate in such training or mediation and the decision to do so must be made on an individual basis, albeit preferably as a unanimous collective. I would hope that this would go a long way to resolve the current tensions within the Council as a whole.
Reasons
In reaching this decision I have had regard to the documentation provided by the complainant, the views of the two Independent Persons who have considered this complaint, the submission of the subject member and documentation openly available on the St Kew Parish Council website. The information available has enabled me to determine this complaint and make a finding of a breach of the Code of Conduct without having to refer the matter for investigation.
Before I provide my reasoning in relation to the breaches found, I consider it appropriate to make the following general observations:
(i)the subject member was acting as a councillor at all material times in relation to the circumstances highlighted in the complaint;
(ii)save for the specific breaches that I articulate below, I do not consider there to have been any other breaches of the Code of Conduct of St Kew Parish Council on the part of the subject member in relation to this complaint;
(iii)it is clear from considering all of the information relating to this complaint that there are tensions within the Parish Council which should be capable of resolution but which are not being resolved. That is undoubtedly having an impact on the functioning and reputation of the Parish Council, impacting adversely on the individuals involved and having a disproportionate impact on the resources of this Council as a result of the number of complaints that have had to be assessed and reviewed, as well as the additional correspondence that has had to be addressed;
(iv)I am mindful of the subject member’s correspondence to this Council’s Chief Executive and the Deputy Leader, as the Cabinet Member for Localism and Devolution, in which the integrity of this complaints process and officers involved in the process are questioned. I do not consider that to be helpful and it suggests that the subject member does not recognise the process insofar as it relates to findings with which she does not agree. The Council’s adopted process is clear and it involves neither the Chief Executive nor any Member of the Cabinet. The subject member’s stance is unfortunate and this decision is made having regard to that and the limitations within the ethical standards complaints regime brought about by the changes to the regime introduced by the Government in 2012;
(v)throughout the documentation I have seen are references to Parish Council procedural matters not being within the scope of the Code of Conduct. That is not entirely correct. This Council has no jurisdiction over local councils in relation to any failure on their part to comply with the law or their own procedures. However, it is certainly the case that the circumstances giving rise to a councillor’s failure to comply with their council’s procedures can also give rise to a breach of the Code of Conduct and for that reason it is sometimes necessary to refer to procedural issues when articulating the determination of Code of Conduct complaints;
(vi)it is in order for any member of a local council to consult their Clerk on procedural issues, it is incumbent upon the Clerk to provide timely and accurate advice and it is appropriate for members to have proper regard to advice that is provided to them by their Clerk;
(vii)it is legitimate for any member of a parish council to propose amendments to the draft minutes of a meeting and the proper approach to that is to propose the amendments when the minutes are considered for accuracy, in accordance with the relevant procedure rules. It is not appropriate for amendments to be made outside of formal meetings nor is it appropriate for individual members or clerks to arbitrarily amend minutes. Where substantial amendments are proposed there may well be merit in the proposer making those amendments available to the clerk so that they can be circulated by the clerk to the wider membership to allow preliminary consideration of the proposed amendments prior to the meeting at which the accuracy of the minutes is considered with a view to saving debating time at the meeting;
(viii)on reflection and in the context of the Code of Conduct, I agree with the subject member’s contention that, in the absence of a procedural rule to the contrary, it is prima facie not inappropriate for any member of the Parish Council to send communications by e-mail to all of the other members of the Council and that there is no hard and fast rule as to how lengthy or concise such communications might be. Each and every recipient of such a communication is at liberty to read it, ignore it, delete it or provide a response. That is their personal choice. However, communications sent to others will present an issue and possibly give rise to breaches of the Code of Conduct where their content falls short of the standards of behaviour expected of councillors under the Code of Conduct;
(ix)even though I have found the subject member to be in breach of the Code of Conduct, it seems to me that the behaviours of others within the Parish Council towards the subject member could be moderated so as to help in addressing the tensions that exist, for the benefit of the community of St Kew and the credibility of the Parish Council;
(x)there have clearly been missed opportunities for the subject member and others to adopt a more conciliatory approach with a view to resolving the tensions within the Parish Council. That is a shame and I sincerely and genuinely hope it is not a continuing trend; and
(xi)I have limited my findings and reasoning to the specific breaches mentioned as to do otherwise would be counter-productive and, save as set out below, I wish to make no further comment on the complaint or the representations received in response to it.
It is also important to note at this point that the Parish Council did not adopt a Code of Conduct to satisfy the requirements of the Localism Act 2011 until 9 July 2013. The Parish Council resolved to adopt the Code with retrospective effect and I am not aware that there was any challenge to that decision. Whilst I am satisfied that such decision was legitimate, albeit coming much later than it should have, I am also firmly of the view that it would be inappropriate to make any formal findings in relation to alleged breaches of the Code that occurred between the cessation of the previous Code in 2012 and 9 July 2013. Events mentioned below prior to 9 July 2013 serve only to provide context.
E-mail from the subject member to all members of 17:39 on 16 June 2013 about the forthcoming site meeting
In isolation, this e-mail, although to the wider membership of the Parish Council, does not give rise to any Code of Conduct issues albeit it does not have proper regard to the position of either the Chairman or the Clerk in relation to the organisation and conduct of Parish Council meetings. It may demonstrate a naivety as to the procedure to be followed but the language used is neither antagonistic nor inappropriate. The Chairman’s response might more helpfully have been to advise that such issues should be raised in the first instance with the Clerk or the Chairman of the Parish Council. This e-mail predates the adoption of a Code of Conduct by the Parish Council to satisfy the requirements of the Localism Act 2011.
E-mail from the subject member to all members of 09:28 on 20 June 2013 about conduct and objectivity
This e-mail also predates the adoption of a Code of Conduct by the Parish Council. The subject member, having set out for her fellow members her understanding of the Code of Conduct in relation to interests, says “I cannot get past the feeling that I believe there was some degree of personal interest at the site meeting on Monday between the member(s) of the Council and the applicant (even if not to the extent that requires a declaration of interest and absenting oneself from the meeting). I therefore am emailing to ask that everyone reconsider the objectivity of their part in the process, and that if anyone feels that they could not be fully objective because of a personal relationship, to please declare it”. Putting aside the fact that there was no Code of Conduct in place at the time, it is for individual members to determine whether they have interests. Whilst it may be legitimate for a councillor to remind her fellow members of the importance of declaring an interest when considering planning issues, it is not surprising that the complainant was concerned about what the email was implying.
E-mail from the subject member to all members of 21:39 on 20 June 2013 about the Tregellist site meeting, etc.
As before, this e-mail predates the adoption of a Code of Conduct by the Parish Council. Much of this e-mail is an expression of the subject member’s views but there are elements of the message that are unfortunate and particularly:
•“For those of you who, like me, take the role of Parish Councillor seriously……”
•“However, it is still not clear to me that the outcome was reached with as open minds in all cases as has been purported”
Both of these statements could be considered to question the integrity of one or more members of the parish council and, in doing so, it is again not surprising that the complainant took exception to the email.
E-mail from the subject member to the Clerk of 15:33 on 16 July 2013 about Mediation within the Parish Council
This is a clear and reasonable attempt by the subject member to seek help and guidance from the Clerk. Whilst this message makes clear that the subject member has strongly held views and no desire to let her concerns rest until resolved to her satisfaction, I do not consider anything within this message to be inherently disrespectful or otherwise improper. There is nothing in this message that, in isolation or otherwise, constitutes a breach of the Code of Conduct.
Letter of 19 July 2013 from the Clerk to the subject member
The letter is largely conciliatory and the Clerk correctly reminds the subject member that it is a matter for individual members to determine whether they have declarable interests and that if the subject member wishes to demonstrate impropriety she needs to provide proof. However, I believe the Clerk then makes two errors of judgment. First, the Clerk responds to a comment made by the subject member in the e-mail of 15:33 on 16 July 2013 above which was “I do not think the fact that our roles are voluntary should in any way be used as an excuse for not doing the job we are presented with to as high a standard as possible”. Viewed objectively I am of the opinion that this is not an unreasonable comment, however, the Clerk’s response is that she finds this comment offensive. Whilst in the context of the tensions apparently at work within the Parish Council I can understand why the Clerk made that comment, I do not consider this to be an objective view and I can understand why the subject member may have found that response objectionable. Secondly, the Clerk mentions her own concerns about the subject member questioning her work and she invites the subject member to “bring the matter before full Council so it can be discussed publicly and not by email”. By not referencing the correct procedure for concerns about her work to be raised and addressed within the Parish Council the Clerk has effectively contributed to one of the later issues raised in the complaint against the subject member and to which I return below.
E-mail from the subject member to the Clerk of 12:25 on 30 July 2013 entitled ‘your letter’
Whilst this letter does not contain anything constituting a breach of the Code of Conduct I do believe it demonstrates the subject member’s view that the Clerk and the Parish Council are against her by the comments “the fact that you tell me that you personally consider my remarks…….to be ‘offensive’ indicates that your sentiments towards me lack the prerequisite neutrality, so I seek your assistance no further” and “I have no desire to pursue this dialogue within the Parish Council any further”. In my view the first comment lacks objectivity and fails to have regard to the remainder of the Clerk’s letter, which was largely conciliatory and in some respects was complimentary of the subject member. I can understand why the Clerk or others might find this objectionable. The second comment suggests the subject member is at that point no longer interested in a conciliatory approach. This is borne out by the number of Code of Conduct complaints submitted by the subject member about her fellow members.
E-mail from the subject member to the rest of the Parish Council of 10:19 on 12 August 2013
In this message, the subject member reflects her disagreement with the Clerk about the correction of the minutes by seeking to rely on the Parish Council’s standing order number 28. The subject member has clearly misunderstood the application of this standing order and that has already been addressed in the original assessment decision. With the e-mail are minutes of the site meeting of 17 June 2013 with the subject member’s preferred amendments for her fellow members to consider. There is nothing within either the e-mail or the amended minutes attached to it that demonstrates a breach of the Code of Conduct. However, the minutes had already been agreed as a true and accurate record of the site meeting at the Parish Council Meeting on 9 July 2013. It is clear that the subject member’s request caused some irritation within the Parish Council but it didn’t amount to a breach of the Code of Conduct.
Minutes of the Parish Council Meeting of 13 August 2013
This appears to be the point at which the tensions within the Parish Council significantly increase. The Parish Council could have voted to make an amendment to the minutes of the site meeting of 17 June 2013 but given that those minutes were voted upon as being a true and accurate record of the site meeting by half of the membership of the Parish Council (six out of ten in attendance with one abstention) it is not unreasonable to suggest that without some compelling reason it is unlikely that a motion to amend would have been successful. It is not for me to judge whether there was indeed a compelling reason to amend the minutes. Whilst amending the minutes of the site meeting might not have been on the agenda the Council could have contrived the opportunity to reconsider the minutes. This must not be taken as an indication that I consider they should have reconsidered the minutes. That is not for me to judge. I am simply trying to explain my reasoning and that necessarily requires views to be expressed on the issues surrounding the complaint even though outside of the Code. Another approach would have been for the subject member to simply accept that pursuing the correction of the minutes was unlikely to be successful or well received. That did not happen and instead there was an exchange about whether the minutes of the site meeting could be added to the next agenda for discussion. The subject member contends that such a request was made by her at the meeting of 13 August. The Clerk contends that she was not clear that such request was made. The subject member seeks to rely on a recording of the meeting that was made without the knowledge of those present and also on a comment made by Councillor Rickard in an e-mail of 6 September 2013. The subject member says in her submission of 14 April 2014, “The fact that I asked for the matter to be placed on the agenda for the September meeting is explicitly corroborated in an email from Cllr Rickard, as submitted in my initial response to CCN036/13, who said “At the last meeting I heard Emma ask for the disputed item to be put on the next agenda””. However, what the e-mail from Councillor Rickard actually said was: