CITY OF YORK
COUNCIL
CASE HANDLING
PROCEDURE
Background
Under Section 28
of the Localism Act 2011, City of York Council must have in place
“arrangements” under which allegations that an elected
or co-opted councillor of the Council or of a town or parish
council within the Council’s area (herein after referred to
as the ‘subject member’) has failed to comply with the
Council’s Code of Conduct can be considered and decisions
made on such allegations.
These
arrangements provide for the Council to appoint at least one
Independent Person whose views must be sought by the Council before
it takes a decision on an allegation that it has decided to
investigate, and whose views can be sought by the Council at any
other stage, or by the subject member against whom an allegation
has been made.
The Council has
adopted a Code of Conduct for councillors (the Code), which is
published on the Council’s website and is available for
inspection on request from the Council’s office.
Each town and
parish council is also required to adopt a Code of Conduct which
should be available on their website.
Initial
assessment
- All allegations,
including those against a town or parish councillor, must be made
in writing, ideally by completing the complaints form available on
the Council’s website, to the monitoring officer of City of
York Council (MO).
- Within 3 working
days of receipt of the complaint the MO will acknowledge the
complaint.
- Anonymous
complaints will not be accepted unless the MO concludes that there
is a compelling public interest why a serious allegation made
anonymously may be taken forward.
- The MO will
apply an initial filter to an allegation – for example, to
check that the complaint is against a councillor, that they were in
office at the time of the alleged incident and that the matter
would be capable of being a breach of the Code. The Council has
no authority to deal with complaints which relate solely to a
councillor’s private life or things they do which are not
related to their role as a councillor or as a representative of the
council. The MO will keep a record of all complaints made including
those which do not pass the initial filter.
- If the MO has a
conflict of interest they should refer the matter to the Joint
Standards Committee assessment sub committee to take the decision
in their place. Circumstances where this would be done include (but
are not limited to) where the MO has a conflict of interest –
for example as the complainant, a key witness or where the MO has
already advised on matters which are the subject of the complaint;
or where the subject member or complainant is a member of the
Executive or Shadow Executive or a committee chair or deputy. Where
this is done, references to the MO in this section should be
substituted by JSC.
- The MO may also
delegate the decision to the deputy monitoring officer (DMO) where
there is a conflict of interest as outlined above.
- Complaints which
identify criminal conduct or breach of other regulations by any
person may be referred by the MO to North Yorkshire Police for
consideration, or any other regulatory agency.
In
such cases the MO may pause the consideration of the complaint
pending action by the other body.
- If the MO
decides the matter is within scope, they will invite an Independent
Person (IP) to give their views on what action should be taken at
this stage. That IP will then remain the IP who will be consulted
on that case throughout this process, except in exceptional
circumstances. Where a matter has not been referred to the JSC, the
MO will also consult with the chair or vice chair of the
JSC.
- The MO will also
notify the subject member of the complaint within three working
days unless there are compelling reasons not to, together with a
copy of the complaint (or relevant extracts) and a summary of the
process to be followed, and invite them to submit any relevant
comments. The subject member will be given 10 working days to
respond from the date of the notification. In parish council cases
the MO may also notify the clerk and may ask for relevant factual
information. However, the MO, in consultation with an IP, may
withhold the complainant’s identity if they can be satisfied
that there are reasonable grounds for granting confidentiality, for
example a belief that the complainant or any witness to the
complaint may be at risk of physical harm or intimidation, or that
their employment may be jeopardised if their identity is
disclosed.
- At the end of
the 10 working days from notifying the subject member (regardless
of whether any comments have been received from the subject
member), if the MO is assessing the complaint, after seeking the
views of the Independent Person and also having consulted with the
Chair or Vice Chair of JSC, the MO will decide one of the following
outcomes:
- to take no
further action;
- to seek to
resolve the matter informally; or
- to refer the
matter for investigation.
11.
If
the JSC is assessing the complaint, they will decide one of the
outcomes set out above.
12.
In
deciding what action is necessary the MO (or the JSC) will consider
the following non - exclusive factors:
a.
does
the complaint contain sufficient evidence to demonstrate a
potential breach of the Code?;
b.
are
there alternative, more appropriate, remedies that should be
explored first?;
c.
where
the complaint is by one councillor against another, a greater
allowance for robust political debate (but not personal abuse or
“unparliamentary” language) may be given;
d.
is
the complaint in the view of the MO malicious, politically
motivated, or ‘tit for tat’?;
e.
whether an
investigation would not be in the public interest or the matter,
even if proven, would not warrant any sanction;
f.
whether the
complaint is the same as one which has previously been considered
and no new material evidence has been submitted within the current
administration;
g.
whether the same
complaint has been submitted and accepted;
h.
does
the complaint relate to conduct in the distant past (over six
months before)? This would include any reason why there had been a
delay in making the complaint;
i.
does
the complaint actually relate to dissatisfaction with a Council (or
parish council) decision rather than the specific conduct of an
individual?; and
j.
is it
about someone who is no longer a councillor or who is seriously
ill?
13. All
parties (and the clerk for parish cases) will be notified of the
decision and there is no internal right of appeal against that
decision.
- A
decision notice will be produced as a matter of record but will not
be published at this stage though the Council may issue a public
statement if details of the complaint are already in the public
domain.
-
The MO will report to the JSC for information on cases in which
there has been no further action taken.
Informal
resolution
- Where the MO has
decided to seek to resolve the matter informally, they may do one
or more of the following:
- ask the subject
member to submit an apology in writing to the
complainant;
- convene a
meeting between the subject member and the complainant in order to
try to resolve the issue informally;
- notify the
subject member’s group leader (where they are a member of a
political group) and suggest that they may wish to take some
internal group action;
- suggest that the
subject member undergo relevant training;
- other such
action that the MO deems appropriate.
- The MO will
decide on a timeframe within which the informal resolution must be
completed to an acceptable standard.
- If either the
subject member or complainant refuses to engage with the informal
resolution proposed by the MO, or the MO deems the action taken by
the Subject Member insufficient or the informal resolution does not
take place in a timely way the MO will decide, in consultation with
an IP, whether the case should be closed, whether an investigation
is necessary or whether some other action should be taken. If the
MO and the IP are not in agreement about how to proceed the case
will be referred to the chair or vice chair of the JSC for a
decision.
- The MO will
notify the complainant (and clerk in parish cases) of the outcome
of the informal resolution.
20.The
MO will report to the JSC on the outcome of any informal
resolutions proposed and/or implemented.
Investigation
- Where a matter
is referred for investigation, the MO may carry out the
investigation themselves, delegate it to another officer or
contract it out to an outside body.
- The
investigation must normally be completed within 3 months of the MO
decision to refer the complaint for investigation. If an extension
of time is needed the MO must agree that extension with the JSC
chair and the IP and notify the subject member, complainant (and
clerk in parish cases) of any extension with reasons.
- The subject
member is notified who the relevant IP is for the case and may seek
their views at any stage during the investigation.
- The complainant
is also notified who the IP is and may make a request to the MO to
seek the views of the IP. However, such a request will only be
granted at the discretion of the IP in consultation with the
MO.
- At any time
while the investigation is underway the MO, the subject member or
the complainant may ask for an informal resolution. The MO will
consult with the relevant IP whether to agree with the
request.
- Before
concluding the investigation, a draft report will be produced and
the complainant, subject member and IP will be invited to comment.
Witnesses may also be asked to comment as appropriate on parts of
the draft report relevant to them.
- Where the
investigation has not been personally conducted by the MO, the
final decision as to the findings of the report can be made by the
MO unless there is a conflict of interest, in which case the
decision will be taken by the DMO. The MO may also decide
that they wish for the decision to be made by the JSC.
- There may be
exceptional circumstances when the MO decides that a case should be
closed before a draft or final report has been produced due to a
significant change in circumstances. This may include, for example
that the subject member is seriously ill or is no longer a
councillor or other action has led to the matter being resolved. In
such cases the MO should consult the IP before deciding that the
file be closed. A record of the complaint will be kept on file in
the event that the subject member returns to office in the future
and a subsequent complaint is lodged against them.
- At the end of
the investigation the MO (or JSC) may conclude:
- that there has
been no breach of the Code;
- to seek to
resolve the matter informally; or
- to refer the
matter to the JSC for determination.
- In
cases where the MO (or JSC) has concluded that there has been no
breach of the Code all parties (and the clerk in parish cases) will
be notified of the decision and there is no right of internal
appeal against that decision. The MO will report the finding to the
JSC and issue a public decision notice.
- Where the MO
decides to seek to resolve the matter informally, they shall seek
the views of the IP and complainant before concluding whether such
an outcome is appropriate. The possible resolutions are those
outlined above at paragraph 15. If the subject member or
complainant refuses to engage with the informal resolution directed
by the MO, the MO deems the action taken by the subject member
insufficient or the informal resolution does not take place in a
timely way the MO will decide, in consultation with the IP and
chair or vice chair of the JSC, whether the case should be closed
or whether a hearing is necessary. The MO will notify the
complainant (and clerk in parish cases) of the outcome of the
informal resolution and any further steps.
- Where the matter
is referred for determination, the hearings panel of the JSC will
convene within 2 months. The MO will notify the subject member and
complainant of the date of the hearing and provide them with a
written outline of the hearing procedure.
Hearings
panel
- A matter
referred for determination by the MO will be heard by a hearings
panel, made up of members of the JSC.
- At the start of
the hearing the MO will ask the hearings panel to consider whether
the matter should be heard in public or in private, subject to the
normal rules on exempt and confidential information and bearing in
mind the public interest. The hearings panel will always, however,
retire in private to consider its findings and possible
action.
- The views of the
IP will be sought by the hearings panel and made public before the
hearings panel reaches its decision.
- The hearings
panel may decide:
- that there has
been no breach of the Code;
- that there has
been a breach but to take no further action; or
- that there has
been a breach and a relevant sanction should be imposed or
recommended.
- If the hearings
panel decides that a relevant sanction should be imposed or
recommended it may impose or recommend any one or more of the
following:
- report its
findings in respect of the subject member’s conduct to
Council (or the relevant parish council);
- issue (or
recommend to the parish council to issue) a formal
censure;
- recommend to the
subject member’s group leader (or in the case of un-grouped
councillors, recommend to Council) that they be removed from any or
all committees or sub-committees of the Council (or recommend such
action to the parish council);
- recommend to the
Leader of the Council that the subject member be removed from
positions of responsibility.
- instruct the MO
to (or recommend that the parish council) arrange training for the
subject member;
- recommend to
Council (or recommend to the parish council) that the subject
member be removed from all outside appointments to which they have
been appointed or nominated by the Council (or by the parish
council);
- recommend to
Council (or recommend to the parish council) that it withdraws
facilities provided to the subject member by the Council for a
specified period, such as a computer, website and/or email and
internet access; or
- recommend to
Council (or recommend that the parish council) that it excludes the
subject member from the Council’s offices or other premises
for a specified period, with the exception of meeting rooms as
necessary for attending Council, committee and sub-committee
meetings and/or restricts contact with officers to named officers
only;
- if relevant,
recommend to the Council that the subject member be removed from
their role as Leader of the Council;
- if relevant
recommend to the secretary or appropriate official of the group
that the councillor be removed as Group Leader or other position of
responsibility.
- All
parties (and the clerk in parish cases) will be notified of the
hearing panel’s decision and there is no right of internal
appeal against that decision.
- A decision
notice will be published on the Council website within 5 working
days of the hearings panel decision.