Decision details

Date of Complaint

16/04/2023

Date of Initial Assessment by JSC

26/06/2023

Hearing Date

18/12/2023

Independent Person

Joe Leigh

Panel

The Panel comprised Councillor C Runciman (Chair), Councillor T Fisher and Parish Councillor M Waudby. The Panel is not required to be politically balanced.

The Independent Person’s view was provided to the Panel and taken into account at all relevant times in the procedure. The Independent Person was not a voting member of the Panel.

The Hearing

The Panel resolved to exclude the Press and Public from the meeting due to the consideration of exempt information, namely “Information relating to any individual” and “Information which is likely to reveal the identity of an individual”. They noted that such information is exempt information if and so long, as in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information. The individuals concerned were the subject member, the witnesses and the complainant. Whilst the Panel was aware the subject member had expressed that they had no interest in the matter being confidential, that was not the sole viewpoint to consider. There was a clear interest in maintaining public confidence in bringing complaints forward without fear of unwanted public attention.

The Complaint

On 16 April 2023 the Monitoring Officer received a complaint from a resident alleging that Cllr Mark Warters had breached the Code of Conduct by arranging for his election leaflet to be circulated with the Osbaldwick Parish Council Spring newsletter (which was very similar in appearance). The resident expressed concern that the newsletter was publicly funded and its distribution at the same time and as Cllr Warters' election literature was designed to attribute the achievements of the Parish Council to Cllr Warters and thereby constituted a misuse of resources and an attempt to gain an advantage, contrary to the Parish Council Code of Conduct.

Decision – Findings of fact on the balance of probability

The Panel members considered the evidence gathered by the Investigating Officer from the complainant and from the Parish Clerk. They accepted that the subject member had been provided with ample opportunity to contest both the alleged facts and the issue of whether those facts amounted to a breach of the Code. They noted that the subject member had emphatically declined to participate in the investigation and hearing but were prepared to accept two late testimonials on behalf of the subject member. None of the subject member or supporter comments however went to the facts of the case which were effectively undisputed. The Panel accepted the investigating officer’s analysis of the facts with one minor amendment and concluded as follows:

We make the following findings on the balance of probabilities:

1. Cllr Warters prepared and arranged the printing of both documents and failed to ensure that distribution was carried out separately;

2. The format and layout of the documents is strikingly similar;

3. Cllr Warters arranged for other members of the Parish Council to distribute some or all of the documents alongside copies of the Parish Council newsletter. This amounted to the use of Parish Council resources;

4. At least some of the Parish Council members delivered the leaflets together with one document tucked inside the other;

5. It was reasonably foreseeable that delivering the two documents in this way would create the impression that he was trying to strengthen his campaign for re-election by associating it with the work and achievements of the Parish Council;

6. By acting in this way, when it was reasonably foreseeable that the impression of seeking an unfair advantage would be created.

Was there a breach?

Members of the Panel considered the LGA guidance set out in the report and applied their own knowledge of Parish matters and election publicity restrictions. Because the delivery of the Parish newsletters used council resources and the impression created by the similarity of the two documents and their delivery together was foreseeably favourable to his election campaign, Cllr Warters had acted in breach of para 3 of the Code.

Decision – Sanction

Where a Hearings Panel makes a finding of breach of the Code it may impose one or more of the sanctions listed in the case handling procedure (p726 Constitution) or impose no sanction.

The Panel considered the investigating officer’s recommendation on sanction and the Independent Person’s view. The Investigating Officer invited a recommendation to the Parish Council to pass a motion of censure.

The Panel agreed that to take no action in respect of a clear breach was wrong. It decided however that the sanction should squarely address what had gone wrong and provide guidance for the future. As there was no evidence of a deliberate effort to cast a favourable impression on the councillor’s election campaign, a punitive effect was not appropriate. The Panel therefore resolved to:

Instruct the MO to (or recommend that the parish council) arrange training for the subject member.

This would be by issuing an open letter of advice which would help to avoid the risk of the same issue recurring inadvertently and be of assistance to both other councillors and parish council staff.

The Independent Person

For transparency the Independent Person’s view was that there had been a breach of the code and a sanction should be imposed.

There is no internal right of appeal against this decision.

All parties (and the clerk in parish cases) will be notified of the Hearing Panel’s decision.

A decision notice will be published on the Council website within 3 working days of the Hearings Panel decision.

Signed

Councillor C Runciman

Chair of Hearing’s Panel