CORNWALL COUNCIL

PROCEDURES FOR THE ASSESSMENT AND REVIEW OF ALLEGATIONS OF

BREACHES OF THE MEMBERS’ CODE OF CONDUCT

Introduction

This document sets out the procedures that Cornwall Council will apply in discharging its legal responsibilities to determine allegations of breaches of the Members’ Code of Conduct and, where appropriate, refer those allegations for investigation. The detailed procedures for investigations and the determination of allegations following investigation are not contained in this document.

The procedures are arranged in the following sections:

1 / Making a complaint
2 / Complainant confidentiality
3 / Initial filtering of complaints
4 / Assessment of complaints
5 / Review of complaints
6 / Assessment and review criteria
7 / What happens following the assessment or review of a complaint
8 / Access to complaint information
9 / Withdrawal of complaints
10 / Conflicts of interest
11 / Records retention
12 / Glossary

1Making a complaint

1.1The following points should be noted before making a complaint under the Code of Conduct:

(i)complaints can only be accepted if they relate to a member’s behaviour whilst they are acting, or giving the impression that they are acting, in their official capacity. Complaints which appear to be against a member acting in their private capacity will be rejected;

(ii)determinations under these procedures can only relate to a member’s conduct and cannot comment upon or interfere with any decisions they have been involved in. For example, if a complaint relates to a member’s behaviour in relation to the determination of a planning application the determination under this procedure will relate only to the member’s conduct and will not comment on the decision relating to the planning application, save to the extent necessary to explain the determination of the code of conduct complaint;

(iii)complaints against a council as a whole are outside of these procedures and will be rejected. Complaints against a town, parish or city councilneeds to be referred direct to the council in question for consideration under their own procedures and we will tell you who to contact. Complaints relating to Cornwall Council which are outside of these procedures will be dealt with in accordance with the relevant procedures but we will tell you to whom the complaint has been referred; and

(iv)Cornwall Council has no jurisdiction in respect of complaints against clerks to town, parish or city councils and any such complaints will be rejected.

1.2All complaints must be made in writing and will be accepted in hard copy, by fax or by electronic submission. Complainants are encouraged to use our complaints form which we can send out as a hard copy or which is available in electronic format from our website:

1.3To send complaints electronically please use the on-line form at the link in paragraph 1.2 or email .

1.4To send complaints by fax please send them to 01872 323833.

1.5All other submissions must be sent or delivered to:

The Monitoring Officer

c/o Simon JR Mansell MBE

Cornwall Council

Third Floor

West Wing

County Hall

Truro TR1 3AW

1.6We will assist you if you have a disability that prevents you from making a complaint or makes it difficult for you to put your complaint in writing. We can also help if English is not your first language.

Verbal complaints

1.7If a verbal complaint is made we will ask that the details are confirmed in writing. If you are unable to make a written complaint we will offer to put your complaint into writing. You will be asked to sign or otherwise indicate to our satisfaction that you want to make a complaint in those termsand it will be your responsibility to provide any supporting documentation. If you are unwilling to sign the documentation or indicate your satisfaction the complaint will be rejected unless the Monitoring Officer is satisfied that the circumstances justify an exception being made.

Anonymous complaints

1.8Anonymous complaints will be rejected but if such complaints suggest that a criminal offence has been committed the Council will determine whether it is appropriate to refer the complaint to the police or some other relevant body.

2Complainant confidentiality

2.1Usually the subject member will be told at the outset who has complained about them. If a complainant asks for their identity to be withheld the request will be considered by the Monitoring Officer.

2.2Each request for confidentiality will be considered on its merits and the following will be taken into consideration:

(i)whether the complainant reasonably believes that they, or somebody closely connected to them, will be at risk of harm if their identity is disclosed;

(ii)that the complainant is reasonably concerned about the consequences to their employment, or that of somebody closely connected to them, if their identity is disclosed;

(iii)that the complainant, or somebody closely connected to them, suffers from a medical condition and there is evidence of medical risks associated with their identity being disclosed or confirmation from an appropriate medical professional that that is the case;

(iv)whether the specifics of the complaint will disclose who has made the complaint even without confirming their identity; and

(v)the public interest. In some cases the public interest in proceeding with the complaint may outweigh the complainant’s wish to have their identity withheld.

2.3Where it is appropriate and possible to do so the complaint will be progressed without the complainant’s identity being disclosed.

2.4If it is not considered appropriate to grant confidentiality the complainant will be offered the opportunity to withdraw the complaint but this is subject to the determination made by the Monitoring Officer under paragraphs 2.2 and 3.6.

3Initial filteringof complaints

3.1When a complaint is received, the Monitoring Officer will carry out an initial check to determine whether the allegation is within these procedures and, if so, whether it should be rejected or proceed to formal assessment. This will normally be done within 10 working days.

3.2Complaints will be rejected if they do not satisfy the following three tests:

(i)Is the complaint about one or more named members of a relevant authority?

(ii)Was the subject member in office at the time of the alleged conduct?

(iii)If proven, would the complaint disclose a breach of the Code of Conduct?

3.3Complaints that satisfy the three initial tests will then be considered further and will usually be rejected at this stage if, in the opinion of the Monitoring Officer, any of the following applies:

  • it appears the complaint relates to a member acting in their private capacity;
  • the complaint is the same or substantially the same as a complaint previously dealt with, whether submitted by the complainant or some other person;
  • it is over 6 months since the alleged behaviour occurred and it would be unfair, unreasonable or otherwise not in the public interest to pursue unless there are, in the Monitoring Officer’s opinion,exceptional circumstances which would merit the complaint being progressed;
  • the complaint is considered, on an objective basis, to be trivial and there are no public interest reasons to pursue it;
  • the complaint discloses such a minor technical breach of the Code of Conduct that it is not in the public interest to pursue;
  • the complaint is or appears to be malicious, politically motivated, tit-for-tat or otherwise submitted with an improper motive and the complaint is not considered to disclose sufficiently serious potential breaches of the Code of Conduct to merit further consideration;
  • the subject member has remedied or made reasonable endeavours to remedy the issues to which the complaint relates and the complaint does not disclose sufficiently serious potential breaches of the Code of Conduct to merit further consideration;
  • the complaint is about a person who is no longer a member of a relevant authority and there are no overriding public interest reasons to merit further consideration;
  • the complaint is from a councillor about another councillor of their council and the Monitoring Officer considers the allegations to be such that the issues between the councillors ought to be capable of resolution between them, whether with or without the assistance of their clerk or some other person; and
  • it would otherwise be inappropriate to expend the Council’s resources on determining the complaint having regard to the circumstances of the complaint, any previous related complaints and the public interest.

3.4Section 4 of these procedures will be applied to those complaints that are not rejected at this stage.

3.5If a complaint is rejected at the initial filtering stage the Monitoring Officer will:

  • write to the complainant to advise that the complaint will not be progressed, explaining why;
  • write to the subject member with details of the complaint and complainant advising that the complaint will not be progressed and explaining why; and
  • if the complaint relates to a member of a town, parish or city council write to the clerk to that council providing the same information as is provided to the subject member.

Complaints which are rejected but where confidentiality has been granted

3.6In these circumstances the Monitoring Officer will determine whether it is appropriate to refrain from notifying the subject member and, where appropriate, their clerk about the complaint and the rejection. If it is considered appropriate to provide such notification the complainant’s identity will remain confidential.

Behaviour that constitutes a criminal offence

3.7Where a complaint is received which discloses behaviour that may constitute a criminal offence the Monitoring Officer will determine whether to refer such allegations to the police of other appropriate body. If such referral is made the Monitoring Officer will only confirm the referral to the complainant or subject member when it is appropriate to do so.

3.8Where a complaint is referred to the police or some other body the Council will not take any action on the complaint until the body to whom the complaint was referred decides to take no action or any action they take has been finally determined. Even then the Council will only progress the complaint if resubmitted by the complainant following the confirmation of no action or the final determination.

3.9Cornwall Council will take such action as is necessary to ensure that it does not compromise the integrity of any investigation or proceedings undertaken by another body in relation to the allegations

4.Assessment of Complaints

4.1Those complaints which are not rejected at initial filtering or referred to the police or another body will be assessed in accordance with the following procedure:

Step / Action
1 / A copy of the complaint papers will be sent to the nominated independent person.
2 / No earlier than 2 days later:
  • The complainant will be sent an acknowledgment of the complaint.
  • The subject member will be sent a copy of the complaint and will be given the contact details of the independent person assigned to the complaint against them. The subject member can contact the independent person throughout the complaint process but initial contact must be between 9am and 5pm, Monday to Friday.
  • The clerk to the subject member’s council will be advised that a complaint has been received, if the subject member is a town, parish or city councillor.

3 /
  • The subject member is given the opportunity to speak to the independent person and to provide their written response to the complaint to Cornwall Council. We ask that the written response is restricted to 2 sides of A4 but copies of supporting documents and witness statements may be attached.
  • The subject member’s written response and any supporting documents will be copied to the independent person.
  • Unless otherwise agreed because of exceptional circumstances, the subject member’s written response must be provided within 10 days of the complaint being sent to them.

4 / The independent person will form a view based on the complaint, the subject member’s written response and any telephone conversations they have with the subject member. The independent person will provide their view on the complaint to the Monitoring Officer within 15days of being sent the complaint or within 5 days of being sent a copy of the subject member’s written submission if later.
5 / Irrespective of whether the subject member contacts the independent person or provides a written response within 10 days the complaintwill proceed toassessment and the Council will not be obliged to take into account any late submissions.
6 / The Monitoring Officerwill determine the complaint in accordance with the assessment criteria set out later in thisdocument. It should be noted that the sanctions available to Cornwall Council are limited as is the Council’s ability to enforce those sanctions. However, where appropriate, a sanction will be imposed or remedial action recommended whether the subject member is a Cornwall Councillor or a member of a town, parish or city council.
The principal options available to the Monitoring Officer are set out in the table at paragraph 6.8 below. The Monitoring Officer may determine that an outcome other than those detailed above is appropriate in a particular case but such outcome will have to accord with the principles set out in this document and the legal framework which has to be complied with.
7 / An assessment decision notice will be sent to the complainant, the subject member and, where appropriate, the clerk to the subject member’s council within 5 working days of the complaint being assessed.
8 / We will publish all assessment decision notices on Cornwall Council’s website, usually within 5 working days of the decision notice being sent out. This enables the parties to receive the decision before it is made public.

4.2We will aim to conclude steps 1 to 7 above within 28 working days of the end of the period within which the subject member may submit a written response. If it is not possible to keep to this timescale we will write to the complainant, the subject member and, where appropriate, the clerk to the subject member’s council to advise them of the revised timescale.

5.Review of Complaints

5.1Depending on the decision made at assessment,either the complainant or the subject member may have a right to request a review of the decision and, where that is the case, they will have 15 days from the date the decision notice was sent to them to make a written request for a review of the decision.

Complainant’s right to request a review

5.2The complainant may only request a review where the finding is either:

(i)no finding as to whether there has been a breach of the Code of Conduct and no further action; or

(ii)no breach of the Code of Conduct.

5.3If the complainant requests a review they must provide substantive reasons to support their request which have not previously been provided to support their complaint together with any supporting documents which are relevant but which, again, have not previously been provided. Simply expressing disagreement with the assessment decision without giving substantive reasonsthat have not previously been provided or simply repeating the original complaint will result in the request for review being rejected.

5.4If the request for review is rejected the complainant and the subject member will be advised in writing of the reasons for rejection. The clerk to the subject member’s council will also be told, where appropriate.

Subject member’s right to request a review

5.5The subject member may only request a review where the finding is either:

(i)a finding of a breach of the Code of Conduct but without any sanction or recommended action; or

(ii)a finding of a breach of the Code of Conduct and the imposition of a sanction or recommending appropriate action.

5.6If the subject member asks for a review of the decision they must provide substantive reasons to support their request which have not previously been provided together with any supporting documents which are relevant but which, again, have not previously been provided. Simply expressing disagreement with the assessment decision without giving substantive reasons that have not previously been provided or simply repeating the original response to the complaint will result in the request for review being rejected. However, to the extent it is appropriate to do so, regard will also be had to the subject member’s legal rights and the interference a finding of breach has on those rights, including through the potential effect on their reputation as a councillor.

5.7If the request for review is rejected the subject member and the complainant will be advised in writing of the reasons for rejection. The clerk to the subject member’s council will also be told, where appropriate.

Review of complaints

5.8The review will be undertaken by a different officer, on behalf of the Monitoring Officer. Ordinarily the same independent person will continue to be assigned to the complaint given that they are completely neutral and independent of the person determining the complaint.

5.9Those requests for review which are not rejected will be reviewed in accordance with the following procedure:

Complainant requests review / Subject member request review
1 /
  • The request will be acknowledged within 3 working days.
  • The subject member will be advised that a request for review has been received, and will be sent a copy of the request and any accompanying documents.
  • The clerk to the subject member’s council will be advised that the request for review has been received.
/
  • The request will be acknowledged within 3 working days.
  • The complainant will be advised that a request for review has been received, and will be sent a copy of the request and any accompanying documents.
  • The clerk to the subject member’s council will be advised that the request for review has been received.

2 / The independent person will be sent a copy of the request for review and any supporting documents.
3 / The subject member is again given the opportunity to speak with the independent person and has 10 days from the date the review request is sent to the other party in which to do this.
4 /
  • The subject member will be given the opportunity to provide their written response to the request for review. We ask that this be restricted to 2 sides of A4 but copies of supporting documents or witness statements may be attached.
  • Unless otherwise agreed because of exceptional circumstances, this must be provided within 10 days of the review request being sent to the subject member.
  • Any written response the subject member makes will be forwarded to the independent person.
/
  • The complainant will be given the opportunity to provide their written response to the request for review. We ask that this be restricted to 2 sides of A4 but copies of supporting documents or witness statements may be attached.
  • Unless otherwise agreed because of exceptional circumstances, this must be provided within 10 daysof the review request being sent to the complainant.
  • Any written response the complainant makes will be forwarded to the independent person.

5 / The independent person will form a view based on the request for review, the response to that request and any telephone conversations they have with the subject member. The independent person will provide their view on the complaint to the Monitoring Officer within 15 days of being sent the request for review or within 5 days of being sent a copy of the response to the request for review if later.
6 / Irrespective of whether the subject member contacts the independent person or provides a written response within 10 days the complaint will proceed to review and the Council will not be obliged to take into account any late submissions. / Irrespective of whether the complainant provides a written response within 10 days the complaint will proceed to review and the Council will not be obliged to take into account any late submissions.
7 / The Monitoring Officer will review the complaint and determine it taking into account all relevant submissions and documents and the views of the independent person. This will be in accordance with the assessment criteria set out later in this procedure.
At review the options available to the Monitoring Officer are as set out in step 6 of the assessment procedure in section 4. The Monitoring Officer is not restricted by the decision made at assessment and may make a different decision.
8 / A review decision notice will be sent to the complainant, the subject member and, where appropriate, the clerk to the subject member’s council within 5 working days of the complaintbeing reviewed.
9 / We will publish all review decision notices on Cornwall Council’s website, usually within 5 working days of the decision notice being sent out, but so as to enable the parties to receive the decision before it is made public.

5.10We aim to conclude steps 1 to 8 above within 28 working days of receipt of a valid request for review. If it is not possible to do this within this time, we will write to the complainant, the subject member and, where appropriate, the clerk to the subject member’s council to advise them of the revised timescale.