ASSESSMENT DECISION NOTICE

NO BREACH OF THE CODE

Reference: / CCN062/13(i)
Complainant: / Mr Richard Thomas
Subject Member: / Councillor Janet Shearer, Withiel Parish Council
Person conducting
the Assessment: / Simon Mansell, Principal Legal Officer, Corporate & Governance
Date of Assessment: / 22 April 2014

Complaint

On 22 April 2014 the Monitoring Officer considered a complaint from Mr Richard Thomas concerning the alleged conduct of Councillor Janet Shearer of Withiel Parish Council. A general summary of the complaint is set out below:

The Complainant has alleged that the Subject Member, when dealing with the issue of motorcyclists using local woods, has failed to treat others with respect, bullied and intimidated others, improperly disclosed confidential information and brought her office and/or Council into disrepute.

Potential breaches of the Code of Conduct are;

·  A failure to treat others with respect

·  Bullying

·  Attempting to intimidate others

·  Conducted themselves contrary to the Council’s duty to promote and maintain ethical standards

·  Improperly disclosed confidential information

·  Bringing your office and/or authority into disrepute

Decision

For the reasons set out below I find no breach of the following paragraphs of the Code of Conduct;

• A failure to treat others with respect

• Bullying

• Attempting to intimidate others

• Conducted themselves contrary to the Council’s duty to promote and maintain ethical standards

• Improperly disclosed confidential information

• Bringing your office and/or authority into disrepute

Reasons for the Decision

Sufficient information has been obtained to enable a final determination to be made on this matter at assessment and it is considered that there is no need to refer this matter for investigation.

In assessing this complaint I have had regard to;

·  the complaint as submitted by the Complainant;

·  the response to the complaint submitted by the Subject Member;

·  the views of the Independent Person assigned to this matter.

The background to this complaint is the use of woods, known locally in the Lanivet area as Cork Woods, and part of a field owned by the son of another Withiel Councillor, by motorcycles.

The Complainant has stated that following a meeting between various agencies a locally made agreement was in place relating to the use of the land in question and, as a result of this agreement it could be used by motorcyclists for 14 days a year.

Following this agreement the Subject Member called the owner of the field to express concerns raised by local residents regarding the noise coming from the bikes using the field. The Complainant has stated that the land owner was ‘surprised and angry’ that the Parish Council was complaining to him. Following this there was an exchange of emails between the Subject Member and the Complainant copied into other Councillor’s and the matter was then discussed at a meeting of the Parish Council on 4December 2013.

On the 15 December 2013 the Subject Member then advised the Complainant that she had been subject to a threat which was now under consideration by the police. It was later shown by the father of the landowner that this threat consisted of the posting through her door, in an anonymous manner, a copy of a planning notice relating to the property occupied by the Subject Member.

A statement has also been provided by the Complainant written by the father of the landowner, which has been considered as part of this assessment process.

The Complaint has stated he is appalled that unproven allegations against another Councillor should be broadcast in the manner in which they were.

The Subject Members has stated in her response that;

She initially contacted the owner of the field in response to concerns that were raised with her as a Parish Councillor by local residents, unhappy with the noise produced by the motorcycles, and that this call was amicable but after the call to the landowner she received an abusive phone call from the father of the landowner, another Withiel Councillor, which resulted in her calling the police, because of this she felt extremely frightened as he had terrified her in the past. This lead to further concerns when the planning notice was posted through her door giving the impression that she was in breach of planning laws.

In dealing with this matter the Subject Member has further stated that she has had the full support of her fellow Councillors, with the exception of the Complainant who lives next door to the father of the landowner, with the landowner employing his wife.

In assessing this matter is it first necessary to consider if the call made by the Subject Member to the landowner on 2 December 2013 breaches the Code of Conduct.

In determining if the Code has been breached the assessment is made using the reasonable man test that is; would a reasonable man, in possession of all the facts, consider that the actions of the Subject Member amount to a breach of the Code. Evidentially the burden of proof is based on the balance of probabilities; that is, it is more likely than not that a breach has occurred.

The Subject Member has stated that she was contacted by local residents in her capacity as a local Parish Councillor with regards to the noise that was coming from the motorcycles being ridden off road. She then called the landowner in connection with these concerns which had been raised with her and she has described the conversation as ‘short and amicable’ in her submission as part of this assessment. In the email out to fellow Councillors that was written on the day of the call; the conversation is described as, ‘reasonable’. No statement has been provided by the landowner and his father has stated that Councillor Shearer telephoned him to ask him to stop, or reduce the use of the field.

With regards to the call itself I am satisfied that the call to the landowner was well intentioned and was made in response to concerns raised by members of the public who had contacted their local Councillor for assistance. Additionally, there is nothing in the papers supplied to indicate that the overall tone of the conversation between the landowner and the Subject Member was anything other than amicable.

I have with regards to this call, noted that there is a difference in relation to the capacity in which the call was made. The Subject Member has stated that she called the landowner; she is within her rights as an individual Parish Councillor to do this; the landowner’s father has stated that the Subject Member ‘indicated’ that she was speaking on behalf of the Parish Council.

It is noted that the Subject Member had sent an email out to her fellow Councillors in which she mentions calling the landowner and in this it is stated, ‘if you all agree I will phone him…..’ However, even if all the recipients had agreed the call would not come with the authority of the Council, as no formal decision had been made by the Parish Council, and could only be said to be supported by other Councillors.

While I am not completely satisfied that the call was made by the Subject Member in her individual capacity I do not consider, given the amicable nature of the call that a different outcome would be reached in terms of assessing this matter were the Subject Member to have claimed that she had the authority of the Council to make the call. For a breach of the Code to be found with regards to a failure to treat with respect the behaviour exhibited has to be unjust, unfair or unreasonable and such that a reasonable person, in possession of all the facts, would consider it to be disrespectful. I am not of the opinion that, even if the call was made with reference to the fact that it was made with the authority of the Parish Council, that it was disrespectful.

In a similar manner it is not consider that by making the call in response to concerns raised by local residents; the call was bullying, or an attempt to intimidate, as is stated by both the parties this is something which had been considered before and no threats appear to have been made by the Subject Member to the landowner.

Furthermore there is no evidence that the Subject Member has conducted herself in a manner contrary to the Council’s obligation to promote and maintain ethical standards, there is no evidence of disclosing confidential information and she has not, by supporting local members of the public, brought her office or authority into disrepute.

There is then the issue of the two threats which the Subject Member then informed the Parish Council of.

The first of these related to a call between the Subject Member and the landowner’s father which took place on 2 December 2013.

The landowner’s father has later stated that the calls, on his part, were not held in a Parish Council capacity. While I have no reason to doubt that the landowner’s father was calling the Subject Member in his private capacity, the Subject Member was acting in her official capacity when she took the call. The reasoning for this is that the call made earlier on 2 December 2013 was made in response to calls to her as a Parish Councillor and she then called the landowner in her official capacity. Therefore subsequent calls to her on the same subject would be taken be received by her in her official capacity and, as a result this has the potential to become Parish Council business.

There is a difference of opinion as to the precise context of the call. However, it would appear from both versions that the call was at best curt with an implied threat made by the landowner’s father with regards to a previous planning application.

Following this call the Subject Member then had a copy of the approval for planning permission posted through her door with no note or letter to accompany this.

In considering this as a Code of Conduct matter it has to be considered if the Subject Member was correct to bring the threats to the attention of the Parish Council.

Given the fact that the Subject Member had initially called the landowner to raise legitimate concerns which has been bought to her as a Parish Councillor then, as it set out above, any subsequent calls/contact on this subject are still made in the Subject Members official capacity. While the precise content of the call made from the landowner’s father to the Subject Member differs, an implied threat was made by him regarding planning permission and the anonymous posting of the planning application through the Subject Member’s door can be seen as an extension of this.

Even though the landowner’s father made the call to the Subject Member in his private capacity I consider that the Subject Member was right to raise this with her fellow Councillors, as she would be right to report any unsettling contact she has when in her official capacity with members of the public. The purpose of this it to alert fellow Councillors that the call had taken place. As to the posting of the planning application through the Subject Member’s door, this can be taken as an extension of the existing call and I do consider that the Subject Member was correct to further advise her colleagues this had occurred.

In advising her fellow Councillors I do not consider the contact to be disrespectful nor do I consider that any confidences have been breached.

I have, in considering this part of the complaint noted that there is a discrepancy about who advised which agency of what and when this was done. It is not possible, via the assessment process, to determine this to allow an accurate determination to be made and for this to be done it would require the matter to be referred for investigation.

After some consideration of this I do not consider it in the public interest to refer this for investigation. The reasoning for this is even if a discrepancy was shown, it is unlikely that this would amount to a breach of the Code of Conduct.

As a result of this, the finding at assessment is that the Subject Member has not breached the Code of Conduct for Withel Parish Council.

What happens now?

This decision notice is sent to the complainant, the member against whom the allegation has been made and the Clerk to Withiel Parish Council.

Right of review

At the written request of the complainant, the Monitoring Officer can review and is able to change a decision not to refer an allegation for investigation or other action. To ensure impartiality in the conduct of the review different officers to those involved in the original decision will undertake the review.

We must receive a written request from the complainant to review this decision within 15 working days from the date of this notice, explaining in detail on what grounds the decision should be reviewed.

If we receive a request for a review, we will write to all the parties mentioned above, notifying them of the request to review the decision.


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Simon Mansell, Principal Legal Officer, Corporate & Governance

On behalf of the Monitoring Officer

Date: 24 April 2014