NO BREACH of the CODE of CONDUCT

NO BREACH of the CODE of CONDUCT

CONSIDERATIONDECISION NOTICE

NO BREACH OF THE CODE of CONDUCT

Reference: / 31154
Complainant: / Mr F Gibbs
Subject Member: / Councillor M Eddy, St Neot Parish Council
Person Considering the Matter / Simon Mansell, Principal Legal Officer
Date of Consideration: / 12 August 2013

Summary of the allegations considered

A complaint has been investigated by Cornwall Council in which the Complainant has stated that he believed Councillor M Eddy may have breached the Code of Conduct of St Neot Parish Council.

The background to the complaint is that the Complainant alleges that Councillor Eddy, in a statement made by Councillor Eddy at the meeting of the Parish Council held on 18 April 2012, questioned the standard and cost of an audit that had been conducted by him.

In considering this matter, after the investigation, in accordance with the post investigation procedures as adopted by Cornwall Council, I have had full regard to the Final Investigation Report into this matter dated 30 July 2013, a letter from the Complainant dated 4 August 2013 and the views of the Independent Person assigned to this matter.

No Breach of the Code of Conduct

In relation to the allegation as made it is not considered, for the reasons set out below, that allegations made against Councillor Eddy amount to a breach of the Code of Conduct.

No Breach of the Code of Conduct

No Breach of the Code of Conduct, as found by the Investigating Officer, is supported in relation to the following paragraphs of the Code of Conduct:

Paragraph 3.1: Failure to treat others with respect

Paragraph 3(2)(d): Compromising the impartiality of an officer

Paragraph 5: Bringing your office or authority into disrepute

Paragraph 6(a): Improperly using your position to gain an advantage or disadvantage

Reasons for decision

In considering the investigation report, it is required thatan objective view is taken of the facts, as set out in the investigation report, and then a determination be made, on the balance of probabilities, if the view reached by the investigating officer is the correct one. In reaching a conclusion in an ethical standards investigation, the Investigating Officer is required to consider if the facts demonstrate whether the Code has been breached.

Paragraph 3.1 Failure to treat others with respect

The comments, the principle reason for the complaint (though other points raised by the Complainant have been noted) were made at a meeting of the Parish Council on 18 April 2012. Councillor Eddy is to have said, ‘the fees paid to the independent auditor last year were too high’, and, ‘as the Parish Council’s procedures were not correctly audited, technically the accounts have not been signed off for 2010/11’.

The minutes for this meeting have not been signed off however, the Clerk, as the Proper Officer to the Parish Council, has confirmed that the statement was made by Councillor Eddy.

The Code of Conduct requires that the Investigating Officer consider whether the comments made are unjust, unfair or unreasonable and therefore amount to a failure to treat with respect. As a guide, Councillors may make statements that can be critical, and even factually incorrect, providing at the time of making the statement the Councillor believed the facts to be correct. A Councillor may not make personal attacks on an individual.

In making the statements, Councillor Eddy has not named the Complainant and, while it is accepted that someone could, if they took the time to do so, find the name of the previous auditor, it would not be something apparent to those listening to the comments or reading the minutes.

While I would in part agree with the Complainant’s subjective view that there may be an implication that the previous audit had not been correctly conducted,this does not mean, objectively, that, when applying the facts to the Code of Conduct, that it has been breached. The Complainant has not been named, he is not attacked personally and the statement is not unjust, unfair or unreasonable. In addition to this, Councillor Eddy has set out, in a letter read out at the meeting of the Parish Council on 6 June 2012, that if what he had done had caused offence, he is happy to apologise.

Therefore, while I do accept that the statement may have caused concern to the Complainant and that this concern is not fully reflected in the Investigating Officer’s report, I do not consider that the statements amount to a failure to treat with respect and, as such, the finding of the Investigating Officer is supported, in that there is no breach of paragraph 3.1 of the Code of Conduct for St Neot Parish Council.

Paragraph 3(2)(d) Compromising the impartiality of an officer

There is not, in the investigation report or the accompanying appendices, any information which would potentially support an allegation that Councillor Eddy has compromised the impartiality of an officer. While the Complainant has stated that he believes other members of the Council may have been compromised, as elected members are not officers, this part of the Code is not relevant. Therefore,the findings the Investigating Officer are supported in that Councillor Eddy has not breached paragraph 3(2)(d) of the Code of Conduct for St Neot Parish Council.

Paragraph 6(a) You must not use your position to secure an advantage or disadvantage

In considering this part of the complaint, it is agreed that the statements made by Councillor Eddy may have caused a disadvantage to the Complainant as, while the Complainant was not named in the statement, it would be possible to find out who the previous auditor was. However, it is not possible to determine what, if any advantage could have been gained by Councillor Eddy in making the statements.

While a disadvantage may have been caused to the Complainant, for a breach of the Code to have occurred it has to be shown that the disadvantage was caused by the subject member using their position improperly. In undertaking an ethical standards investigation it is not for the Investigating Officer to search out a hidden meaning in the actions of a member, but to make an objective determination of the facts as presented. It is noted that the Complainant has set out in the letter dated 6 May 2013 two reasons why he considers that Councillor Eddy sought to cause him a disadvantage. In considering these reasons I find them to be highly subjective and not supported by any facts that would then indicate they caused Councillor Eddy to act in the way that he did.

Therefore, while I consider that the Complainant may have potentially been caused a disadvantage, I do not consider that, if any disadvantage has been caused, this was as a result of Councillor Eddy acting improperly. The findings of the Investigating Officer are therefore supported in that Councillor Eddy has not breached paragraph 6(a) of the Code of Conduct for St Neot Parish Council.

Paragraph 5 You must not do anything that could be reasonably be regarded as bringing your office or authority into disrepute.

For this part of the Code to have been breached it has to be shown that there has been, on the facts as presented, a loss of reputation or good standing, on the part of the subject member. This does not have to be shown by speaking to the public only that, on the facts as presented, it could reasonably be regarded that the member has suffered the loss of reputation.

It has not been demonstrated that by making the statement he did on 18 April 2012 Councillor Eddy could reasonably be regarded as having brought his office or authority into disrepute; therefore, thefindings of the Investigating Officer are supported in that Councillor Eddy has not breached paragraph 5 of the Code of Conduct for St Neot Parish Council.

Possible Conflict of Interest

The Complainant has suggested that it is not appropriate that, as Councillor Eddy is also an employee of Cornwall Council, the Council should have conducted the investigation. In considering this matter, I have discussed the Complainant’s concerns with the Monitoring Officer for the Council and he is satisfied that, as no conflict of interest exists between the Investigating Officer and Councillor Eddy, and the Investigating Officer does not have any professional dealings with Councillor Eddy, there is no reason why the investigation should not have been managed as it was.

What happens now?

This matter is now concluded. The decision notice is sent to the complainant, the member against whom the allegation was made and the Clerk to St Neot Parish Council.

Additional help

If you need additional support in relation to this or future contact with us, please let us know as soon as possible. If you have difficulty reading this notice we can make reasonable adjustments to assist you, in line with the requirements of the Disability Discrimination Act 2000.

We can also help if English is not your first language.

SJR Mansell MBE

Principal Legal Officer

On behalf of the Monitoring Officer

Date:13 August 2013