GOVERNANCE COMMITTEE 23 October 2016

AGENDA ITEM 6

Subject: MONITORING REPORT

Report by: MONITORING OFFICER

Enquiries contact: Ann Coronel, 01245 606560, ann.coronel@chelmsford.gov.uk

Purpose To keep the Committee informed about progress with Standards regime issues and other work of the Committee

Recommendation(s)

1. To note the current statistical information (version 6) of complaints made as set out in Appendix 1 and agree this should be published on the Council’s website.

2. To note the latest version of the Protocol between Essex Monitoring Officers and Essex Police for Handling Complaints as set out in Appendix 2.

Corporate Implications

Legal: These are set out in the report Financial: None Personnel: None Risk Management: None Equalities and Diversity: Complaints are monitored to ensure that there is no disproportionate dissatisfaction by the different equality target groups. This data is considered as part of the assessment process to ensure that there is no discrimination in service delivery. Health and Safety: None IT: None Other: None Consultees None

Policies and Strategies

The report takes into account the following policies and strategies of the Council:

The Councillor Code of Conduct and the adopted Complaints Procedure

Corporate Plan Priorities

None of the plan priorities are applicable as the content of the report relates to statutory duties and responsibilities

Attracting investment and delivering infrastructure

Facilitating suitable housing for local needs

Providing high quality public spaces

Promoting a more sustainable environment

Promoting healthier and more active lives

Enhancing participation in cultural activities

1. Complaints

1.1 Appendix 1 to this report sets out the latest statistical data related to complaints under the Standards Regime. Since the last update to the March 2016 committee, one new complaint (case 11) has been received.

1.2 Case 10 was previously noted as awaiting assessment. This has been completed and no breach of the Code identified. Case 11 was received after the last index was compiled. The case was assessed and the member concerned agreed to make a full written apology in the terms suggested by me. Following consultation with one of the Independent Persons this was considered to be the most appropriate outcome and no further action was warranted. 2. Protocol between Essex Monitoring Officers and Essex Police for Handling Complaints

2.1 The Localism Act 2011 requires any prosecution, related to an alleged breach by Councillors of the Disclosable Pecuniary Interest requirements, to be authorised by the Director of Public Prosecutions. It was therefore necessary to establish how such cases would be referred to the police, investigated and the role expected of Monitoring Officers in the process. Following the introduction of the revised Standards regime in 2012, a Protocol, dated 4th February 2015, was agreed between the Essex Police and Monitoring Officers. It was the first such Protocol for the Essex County area.

2.2 It was recently reviewed following the experiences and issues that had arisen during its first year of operation. As a result a new Protocol was completed on 13 th October 2016 a copy of which appears at Appendix 2 (the new Protocol).

2.3 The section setting out the “Purpose” of the agreement remains unchanged as do Paragraphs (1) to (3). However it had become apparent that the basis on which an investigation would be undertaken needed to be described in more detail. In summary it was decided that: i) The Protocol needed to define “complainant” and “subject member” to improve transparency and consistency of complaint handling. Those definitions appear on page one of the new Protocol. ii) Paragraphs (4) to (8) of the new protocol now describe the process to be followed and in particular the liaison that will occur between the Police and the relevant Monitoring Officer both during an investigation and should the police decide that a formal prosecution is not warranted.

2.4 As with the previous Protocol it has been agreed that it will be reviewed on a two yearly basis. The revised document has been signed by all Monitoring officers and on behalf of Essex Police. Members are asked to note the changes as set out in Recommendation 2.

3. Regulation of Investigatory Powers Act (RIPA)

3.1 Since the last Committee no new RIPA authorisations have been sought. There are no other matters to report.

List of Appendices Appendix 1 - Statistical Information regarding complaints made Appendix 2 - Protocol between Essex Monitoring Officers and Essex Police for Handling Complaints Background Papers Complaints files - i) Information Exempt under Categories 1 and 2 of Part 1 of Schedule 12A to the Local Government Act 1972 namely “Information relating to an individual” or “Information that is likely to reveal the identity of an individual” and for which the public interest in maintaining the exemption outweighs the public interest in disclosing it. ii) Nevertheless, where possible information will be redacted to enable transparency, but to also protect individuals from the inappropriate public disclosure of personal and/or sensitive data.

Appendix 1

Standards Enquiries and Investigations Statistics – Localism Act 2011 2015-2016 v6 – To 30 th September 2016

Status of Total Case File No. City, Date Alleged Breach or Issue Current Position Complaint No. No. Parish or Issue Raised Categories Town First Councillor Raised 1. No formal 1 2 L5900(8) PC 21.07.15 Failure to treat with respect No formal complaint made - complaint telephone clarification only 2. No further 3 1 L5900(8) PC 04.06.15 - Behaviour of the Parish - No action can be taken as regards action Council and its decision the decision process of the Parish required after processes Council as this is outside the remit of consultation the complaints procedure with the - Concerns as to what was said - Lack of specific evidence as to what Designated by an individual Cllr about the was said made it impossible to find Independent complainant at a public meeting that any breach of the Code had Person of the Parish Council occurred

No action can be taken: 6 L5900(8) PC 03.12.15 - Concerns re decisions at the - as regards the decision process of PC regarding historic planning the Parish Council as this is outside matters and behaviour of the remit of the complaints Councillors involved in the procedure decision making - as regards other issues raised as the complaints are historic and/or relate to persons who are no longer Parish Councillors. Status of Total Case File No. City, Date Alleged Breach or Issue Current Position Complaint No. No. Parish or Issue Raised Categories Town First Councillor Raised 10 L5900(8) CCC 07.06.16 - Breach of confidentiality No action can be taken as: - as the member concerned was unaware of the confidential status of the information supplied to them; and therefore - no breach can have occurred

11 L5900(8) PC 27.06.16 - Disrespect An apology was given in the terms - Disrepute suggested by the MO at the earliest opportunity and therefore no further action was warranted.

3. Not able to 3 8 L5900(8) PC 04.01.16 - Management of meetings Action cannot be taken as this is legally pursue outside the remit of the standards complaint regime

9 L5900(8) PC 22.04.16 - Management and decision Action cannot be taken as this is processes of the Parish Council outside the remit of the standards regime

4. Complaint 0 on hold 5. Decision as 0 to appropriate Status of Total Case File No. City, Date Alleged Breach or Issue Current Position Complaint No. No. Parish or Issue Raised Categories Town First Councillor Raised action still awaited 6. Complaint 0 being investigated Total 11

Formal Complaint Outcomes File No. Case No. and Councillor Decision and Date Date Issue Current Position First Raised Outcome of L5900(8) Cases 3 and 4 Governance Committee 16.09.15 Case Closed- 30.06.16 Investigations Councillor Raymond Ride 26 April 2016 23.09.15 - New declaration form Chelmsford City and Rettendon - New Declaration of (completed on 23.05.16) Parish Councils Registered Interest Form to be completed - Personal statement issued - No other breach of the Code and reported to the had occurred, but Councillor Governance Committee on Ride should meet with the City 30 June 2016 Council’s Chief Executive and Monitoring Officer to discuss and reflect on his behaviour File No. Case No. and Councillor Decision and Date Date Issue Current Position First Raised L5900(8) Case 5 Governance committee 24.09.15 30.06.16 Councillor Christopher Blowers 26 April 2016 - Apology issued and South Woodham Ferrers Town - A breach may have occurred reported to the Council and a hearing should be Governance Committee arranged unless Councillor - Training to be attended Blowers agrees to informal resolution with the Monitoring NOTE - Officer and Independent i) The apology has now also Person been posted on the face- book page where the original issues arose. ii) Training on the Code of Conduct has been arranged by the Town Clerk . Other Action L5900(8) Cases 7a to e 23 March 2016 (a) 14.12.15 As at 30.06.16 Councillor Denise Fleming - Apology to be issued (b) 16.12.15 i) Councillor Fleming has Rettendon Parish Council - Training to be undertaken (c) 16.12.15 refused to provide an (d) 04.01.16 apology (e) 07.01.16 ii) the Parish Clerk is organising training but this has not yet taken place. L5900(8) Case 11 MO in consultation with the 27.06.16 05.08.16 – Case closed as Councillor Lansdale Independent Person apology issued in the terms Runwell PC - Councillor agreed to offer an agreed by the MO apology at first contact from the MO File No. Case No. and Councillor Decision and Date Date Issue Current Position First Raised - MO to agree basis of the apology - Once the appropriate apology is made NFA required

Protocol between Essex Monitoring Officers and Essex Police

Date of Agreement: 13th October 2016

Purpose

Under section 34 of the Localism Act 2011, the Government has introduced some new summary offences, relating to elected and co-opted Councillors' failure to disclose / register and participate in meetings where they have certain interests (termed Disclosable Pecuniary Interests –“DPI"). These are detailed in the Relevant Authorities (Disclosable Pecuniary Interests) Regulations 2012 [no.1464].

Section 34 of the Localism Act 2011 came into force on 1 July 2012, following The Localism Act 2011 (Commencement Order no.6 and Transitional Savings and Transitory Provisions) Order 2012 [no.1463].

Prosecution of such offences is by the Police (by virtue of s34(5)), therefore the parties have agreed a Protocol relating to the reporting / information sharing for potential criminal offences arising under section 34 Localism Act 2011. The relevant legislation is appended at A.

Definitions:  ‘Complainant’ refers to the individual who submits the written complaint to either a Fire Authority or a Local Authority’s Monitoring Officer alleging a breach of the Members’ Code of Conduct; and  ‘Subject Member’ refers to the Councillor who is the subject of the complaint.

1) In the event that the Monitoring Officer receives a complaint and there is evidence that a serious potential DPI offence may have been committed they will make immediate contact with the Police through the nominated single point of contact (see Appendix B for named Police contact). For the avoidance of doubt there is no requirement for the Monitoring Officer to refer cases to the Police where it appears there may have been a genuine error or oversight by the member concerned and no advantage has been secured by them.

2) Similarly if the Police receive a complaint from a member of the public it will inform the relevant Monitoring Officer of the receipt of that complaint (each Authority will be responsible for providing up to date contact details of its appointed Monitoring Officer from time to time – See Appendix B for named Monitoring Officer contact).

3) Essex Police will register the complaint and will advise the relevant Monitoring Officer. The Police will conduct an initial assessment of the complaint and may approach the relevant Monitoring Officer for background information on the complaint.

4) After referral to Essex Police, whether by a Monitoring Officer or a member of the public, the responsibility for any communication with the parties during the initial assessment will rest with Essex Police. The relevant Monitoring Officer may confirm to the Complainant that the matter has been referred to Essex Police but provide no further comment. It has been agreed that the details of the nominated single point of contact for Essex Police may be provided to the Complainant upon request.

1 Protocol between Essex Monitoring Officers and Essex Police

5) Essex Police will treat the Complainant as an informant of a potential DPI offence; the Complainant will not be entitled to receive any additional information or updates.

6) In some instances, it might not have become apparent until the Subject Member’s response to a complaint has been received, that evidence exists of a serious potential DPI offence. In this situation, the Monitoring Officer may confirm to the Subject Member, that the matter has been referred to Essex Police but provide no further comment. It has been agreed that the details of the nominated single point of contact for Essex Police may be provided to the Subject Member upon request.

7) The Monitoring Officer will have no further involvement in the matter so referred unless requested by Essex Police.

8) If Essex Police decides not to prosecute in the public interest, it may consider less formal action, such as a warning. Following consideration of the matter, the Police shall confirm its decision and any action or prospective action on the matter to the relevant Monitoring Officer. Essex Police and the relevant Monitoring Officer will agree any formal notification.

9) Essex Police and Monitoring Officers shall keep this Protocol under review on a 2 yearly basis.

Signatories

Signed on Behalf of Essex Police

Name Detective Inspector 3159 Lee Morton

Position Serious Economic Crime Unit

Signed on behalf of Basildon Borough Council

Name Lorraine Browne

Position Monitoring Officer

2 Protocol between Essex Monitoring Officers and Essex Police

Signed on behalf of Braintree District Council

Name Ian Hunt

Position Monitoring Officer

Signed on behalf of Brentwood Borough Council

Name Daniel Toohey

Position Monitoring Officer

Signed on behalf of Castlepoint Borough Council

Name Andrew Smith

Position Monitoring Officer

Signed on behalf of Chelmsford Borough Council

Name Ann Coronel

Position Monitoring Officer

Signed on behalf of Colchester Borough Council

Name Andrew Weavers

Position Monitoring Officer

3 Protocol between Essex Monitoring Officers and Essex Police

Signed on behalf of Epping Forest District Council

Name Colleen OBoyle

Position Monitoring Officer

Signed on behalf of Essex County Council

Name Paul Turner

Position Monitoring Officer

Signed on behalf of Essex Fire Authority

Name Shirley Jarlett

Position Monitoring Officer

Signed on behalf of Harlow District Council

Name Brian Keane

Position Monitoring Officer

Signed on behalf of Rochford District Council

Name Angela Law

4 Protocol between Essex Monitoring Officers and Essex Police

Position Monitoring Officer

Signed on behalf of Southend Borough Council

Name John Williams

Position Monitoring Officer

Signed on behalf of Tendring District Council

Name Lisa Hastings

Position Monitoring Officer

Signed on behalf of Thurrock Council

Name David Lawson

Position Monitoring Officer

Signed on behalf of Uttlesford District Council

Name Christine Oliva

Position Monitoring Officer

5 Protocol between Essex Monitoring Officers and Essex Police Appendix A Extract of Localism Act 2011

30 Disclosure of pecuniary interests on taking office

(1) A member or co-opted member of a relevant authority must, before the end of 28 days beginning with the day on which the person becomes a member or co-opted member of the authority, notify the authority's monitoring officer of any disclosable pecuniary interests which the person has at the time when the notification is given.

(2) Where a person becomes a member or co-opted member of a relevant authority as a result of re-election or re-appointment, subsection (1) applies only as regards disclosable pecuniary interests not entered in the authority's register when the notification is given.

(3) For the purposes of this Chapter, a pecuniary interest is a “disclosable pecuniary interest” in relation to a person (“M”) if it is of a description specified in regulations made by the Secretary of State and either—

(a) it is an interest of M's, or

(b) it is an interest of—

(i) M's spouse or civil partner,

(ii) a person with whom M is living as husband and wife, or

(iii) a person with whom M is living as if they were civil partners,

and M is aware that that other person has the interest.

(4) Where a member or co-opted member of a relevant authority gives a notification for the purposes of subsection (1), the authority's monitoring officer is to cause the interests notified to be entered in the authority's register (whether or not they are disclosable pecuniary interests).

31 Pecuniary interests in matters considered at meetings or by a single member

(1) Subsections (2) to (4) apply if a member or co-opted member of a relevant authority—

(a) is present at a meeting of the authority or of any committee, sub-committee, joint committee or joint sub-committee of the authority,

(b) has a disclosable pecuniary interest in any matter to be considered, or being considered, at the meeting, and

(c) is aware that the condition in paragraph (b) is met. 6 Protocol between Essex Monitoring Officers and Essex Police (2) If the interest is not entered in the authority's register, the member or co-opted member must disclose the interest to the meeting, but this is subject to section 32(3).

(3) If the interest is not entered in the authority's register and is not the subject of a pending notification, the member or co-opted member must notify the authority's monitoring officer of the interest before the end of 28 days beginning with the date of the disclosure.

(4) The member or co-opted member may not—

(a) participate, or participate further, in any discussion of the matter at the meeting, or

(b) participate in any vote, or further vote, taken on the matter at the meeting, but this is subject to section 33.

(5) In the case of a relevant authority to which Part 1A of the Local Government Act 2000 applies and which is operating executive arrangements, the reference in subsection (1)(a) to a committee of the authority includes a reference to the authority's executive and a reference to a committee of the executive.

(6) Subsections (7) and (8) apply if—

(a) a function of a relevant authority may be discharged by a member of the authority acting alone,

(b) the member has a disclosable pecuniary interest in any matter to be dealt with, or being dealt with, by the member in the course of discharging that function, and

(7) If the interest is not entered in the authority's register and is not the subject of a pending notification, the member must notify the authority's monitoring officer of the interest before the end of 28 days beginning with the date when the member becomes aware that the condition in subsection (6)(b) is met in relation to the matter.

(8) The member must not take any steps, or any further steps, in relation to the matter (except for the purpose of enabling the matter to be dealt with otherwise than by the member).

(9) Where a member or co-opted member of a relevant authority gives a notification for the purposes of subsection (3) or (7), the authority's monitoring officer is to cause the interest notified to be entered in the authority's register (whether or not it is a disclosable pecuniary interest).

7 Protocol between Essex Monitoring Officers and Essex Police (10) Standing orders of a relevant authority may provide for the exclusion of a member or co-opted member of the authority from a meeting while any discussion or vote takes place in which, as a result of the operation of subsection (4), the member or co-opted member may not participate.

(11) For the purpose of this section, an interest is “subject to a pending notification” if—

(a) under this section or section 30, the interest has been notified to a relevant authority's monitoring officer, but

(b) has not been entered in the authority's register in consequence of that notification.

32 Sensitive interests

(1) Subsections (2) and (3) apply where—

(a) a member or co-opted member of a relevant authority has an interest (whether or not a disclosable pecuniary interest), and

(b) the nature of the interest is such that the member or co-opted member, and the authority's monitoring officer, consider that disclosure of the details of the interest could lead to the member or co-opted member, or a person connected with the member or co- opted member, being subject to violence or intimidation.

(2) If the interest is entered in the authority's register, copies of the register that are made available for inspection, and any published version of the register, must not include details of the interest (but may state that the member or co-opted member has an interest the details of which are withheld under this subsection).

(3) If section 31(2) applies in relation to the interest, that provision is to be read as requiring the member or co-opted member to disclose not the interest but merely the fact that the member or co-opted member has a disclosable pecuniary interest in the matter concerned.

33 Dispensations from section 31(4)

(1) A relevant authority may, on a written request made to the proper officer of the authority by a member or co-opted member of the authority, grant a dispensation relieving the member or co-opted member from either or both of the restrictions in section 31(4) in cases described in the dispensation.

(2) A relevant authority may grant a dispensation under this section only if, after having had regard to all relevant circumstances, the authority—

8 Protocol between Essex Monitoring Officers and Essex Police (a) considers that without the dispensation the number of persons prohibited by section 31(4) from participating in any particular business would be so great a proportion of the body transacting the business as to impede the transaction of the business,

(b) considers that without the dispensation the representation of different political groups on the body transacting any particular business would be so upset as to alter the likely outcome of any vote relating to the business,

(d) if it is an authority to which Part 1A of the Local Government Act 2000 applies and is operating executive arrangements, considers that without the dispensation each member of the authority's executive would be prohibited by section 31(4) from participating in any particular business to be transacted by the authority's executive, or

(e) considers that it is otherwise appropriate to grant a dispensation.

(3) A dispensation under this section must specify the period for which it has effect, and the period specified may not exceed four years.

(4) Section 31(4) does not apply in relation to anything done for the purpose of deciding whether to grant a dispensation under this section.

34 Offences

(1) A person commits an offence if, without reasonable excuse, the person—

(a) fails to comply with an obligation imposed on the person by section 30(1) or 31(2), (3) or (7),

(b) participates in any discussion or vote in contravention of section 31(4), or

(2) A person commits an offence if under section 30(1) or 31(2), (3) or (7) the person provides information that is false or misleading and the person—

(a) knows that the information is false or misleading, or

(b) is reckless as to whether the information is true and not misleading.

(3) A person who is guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale. 9 Protocol between Essex Monitoring Officers and Essex Police (4) A court dealing with a person for an offence under this section may (in addition to any other power exercisable in the person's case) by order disqualify the person, for a period not exceeding five years, for being or becoming (by election or otherwise) a member or co-opted member of the relevant authority in question or any other relevant authority.

(5) A prosecution for an offence under this section is not to be instituted except by or on behalf of the Director of Public Prosecutions.

(6) Proceedings for an offence under this section may be brought within a period of 12 months beginning with the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to the prosecutor's knowledge.

(7) But no such proceedings may be brought more than three years—

(a) after the commission of the offence, or

(b) in the case of a continuous contravention, after the last date on which the offence was committed.

(8) A certificate signed by the prosecutor and stating the date on which such evidence came to the prosecutor's knowledge is conclusive evidence of that fact; and a certificate to that effect and purporting to be so signed is to be treated as being so signed unless the contrary is proved.

(9) The Local Government Act 1972 is amended as follows.

(10) In section 86(1)(b) (authority to declare vacancy where member becomes disqualified otherwise than in certain cases) after “2000” insert “or section 34 of the Localism Act 2011”.

(11) In section 87(1)(ee) (date of casual vacancies)—

(a) after “2000” insert “or section 34 of the Localism Act 2011 or”, and

(b) after “decision” insert “or order”.

(12) The Greater London Authority Act 1999 is amended as follows.

(13) In each of sections 7(b) and 14(b) (Authority to declare vacancy where Assembly member or Mayor becomes disqualified otherwise than in certain cases) after sub-paragraph (i) insert—

“(ia) under section 34 of the Localism Act 2011,”.

(14) In section 9(1)(f) (date of casual vacancies)—

10 Protocol between Essex Monitoring Officers and Essex Police (a) before “or by virtue of” insert “or section 34 of the Localism Act 2011”, and

(b) after “that Act” insert “of 1998 or that section”.

11 Protocol between Essex Monitoring Officers and Essex Police Appendix B Monitoring Officer/ Police Contacts

Essex Police Single Point of Contact: Detective Inspector Lee Morton Email: [email protected] Direct Dial: 01245 282041 Mobile: 07976768272

Basildon Borough Council Monitoring Officer: Lorraine Browne Email: [email protected] Tel: 01268 207850

Braintree District Council Monitoring Officer: Ian Hunt Email: [email protected] Tel: 01376 552525

Brentwood Borough Council Monitoring Officer: Daniel Toohey Email: [email protected] Tel: 01277 312554

Castlepoint Borough Council Monitoring Officer: Andrew Smith Email: [email protected] Tel: 01268 882434

Chelmsford City Council Monitoring Officer: Ann Coronel Email: [email protected] Tel: 01245 606560

Colchester Borough Council Monitoring Officer: Andrew Weavers Email: [email protected] Tel: 01206 282213

Epping Forest District Council Monitoring Officer: Colleen OBoyle Email: [email protected] Tel: 01992 564475

Essex County Council Monitoring Officer: Paul Turner Email: [email protected] Tel: 0333 0134591

Essex Fire Authority Monitoring Officer: Shirley Jarlett Email: [email protected] Tel: 0333 0139 713

Harlow District Council Monitoring Officer: Brian Keane Email: [email protected] Tel: 01279 446037

12 Protocol between Essex Monitoring Officers and Essex Police

Rochford Borough Council Monitoring Officer: Angela Law Email: [email protected] Tel: 01702 546360

Southend Borough Council Monitoring Officer: John Williams Email: [email protected] Tel: 01702 215102

Tendring District Council Monitoring officer: Lisa Hastings Email: [email protected] Tel: 01255 686561

Thurrock Council Monitoring officer: David Lawson Email: [email protected] Tel: 07875 397764

Uttlesford District Council Monitoring officer: Christine Oliva Email: [email protected] Tel: 01799 510417