A Breach of the Code Has Been Found

ASSESSMENT DECISION NOTICE

A BREACH OF THE CODE HAS BEEN FOUND

SANCTION

Reference: CCN005/13

Complainant: Confidential

Subject Member: Councillor James Bell, Feock Parish Council

Person conducting Simon Mansell – Principal Legal Officer, Corporate the Assessment: Governance

Date of Assessment: 24 May 2013

Complaint

On 24 May 2013 the Monitoring Officer considered a complaint concerning the alleged conduct of former Councillor Bell of Feock Parish Council. A general summary of the complaint is set out below:

The Complainant has alleged that Councillor Bell, who was appointed the contract manager for a Parish Council project for the Market Hall Site at Devoran, failed to declare his interest in this contract and failed to register this under employment on his register of interest form.

It should be noted that this complaint spans the introduction of the new Code of Conduct and as such the potential breaches of the Code of Conduct are;

For the duration of the complaint;

 using your position to gain an advantage or disadvantage  conducting yourself in a manner which could reasonably be regarded as bringing your office or authority into disrepute

For the period up to 1 July 2012

 failing to declare a personal interest  failing to remove yourself from the room or chamber where a matter in which you have a prejudicial interest is been discussed

For the period as from 1 July 2012

 failing to register your interests within 28 days of taking office or becoming aware of them

 participating, or participating further, in any discussions, participating in any vote, or further vote failing to remove yourself from the meeting while any discussion or vote takes place on a matter in which you have a disclosable pecuniary or non registerable interest.

The Complainant has also alleged that the contract for services which Councillor Bell was awarded was not correctly fulfilled and that the Clerk failed to enforce the proper regulations relating to members interests.

Decision and breaches of the Code Found

I find that the Councillor Bell has breached the Code of Conduct of Feock Parish Council in relation to the following;

For the duration of the complaint;

 using your position to gain an advantage or disadvantage  conducting yourself in a manner which could reasonably be regarded as bringing your office or authority into disrepute

For the period up to 1 July 2012

 failing to declare a personal interest  failing to remove yourself from the room or chamber where a matter in which you have a prejudicial interest is been discussed

For the period as from 1 July 2012

 failing to register your interests within 28 days of taking office or becoming aware of them

 participating, or participating further, in any discussions, participating in any vote, or further vote failing to remove yourself from the meeting while any discussion or vote takes place on a matter in which you have a disclosable pecuniary or non registerable interest.

In reaching this decision and finding a breach; I consider that as Councillor Bell was not returned to office in the elections on 2 May 2013, Councillor Bell should be censured for the reasons set out below.

Reasons

Sufficient information has been obtained to enable this complaint to be assessed and determined without the need to refer the complaint for investigation and the undertaking of interviews. In assessing this complaint I have had regard to;  the complaint as submitted by the complainant;  the response to the complaint submitted by Councillor Bell;  the minutes of the meetings of Feock Parish Council dated, 13 February 2012, 28 May 2012, 11 June 2012, 9 July 2012, 13 August 2012;  the views of the Independent Person allocated to this matter

In relation to the allegations that the contract for services which Councillor Bell was awarded was not correctly fulfilled and that the Clerk failed to enforce the proper regulations relating to members interests.

The Code of Conduct only covers the behaviour of the member concerned when they are acting in their official capacity. It does not extend to contractual relationships between the Council and an outside contractor. While Councillor Bell is a Councillor at Feock, he undertook the contract in his private capacity. Also, the Code does not cover the Clerk to the Council who is an employee of the Council and therefore not bound by the Code of Conduct. For these reasons these parts of the allegation are not considered further.

Declarations of interest – pre 1 July 2012

The Code of Conduct which was in force until 1 July 2012 required that an interest relating to employment to be registered on the members register of interests form. This created, under paragraph 8 of the old Code, a personal interest as did any item under discussion that would affect the ‘well being or financial position’ of the Councillor to the greater extent of the other council tax payers in the Councillor’s ward or area.

Paragraph 9(1) of the Code of Conduct then required that any personal interest in a matter under discussion had to be declared at a meeting, though this did not affect the Councillor’s ability to stay in the chamber and vote.

The minutes of the Parish Council meeting on 13 February 2012 and 28 May 2012 show that while the matter of the Market Hall Site was discussed, Councillor Bell declared no interest.

The minutes for the meetings of the Parish Council on the 11 June 2012 show that Councillor Bell, as the Buildings Contracts Manager for the Market Hall Site, declared an interest relating to the Market Hall Site and took no part in the debate or voting.

It is however, not recorded in the minutes for the meeting in June what the nature of the interest was, and while the Clerk should have ensured the minutes correctly reflected the interest declared the onus is on an individual Councillor to comply with the Code of Conduct and to ensure that their compliance is correctly recorded.

For the meetings in February and May no interest is recorded as being declared by Councillor Bell in relation to this matter.

While I have noted that at the February meeting the contract for contracts manager was still to be awarded, I consider that Councillor Bell would have had sufficient interest in this to have, at the minimum, declared a personal interest when the contract was discussed. The minutes for May make a specific reference to the contract with Councillor Bell, and the Clerk has advised that the contract was signed by Councillor Bell on 26 May 2012, the meeting the Parish Council was the 28 May 2012. As no personal interest is recorded as been declared by Councillor Bell when the Market Hall Site was discussed by the Parish Council on 13 February 2012 and 28 May 2012, I consider that Councillor Bell has breached paragraph 9(1) of the Code of Conduct.

While an interest was declared at the meeting in June it is not stated if the interest was personal or prejudicial and while Councillor Bell has breached paragraph 9(1) of the Code of Conduct by not stating if the interest was personal or prejudicial, this breach is technical in nature as an interest was declared.

The Code of Conduct which was in force until 1 July 2012 also required a member with a prejudicial interest under discussion to leave the chamber where the matter was been discussed, although paragraph 12(2) of the Code, then in force, did allow the member to speak, if a member of the public could speak, before the member left the room or chamber.

An interest was deemed to have been prejudicial if it was;

‘such that a reasonable person with knowledge of all the relevant facts would consider your interest so significant that it is likely to prejudice your judgement of the public interest’

The value of the contract to Councillor Bell was not an insignificant amount and it is therefore considered that when any discussions relating to it, or its associated subject matter, were taking place; Councillor Bell did have a prejudicial interest.

For the meetings in February and May 2012 no interest was declared by Councillor Bell in this matter, despite having signed the contract with the Parish Council 2 days before the meeting in May.

For the meeting in June, whilst Councillor Bell is shown to have declared an interest when the Market Hall Site was discussed, the minutes do not show Councillor Bell as having left the meeting as is required by the Code. Councillor Bell, in his response to the complaint has state that;

‘I declared my interest, delivering both written and verbal reports to the parish council in my role as contracts manager, which meant in effect I couldn’t leave the meeting while doing so’.

The requirements of the Code of Conduct do not make an exception for a member who may also be undertaking a contract for services for a Council and the requirement is absolute. As such, a member with a prejudicial interest has to leave the room or chamber when the matter in which they have the interest is under discussion.

Paragraph 12(2) of the Code did allow a member to speak if they had a prejudicial interest and due to the operation of 12(2) Councillor Bell could have given his reports, and the left the meeting.

Councillor Bell chose not to do this and in failing to absent himself from the room or chamber when a matter in which he had a prejudicial interest was been discussed on 13 February 2012, 28 May 2012, and 11 June 2012 Councillor Bell; has breached paragraph 12(1) of the Code of Conduct for Feock Parish Council. On the 1 July 2012 the Code of Conduct changed and interests were split into Disclosable Pecuniary Interests, that is those set by central government, and Non- Registerable Interests, that is those set in the locally produced Code.

One of the Disclosable Pecuniary Interest brought in on 1 July 2012 was Employment and paragraph 5A(b)(i) of the Code of Conduct gives the definition of the Disclosable Pecuniary Interest ‘Employment’ which is;

‘Any employment, office, trade, profession or vocation carried on for profit or gain and can be considered as the job or other means by which you your spouse or civil partner make your living, whether employed or self employed’.

The contract Councillor Bell has therefore qualifies as a Disclosable Pecuniary Interest and requires that it be registered and declared as such.

With regards to registering this interest paragraph 3.2 of the Code of Conduct states;

3.2 Within 28 days of becoming a Member you must notify the Council’s Monitoring Officer of any disclosable pecuniary interest that you have at the time of giving the notification.

While Councillor Bells register of interest form from pre July 2012 (dated 16 July 2009) indicates he was employed as a ‘building contractor’ no form is held for Councillor Bell post 1 July 2012 and records indicate that he was the only member of Feock Parish Council not to register his interests when the regime was changed. As Councillor Bell did not register his interests after 1 July 2012, as is required by paragraph 3.2 of the Code of Conduct, I find Councillor Bell to be in breach of paragraph 3.2 of the Code of Conduct for Feock Parish Council.

With regards to declaring this interest paragraph 3.5 of the Code of Conduct states;

3.5 If you are present at a meeting and you are aware that you have a non- registerable interest or a disclosable pecuniary interest in any matter being considered or to be considered at the meeting you must disclose that interest to the meeting if that interest is not already entered in the register and, unless you have the benefit of a current and relevant dispensation in relation to that matter, you must: (i) not participate, or participate further, in any discussions of the matter at the meeting; (ii) not participate in any vote, or further vote, taken on the matter at the meeting; and (iii) remove yourself from the meeting while any discussion or vote takes place on the matter, to the extent that you are required to absent yourself in accordance with the Council’s standing orders or other relevant procedural rules.

While Councillor Bell did declare his interest in the matter, he did take part in the discussions relating to the Market Hall Site and he did not remove himself from the meeting.

The contract with the Council was one which, when discussed by the Council, was one which required Councillor Bell to act in accordance with paragraph 3.5 of the Code which was in force as from 1 July 2012. As Councillor Bell declared an interest but did not leave the meetings of the Parish Council on 9 July 2012 and 13 August 2012; I find that Councillor Bell is in breach of paragraph 3.5 of the Code of Conduct.

Bringing your office or authority into disrepute.

This provision can found in Code of Conduct in force up to 1 July 2012 and the Code in force after this date. Therefore an assessment can be made as to whether this paragraph of the Code of Conduct has been breached for the whole period of the complaint.

The Code states that the subject member must be ‘reasonably regarded’ as having brought his office or authority into disrepute but, it does not need to be shown that this has occurred. Disrepute means the loss of reputation either for the subject member or the authority as a whole, this does not have be shown to have happened, just that a reasonable person taking an objective view would consider that it had.

Councillor Bell was not acting as manager of the Market Hall Site for nothing and was been paid, by local standards, nearly a living wage for this one piece of work. While it is not within the remit of this assessment to question the value of the work; Councillor Bell should have been mindful of the public perception of him, as a Councillor, being paid a five figure sum by the Council of which he was a member, and then taking part in all discussions relating to the matter.

The Code of Conduct exists to ensure that the public have confidence in the democratic process; and it is difficult to see how this can be the case when a Councillor, who is party to a contract, stays in the room while this contract is discussed.

Taking an objective view of this matter it is considered that a reasonable member of the public would view Councillor Bell’s actions as suspect at the least and that, by staying in the meetings, he was gaining information which would be denied other contractors in a similar position.

Therefore I have concluded that Councillor Bell’s actions by staying in the meetings on 13 February 2012, 28 May 2012, 11 June 2012, 9 July 2012 and 13 August 2012 amount to a breach of the Code of Conduct of Feock Parish Council in that Councillor Bell has brought his own office, but not the authority, into disrepute.

With regards to;

Using your position to gain an advantage or disadvantage

Councillor Bell has been in a unique position within the Parish Council from the initial stages of this matter. It is known, from the information provided, that he initially expressed an interest in the contract and therefore should have had no dealings whatsoever with the Council, other than on a professional basis, from this time.

By attending the meeting on 13 February 2012 and taking part in the discussion on the Market Hall Site; Councillor Bell had an insight to the requirements of the Council in relation to the role of contracts manager and potentially the budget. While no contract had been awarded at that time; I consider that Councillor Bell should have declared a personal interest in this matter as it was clearly a contract which fell within his area of speciality however, he elected not to do so. For the meeting held on 28 May 2012; Councillor Bell had already signed the contract but did not declare an interest as is required by the Code. Councillor Bell also failed to absent himself from the meetings held in June, July and August.

While I have noted Councillor Bell’s reasons for staying in the meetings; it is considered that a reasonable person, in possession of all the facts, would take the objective view that Councillor Bell has gained an advantage by staying in the Council meetings while discussions relating to the contract took place. Therefore I have concluded that Councillor Bell, by staying in the meetings on 13 February 2012, 28 May 2012, 11 June 2012, 9 July 2012 and 13 August 2012, has breached the Code of Conduct of Feock Parish Council.

In considering a sanction for this matter I have considered the following. I have taken into account that the Code of Conduct changed on 1 July 2012 and the problems this caused at the time, and the fact the Clerk should have advised Councillor Bell on his interests, and correctly recorded them

Pre 1 July 2012; Councillor Bell should have left the chamber under paragraph 12(1) of the Code of Conduct when the matter of the Market Hall Site was discussed at the meetings on 13 February 2012, 28 May 2012, 11 June 2012, and then taken the same actions under paragraph 3.5 for the meetings on 9 July 2012 and 13 August 2012. Additionally it is considered that Councillor Bell, by staying in the meetings on, 9 July 2012 and 13 August 2012; has breached the Code of Conduct by using his position to gain an advantage.

As from 1 July 2012 it became a criminal offence under the Localism Act 2011 not to correctly register and declare a disclosable pecuniary interest and these provisions are covered by the breaches of paragraph 3.2 and 3.5 of the Code of Conduct in force from 1 July.

In mitigation of any sanction; it is known that the changes to the ethical standards regime were introduced with little warning by central government, and that the implications of the requirement to register and declare a disclosable pecuniary interest was, initially, not fully understood. Also at all the meetings the Clerk should have given Councillor Bell clear advice on what actions to take if he had an interest and the interests declared by Councillor Bell should have been correctly recorded in the minutes. I have also noted that Councillor Bell was not re-elected to office in the elections held on 2 May 2012.

In relation to the breaches of paragraphs 3.2 and 3.5 of the Code of Conduct; the Monitoring Officer has discretion as to whether these breaches should be further pursued. The Monitoring Officer has considered on this occasion; that it would not be in the public interest to pursue these.

However, the breaches of the Code committed by Councillor Bell cannot be overlooked and the sanction that is to be imposed is; a public censure and a recommendation to Feock Parish Council that should Councillor Bell return to public office, either by co- option or election, he should attend training on the Code of Conduct at the earliest opportunity.

What happens now?

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

At the written request of the subject member, the Monitoring Officer can review and is able to change a decision not to refer an allegation for investigation or other action. A different Officer to that involved in the original decision will undertake the review.

We must receive a written request from the subject member to review this decision within 28 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.

It should be noted reviews will not be conducted by the same person who did the initial assessment.

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SJR Mansell MBE Principal Legal Officer On behalf of the Monitoring Officer Date: 10 June 2013