A Breach of the Code Has Been Found s4

ASSESSMENT DECISION NOTICE

A BREACH OF THE CODE HAS BEEN FOUND

SANCTION

Reference: CCN004/13

Complainant: Mr Alan Clark

Subject Member: Councillor Mrs Rebecca Jay, Perranzabuloe Parish Council

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

Date of Assessment: 16 May 2013

Complaint

On 16 May 2013 the Monitoring Officer considered a complaint from Mr Alan Clark concerning the alleged conduct of Councillor Mrs Rebecca Jay of Perranzabuloe Parish Council. A general summary of the complaint is set out below:

The Complainant has stated in his complaint; that the Subject Member, calling herself ‘Rebecca May’ on an eBay, advertisement regarding holiday accommodation and failed to register an interest regarding her holiday accommodation. Further, the complaint states the Subject Member intends to make a revocation or change to the Dog Control Order against the Perranporth Beach dog restriction.

The alleged breaches of the Code of Conduct put forward by the Complainant are:

 Bringing your office or authority into disrepute  Using your position improperly to gain an advantage or disadvantage  Failing to notify the monitoring officer within 28 days of becoming a member of any disclosable pecuniary interests at the time of giving notification  Failing to declare an interest in a matter under discussion, participating and voting in a matter in which you have an interest and failure to remove yourself from the meeting while any discussion or vote takes place on the matter Decision and breaches of the Code Found

For the reasons I have set out below I find no breach of the Code of Conduct in relation to;

 Bringing your office or authority into disrepute  Using your position improperly to gain an advantage or disadvantage  Failing to declare an interest in a matter under discussion, participating and voting in a matter in which you have an interest and failure to remove yourself from the meeting while any discussion or vote takes place on the matter

For the reasons set out below I find a breach of the Code of Conduct in relation to;

 Failing to notify the Monitoring Officer within 28 days of becoming a member of any disclosable pecuniary interests at the time of giving notification

Reasons

In assessing this complaint I have been able to access sufficient information to enable this complaint to be assessed and determined without the need to refer the complaint for investigation and, with this, the undertaking of interviews.

It is a legal requirement that all members are to register Disclosable Pecuniary Interests; those which are set out in paragraph 5A of the Code of Conduct; with this the requirement to register such interests has been reflected in paragraph 3.2 of the Code of Conduct which reads;

‘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’.

The complainant has alleged that Councillor Jay has failed to register an interest in holiday accommodation which she lets, as her only interest registered under employment is ‘Company Director of Dodo Pad Ltd’.

Paragraph 5A(b)(i) of the Code of Conduct gives the definition of the Disclosable Pecuniary Interest ‘Employment’ which is defined as;

‘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’.

Councillor Jay has stated in her response to the allegations as made; that she does, with her husband, let a holiday property which is joined to her main residence, but as it is outside the boundaries of Perranzabuloe Parish Council she did not believe she was required to register it.

Whereas the Disclosable Pecuniary Interest as it relates to land, paragraph 5A(b)(iv), states that it is a requirement to register any beneficial interest in land within the area of the relevant authority, which in this case would be Perranzabuloe Parish Council, no such distinction is applied to employment. While Councillor Jay’s rental property is within the boundaries of St Agnes Parish Council, the property does fall within the definition of employment as set out in paragraph 5A(b)(i) of the Code of Conduct; and therefore this business should have been registered under employment on Councillor Jay’s register of interests form.

Due to the failure to register her business on her register of interests’ form, I find that Councillor Jay is in breach of paragraph 3.2 of the Code of Conduct for Perranzabuloe Parish Council.

I have in assessing this matter, carefully considered if the failure to register this interest has given rise to further breaches of the Code of Conduct; namely a breach of paragraph 2.10, that is conducting yourself in a manner which could reasonably be regarded as bringing your office or authority into disrepute, and paragraph 2.11, using your position to gain an advantage or disadvantage.

In considering this and while the failure to register the interest is a breach of the Code; I do not believe that by failing to do so Councillor Jay has gained an advantage or disadvantage or has brought her office or authority into disrepute, and therefore has not breached paragraphs 2.10 and 2.11 of the Code of Conduct for Perranzabuloe Parish Council.

As set out below the matter of whether paragraph 3.5 has been breached; which relates to the requirement to declare an interest and then take no part in the discussions on the matter and not vote on it, has been alluded to by the Complainant but no specific allegation has been made.

The Complainant has further alleged that Councillor Jay has listed the rental property on ‘ebay’ under the name of May, as opposed to Jay. While Councillor Jay has given a reason for this in her response to the allegations, it is considered that this part of the allegation concerns actions taken by Councillor Jay when acting in her private capacity. Therefore the Code of Conduct does not apply to these actions as the Code only covers actions when a councillor is acting in their official capacity.

The Complainant has also raised within his allegation, that Councillor Jay has the intention of making the revocation or changes to the Dog Control Order against Perranporth Beach.

Any Councillor is entitled to raise issues which may be of concern to the community which they have been elected to serve, and the issue of dogs on beaches is a contentious matter.

However, it is not apparent that, by raising the issues, Councillor Jay has breached the Code of Conduct in relation to matters concerning the issue of dogs on beaches. The complainant has made a vague reference to the possibility that the issue may have been discussed at the Parish Council, but nothing further.

While there is a potential for any ban to affect Councillor Jay’s rental property, this is limited, and it is considered to be likely that any general discussion on the matter would not give rise to the requirement to declare an interest. Additionally, the Code of Conduct does not operate in a way which can prevent members from taking actions prior to the event and the onus is on the member to take advice prior to any discussions taking place, as paragraph 1.3 of the Code of Conduct makes it the member’s responsibility to comply with the Code. Therefore in relation to the allegation concerning dogs on beaches, I make the finding that there is no finding that the Code has been breached in relation to all aspects of the allegation.

In reaching this decision I have had full regard to the views of the Independent Person.

Sanction

While Councillor Jay has been found to have breached paragraph 3.2 of the Code of Conduct it is considered that this is a technical an inadvertent breach based on incorrect advice.

The Department for Communities and Local Government has indicated that the Monitoring Officer has the discretion on dealing with such breaches, and on this occasion the Monitoring Officer has determined that; as Councillor Jay was not elected to Perranzabuloe Parish Council on 2 May 2013, it is not in the public interest to take further action in relation to this matter. However, should Councillor Jay be elected or co-opted onto the Parish Council at any point in the future she will be required to correctly register her interests within 28 days of the date of the election or co-option.

What happens now?

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

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SJR Mansell MBE Principal Legal Officer On behalf of the Monitoring Officer Date: 22 May 2013