CONSIDERATION DECISION NOTICE

A BREACH OF THE CODE HAS BEEN FOUND

SANCTION

Reference: 26396

Complainant: Councillor Alan Neal

Subject Member: Councillor Roger Bennison, St Ive Parish Council

Person conducting Simon Mansell, Principal Legal Officer the Consideration:

Date of Consideration: 12 February 2013

Summary of the allegations considered

A complaint has been made by Councillor Alan Neal (“the Complainant”), that he believes Councillor Roger Bennison may have breached the Code of Conduct of St Ive Parish Council. The background to the complaint is that the Complainant alleges: During a meeting of the Council held on 10th January 2011 Councillor Bennison:  Continued to Chair the meeting and failed to leave the chamber when his daughter’s planning application was discussed; and  Continued to Chair the meeting and failed to declare an interest when his own property was discussed. During the investigation, further allegations came to light that: At a meeting of the Council held on 27th September 2011 Councillor Bennison:  Failed to declare an interest when a planning application relating to his property was discussed;  Was involved in causing visible upset to the Clerk;  The Member was connected to both a letter of complaint received from a member of the public and the resignation of a fellow councillor. Decision

In reaching this decision I have had full regard to the Investigation Report into this matter.

No Breach of the Code of Conduct

In considering the submissions made by Councillor Bennison and the views of the Independent Person, I consider that Councillor Bennison did not breach Paragraph 3(1) of the Code of Conduct as there is no evidence that he failed to treat the second Clerk or members of the public with respect within the report, or the associated material.

Further more Councillor Bennison has not breached Paragraph 3(2)(b) of the Code of Conduct as there is no evidence in the Investigation Report or associated material that he has at any time bullied any person.

Breaches of the Code of Conduct

Councillor Bennison did breach Paragraph 9(1) of the Code of Conduct as he failed to declare a personal interest when his Daughter’s planning application was discussed and when his own property was discussed on 10 January 2011. Further at the meeting of the Council held on 27 September 2011, Councillor Bennison failed to declare a personal interest when a planning application relating to his own property was discussed.

Councillor Bennison has breached Paragraph 12(1)(a) of the Code of Conduct by failing to leave the Chamber when a matter in which he had a prejudicial interest was discussed. The prejudicial interest in question relates to the two items in which he had a personal interest as is set out above.

Councillor Bennison has breach Paragraph 5 of the Code of Conduct by conducting himself in a manner which could reasonable be regarded as bringing his Office or Authority into disrepute.

Councillor Bennison has breached Paragraph 6(a) of the Code of Conduct by using or attempting to use his position as a Member improperly to confer on or secure for himself or any other person an advantage or disadvantage.

Reasons for decision

It is considered that the Investigation Report and its associated materials, the comments provided by Councillor Bennison and the Independent Person makes this matter sufficiently clear that it can be determined at this stage, without requiring input of the Standards Committee members. In looking at the breaches of the Code as found, it is considered that, on the information provided by the Investigating Officer, a breach of Paragraph 9(1) of the Code of Conduct has occurred in that Councillor Bennison failed to declare a personal interest in a matter which was under discussion. Whilst I have noted that Councillor Bennison has asserted that he did indeed declare a personal interest, this was not recorded in the Minutes and the onus would have been on Councillor Bennison, when the Minutes were later considered by the Council to ensure the Minutes accurately reflected his disclosure of an interest.

In considering the breach of Paragraph 12(1)(a) of the Code of Conduct, it is clear that the nature of the matters under discussion, namely the fact the properties were his daughters or his own, that these resulted in Councillor Bennison having a prejudicial interest. The reasoning for this is it is most likely that the matters under discussion would affect Councillor Bennison’s beneficial interest and also the financial position of someone with whom he has close association; that is his Daughter.

Councillor Bennison has submitted as part of his response to this process; that a member of the public, Mr Pascoe, supplied a letter to the Investigating Officer which stated that Councillor Bennison did not take any part in the discussion on the 10 January 2011 and sat at the back of the Hall.

In considering this, the Code of Conduct sets out that, at paragraph 12(1)(a), a Member breaches the Code if they fail to leave the Chamber when a matter in which they have a prejudicial interest is discussed. While it is noted that Councillor Bennison removed himself from the discussion he did not fully comply with the Code of Conduct by absenting himself from the hall, therefore while I have noted Mr Pascoe’s comments, I do not believe that this alters the Investigating Officer’s findings and breach of Paragraph 12(1)(a) is upheld.

In considering the breach of Paragraph 6(a), Councillor Bennison has remained in the hall when a matter has been discussed in which he had a prejudicial interest. While it is correctly recorded that Councillor Bennison did not vote or take part in the discussion on the matter himself, the fact that he remained in the hall gave him the ability to influence the decision making and in staying in the hall he has, as is set out above, breached paragraphs 9(1) and 12(1)(a) of the Code of Conduct. As a result it is considered that Councillor Bennison has used his position to gain an advantage and has therefore breached paragraph 6(a).

In looking at paragraph 5, the onus is on a member at all times to comply with the Code of Conduct and Councillor Bennison has failed, on two separate occasions to do so. While it is considered that a reasonable person in possession of all the fact would considered that Councillor Bennison could be reasonably regarded as having brought his office into disrepute and thereby has breached paragraph 5 of the Code of Conduct I do not consider that Councillor Bennison has brought his authority into disrepute by his actions.

Sanction

I have considered the actions of Councillor Bennison and while it is shown that he has breached paragraphs 9(1) and 12(1)(a) of the Code of Conduct his actions also indicate that he did attempt to comply with the Code though at the time. However in placing such importance on Mr Pascoe’s letter at consideration, I believe that Councillor Bennison does not properly understand the obligation the Code of Conduct places upon him.

Given the fact that if a Councillor now fails to act appropriately when having a Disclosable Pecuniary Interest they may be open to criminal prosecution; it is recommended that Councillor Bennison should attend training on the Code of Conduct, at a date to be arranged by Cornwall Council not later than six months from the date of the consideration of this matter.

What happens now?

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

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SJR Mansell MBE Principal Legal Officer On behalf of the Monitoring Officer Date: 18 February 2013