Decision details

Code of Conduct Complaints (001, 002, 003, 004, & 005/EHDC/18

Decision maker: Governance, Audit & Scrutiny Sub-Committee

Decision status: For Determination

Is Key decision?: No

Is subject to call in?: No

Decision:

Governance, Audit & Scrutiny Committee

 

DECISION NOTICE

 

Code of Conduct Complaints (001, 002, 003, 004, 005 /EHDC/18

 

Introduction

 

The Governance, Audit & Scrutiny Sub-Committee is sitting today to consider formal complaints CC 001, CC 002, CC 003, CC 004 and CC 005 / EHDC/18 received by the Monitoring Officer for East Hampshire District Council (“EHDC”) against Councillor D J Jerrard of Bramshott & Liphook Parish Council (“the Subject Member”).

 

The Monitoring Officer has received complaints from a Mr Roger Miller (001) (Member of the Public); Mr Alasdair Cameron (002) (Member of the Public); Councillor Jeanette Kirby (003) (Bramshott & Liphook Parish Council); Mrs Jane Ives (004) (former Councillor Bramshott & Liphook Parish Council); and Mrs Emma Winfield (005) (former Councillor Bramshott & Liphook Parish Council).

 

Decision Maker

 

The Governance, Audit & Scrutiny Sub-Committee sitting on the 9 November 2018.

 

Procedural Matters

 

The Agenda papers comprising the complaints and the response from the Subject Member contain information that is sensitive and confidential and the Governance, Audit & Scrutiny Sub-Committee resolvedto holdthe substantive hearing inprivatepursuant tos.100(A)(4) Local Government Act 1972on thegroundsthatit involves thelikelydisclosure ofexemptinformationas definedinParagraph 1and 2ofSchedule 12Aofthe Actnamely,information relating toanindividual and informationlikelyto reveal theidentity of anindividualand inaccordancewiths.36ofthe Freedom of InformationAct2000,by virtue of the factthat the public interest inmaintaining the exemptionoutweighsthe publicinterestindisclosing theinformation. The Sub-Committeeresolvedthata publicdecision noticewouldbeissued and publicised following thedeterminationat the substantivehearing.  It isconsideredthat there was sufficientinthis decision noticetoaddressanyquestionsthat mightbelegitimatelyraised aboutthecomplaintand determinationof it.

 

The Governance, Audit & Scrutiny Sub-Committee resolved to hold the hearing in the absence of the Subject Member and his two witnesses. At 17:14 on the day before the hearing an email was received on behalf of the Subject Member from his representative enclosing a Statement of Fitness to work from his GP stating that he was not able to attend any Court or similar proceeding for a month due to debility. The email advises that the Subject Member is a disabled person and protected under the equality and disability laws of the UK. The email states inter alia that it was agreed that the hearing would be postponed until after the Subject Member had been assessed by his medical consultant on the 24 October. Notwithstanding agreeing to this reasonable adjustment, a decision to override this occurred and the investigation took place regardless. Not only was this contra to the agreed postponement, the investigation itself was fatally flawed as they did not contact the Subject Member any of his witnesses, which is procedurally wholly incorrect. The email requested assurance that protections offered to the Subject Member by the Equality Act would be taken into account in determining whether the hearing would go ahead in the absence of the Subject Member.

 

The Legal Advisor addressed the Sub-Committee on its’ obligations under the Equalities Act 2010. Disability is defined in Section 6 of the Act. Section 15 of the Act states that in relation to discrimination arising from disability, discrimination will occur when a person has been treated unfavourably because of something arising from their disability, for example, the need to take a period of disability-related absence. However, discriminatory treatment will be justified if it can be shown that it was a proportionate means of achieving a legitimate aim.

 

In terms of indirect discrimination which is defined in section 19 of the Act, indirect discrimination occurs when a policy, criteria or practice which is applicable to everyone is shown to put those with a relevant protected characteristic at a disadvantage (this can be either a group of people or a particular individual). A policy, criteria or practice will not be considered indirect discrimination if it can be shown that it was a proportionate means of achieving a legitimate aim.

 

The Legal Advisor reminded the Sub-Committee that this hearing had already been postponed 3 times. That the individual conditions pertaining to the disability of the Subject Member appeared to be long term in nature and therefore the prospect of being able to re-convene the Sub-Committee within a relatively short space of time was somewhat optimistic. That the complaints had been lodged as long ago as January 2018 and that it was therefore in the interests of all parties that the complaints were now determined as soon as possible. Finally, that the Code of Conduct Process required the parties to submit their representations/evidence upon which they intended to rely, prior to the hearing. This requirement had been complied with by both the complainants and the Subject Member.

 

The Sub-Committee retired to consider its’ decision and on resumption advised that whilst it was acutely sympathetic to the Subject Member’s position, it had been a fine balance as to whether to continue in the absence of the Subject Member. However the advice that had been provided in regard to the Equalities Act duties had been the determining factor and the Sub-Committee therefore determined that on balance to continue with the hearing in the absence of the Subject Member was a proportionate means of achieving a legitimate aim.

 

 

 

Complaints Summary

 

The complaints allege that the Subject Member in his dealings and actions with members of the Bramshott & Liphook Neighbourhood Development Plan Steering Group (“NDP Steering Group”) and fellow Parish Councillors, has acted in a manner which was disrespectful, discourteous, bullying, intimidating and harassing thereby bringing himself and his Council into disrepute in direct contravention of the Bramshott & Liphook Parish Council’s (“BLPC”) ( Code of Conduct as set out in the Parish Council’s Standing Orders dated December 2017. The Standing Orders were revised in April 2018, however the initial assessment of the complaints was made against the Code in force at the relevant time.

 

Upon receipt of the complaints the Monitoring Officer instigated the procedure set out in the EHDC Code of Conduct Process for Dealing with Allegations.

 

In accordance with paragraph 3 of the Code of Conduct Procedure, an initial assessment of the complaints was carried out by the Monitoring Team.

 

The Subject Member has provided the Monitoring Officer with his written response to the allegations and has provided witness statements from two fellow Parish Councillors supporting him – Councillors Easton and Trotter.

 

The Monitoring Team’ decision on initial assessment was that further action be undertaken and the Governance, Audit & Scrutiny Sub-Committee were asked to consider the allegations against the Subject Member. On the 9 March 2018 a formal Decision Notice was issued and sent to all relevant parties.

 

The Governance, Audit & Scrutiny Sub-Committee was initially convened to sit on the 30 April 2018 to hear the allegations.

 

As a result of formal complaints received from the Subject Member about the EHDC Monitoring Officer and Deputy Monitoring Officer, a review of the processes that had been followed to that time was commissioned from an independent Monitoring Officer outside of EHDC. Following receipt of the report from the independent review of the processes the Governance, Audit & Scrutiny Sub-Committee has been re-convened to hear the five complaints against the Subject Member.

 

Findings as to Breaches of the Code of Conduct

 

Section 27(1) of the Localism Act 2011 requires a relevant authority to adopt a code dealing with the conduct that is expected of members and co-opted members of the authority when they are acting in their capacity as a councillor. Members are required to follow the Code of Conduct when they are acting in their role as a Councillor. The Code of Conduct does not apply in respect of conduct in a Member’s private life.

 

A relevant authority that is a Parish Council may comply with the above requirement by adopting the code adopted by its’ principal authority. The BLPC Parish Council has adopted the EHDC Code of Conduct in December 2017. Although there has been a subsequent revision to the Code of Conduct in 2018, the 2017 version is the iteration that was in force at the time of the complaints.

 

The Sub-Committee considered considerable information in the form of written representations from all parties and oral submissions made on the day. The Sub-Committee notes that issues that were raised in the written representations of the Subject Member did not relate to the original complaints. The Sub-Committee observes that only a small part of these representations are a direct response to the complaints. The Sub-Committee in its deliberations was clear that it could only make findings in respect of the original complaints. Therefore the Sub-Committee concluded that based on the evidence before it at the hearing on the 9 November that on the balance of probabilities there is evidence to support the following findings as to breaches of the Members Code of Conduct of Bramshott and Liphook Parish Council.

 

The complaints allege 7 separate occasions where because of his behaviour the Subject Member has acted in breach of the Code of Conduct.

 

Allegation 1: (Complaints 003, 004 & 005)

 

9 July 2017 – Bramshott & Liphook Planning Committee

 

(1)        That the Subject Member failed to listen to the interests of all parties, including relevant advice from statutory and professional officers of the Council, taking all relevant information into consideration, remaining objective and making decision on merit.

 

(2)        That the Subject Member failed to contribute to making the Council’s decision-making processes as open and transparent as possible.

 

Finding:

 

The Subject Member placed the following item on the agenda – “To receive an update on the status of the NDP and to consider applying to re-designate the NDP boundary to exclude the SDNP areas”. This was outside the remit of the Planning Committee and was done without consultation with either the Chair of the Council or the Chair of the NDP Steering Group. Both the Chair of the Council and the Chair of the NDP Steering Group made formal statements to the public that they had not been consulted. The NDP Steering Group does not report to the Planning Committee but directly to Full Council. This significantly contributed to distrust of the Council by the Steering Group when clearly the Council should be supportive of the Steering Group work

 

Outcome:

        

BREACH of the following sections of the Code of Conduct

 

Paragraphs 8 (v) Listening to the interests of all parties, including relevant advice from statutory and professional officers of the Council, taking all relevant information into consideration, remaining objective and making decision on merit.

 

Paragraph 8 (vii) Contributing to making the Council’s decision-making processes as open and transparent as possible.

 

 

 

 

Allegation 2: (Complaints 003, 004 & 005)

 

25 September 2017 – Bramshott & Liphook Parish Council Meeting

 

(1)        That the Subject Member failed to listen to the interests of all parties, including relevant advice from statutory and professional officers of the Council, taking all relevant information into consideration, remaining objective and making decision on merit.

 

(2)        That the Subject Member failed to contribute to making the Council’s decision-making processes as open and transparent as possible.

 

Finding:

 

The Subject Councillor submitted the following motion –

“Neighbourhood Development Plan – That the Parish Council should not consider housing in the National Park as part of the Neighbourhood Plan as this would be rejected by the SDNPA and therefore be a waste of money”.

 

This action was contrary to the advice of Council Officers. The Council had made every effort to distance itself from the preparation of the Neighbourhood Plan to ensure that it was truly a community led plan. The motion gave the impression of interference from the Council and the Subject Councillor admitted that the true purpose of the motion was to expose individuals who might have fraudulent interest in development in the National Park.

                                                                          

Outcome:

  

BREACH of the following sections of the Code of Conduct

 

Paragraphs 8 (v) Listeningto the interests of all parties, including relevant advice from statutory and professional officers of the Council, taking all relevant information into consideration, remaining objective and making decision on merit.

 

Paragraph 8 (vii) Contributing to making the Council’s decision-making processes as open and transparent as possible.

 

 

Allegation 3: (Complaints 003 & 004)

 

11 December 2017 – Bramshott & Liphook Parish Council Planning Committee

 

(1)        Failing to listen to the interests of all parties, including relevant advice from statutory and professional officers of the Council, taking all relevant information into consideration, remaining objective and making decisions on merit.

 

(2)        Failing to contribute to making the Council’s decision-making processes as open and transparent as possible.

 

(3)        Bullying a person.

 

(4)        Failing to value colleagues and Officers of the Council and engaging with them in a respectful and courteous manner.

 

(5)        Always treating all people and organisations with respect and propriety.

 

Findings:

 

The Subject Member sitting at the Chair of the Planning committee proposed that the agenda item ‘Local Plans’ be moved to exempt sessions for reasons of confidentiality. This exempt session had been convened without notice. The Sub-Committee note that the Bramshott & Liphook Parish Council Standing Orders permit that a Motion to exclude the press and public may be made without notice under Section 13 a xi. Prior to the meeting the Subject member had advised the Council’s Officer that an exempt session was going to be called about the NDP. The Council’s Officer had advised that an exempt session was not appropriate. Due to bad weather conditions the Officer was not able to attend the meeting later that day. At the meeting the Subject Councillor advised that individuals would be named. Accordingly the Subject Member called for a vote and the exempt session went ahead. No details of confidential matters were disclosed and that instead the Subject Councillor asked complainant 003 for an update on the NDP. She was then subjected to a tirade of various criticisms and accusations from the Subject Member and two other Parish Councillors. Holding exempt sessions without clear justification is frowned upon by the public and can be mentioned by the Council’s Auditors negatively.

 

 

Outcome:

           

BREACH of the following sections of the Code of Conduct

 

Paragraph 8 (v) Listening to the interests of all parties, including relevant advice from statutory and professional officers of the Council, taking all relevant information into consideration, remaining objective and making decision on merit.

 

Paragraph 8 (vii) Contributing to making the Council’s decision-making processes as open and transparent as possible.

 

Paragraph 8 (x) Not bullying a person.

 

Paragraph 8 (xiv) Valuing colleagues and Officers of the Council and engaging with them in a respectful and courteous manner.

 

Paragraph 8(xv) Always treating all people and organisations with respect and propriety.

 

Allegation 4: Complaint 004)

 

22 January 2018 – Telephone conversation Complainant, Subject Member and another Parish Councillor

 

(1)        Bullying a person

 

Finding:

 

During the late afternoon the Subject Member telephoned the complainant from Sainsbury’s Café in Liphook advising that he had another Parish Councillor with him and so the call was on loud speaker so that they could both speak. The Subject Member asked why there was an exempt item on the Steering Group Agenda for its meeting on the following day. He was advised that the discussion was to involve the next phase of the NDP with the appointed consultant and the possible appointment of a new Chair. The Subject Member was not happy that he would not be permitted to attend the exempt session of the NDP Steering Group. Advice had been previously obtained by the complainant that this was the case. The complainant advised that a member of the press always attended the Steering Group meetings and it was likely that developers and members of the public would also be present and the matters for discussion therefore needed to be in confidential session. The Subject Member became extremely angry and said that he was going to hold a vote of no confidence.

 

Outcome:

 

BREACH of the following section of the Code of Conduct

 

Paragraph 8 (x) Not bullying a person.

 

Allegation 5: (Complaint 005)

 

23 January 2018 – NDP Steering Group

  

(Numbers in brackets refer to the Member Officer Protocol)

 

(3.1)       Failing to work together with officers in a harmonious relationship based upon mutual respect, courtesy, trust, honesty and understanding of each other’s roles.

 

(3.5)       Failing to address Members and officers with courtesy.

 

(3.6)       Obstructing the work of officers by unnecessarily taking up their time or in any way acting to impede their ability to proceed with their professional duties.

 

(3.7)       Failing to conduct himself in a way that is acceptable within a professional environment.

 

(3.8)       Conducting himself in an unacceptable manner.

 

Finding:

 

The Subject member demonstrated disruptive and discourteous behaviour. His language and manner with external and internal contacts was intimidating and hostile. His actions led to disruption (the meeting starting 10 mins late and an exempt session being cancelled.

 

The Subject Member was rude and hostile in the way he addressed the Chair of the Parish Council and the Chair of the NDP Steering Group.

 

The Chair of the Parish Council had spent additional time obtaining specific details of the regulatory requirements regarding attendance in exempt sessions to rebut the Subject Councillors assertion that he was entitled to attend an exempt session of the steering group.

 

The Subject Member showed intimidating and bullying behaviour in a very public manner, showing complete disrespect to those in the room.

 

The Subject Member’s behaviour was a clear demonstration of intimidating and bullying behaviour.

 

Outcome:

           

BREACH of the following sections of the Member Officer Protocol (paragraphs 3.1, 3.5, 3.7 and 3.8) consistent with breaches of the Code of Conduct as follows: -

 

Paragraph 8 (x) Not bullying a person.

 

Paragraph 8 (xiv) Valuing colleagues and Officers of the Council and engaging with them in a respectful and courteous manner.

 

Paragraph 8(xv) Always treating all people and organisations with respect and propriety.

 

NO BREACH of Section 3.6 of the Member and Officer Protocol and therefore no breach of the Code of Conduct.

 

The Chair of the Parish Council had spent additional time obtaining specific details of the regulatory requirements regarding attendance in exempt sessions to rebut the Subject Councillors assertion that he was entitled to attend an exempt session of the steering group. On examination of the documentation produced by the Chair of the Parish Council, the position regarding who may attend an exempt session of any steering/advisory group is not certain. The Subject Councillor was therefore within his rights to assert his entitlement to attend an exempt session of the NDP Steering Group.

 

Allegation 6: (Complaint 001 &002)

 

23 January 2018 – NDP Steering Group

 

(1)        Not bullying any person.

 

(2)        Not valuing your colleagues and Officers of the Council and engaging with them in a respectful and courteous manner.

 

(3)        Failing to treat all people and organisations with respect and propriety.

 

Finding:

 

The Subject Member attempted to pressure the acting chairman into allowing parish councillors (in particular himself) to attend an exempt session of the meeting. In doing so he was confrontational, arrogant, lacking judgment. Invading the Deputy Chair’s personal space and brandishing a blue folder was, in the opinion of the Sub-Committee, an intimidating action and was designed to be so. Once the meeting commenced he constantly spoke and joked with another Councillor sitting next to him, causing unnecessary further distraction to other members of the Steering Group.

 

Outcome:

 

BREACH of the following sections of the Code of Conduct

 

Paragraph 8 (x) Not bullying a person.

 

Paragraph 8 (xiv) Valuing colleagues and Officers of the Council and engaging with them in a respectful and courteous manner.

 

Paragraph 8(xv) Always treating all people and organisations with respect and propriety.

 

Allegation 7:(Complaint 0004)

 

29 January 2018 – Bramshott & Liphook Parish Council Meeting

 

(1)        That the Subject Member failed to listen to the interests of all parties, including relevant advice from statutory and professional officers of the Council, taking all relevant information into consideration, remaining objective and making decision on merit.

 

(2)        That the Subject Member failed to contribute to making the Council’s decision-making processes as open and transparent as possible.

 

Finding:

 

The Chair of the NDP Steering Group reported the actions of the Subject Councillor regarding the exempt session at its meeting on the 23 January. The Chair of the Parish Council gave Councillors advice about attendance at exempt sessions and that they were not permitted to attend exempt sessions unless they were on that committee. The Subject Member once again disputed this position despite having been given previous advice by the Council’s Internal Auditor and the Parish Clerk. This documentation was considered by the Sub-Committee in Allegation 5 above, and the position on non-Steering Group Members regarding attending an exempt session of any steering/advisory group is not certain. The Subject Councillor was therefore within his rights to assert his entitlement to attend an exempt session of the NDP Steering Group.

 

Outcome:

 

NO BREACH of the following sections of the of Code of Conduct

 

Paragraphs 8 (v) Listeningto the interests of all parties, including relevant advice from statutory and professional officers of the Council, taking all relevant information into consideration, remaining objective and making decision on merit.

 

Paragraph 8 (vii) Contributing to making the Council’s decision-making processes as open and transparent as possible.

 

Sanctions

 

The role of a Parish Councillor is a privileged position, and it is incumbent upon all Members to demonstrate the highest possible standards in respect of their behaviours and conduct whilst acting in that capacity.

 

Having determined that Councillor Jerrard has breached his Council’s Code of Conduct for Members the Sub-Committee went on to consider what sanctions if any should be applied to Councillor Jerrard.

 

Under the East Hampshire Code of Conduct adopted by Bramshott & Liphook Parish Council where a Councillor fails to comply with his Council’s Code of Conduct the following sanctions are available: -

 

(i)              No action needs to be taken;

(ii)             The Councillor be censured; and/or

(iii)           Whatever publicity the Sub-Committee considers appropriate to be given to their findings.

 

The Sub-Committee took due regard of the sanctions they could impose and thereafter determined that the following sanctions were appropriate to address the breaches found:

 

1.     That Councillor Jerrard be formally censured, the censure is set out at Appendix 1 to the decision Notice.

 

2.     This decision Notice will be published in the appropriate local newspaper and on the EHDC’s website.

 

3.     As the complaints have been made against a Parish Councillor a copy of this Decision Notice will be sent to the Clerk of the Bramshott & Liphook Parish Council.

 

Other Matters:

 

The Sub-Committee requested that the Monitoring Officer make the following recommendation to the Clerk of the Bramshott & Liphook Parish Council.

 

1.     That all Members receive further Code of Conduct Training.

 

2.     That all Councillors including Councillor Jerrard receive further training on DP/GDPR. The Sub-Committee were particularly concerned to note that Members were using their private email addresses for Council business.

 

3.     The Council should review and amend as necessary the terms of reference for all Committees and Steering Groups with particular emphasis to be placed upon the role of members of the public, Councillors and Observers in exempt sessions for Council, Sub-Committees, Steering Groups and Advisory Committees.

 

4.     Consideration be given to disbanding the Liaison Working Party which was originally set up to establish the NDP Steering Group. This Working Party was set up with an express task. Once completed and the Steering Group established it should have been dissolved. It is bad practice for a Working Party to persist as if it were a Standing Committee of the Council and its continued behaviour in acting as a Standing Committee was of concern.

5.      

 

In addition to the above the Sub-Committee is concerned to note that the Subject Member appears to have adopted a practice of “door-stepping” in his communications with other Parish Councillors and hand delivering correspondence. In the circumstances the Sub-Committee felt that this was inappropriate behaviour that was inadvisable.

 

 

Chairman of the Governance, Audit & Scrutiny Sub-Committee


 

Appendix 1

 

Formal Censure

 

 

The Governance, Audit & Scrutiny Sub-Committee have determined that the following censure is issued to Councillor Jerrard in the light of his breaches of the Members’ Code of Conduct.

 

Councillor Jerrard is hereby censured for failing to uphold and promote high standards of conduct when holding public office. The position of a Councillor requires a high level of integrity and responsibility. Therefore the community expects the highest standards of propriety, ethics and morality from their Councillors in their conduct. A Councillor is a community leader and role model, and must act in an exemplary manner to ensure their position is respected and brings confidence in public office.

 

An individual Councillor’s actions and conduct will always reflect on the wider role of a Councillor and, as a direct consequence, will inevitably impact on the reputation of their fellow Councillors and the Council as a whole both generally and specifically. The Sub-Committee have concluded that the conduct and actions of Councillor Jerrard have not met the high standards that are expected of a person holding public office. The Sub-Committee believe it is incumbent on all Councillors to ensure the public have confidence and trust in their elected Members, the Sub-Committee are disappointed that Councillor Jerrard’s actions were not in keeping with this belief.

 

 

Publication date: 16/11/2018

Date of decision: 09/11/2018

Decided at meeting: 09/11/2018 - Governance, Audit & Scrutiny Sub-Committee

Accompanying Documents: