Contact: Jeff Pattison, ext 01962-847321

1 Summary

At the last meeting of the Committee on the 10 September 2002 the Committee considered Government proposals on procedures for the local investigation and determination of misconduct allegations against Councillors.

2 Regulations have not yet been published but it is possible that this may take place within the very near future. Furthermore it is anticipated that the Standards Board for England will also be publishing guidance as to how investigations should be pursued. It is likely that this guidance will take a little longer to produce.

3 In the meantime, the Standards Board have indicated that they have received over 1,000 complaints alleging misconduct by Councillors. It is likely that once the Regulations are published the Standards Board will be forwarding a large number of complaints to be dealt with by Authorities. It is therefore necessary that the Authority has in place an agreed procedure for handling any complaints referred to it by an ethical standards officer of the Standards Board.

4 A proposed procedure is attached together with flowcharts. It is recommended that the Clerk as Monitoring Officer be given authority to make detailed changes consequent on requirements in the Regulations when they are published or in guidance subsequently to be issued by the Standards Board. The proposed procedure depends on the Regulations permitting the Clerk as Monitoring Officer to delegate to an Investigating Officer responsibility for reporting investigation of an alleged breach of the Code of Conduct to the Standards Committee.

Recommendation

It is recommended that the attached be adopted as the Authority's procedure for the local investigation and determination of allegations of misconduct by Members of the Authority and that the Clerk as Monitoring Officer be given the authority to make detailed wording changes to reflect requirements in Regulations and in guidance.

TITLE FILE

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Procedure for Local Investigation and Determination

of Complaints of Misconduct by Members of Hampshire Fire and Rescue Authority

2 1. Introduction

This note sets out the procedure which will be followed in the local investigation and determination of complaints of misconduct by a Member of the Authority. The Monitoring Officer shall not depart from this procedure until the Member against whom the complaint has been made has been informed of the proposed variation to the procedure and the reasons for that variation.

Where the Standards Board for England receives a complaint that a Member has breached the Authority's Code of Conduct for Members, the Board refers the complaint to an Ethical Standards Officer for investigation. At any point in that investigation the Ethical Standards Officer may determine that the complaint should be referred to the Authority's Monitoring Officer. The Monitoring Officer is then required to complete the investigation of the complaint and report to the Authority's Standards Committee.

Where it is concluded there has been no breach of the Code of Conduct, or that there has been a breach but that no action should be taken against the Member, the Standards Committee will receive that report and give the Member concerned the opportunity to make representations to it before it makes any decision on the matter. Where the Standards Committee is recommended to take action against the Member, the Standards Committee will conduct a formal hearing into the matter at which it will receive evidence before deciding whether to take any such action against the Authority.

The actions which the Standards Committee may take against the Member may include censuring the Member and suspending the Member, or partially suspending the Member, from being a member of the Authority for a period not exceeding six months.

3 2. Notification of Reference of Complaint to the Monitoring Officer

a) Notification to the Member

On receipt of the complaint from the Ethical Standards Officer, the Monitoring Officer will notify in writing the Member against whom the complaint is made:

(i) that he/she has received the complaint;

(ii) of the name and address of the person making the complaint;

(iii) of the conduct which is the subject of the complaint;

(iv) of the section(s) of the Code of Conduct which are alleged to have been breached by the Member, and

(v) of the procedure which will be followed in respect of the complaint.

In very exceptional cases, where the Monitoring Officer has reason to believe that there is a serious risk of intimidation of witnesses or destruction of evidence, the Monitoring Officer may initiate an investigation before notifying the Member.

b) Notification to the Standards Committee

At the same time as notifying the Member, the Monitoring Officer will notify each member of the Standards Committee in writing of the matters set out in paragraphs 2(a)(i) - (iv) above.

c) Initial response of the Member

In notifying the Member of receipt of the complaint, the Monitoring Officer shall request the Member to respond in writing within 14 days of notification as follows:

advising the Monitoring Officer whether the Member admits or denies the breach of the Code of Conduct which is the subject of the complaint;

listing any documents which the Member would wish the Monitoring Officer to take into account in any investigation of the complaint

providing the Monitoring Officer with the name, address and telephone number (or other appropriate contact details) of any person or organisation whom the Member would wish to be interviewed in the course of any investigation of the complaint or to provide information.

4 3. Conduct of Investigation

a) Purpose of the Investigation

The purpose of investigation is to prepare and present to the Standards Committee a report which, together with any report provided by the Ethical Standards Officer, would provide the Standards Committee with sufficient information to determine whether the Member has acted in breach of the Code of Conduct, whether any action should be taken against the Member, and what any such action should be.


b) Termination of the Investigation

The Monitoring officer may terminate the investigation at any point, if satisfied that there is sufficient information to enable the Standards Committee to come to a considered decision on the complaint.

c) Additional Matters

Where, in the course of investigation, the Monitoring Officer becomes aware of any other matter which appears to indicate a breach of the Code of Conduct by the Member other than the breach currently under investigation the Monitoring Officer shall notify the Member concerned in writing of the other matter, providing details in the form set out in paragraphs 2(a)(iii) and (iv) above and

i. seek the consent of the Member in writing within 14 days of notification to the other matter being investigated and dealt with as if it were part of the original complaint, or

ii. where the Monitoring Officer is of the opinion that the other matter should be dealt with separately from the original complaint, treat that other matter as a separate matter, for separate investigation and report to the Standards Committee or the Standards Board as appropriate.

d) Appointment of Investigating Officer

The Monitoring Officer may appoint an Investigating Officer to undertake the investigation and to report to the Standards Committee.


e) List of persons to be interviewed and information

The Investigating Officer will identify an initial list of persons to be interviewed, organisations from whom information is to be sought and documents to be inspected as part of the investigation. Where the Member has provided the Monitoring Officer with the information requested in accordance with Paragraphs 2(c)(ii) and (iii) above, the Investigating Officer shall include that in this list, unless he/she is of the opinion that the inclusion of that document, person or organisation is intended to delay the completion of the investigation rather than to contribute to the accuracy of the final report. The Investigating Officer may supplement or amend this list at any stage of the investigation.

f) Production of documents, information and explanations

In the course of the investigation, the Investigating Officer may make such enquiries of any person, and request any person to provide any document, information or explanation, as he/she thinks necessary for the purposes of carrying out the investigation.

g) Interviews

(i) Requesting attendance

In the course of the investigation the Investigating Officer may interview any person for the purpose as in Paragraph 3(f).

(ii) Representation

Any person who appears before the Investigating Officer may arrange to be accompanied at their own expense by a solicitor or friend.

(iii) Notes of interviews

Where practicable, following the interview the Investigating Officer shall produce a written note of the material points of the interview, provide two copies of that note to the person interviewed and ask them to return one copy signed as a correct record of the interview, with such corrections or amendments as they may feel necessary for that purpose.

5 4. Report

a) When the Investigating Officer is satisfied that he/she has sufficient information to meet the requirement set out in Paragraph 3(a), or has obtained as much information as is likely to be reasonably capable of being obtained, he/she shall prepare a report for the Standards Committee setting out:

(i) the details of the complaint;

(ii) the Member's initial response to notification of the complaint (if any);

(iii) the relevant information and explanations which he/she has obtained in the course of the investigation;

(iv) a list of any documents relevant to the matter;

(v) a list of those persons whom he/she has interviewed and those organisations from whom he/she has sought information;

(vi) a note of any person or organisation who has failed to co-operate with the investigation and the manner in which they have failed to co-operate;

(vii) a statement of his/her conclusions;

(viii) a recommendation to the Standards Committee as to whether the Member has breached the Code of conduct in the matter set out in the complaint or in respect of any other matter which he/she has determined to investigate as if it were a part of the original complaint, together with a statement of the reasons for making that recommendation;

(ix) a recommendation as to whether the Standards Committee should take any action against the Member, together with a statement of the reasons for making that recommendation;

(x) a recommendation as to what action (if any) the Standards Committee should take against the Member, together with a statement of the reasons for making that recommendation, and

(xi) any other recommendations which he/she proposes to make to the Standards Committee arising out of the investigation, for example for providing recompense to any person who has suffered detriment as a result of the breach of the Code of Conduct or related matters, for reviewing or reconsidering any decision which was the subject of the breach of the Code of Conduct, for rectifying any deficiency in the Authority's decision-making procedures or for preventing or deterring any breach of the Code of Conduct.

b) The Monitoring Officer shall then arrange a time and date for the Standards Committee to meet and consider the matter

c) At least 20 clear days before the date of the meeting of the Standards Committee, the Investigating Officer shall send a copy of his/her report to the Member.

d) Where the Investigating Officer's report recommends that no breach of the Code of Conduct has occurred, or that a breach of the Code has occurred but that no action should be taken, the Investigating Officer shall, in sending the Member a copy of the report:

(i) request the Member to provide a written statement at least 10 clear days before the date of the meeting in which the Member sets out his/her response to the report, and which the Member wishes to be sent to the members of the Standards Committee at the same time as the report;

(ii) advise the Member of the procedure which will be adopted by the Standards Committee at that meeting.

e) Where the Investigating Officer's report recommends that the Member has breached the Code of Conduct and that the Standards Committee should take any action against the Member, the Investigating Officer shall, in sending the Member a copy of the report:

(i) request the Member to provide a written statement at least 10 clear days before the date of the meeting in which the Member sets out his/her response to the report, and which the Member wishes to be sent to the members of the Standards Committee at the same time as the report;

(ii) request that Member to identify in that written statement any matter contained in the Investigating Officer's report which the Member proposes to dispute at the meeting of the Standards Committee, in order to enable attendance at the meeting of the Standards Committee of any witnesses necessary to evidence that matter which the Member wishes to dispute;

(iii) advise the Member that, if he/she seeks at the meeting of the Standards Committee to dispute any matter contained in the Investigating Officer's report without having previously identified it in his/her written statement as a matter which he/she proposes to dispute, the Standards Committee may either adjourn the meeting to enable attendance of any witnesses necessary to evidence that matter or refuse to allow the Member to dispute that matter and take their decision on the basis of the matter as set out in the Investigating Officer's report.

f) As soon as practical after sending a copy of his/her report to the member, the Investigating Officer shall take reasonable steps to send a copy of his/her report to any person who made the complaint which gave rise to the investigation, but may make the provision of that copy conditional upon an appropriate undertaking of confidentiality.

6 5. Committee Agenda and Reports

a) Committee agenda and reports

At least 5 clear days before the day of the meeting of the Standards Committee, the Chief Executive will send to each member of the Standards Committee and to the Member against whom the complaint is made:

(i) the agenda for the meeting of the Committee

(ii) a copy of the Investigating Officer's report, and

(iii) a copy of any written statement in response to the report which has been received from the Member.

The Chief Executive may advise at the commencement of the meeting that the Committee should consider whether the press and public should be excluded from the meeting.

b) Background papers

The Investigating Officer will, upon request, give any member of the Committee and the Member access to any supporting documents including any notes of interviews at any reasonable time between the issue of the agenda and the time of the meeting.


c) Confidentiality in advance of the Meeting

Where the Chief Executive considers that the Investigating Officer's report and/or the Member's written statement in response is likely to disclose "exempt information " (defined in Schedule 12A to the Local Government Act 1972), and in consequence that it is likely that the Committee will, during consideration of these papers, not be open to the public, copies of these papers will not be provided to the press or public or made available for inspection by the press or public.

7 6. Procedure at the Meeting

a) Representation

The Member may arrange to be accompanied at the Meeting at their own expense by a solicitor or friend.

b) Order of business

The order of business at the Meeting shall be as follows:

(i) introduction of the Committee, the Monitoring Officer as the legal adviser to the Committee, the Investigating Officer and the Member and any representative of the Member;

(ii) declarations of interest;

(iii) representations from the Member and advice from the Monitoring Officer as to reasons why the Committee should exclude the press and public and determination by the Committee as to whether to exclude the press and public;

(iv) presentation by the Investigating Officer of his/her report. The Investigating Officer shall at this stage address only the issue of whether the Member has acted in breach of the Code of Conduct. The Investigating Officer may introduce any evidence and witnesses required to substantiate any matter contained in that report which the Member has disputed in his/her written statement in response. Members of the Committee may question the Investigating Officer and any witness on their evidence. There shall be no cross-examination by the Member, but the Member may request the Chairman of the Meeting to direct appropriate questions to the Investigating Officer or to any witness whom he/she has introduced;

(v) presentation by the Member. The Member shall at this stage address only the issue of whether he/she has acted in breach of the Code of Conduct. The Member may introduce evidence and witnesses required to substantiate any matter contained in his/her written statement in response. Members of the Committee may question the Member and any witness on their evidence. There shall be no cross-examination of the Member, but the Investigating Officer may request the Chairman of the Meeting to direct appropriate questions to the Member or to any witness whom he/she has introduced.

(vi) Where the Member seeks to dispute any matter in the Investigating Officer's report which he/she had not given notice of intention to dispute in his/her written statement in response, the Investigating Officer shall draw this to the attention of the Committee.

The Committee may then decide:

A. not to admit such dispute but to proceed to a decision on the basis of the information contained in the Investigating Officer's report;

B. to admit the dispute, but invite the Investigating Officer to respond thereto, recalling any witness as necessary; or

C. to adjourn the Meeting to enable the Investigating Officer to investigate and report on the dispute and/or to arrange for the attendance of appropriate witnesses as to the disputed information ;

(vii) at the conclusion of the presentation by the Member, the Chairman shall ask the Investigating Officer whether there was any matter raised during the course of that presentation which was not raised in the Member's written statement in response. The Investigating Officer may then respond to any such new matter, or may request the Committee to adjourn to enable him/her to investigate and report on that new matter and/or to secure the attendance of witnesses as to the new matter;

(viii) the Committee is required to come to a decision as to whether the Member acted in breach of the Code of Conduct. Accordingly, they have to satisfy themselves that they have sufficient information upon which to take that decision, and they may question the Investigating Officer, the Member and any witness in order to obtain sufficient information to enable them to come to a decision on this issue;

(ix) at the conclusion of the presentations of the Investigating Officer and of the Member and any questions from the members of the Committee, the Monitoring Officer will advise the Committee whether the member has acted in breach of the Code of Conduct. At any stage in their consideration the Committee may ask any further questions of the Investigating Officer, the Member and seek advice, including legal advice, from the Monitoring Officer;

(x) the Chairman will advise the Member of their decision as to whether the Member has acted in breach of the Code of Conduct, and the reasons for that decision;

(xi) if the Committee conclude that the Member has acted in breach of the Code of Conduct, the Committee will be advised by the Monitoring Officer whether the Committee should take any action against the Member and what form any action should take. The Member may make representations. Members of the Committee may ask questions of the Monitoring Officer and the Member in order to satisfy themselves that they have the information upon which to take a proper decision;

(xiii) the Committee will advise the Member of their decision as to whether to take any action against the Member and what action they have decided to take against the Member and the reasons for those decisions;

(xiv) Finally, the Committee shall consider whether there are any recommendations which the Committee should make arising from their consideration of the complaint, for example for providing recompense to any person who has suffered detriment as a result of the breach of the Code of Conduct or related matters, for reviewing or reconsidering any decision which was the subject of the breach of the Code of Conduct, for rectifying any deficiency in the Authority's decision-making procedures or for preventing or deterring any breach of the Code of Conduct.

8 7. Reporting of the Decision of the Standards Committee

a) As soon as practicable after the Committee the Monitoring Officer shall:

(i) send to the Member a written notice of the decision of the Committee

(ii) take reasonable steps to inform any person who made the complaint which gave rise to the investigation

(iii) send a report of the outcome of the investigation and the Committee's decision to the Standards Board for England

(iv) report the decision to the next meeting of the Hampshire Fire and Rescue Authority.

8. Assistance to the Monitoring Officer

a) The Monitoring Officer may arrange for all or any functions under this procedure to be undertaken by any other person or persons, and shall do so where he/she has any personal interest in the matter under investigation;

b) The Monitoring Officer may, in conducting the investigation, obtain expert or other advice and meet any reasonable costs;

c) The Monitoring Officer may pay reasonable expenses to enable attendance of any person for interview or as a witness at the Committee meeting.

9. Confidentiality

a) No Member or officer shall disclose any information obtained in the course of an investigation or in pursuance of this Procedure except where:

(i) the disclosure is made for the purposes of enabling the Monitoring Officer to conduct the investigation

(ii) the person to whom the information relates has consented to the disclosure;

(iii) the information has been previously/already disclosed to the public with lawful authority;

Investigation of Complaint

9 Complaint to Standards Board that a Member

has contravened the Code of Conduct

from public may also be complaint

a Member to Ombudsman

an Officer

Investigation of complaint by

Ethical Standards Officer (ESO)

ESO may refer complaint to Authority's Monitoring Officer

for Standards Committee to consider : Monitoring Officer

notifies Member and Members of Standards Committee

Initial response of Member : provide list of documents

and persons he/she requests should be interviewed

Monitoring Officer appoints Investigating Officer who

lists persons and documents to be seen

Interviews and compiling of information

Investigating Officer prepares report with conclusions

and recommendation as to whether Member breached Code of Conduct

Copy of report sent to Member

Member provides written statement

Investigating Officer's report and Member's statement

considered by Standards Committee

Procedure at Standards Committee

Investigating Officer's report : introducing

evidence and witnesses

Questions by Committee

(no cross-examination)



Presentation by Member : introducing

evidence and witnesses



Questions by Committee

(no cross-examination)



Committee decision on whether Member

acted in breach of Code of Conduct : advised

by Monitoring Officer



Advice from Monitoring Officer as to whether

action should be taken against the Member



Representations from Member



Committee decision on action to be taken

(can censure or suspend for up to 6 months)



Decision notified to Standards Board and

Hampshire Fire and Rescue Authority