Contact: Jeff Pattison, tel: 01962 847321, email: [email protected]

1 Summary

1.1 The Office of the Deputy Prime Minister (ODPM) has now produced a draft model Code of Conduct for Local Government Employees. The Government are consulting on the proposed Code of Conduct and representations are required to be submitted by 19 November 2004.

1.2 This report sets out the proposals contained in the consultation paper and contains annotated comments against each of the proposals. The intention is to use this report as the Authority's response to the consultation paper together with any further comments that members may wish to be forwarded to Government.

2 Background

2.1 The Government has since before the introduction of the model Code of Conduct for members, proposed that a similar Code should also be produced for employees in local government. This includes employees of the Fire Service. This is consistent with the recommendations of earlier bodies such as the Nolan Committee which was keen to ensure that a common core of fundamental values should apply throughout local government, to both members and officers. The intention is that once a Code for employees has been finally agreed, it would be enacted and incorporated in the terms and conditions of employment of relevant employees. It would then be a matter for the employing authority to deal with any breaches of the Code through normal disciplinary procedures. There is, therefore, no proposal at the present time to oversee the application of a Code of Conduct for employees by means of an external independent body such as the Standards Board for England which applies to the enforcement of the members' Code of Conduct.

3 Scope of the proposed Code

3.1 The Government propose that the Code of Conduct for employees should apply with only a few exceptions to all employees within the local government family. Current estimates are that this would therefore apply to something around 1.5 million people. It would include any political assistants that might be employed by the local authority (accepting that they do not serve all members of the authority), but there would be a number of notable exclusions. These exclusions would apply to all fire fighters and teachers and any community support officers that might be employed by the authority. The justification for these exclusions is that they already have their own Codes of Conduct.

Comment

It is difficult to understand why different employees of the Fire Service and local government should be subjected to different Codes of Conduct. The same fundamental principles should apply to all. Furthermore, having separate Codes for these excluded categories of employees may well be confusing for members of the public or others should they have occasion to raise a complaint. For consistency and ease of understanding, it is therefore suggested that the Government should reconsider these exclusions and in their place agree a Code of Conduct which would be applicable throughout local government and the Fire Service.

4 The proposed Code of Conduct for Employees

4.1 As with the members' Code of Conduct, the proposed Code for employees is set out by reference to several clauses some of which will be familiar to members because they do echo similar provisions contained within their own Code. A composite copy of the Code is contained in the Appendix to the report for ease of reference. For discussion purposes, however, this report now considers each of the clauses in turn and sets out a commentary in respect of each.

(i) An employee must perform his duties with honesty, integrity, impartiality and objectivity.

Comment

There can be no argument with this requirement and its application to all employees. These are the minimum basic standards that all local authorities and the general public would expect of all local government employees.

(ii) An employee must be accountable to the authority for his actions.

Comment

Once again there can be no argument with this principle.

(iii) An employee must -

(a) treat others with respect;

(b) not discriminate unlawfully against any person; and

(c) treat members and co-opted members of the authority professionally.

Comment

This is similar to provisions contained within the members' Code of Conduct, provisions contained within the existing protocol for member/officer relations, and others which are enshrined in legislation. There can be little doubt, therefore, that this provision is both appropriate and proportionate.

(iv) An employee must -

(a) use any public funds entrusted to or handled by him in a responsible and lawful manner; and

(b) not make personal use of property or facilities of the authority unless properly authorised to do so.

Comment

Once again, this provision appears entirely appropriate and proportionate and reflects existing policies.

(v) An employee must not in his official or personal capacity -

(a) allow his personal interests to conflict with the authority's requirements; or

(b) use his position improperly to confer an advantage or disadvantage on any person.

Comment

This is perhaps a more contentious provision in the sense that it attempts to subject the activities of an authority's employee, outside the working environment, to public scrutiny in a way that does not generally apply to private sector employees. The Code in this respect, therefore, clearly requires higher standards of local authority employees in these circumstances. The consultation paper asks if this is appropriate.

There is really no justification given for this in the consultation paper and the question has to be asked, is it appropriate and proportionate. Members are, under their Code of Conduct, under an obligation not to act in their private capacity in such a way as to bring their office or the local authority into disrepute. It is suggested that what makes this appropriate for members, but perhaps not for employees, is that at Hampshire Fire and Rescue Authority for instance, there are only 25 members occupying a very high profile position within the community, as opposed to 1,700 employees where even their immediate neighbour may not appreciate that they work for the Fire Service.

It is appreciated that there may be some appointments within the Fire Service, such as senior officers, where this higher standard should apply but that is not an argument for it applying to all employees. If this alternative proposal was desired then it could be applied to senior officers through their existing terms and conditions of employment, rather than via a national Code.

On a slightly different tack, it may well be worth extending the current provision so that it specifically applies not only to the personal interests of the employee himself/herself, but also to those personal interests of any relative or friend of which he/she is aware.

(vi) An employee must comply with any requirements of the authority -

(a) to register or declare interests; and

(b) to declare hospitality, benefits or gifts received as a consequence of his employment.

The consultation papers asks whether there should be a standard list of interests and/or hospitality etc. that must always be registered and if so, whether it should be mirror those provisions contained within the members' Code of Conduct and whether it should be available to the public.

Comment

In the case of Hampshire Fire and Rescue Authority with 1,700 employees, the prospects of maintaining and updating a register of interests for each and every one of them, is both daunting and probably impracticable. It also needs to be borne in mind that perhaps the majority of employees are not in a position where their interests are likely to have an impact on the role of the Authority. There must, therefore, be serious doubts as to whether such a provision is appropriate and particularly proportionate for each and every one of those employees.

However, there is a stronger argument for saying that such a provision should be applicable to senior officers within the authority. At the very least this should apply to all senior officers and the Clerk and Treasurer. In addition there is also a wider range of employees whose role within the organisation is also fundamental. One approach might be to apply this provision to all of those employees whose remuneration (excluding pension contributions) exceeds £50,000 and which as a result, must be referred to in the Council's final accounts. At the present time that would apply to approximately 14 employees in total. It is therefore suggested that this provision is appropriate and proportionate but only to those employees whose salary exceeds the £50,000 figure required for the purposes of declarations under the final accounts in each and every year, together with the Clerk and Treasurer.

(vii) An employee must not treat another employee of the authority less favourably than other employees by reason that other employee has done, intends to do, or is suspected of doing anything under or by reference to any procedure the authority has for reporting misconduct.

Comment

Clearly, the intention behind this provision is to protect employees who "blow the whistle" from victimisation. However, although the principle behind the provision is justified and well meaning, it appears to be badly drafted. It could, for example, be interpreted very widely and in such a way as to benefit the wrong doer himself/herself. It could also benefit any person who makes a complaint under the whistle blowing policy but does so maliciously. It is suggested, therefore, that the clause should be redrafted as follows:-

"An employee must not treat another employee of the authority less favourably than other employees by reason of that person having, with reasonable cause, referred a matter under the reporting concerns at work or whistle blowing procedures."

The consultation paper also asks whether or not it would be appropriate to impose a duty on employees to report misconduct. Members will be aware that under their own Code of Conduct, they are under an obligation to report to the Standards Board for England any circumstances in which another member may be in breach of the Code of Conduct. Obviously it is in the interests of each individual authority and local government as a whole, for any instances of misconduct to be reported. On balance, therefore, it is recommended that should any employee be aware that another employee has breached the Code of Conduct applying to employees, there should be an expectation but not a duty for that employee to refer the matter to his line manager or through the reporting concerns at work or whistle blowing procedures.

(viii) An employee must -

(a) not disclose information given to him in confidence by anyone or information acquired which he believes is of a confidential nature, without the consent of a person authorised to give it, or unless he is required by law to do so; and

(b) not prevent another person from gaining access to information to which that person is entitled by law.

Comment

This replicates the provision contained in the members' Code of Conduct and is unobjectionable.

(ix)

(1) An employee must not be involved in the appointment or any other decision relating to the discipline, promotion, pay or conditions of another employee, or prospective employee, who is a relative or friend.

(2) In this paragraph -

(a) "relative" means spouse, partner, parent, parent-in-law, son, daughter, step son, step daughter, child of a partner, brother, sister, grandparent, grandchild, aunt, uncle, nephew, niece or the spouse or partner of any of the proceeding persons:-

(b) "partner" in (a) above means a member of a couple who live together.

Comment

The intention of the Government here, quite rightly, is to emphasise the need to ensure that decisions made on and during the course of employment are made impartially and objectively. Local government is already subjected to provisions under the Local Government and Housing Act 1989 that all appointments (except to posts of political assistants) must be made on merit and any decisions made other than on merit would be challengeable. This provision does, therefore, represent an even higher standard than hitherto. It is, nonetheless, a principle that should be supported although the word `direct' should be inserted before `appointment' in the first line.

The definitions of relative and friend are the same as those that apply to the members' Code of Conduct and appear to be working reasonably well and therefore should probably be left as they are. Members might be aware that the Standards Board for England has given guidance on what constitutes "friendship" and have said that it "connotes a relationship going beyond regular contact with colleagues in the course of employment... social contact is likely to be a strong indicator of friendship, but not necessarily the only one."

(x) An employee must, at all times, act in accordance with the trust that the public is entitled to place in him.

Comment

A similar point arises here as with the provision under clause (v) above. Is it intended, as the words "at all times" infer, to be applicable not only to those actions that take place during the course of the working day, but also those actions that take place in the employee's private life. If the latter is the intention, then the same arguments would apply here as in respect of clause (v), i.e., that it is not appropriate and proportionate for this provision to apply across the board to all local government employees at whatever level they are employed by the authority. If that is the view taken, the words: "at all times" should be deleted and replaced with "during the course of their working environment".

5 Conclusion

5.1 This report sets out a proposed Code of Conduct for employees in local government and suggests comments to be made to the Office of the Deputy Prime Minister as a result of the consultation exercise. Members are invited to agree or amend any of the comments contained in the report and also put forward any other suggestions that they consider appropriate, and these will be forwarded to the ODPM.

6 European Convention on Human Rights and the Human Rights Act 1998

6.1 The proposals in this report are compatible with the provisions of the European Convention on Human Rights and the Human Rights Act 1998 and considered in the light of the Race Relations (Amendment) Act 2000.

7 Recommendation

That the Standards Committee agree that this report should be forwarded to the Office of the Deputy Prime Minster as the Authority's response to the consultation paper on the proposed Code of Conduct for employees of local government together with any further comments that they consider to be appropriate.

Section 100D - Local Government Act 1972 - Background Papers

The following documents disclose facts or matters on which this report, or an important part of it, is based and has been relied upon to a material extent in the preparation of this report.

NB the list excludes:

1. Published Works

2. Documents which disclose exempt or confidential information as defined in the Act.

None.