Town Councillors - When Is A Disciplinary Not A Disciplinary?

All Town and Parish Clerks know the importance of having a good working relationship with the Council and the Councillors.

BUT WHAT HAPPENS WHEN THIS GOES WRONG?

A recent case has showed us the outcome. The facts of the case concern Cllr Harvey a Ledbury Town Councillor. Cllr Harvey was alleged to have acted in a bullying, generally aggressive and objectional manner to staff of the Council. The Clerk and Deputy Clerk raised a grievance under the Town Council’s Grievance procedure.

The Town Council held an Extraordinary Meeting and resolved that a Grievance Panel comprising of five members should be constituted to consider the Grievance. It also set up an Appeals Panel to consider any possible appeal. Terms of Reference were agreed for the two Panels. Finally, it resolved that direct contact between Cllr Harvey and the Deputy Clerk and Clerk should cease whilst the matter was being investigated.

In the meantime, Cllr Harvey referred the complaints made about her to the Monitoring Officer at the Principal Authority. Cllr Harvey did not attend the Grievance Panel and it, in her absence, found the complaints made against her proven. She did, however, attend the Appeal Panel and argued that the complaint should be dealt with under the Code of Conduct only.

The Town Council, at a Full Council meeting endorsed the decision of the Grievance Panel and imposed the following sanctions on Cllr Harvey –

• Not to sit on any Town Council Committees, Sub-Committees, Panels and/or Working/Steering Groups,
• Not to be eligible to nominate a substitute for any such meetings
• Not to represent the Town Council on any outside body, and

• That all communication with the Town Clerk/Deputy Clerk was to go through the Mayor/Deputy Mayor

These sanctions were to remain in force for just over one year after which the Town Council would review them.

A year later, at the review – the Town Council resolved to continue the sanctions for another year, with the additional sanction that Cllr Harvey was prohibited from direct communication with all the Town Council’s staff.

The day after the review, the Monitoring Officer wrote to Cllr Harvey and sent a copy of the letter to the Town Council, stating that after an investigation the Monitoring Officer had concluded that there had been no breach of the Code of Conduct.

The following day the Monitoring Office wrote to the Town Mayor stating that as the conduct alleged fell under the scope of the Code of Conduct, the conduct could not be dealt with otherwise than by a Code of Conduct complaint. The Monitoring Office also emailed the Town Council stating that it could only take sanctions against a member where the Principal Authority has recommended these following a breach of the Code.

Despite this the Town Council went on to approve the continued sanctions. Cllr Harvey applied for a Judicial Review of this decision on several grounds.

Cllr Harvey was successful, with a High Court judge ruling that the Town Council was not able to sanction her other than going through the procedural safeguards of a Code of Conduct process. The Judge also found that the conduct of the grievance process through which the restrictions were imposed was unfair.

The costs to the Town Council are huge – both in reputational damage and an estimated £200,000 legal fees.

LESSONS TO LEARN FROM THIS

Any complaint about a Councillor should be referred to the Principal Authority for a decision as to whether it is a breach of the Code of Conduct. DO NOT use the Council’s Grievance Procedure for staff/councillor relations.

The Principal Authority should investigate and if the allegations are made out, it may recommend sanctions. The Council can only impose sanctions recommended by the Principal Authority – these must be proportionate to the allegations proven.

Do all you can to avoid a Judicial Review, which might include a review your original decision to try to rectify the alleged defect in your decision-making process. Always consider the possible costs against the possible benefit and think what your Parishioners would want you to do.

If you require advice on disciplinary’s and grievances in Town and Parish Councils, please contact Elisabeth Page. Liz has recently joined Geldards from the local council sector and specialises in local council and local authority law and practice. Or for further information on Local Councils, contact a member of our Local Councils team.