Local investigations

Report: 8
Date: 13 December 2004
By: Clerk

Summary

This report outlines the new regulations that enable the local investigation of allegations, on referral from an Ethical Standards Officer.

A. Recommendation

That the report be noted.

B. Supporting information

1. Last year, in June 2003, the Government issued regulations enabling an Ethical Standards Officer (appointed by the Standards Board for England) to refer a report on a case that s/he had investigated to a local Standards Committee for determination. Local powers have now been extended by regulations that enable an authority’s Monitoring Officer to investigate allegations that a member has breached the Code of Conduct, on referral from an Ethical Standards Officer (ESO). These regulations – the Local Authorities (Code of Conduct) (Local Determination) (Amendment) Regulations 2004 came into force on 4 November.

2. ESOs may refer an allegation at any point before they complete an investigation into the allegation. When considering whether to refer the allegation, they will use their discretion and take into account all relevant circumstances. For example, the ESO is more likely to refer those cases in which:

• the matter does not appear to need the heavier penalties available only to the Adjudication Panel for England
• the allegation is of an entirely local nature and does not raise matters of principle
• the initial investigation by an ESO has highlighted issues that are more to do with the effective governance of the authority than an individual's misconduct

3. The ESO is less likely to refer cases if there is evidence that a local investigation would be perceived as unfair or biased or there are any relevant local political issues that may have a bearing on the investigation. When referring an allegation, the ESO will forward a copy of the allegation letter, along with any other significant information that they consider appropriate.

4. Not all referrals from an ESO will require investigation. Under the regulations, an ESO can decide that some form of action other than investigation or determination is required at a local level. This is most likely to happen in situations where the ESO considers that a case has broad relevance for the ethical governance of an authority. The ESO may, for example, direct the monitoring officer to make recommendations to the standards committee about wider issues for the authority raised by the case, or ensure that the parties concerned attempt some form of reconciliation.

5. The monitoring officer is required to report back to the ESO within three months of receiving the directions on the outcome of the local investigation or with details of proposed actions. If an ESO is not satisfied with the action taken or proposed, they may require the Authority to publish a statement giving details of the direction and the reasons for not fully implementing the direction.

6. When an ESO refers an allegation for local investigation, they will also notify the member who is the subject of the allegation and the person who made the complaint. The monitoring officer is also required to inform these people and explain to them what will happen next. At this stage, the Standards Committee members will be informed by confidential letter that an investigation is being carried out. This letter must not name the complainant or the member against whom the allegation has been made, and should not be considered at a standards committee meeting (to avoid prejudicing the investigation and subsequent Standards Committee determination.

7. During the course of an investigation, the monitoring officer may uncover evidence of conduct by members that breaches the Code of Conduct but extends beyond the scope of the investigation referred to him/her. As monitoring officers’ powers relate only to the specific allegations referred to them, further allegations must be referred to the Standards Board for England. The monitoring officer may also refer a case back to the ESO in other circumstances, such as:

• evidence of a further possible breach that relates directly to the investigation, revealing, for instance, a consistent pattern of behaviour
• Obstruction of an investigation: for example, where a member refuses to co-operate with the investigation. Cases where an officer obstructs an investigation are not a matter for the Standards Board for England but should be dealt with as a disciplinary matter.

8. Once the monitoring officer has completed his/her investigation a final report is produced. If the finding is that there has been no breach of the Code of Conduct the report should be put to the Standards Committee. If the committee agrees with that finding a notice must be published to that effect. If the committee disagrees then a hearing of the committee or a sub-group of its members must be set up. If the monitoring officer’s report concludes that there has been a breach of the code then the process moves straight to a hearing of the committee or a sub-group of its members.

9. If the Standards Committee finds that a member has failed to follow the Code of Conduct, it can impose a number of penalties. The scope of these penalties has been expanded by the most recent regulations and now provide additional penalties and greater flexibility for standards committees. They apply both to cases investigated locally and to those investigated by an ESO before being sent to the standards committee for local determination. Standards committees can do one, or any combination, of the following:

• censure the member
• restrict the member's access to the premises and resources of the authority for up to three months, ensuring that any restrictions are proportionate to the nature of the breach and do not unduly restrict the member's ability to perform his or her duties
• order the member to submit a written apology in a form satisfactory to the standards committee
• order the member to undertake training specified by the standards committee
• order the member to participate in a conciliation process
• suspend, or partially suspend, the member for up to three months
• suspend, or partially suspend, the member for up to three months, or until such time as the member submits a written apology that is accepted by the standards committee
• suspend, or partially suspend, the member for up to three months, or until such time as the member undertakes any training or conciliation ordered by the standards committee.

10. If the Standards Committee decides that the sanctions available to it are not adequate for the seriousness of the case, it can request the ESO to take the case back for investigation.

The Standards Board for England
First floor, Cottons Centre

C. Equality and diversity implications

There are no immediate implications in this report, but any local investigation or a hearing to arrive at a determination must abide by equalities best practice to ensure fairness and impartiality.

D. Financial implications

None

D. Background papers

• Local Authorities (Code of Conduct) (Local Determination) (Amendment) Regulations 2004
• Standards Board for England guidance on local investigations

E. Contact details

Report author: Simon Vile, MPA.

For information contact:

MPA general: 020 7202 0202
Media enquiries: 020 7202 0217/18

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