Procedure for the local determination of allegations under the Code of Conduct against members of the MPA

Report: 8b
Date: 16 March 2006
By: the Chief Executive and Clerk

Summary

This report recommends approval of the procedure attached as an appendix to this report.

A. Recommendation

That the Committee approves this procedure.

B. Supporting information

1. Standards Committees are now responsible for hearing and making local determinations under Section 66 of the Local Government Act 2000 in the following situations:

• Where an Ethical Standards Officer has investigated an alleged breach of the Code of Conduct and his/her report has been referred to the Standards Committee for determination
• Where an Ethical Standards Officer has decided that the investigation should be carried out by the MPA’s Monitoring Officer and reported to the Standards Committee.

2. Attached as an appendix is a proposed procedure that covers both these situations. This procedure has been prepared using the regulations and supporting guidance from the Standards Board for England. It is largely based on the Greater London Authority’s procedure.

3. Some of the headline issues in the proposed procedure are:

• A hearing must be held within three months of receipt of the investigation report
• The hearing should be held in public unless the member who is the subject of the complaint wants any part of the hearing to be held in private, or any of the documents treated as exempt. This would have to be justified by reference to the exemptions in the Local Government Act 1972.
• The Hearing Panel to be chaired by a Standards Committee Independent Member and to consist in total of five members of the Standards Committee, including both Independent Standards Committee members
• A member of the Standards Committee cannot sit on the Panel if he/she is the subject of the allegation or has first-hand involvement in the case (for instance as the complainant or by providing a statement or evidence to the investigator)
• If the Panel finds that the Member breached the Code of Conduct it has a range sanctions available to them, from no action through to suspension for a period of three months

4. A report will be put to the next meeting of the Committee on the procedure for investigations carried out by the Monitoring Officer.

C. Race and equality impact

Hearings will have regard to the MPA’s equalities policy. The Panel will consider the equalities impact of the process in each case. The procedure is particularly aimed at ensuring that hearings take account of the principles of natural justice and that all parties have ample opportunity to prepare for a hearing and to request any particular assistance.

D. Financial implications

Any costs of hearings must be met from existing budgets. Para 9.6. of the procedure states that the Authority may meet the reasonable costs of a member who successfully defends a complaint. There is no specific provision for this in MPA budgets and any such costs would have to be met from the Legal Expenses budget.

D. Background papers

None

E. Contact details

Report author: Simon Vile, MPA.

For information contact:

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

Appendix 1

Procedure for the local determination of allegations under the Code of Conduct against Members of the Metropolitan Police Authority, including the Independent Members of the Standards Committee.

1. Introduction

1.1 The procedure applies to complaints about alleged breaches of the MPA Code of Conduct by Members of the Metropolitan Police Authority or the Independent Members of the Standards Committee.

1.2 For the purposes of this procedure, the person who makes the complaint will be described as ‘the Complainant’, and the person about whom the complaint is made will be referred to as ‘the Member’.

1.3 This procedure applies to complaints:

1. investigated by an Ethical Standards Officer (ESO) of the Standards Board for England (SBE) which are referred for determination by the Standards Committee Hearing Panel; and
2. referred by an ESO for investigation to be carried out locally by the Monitoring Officer and then determined by the Standards Committee Hearing Panel.

1.4 Where a completed investigation by an ESO is referred to the Monitoring Officer, the Monitoring Officer must ensure that the Standards Committee considers the report. The Standards Committee will meet to decide what action to take as a result of the report by way of a formal Hearing Panel (except in the circumstances set out in paragraph 3 below where the Standards Committee must decide first whether to refer the matter to a Hearing Panel). The Panel will follow this procedure to regulate Hearings unless the Monitoring Officer/Deputy Monitoring Officer agrees with the Chair that it should be modified and the Monitoring Officer has notified the Member of any proposed changes and the reasons for them.

1.5 Where a complaint is referred to the Monitoring Officer for Local Investigation he will inform the Member and the Complainant that the matter has been referred to him for investigation. The Monitoring Officer may delegate the conduct of the investigation as he thinks fit.

1.6 Role of the Monitoring Officer - The Monitoring Officer will ensure that the overall conduct of the matter is dealt with effectively in the interests of all parties concerned. The Monitoring Officer may adopt either the role of Investigating Officer or legal adviser to the Hearing Panel (for a local investigation), Reporting Officer or legal adviser to the Hearing Panel (for local determinations). If the Monitoring Officer assigns himself as Investigating Officer or Reporting Officer, he will ensure that the Deputy Monitoring Officer or another appointed person (who may be a person not in the employment of the MPA) takes responsibility for ensuring the effective overall conduct of the matter and advising the Hearing Panel. In this situation references to the Monitoring Officer in this procedure will apply to that appointed person.

1.7 The role of the Monitoring Officer is to:

• make sure all parties to the hearing understand the procedures to be followed and the powers available to the Hearing Panel;
• make sure that the hearing is fair and allows the matter to be dealt with as efficiently and effectively as possible;
• provide advice to the Committee during the hearing and their deliberations; and
• help the Committee produce a written decision and a summary of that decision.

1.8 Role of the Reporting Officer - Upon receipt of an ESO’s report for local determination, the Monitoring Officer will appoint a Reporting Officer. In effect, that person will be the ‘prosecutor’ at the Hearing Panel and responsible for presenting the evidence against the Member. The Monitoring Officer may chose to be the Reporting Officer in any particular case, and if so, he will ensure that the Deputy Monitoring Officer takes responsibility for ensuring the effective overall conduct of the matter and for advising the Hearing Panel. In his discretion the Monitoring Officer may appoint the relevant ESO, an officer of another authority or an independent person with appropriate qualifications to be the Reporting Officer.

The Reporting Officer may, where appropriate, make representations to the Panel on behalf of the Complainant.

1.9 Role of the Local Investigating Officer - If the Monitoring Officer decides not to take on this role, he will appoint an appropriate person to carry out the investigation. The Local Investigating Officer (LIO) will conduct the investigation in accordance with ‘the Procedure for Local Investigations’.

2. Notifying the member and the complainant.

2.1 Within 5 working days of receiving an ESO’s report or a report from a LIO, the Monitoring Officer will send a copy of the report to all Members of the Standards Committee, the Member and where appropriate, the Complainant. The report will, at this stage, be provided on a confidential basis, and an undertaking of confidentiality will be obtained from the Complainant, the Member, and where needed, the Standards Committee.

3. Situations where a LIO reports a finding of no failure to comply with the Code of Conduct

3.1 Where a LIO conducts a local investigation and reports that he or she considers that there has been no failure to comply with the Code of Conduct, the report will be referred to the Standards Committee within 14 working days for the Committee to consider the facts within the report and decide either:

1. that it accepts the LIO’s finding; or
2. that, on the balance of probabilities, there is a case to answer and the matter should be considered at a Hearing Panel convened for that purpose.

The Hearing Panel must convene for this purpose within 3 months of the completion of the LIO’s report.

4. Preparing for the hearing

4.1 Obtaining a response from the Member

When notifying the Member of the complaint against him or her and providing them with the report under paragraph 2, the Monitoring Officer will ask the Member for a written response, within fifteen working days, stating whether he or she:

• disagrees with any of the findings of fact in the ESO’s/LIO’s report, including the reasons for any disagreements;
• wants to be represented at the hearing, at their own expense, by a barrister or solicitor or, subject to the consent of the Standards Committee, some other person;
• wants to give evidence to the Hearing Panel, either verbally or in writing;
• wants to call any relevant witnesses to give evidence to the Hearing Panel, and if so, who they are;
• wants any part of the hearing to be held in private, explaining the reasons;
• wants any part of the ESO’s/LIO’s report or other relevant documents to be withheld from the public, explaining the reasons.

4.2 The Monitoring Officer will also ask the Member to advise him, in their response, of all those matters within the ESO’s/LIO’s report which he or she disputes. The Monitoring Officer will notify the Member that the Panel has the power to refuse to hear any new areas of dispute raised at the hearing but not notified prior to it, or may adjourn the hearing to enable the Reporting Officer/LIO to respond to them.

4.3 Upon receipt of a response from the Member

The response of the Member shall be sent to the Reporting Officer/LIO (as appropriate), as soon as the Monitoring Officer receives it. The Reporting Officer (in the case of a local determination) will forward the response of the Member to the relevant ESO, who will be invited to comment upon it within 15 working days. The LIO (in the case of a local investigation) will be asked to comment and in either case the ESO/LIO will be asked specifically say whether or not he or she:

• wants to attend the hearing;
• wants to call relevant witnesses to give evidence at the hearing;
• wants any part of the hearing to be held in private (by virtue of Part VA of the Local Government Act 1972), and the reasons for this;
• wants any part of their report or other relevant document to be withheld from the public (by virtue of Part VA of the Local Government Act 1972) and the reasons for this.

5. Calling a meeting of the Standards Committee Hearing Panel

5.1 The Monitoring Officer will forward the ESO/LIOs’ report and any responses from the Member of the ESO to the Chair of the Hearing Panel.

5.2 Although the Member, the ESO, the LIO or the Reporting Officer are entitled to request that any witness be called to give evidence, the Chair of the Hearing Panel may limit the number of witnesses if he or she believes the requests of any party are unreasonable and/or that some witnesses will be repeating evidence which will be given by earlier witnesses and/or will not provide any evidence at all to help the Panel reach a decision. The Chair may also call any additional witnesses if he or she believes they will assist the Hearing Panel in reaching a decision.

5.3 The Chair of the Hearing Panel will, in consultation with the Monitoring Officer:

• confirm the main facts of the case that are agreed between the ESO/LIO and the Member;
• confirm the main facts of the case that are not agreed between the ESO/LIO and the Member;
• confirm which witnesses will give evidence;
• outline the proposed procedure for the hearing, specifying which parts of the hearing, if any, will take place in private with reasons; and
• request the Committee Administrator to provide this information and, subject to paragraph 5.5 below, the Agenda to everyone involved in the hearing at least 8 clear working days before the date of the hearing. (Confidentiality undertakings for receipt of the papers will be obtained from any recipients for whom the Chair considers this appropriate).

5.4 The agenda papers will include the following information:

• the date, time and place of the hearing;
• the summary of the allegation;
• a list of the main facts of the case which are agreed;
• a list of the main facts of the case which are not agreed;
• a note about whether the Member and/or the ESO/Local Investigation Officer will attend the hearing and give evidence;
• a list of witnesses, if any, who will attend the hearing and give evidence; and
• an outline of the proposed procedure for the hearing (i.e. a set of these rules)

5.5 Excluding the press and public from the Hearing Panel

The meeting of the Hearing Panel will be open to the press and public unless confidential information under Part VA of the Local Government Act 1972 and Regulations is likely to be disclosed. The Panel will go into private session if the Panel resolves to do so.

5.6 The Hearing Panel has discretion to decide whether or not to exclude the press and public from the meeting if exempt information as defined in Part VA of the LGA 1972 and regulations will be discussed. Where the Monitoring Officer, in consultation with the Chair of the Panel, considers that the ESO’s report/Local Investigators report and/or any of the written statements in response are likely to disclose exempt information and as a result it is likely that the Hearing Panel will, when considering these papers, not be open to the press and public, he or she shall instruct the Committee Administrator not to provide copies of these papers to the press and public, and not to allow their inspection prior to the meeting.

6. Convening the Hearing Panel

6.1 When the initial report is received from the ESO or the LIO, or where the Standards Committee decide to refer a finding to the hearing panel under paragraph 3 above, the Monitoring Officer will request that the committee administrator for the Standards Committee arrange for a meeting of the Panel, and, following consultation with the Chair of the Panel, indicate the preferred time, place and date of the meeting. The meeting must take place within three months from the date that the authority first receives an ESO’s report, or from the completion of the Local Investigators report. The Hearing Panel will meet during the day and will aim to complete the hearing in one sitting (i.e. avoiding the need to reconvene on another date part way through hearing the evidence). The Hearing will not be held within 14 days of the report being sent to the Member unless the Member agrees it can be.

7. The composition and method of the Hearing Panel

7.1 The Hearing Panel shall be chaired by an independent member of the Standards Committee selected by the Standards Committee, or if none is appointed, by the Chair of the Standards Committee.

7.2 The Hearing Panel shall comprise five members of the Standards Committee, and shall include two independent members. If no appointments are made by the Standards Committee, the Chair of the Standards Committee is authorised to make the appointments.

7.3 The quorum for the Panel shall be three, and must include at least one independent member.

7.4 A member of the Standards Committee may not sit on the Panel if he or she is the subject of the local determination or if he or she has first-hand involvement in the case (for instance as the complainant or as a material witness in relation to the allegations) such that his or her impartiality might be challenged.

7.5 Where a member selected to sit on the Hearing Panel cannot attend, a substitute shall be approved by the Chair of the Panel from amongst the Members of the Standards Committee or, if that is not practicable, from amongst the Members of the Authority. The substitute member shall be fully briefed about the complaint under consideration by the Monitoring Officer.

7.6 The Hearing Panel shall decide whether the grounds for complaint are upheld on the balance of probabilities i.e. on the evidence presented to the Panel in writing and orally (if any), it is more likely than not that the Member is in breach of the Code of Conduct.

7.7 Each member of the panel shall have one vote, but the chair shall have a casting vote in the event of equality of votes. Abstentions will not be permitted.

7.8 The purpose of the Hearing Panel is to examine and test the evidence produced by the ESO /LIO in their report. This requires an inquisitorial approach by the Hearing Panel i.e. the need to seek information in order to establish whether or not the Member is in breach of the Code of Conduct by examining all the written evidence and questioning any relevant witnesses.

7.9 The Hearing Panel may at any time seek legal advice from the Monitoring Officer. Such advice will be given in the presence of the Reporting Officer/LIO and the Member, though the press, public and others present at the hearing may be excluded while this advice is given.

8. Agenda for and procedure at the Hearing Panel

8.1 The Agenda for the Meeting shall be as follows:

• Quorum
• Introductions
• Declarations of interest
• Consideration of whether to adjourn or proceed in the absence of the Member if they are not present
• Representations with reasons from the Reporting Officer/LIO and/or the Member if either consider that the hearing or any part of it should exclude the press and public under Part VA of the Local Government Act 1972, and determination of this by the Panel.
• Explanation of how the hearing will be run.

8.2 Where the panel decides that it will not exclude the press and public, the committee administrator shall at that point provide copies of the agenda and reports to any press and public that are present.

8.3 The Chair will explain that the Panel may, at any time prior to the conclusion of the hearing:

1. agree to adjourn and require the Monitoring Officer to seek further information or undertake further investigation on any point (such adjournment may only take place once);
2. agree to adjourn the hearing and make a written request to the ESO concerned that the matter be referred back to him or her for further investigation (stating reasons for the request).

8.4 The procedure for dealing with the report about the Member shall be as follows, subject to the Chair of the Panel being able to make any change to it that he or she thinks appropriate to enable a fair and effective hearing:

Examination of the reports and written representations:

The Panel will examine the ESO’s/LIO’s written report, the Member’s response to it and any further response from the ESO/Investigating Officer. The Panel may ask the Reporting Officer/LIO and/or the Member questions about the contents of their reports.

If there is no disagreement about the facts, the Panel can move on to consider its findings (paragraph 9 refers).

Examination of oral evidence

Where the facts of the case are not agreed, the Reporting Officer/LIO will be asked to make any representations to support the findings of fact in the report relevant to the areas of disagreement, by calling witnesses as agreed by the Chair of the Panel

Questions may be asked of the Reporting Officer/LIO at the end of their representations by the Member, the Complainant or their representatives or Members of the Panel.

The Member will then be asked to make any representations to support his or her version of the disputed facts in the ESOs/LIO’s report, calling supporting witnesses as agreed by the Chair of the Hearing Panel (Rule 5 refers).

Questions may be asked of the Member at the end of their representations by the Complainant, the Reporting Officer/LIO or their representatives or Members of the Panel.

Where the Member disputes any matter in the ESO’s/LIO’s report but which he or she has not given prior notice of his or her intention to dispute, the Reporting Officer/LIO must draw this to the attention of the Panel. The Panel may then decide:

• not to hear the fact(s) in dispute;
• to hear the fact(s) in dispute but invite the Reporting Officer/LIO to respond; or
• to adjourn the meeting to enable the Reporting Officer/LIO to investigate and report on the disputed fact(s).

Representations on sanctions

The Member will have an opportunity to make a statement in mitigation of any sanction which the Hearing Panel may impose in the event that they find the complaint to be made out.

9. The decision of the Hearing Panel

9.1 The Hearing Panel will retire into private session to consider their findings. The Legal Advisor to the Panel may be called by the Panel when they retire to give the Panel legal advice. At any time the Panel may return to ask for questions of the Reporting Officer, LIO or the Member, or to seek any further information or advice they require.

9.2 They may find one of the following:

• That the Member did not fail to comply with the Code of Conduct;
• That the Member has failed to comply with the Code of Conduct but that no action needs to be taken;
• That the Member has failed to comply with the Code of Conduct and should be:
  • censured [1];
  • have his or her access to Authority premises and resources restricted for a period up to a maximum of three months [2];
  • suspended or partially suspended for a maximum of three months;
  • required to submit a written apology in a form specified by the panel;
  • required to undertake training as specified by the panel;
  • required to undertake conciliation as specified by the panel;
  • suspended or partially suspended for a maximum period of three months or until such time as the Member submits a written apology as specified by the Panel;
  • Suspended or partially suspended for a maximum period of three months or until such time as the Member undertakes any training or conciliation specified by the Panel.

9.3 The Panel can impose one or any combination of these sanctions. In deciding what penalty to set the Panel will consider all relevant circumstances including the mitigation statement made by the Member and any guidance produced by the Standards Board for England.

9.4 The Hearing Panel will return from private session to enable the Chair to announce the decision of the Panel and the reasons for it and the sanction they decide to impose (if any).

9.5 The sanction imposed will take effect immediately unless the Panel decides that it should take effect on some future date, for example to avoid the penalty spanning the summer recess. The starting date for the penalty must commence within six months of the hearing. The Hearing Panel will then consider in open session whether any action needs to be taken by the authority as a result of the finding, for example reviewing any decision, policy or practice of the authority which was the subject of the breach of the Code of Conduct; any action needed to prevent or deter further breaches of the Code of Conduct or providing recompense to any person who has suffered detriment as a result of the breach.

9.6 Costs

The Authority may consider meeting the costs of a member who successfully defends a complaint. In such cases the Deputy Chief Executive and Solicitor to the Authority should be satisfied that the costs were reasonably incurred. The decision would be taken by the Authority’s Co-ordination & Policing Committee taking into account any comments made by the members of the Hearing Panel.

10. Confidentiality and the disclosure of information

10.1 No member of the authority shall disclose any information he or she has obtained in the course of an investigation or as a result of this procedure unless:

• the disclosure is made to enable to Reporting Officer/LIO to carry out his or her functions, or to enable the Standards Committee to carry out its functions in relation to the matter;
• the disclosure is made to enable the Appeal Tribunal of the Adjudication Panel to discharge its functions;
• the person to whom the information relates has consented to the disclosure;
• the disclosure is made following receipt of a statutory requirement for disclosure;
• the information has previously and lawfully been disclosed to the public;
• the disclosure is made to the Audit Commission in relation to any function specified in the Audit Commission Act 1998; or
• the disclosure is made in consequence of criminal proceedings

11. Notice of findings

11.1 The Monitoring Officer will make a short written statement of the decision available on the day of the hearing, or if the hearing commences after 7.30pm, on the morning following the hearing.

11.2 A full written draft of the decision and the reasons for it will be prepared and finalised in consultation with the Chair of the Hearing Panel and circulated within two weeks of the hearing to the Member, the Complainant (where appropriate), the relevant ESO/LIO, the Authority’s Standards Committee and any other authority concerned. The decision will follow the format recommended by the Standards Board for England.

11.3 Subject to the provisions below, the Monitoring Officer shall arrange for a summary of the findings to be published in at least one newspaper circulating in the Authority’s area and on the Authority’s website.

11.4 Where the Hearing Panel decide that the Member has not failed to comply with the Code of Conduct, the notice specified above shall:

• state that the Hearing Panel found the Member had not failed to comply with the Code of Conduct and shall give reasons for that finding; and
• not be published in local newspapers if the Member so requests.

11.5 Where the Hearing Panel decide that the Member has failed to comply with the Code of Conduct, but also decides that no action should be taken, the notice shall:

• state that the Hearing Panel found that the Member had failed to comply with the Code of Conduct, but that no action need be taken in respect of that failure;
• specify the details of the failure;
• give reasons for the decision reached; and
• state that the Member concerned may apply for permission to appeal against the determination to the President of the Adjudication Panel.

11.6 Where the Hearing Panel determines that there has been a failure to comply with the Code of Conduct and that a sanction should be imposed, the notice specified above shall:

• state that the Hearing Panel found that the Member had failed to comply with the Code of Conduct;
• specify the details of the failure;
• give reasons for the decision reached;
• specify the sanction imposed; and
• state that the Member concerned may apply for permission to appeal against the determination to the President of the Adjudication Panel.

11.7 Copies of the agenda, reports and minutes of the hearing as well as any background papers, apart from any documents or parts of documents which relate to parts of the hearing which were held in private, will be available for public inspection for six years after the hearing.

12. Appealing the decision of the Hearing Panel

12.1 Where the Hearing Panel has determined that the Member has failed to comply with the Code of Conduct, the Monitoring Officer shall inform the Member of his or her right to apply for permission to appeal against the finding to an appeal tribunal of the Adjudication Panel (of the Standards Board for England). The Monitoring Officer will also advise the Member of the deadline for submitting an appeal, along with any other relevant information.

March 2006

Timelines for a hearing

Ethical Standards Officer (ESO) or Local Investigation Officer (LIO) refers completed investigation to the Monitoring Officer (MO)

Within 5 working days of receipt of the investigation report: MO to copy the report confidentially to Standards Committee members, the Member concerned and, if appropriate, the complainant. (para. 2.1)

Within fifteen working days of the Member’s receipt of the report: Member to respond in writing to the MO (para. 4.1)

On receipt of the Member’s written response, this to be copied to the ESO/LIO who then has fifteen working days to respond in writing (para. 4.3)

At least 8 clear working days before the hearing: agenda and papers circulated to those involved (para. 5.3)

Within 3 months of receipt of the investigation report: Hearing to be held (It can be held earlier but not less than within 14 days of the report being sent to the Member unless with his/her agreement.

Same day as the Hearing / early next day if an evening hearing: MO to make a short written statement available of the outcome.

Within two weeks of the hearing: full written decisions of the Hearing Panel circulated

N.B. Within 14 working days of receipt of the investigation report:

Where a LIO’s report finds the member did not fail to comply, MO to refer the report to the Standards Committee to agree or to refer to a Hearing Panel

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