Decision : Not upheld
Decision date : 21 Aug 2018
The Ombudsman's final decision:
Summary: Mr Y complains about the Council’s decision not to refer his complaint about the alleged criminal actions of Councillor X to the police, or to re-open a previous investigation about the conduct of Councillor X. The Council considered Mr Y’s complaint, but decided there was insufficient evidence of any crime or misconduct to warrant a referral or further investigation. There is no evidence of fault in the Council’s consideration of Mr Y’s complaints, and so there are no grounds on which to question the decision made.
- The complainant, whom I will call Mr Y, complains about the Council’s failure to refer his allegations of criminality by a councillor to the Police. He also complains the Council is unreasonably refusing to re-open a previous flawed investigation into the councillor’s conduct in the light of significant new evidence.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- During the course of my investigation, I have:
- Considered the information submitted by Mr Y;
- Made enquiries of the Council and considered its response;
- Consulted the relevant law and guidance around code of conduct complaints, referenced where necessary in this statement; and
- Issued a draft decision and considered any comments received from Mr Y and the Council before reaching a final decision.
What I found
- When a complainant is dissatisfied with the council’s handling of a code of conduct complaint, they can complain to the Ombudsman about that process.
- Firstly the Ombudsman has to consider how the Council conducted the investigation. If the Ombudsman finds evidence of procedural fault in the handling of the complaint, we can then investigate the substantive complaint about the actions of the councillor. However the Ombudsman can only do so if the actions of the councillor fall within our jurisdiction.
What should happen
- According to the Localism Act (2011), councils must have arrangements in place to investigate complaints about the conduct of its councillors. That process must incorporate the views of an independent person (IP).
- The Council’s ‘Arrangements for Dealing with Councillor Misconduct’ sets out the steps it follows upon receipt of a conduct complaint. That says the Monitoring Officer (MO) will:
- acknowledge the complaint and review the information received before deciding whether to conduct a formal investigation
- relay the substance of the complaint to the councillor complained about unless the MO decides the investigation could be affected in doing so
- apply set criteria to decide whether the complaint merits investigation. The MO will use the criteria as a guide only, keeping in mind the circumstances of the case
- decide whether it is possible and appropriate to resolve the complaint informally
- devise an investigation plan and timetable for the investigation, to be approved by the MO. The IO shares the timetable with the complainant and the councillor, unless there are exceptional circumstances preventing this
- decide whether to meet with the complainant to discuss the complaint and obtain any necessary supporting documentation
- write to the councillor complained about with a copy of the complaint and ask for their comments. In some cases the MO may decide it is not appropriate to notify the councillor until a later stage in the investigation
- produce and send a draft report to the councillor and the complainant and invite their comments on any areas disagreed with. The IO will consider any comments received before producing a final report to the MO.
- In 2014 a member of the public, whom I will call Mr Z, complained about a councillor, whom I will refer to as Councillor X. That complaint concerned Councillor X’s involvement in the Council’s development strategy for planning. The strategy proposed the development of two large housing sites in the area, prompted by the requirements of the government’s National Planning Policy Framework (NPPF). I will refer to the proposed sites as A and B.
- In May 2014 the Council voted in favour of site B, with 36 votes to 9, and formally included the site in the strategy in 2016. Some residents objected to the proposal.
- A local housing developer had, for some time, backed site B as the preferred location. The complainant alleged that Councillor X breached the code of conduct in giving the housing developer an unfair advantage.
- Mr Z made a Freedom of Information (FOI) request to the Council. In response he received copies of Councillor X’s diary which showed that he had met with the local housing developer in 2012 and 2013. Mr Z alleged that those meetings had not been arranged by the Council and no minutes were taken. Mr Z said Councillor X was biased towards site B and deliberately influenced a sequence of events to ensure a pre-determined outcome.
- The Council’s code of conduct states that: “you must be as open as possible about your decisions and actions and the decisions and actions of your authority and should be prepared to give reasons for those decisions and actions”.
- In response to the complaint made, Councillor X said that he only attended meetings at the developer’s request, and in doing so his objective was to meet the requirements of the NPPF. Councillor X said he did not promote either site.
- The MO decided the complaint warranted investigation, and appointed a solicitor from an external law firm to investigate, whom I will refer to as the IO. The IO considered the evidence but found that Councillor X had not breached the code of conduct. The IO passed its findings to the MO, who then discussed with two IPs. The MO and IPs agreed with the findings and closed Mr Z’s complaint in 2015.
- Mr Y, another local resident, then made several FOI requests of the Council. Concerned by the content of the response, Mr Y contacted the MO about the actions of Councillor X. Mr Y made a formal code of conduct complaint on 17 March 2017. He said that Councillor X misused taxpayers’ money to grant favourable treatment to a developer, and a political associate, whose intention was to build on site B. Mr Y said:
- In the summer of 2012, the developer pressed forward with plans and the highways authority began traffic modelling for 5,000 houses around site B. Councillor X had previously said the modelling was ordered by the Council. However documents sent in response to the FOI showed that Councillor X had instigated the traffic modelling at site B in a meeting held in June 2012.
- Meetings between Councillor X and the developer subsequently went ahead before the plan for site B was publicly announced in 2013. Councillor X met no other housing developers during this period, and no other rival developers were notified that the Council was considering site B. Thereby allowing the developer an unfair advantage.
- Councillor X has said, repeatedly, that he first became aware of proposals to build on site B in March 2013. His meetings with the developer in 2012 did not relate to the same plot of land.
- instructed officers to include site B in the strategic transport assessment (STA)
- disclosed the STA to the developer prior to it coming to the attention of rival developers
- instructed officers to delay publication of the STA
- instructed officers on the timing of the ‘call for sites’ in February 2013
- instructed officers to limit the period for responses to the ‘call for sites’
- a full chronology of events
- key documents from the 2014 investigation
- contemporaneous files around the planning strategy, including notes of key meetings and a copy of the STA
- documents provided in response to Mr Y’s FOI request
- correspondence between the MO and Mr Y
- the MO’s lines of enquiry, including notes of meetings with Council officers
- Emails revealed that Councillor X had included site B in a report dated October 2012. This was during a secret meeting with the developer about a housing scheme of an identical size in the same general location.
- Comments made by Councillor X within a taped interview, and evidence provided by him for the 2014 investigation, confirmed the inclusion of site B within the STA was an “officer-led coincidence”. Mr Y said this comment was misleading and a breach of the code of conduct.
Is there evidence of procedural fault in the Council’s investigation?
- The role of the Ombudsman is to investigate whether the Council’s consideration of the standards complaint was in line with law and procedure. The Ombudsman would only reach a view on the substantive complaint, which in this case is whether there are grounds for the Council to refer itself to the Police, if we find procedural fault which brings the decision made into question.
- The MO reviewed the complaint made by Mr Y in March 2017 before deciding in June 2017 that formal investigation, or a referral to the Police, was not warranted. The appointment of an IO or IP was not required. Section 28(7) of the Localism Act (2011) says that an independent person “whose views are to be sought, and taken into account, by the authority before it makes its decision on an allegation that it has decided to investigate”.
- In this case, the MO decided that Mr Y’s complaint of March 2017 did not warrant formal investigation, and so it follows that the Council was not duty bound to seek the views of an IP. The MO did, however, discuss the case with two senior officers before issuing his decision. Then, when Mr Y raised concerns about the MO’s findings, he sought independent legal advice. This was beyond the requirements of the Localism Act and the Council’s own arrangements.
- In my view, and based on the evidence available to me, the MO’s actions here are without procedural fault. It is clear from the files I have seen that he thoroughly considered the evidence before him, which was considerable in volume. The MO also interviewed key officers involved in events between 2012 and 2014 before reaching a professional judgement supported by counsel.
- The Council’s arrangements state the MO has the ‘power’ to refer a potentially criminal matter to the Police, rather than a duty. The decision is therefore ultimately one for the MO to make, and is a matter of judgement which the Ombudsman has no grounds to question.
- When the MO received Mr Y’s second complaint in November, he again considered the new information submitted before reaching a view. The MO felt that some of the information submitted was a repetition of information already considered. But the MO did consider the new information put forward by Mr Y. The MO felt it was not necessary to seek further independent legal advice, but in any event, it was not a requirement for him to do so. The MO did however discuss his findings with two senior officers before issuing his decision to Mr Y.
- I have found no evidence of fault, and therefore no grounds on which to consider Mr Y’s substantive complaint about the Council’s failure to refer the matter to the Police, or to re-open a closed investigation.
- I find no evidence of procedural fault in the Council’s investigation and I do not uphold the complaint.
Investigator's decision on behalf of the Ombudsman