Decision : Not upheld
Decision date : 28 Jun 2018
The Ombudsman's final decision:
Summary: There is no fault by the Council in relation to this complaint by Mr X that the Council failed to deal properly with his complaint about the conduct of one of its Council Members.
- The complainant, whom I shall refer to as Mr X, says a councillor breached the Council’s Members Code of Conduct when she made accusations on social media about him sending aggressive emails and harassing her. Mr X is unhappy the Council has refused to pursue the matter further.
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
- I considered the information Mr X provided with his complaint and discussed his complaint with him. We obtained written comments and evidence from the Council and I took account of all the information before reaching a draft decision on the complaint.
- I gave the Council and Mr X the opportunity to comment on my draft decision and took account of their comments before reaching a final decision on the complaint.
What I found
- Under sections 28(6) and (7) of the Localism Act 2011, authorities now must have in place “arrangements” under which allegations that a member or co-opted member of the authority has failed to comply with its code of conduct will be investigated. Arrangements must also be in place setting out how decisions on allegations can be made.
- It is for the authority to decide the details of its code of conduct and the arrangements for dealing with complaints about member conduct.
- The arrangements for dealing with complaints must include the appointment of a least one Independent Person (IP). The IP has an advisory role and must be consulted before the authority takes a decision on an allegation it has investigated. The views of the IP can also be sought by the authority at any other stage after receipt of a complaint.
- The Council has a ‘Procedure for dealing with allegations of breaches of the Code of Conduct for Members’. This states:
- the Member (councillor) about whom the complaint has been made will be informed as soon as possible or within 5 days of receipt at most. The Member will be provided with documentation related to the complaint and the identity of the complainant (unless to do so would “compromise the complainant’s safety”);
- the Monitoring Officer will carry out a preliminary assessment in consultation with an Independent Person to determine what action should be taken. This preliminary assessment stage may allow for small scale preliminary enquiries to be made at the Monitoring Officer’s discretion. The Monitoring Officer preferably completes this preliminary assessment within 10 days of the complaint being received;
- based on the preliminary assessment the Monitoring Officer may decide not to proceed with the complaint where: the complaint is frivolous or vexatious; it would not amount to a breach of the Code even if proven; it would no be in the public interest to proceed.
- on completion of the assessment the Monitoring Officer will inform the complainant and the Member of the decision and the reasons for this.
- Mr X complained to the Council on 12 January 2018 stating that one of its councillors had breached the members code of conduct in relation to correspondence they had conducted on a social media platform in which the Councillor referred to Mr X’s contact with her. He said the Councillor had stated on her social media account that he had sent her aggressive emails and requests to meet her alone. He says this was not accurate and accused her of “online abuse”. The Councillor “blocked” him from having further contact with her.
- The Council confirms that when the Monitoring Officer informed the Councillor of the allegations against her she did provide some comments on this. I cannot provide details of all the comments she made as some relate to personal matters that I cannot divulge for reasons of confidentiality. The Council confirms the evidence the Deputy Monitoring Officer took into account was the information Mr X provided in his complaint, the information on social media that was the subject of Mr X’s complaint, and the brief response from the Councillor.
- The Council confirms the Independent Person only saw Mr X’s emailed complaint and copies of the social media pages that were the subject of the complaint ie s/he did not see the Councillor’s comments on the complaint.
- The Council says that the objective at the preliminary assessment stage was to determine whether the actions Mr X complained of might, if proven, amount to a breach of the Council’s Code of Conduct for Members. The Council goes on to say that “although it requires members to conduct themselves in a way which a reasonable person would regard as respectful, it does not require councillors to maintain conversations which have been initiated via social media. The Council’s social media guidance issued to members moreover gives councillors discretion to block individuals from communicating with them on social media where they chose to. So a decision on the papers that choosing to block the complainant was not of itself capable of amounting to a breach of the Code was considered appropriate on the facts, it having been noted that (the Councillor) provided reasons (albeit reasons which were contested by the complainant) regarding why she had decided to block the complainant”.
- The Council says it notes that Mr X did not agree with the Councillor’s comments on the nature of his contact with her. The Council considered the evidence did not suggest that the Councillor’s actions were intended to generate “gratuitous harm” and were in fact a reflection of views that she genuinely held. The Council states that having consulted the Independent Person, the Deputy Monitoring Officer did not consider the Councillor’s behaviour would amount to a breach of the Code. The Council says it also took account of the public interest question and the Monitoring Officer did not consider it would be in the public interest to make investigative enquiries into the factual basis for the comments when taking account of the cost of this to the local taxpayers.
- The Council’s Deputy Monitoring Officer wrote to Mr X on 18 January. In her letter she addressed the issues raised by Mr X including the Councillor’s decision to “block” him, the manner of tone of the communication and his claim of online abuse. She stated that having consulted with the Independent Person she would not be pursuing his complaint stating “…having consulted with the Independent Person (who is of the same mind), I do not consider the comments which are the subject of this complaint to be capable of amounting to a breach of the Code”.
Is the Council at fault and did this cause injustice?
- There is no requirement under the Council’s Code of Conduct for the Monitoring Officer or the Independent Person to scrutinise in depth evidence at the preliminary assessment stage of the process. Whilst the Monitoring Officer had discretion to complete small scale preliminary enquiries, she did not consider this necessary and so did not do so in this case. This was a decision she was entitled to reach. The decision at the preliminary stage was based on evidence readily available at that point which included the information Mr X had provided in his referral and the screen shots of the social media correspondence. Any in-depth scrutiny would have happened later on if the Council had decided there was a complaint to pursue at the next stage. As the Monitoring Officer did not consider such further investigation was justified under the procedure this did not take place.
- I am satisfied that the Council followed the published Code in its handling of Mr X’s allegations and that it addressed the particular concerns he had detailed when doing so. I do not therefore consider there is evidence of fault in relation to the matters Mr X has raised in his complaint to this office.
- There is no fault by the Council in relation to that matters complained about by Mr X.
Investigator's decision on behalf of the Ombudsman