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City of York Council (20 008 287)

Category : Other Categories > Councillor conduct and standards

Decision : Upheld

Decision date : 15 Jun 2021

The Ombudsman's final decision:

Summary: Mrs X complained about how the Council completed its investigation into Councillors’ conduct. The Council failed to send Mrs X a copy of the Investigating Officer’s final report and there was some delay in the investigation process. Although that was fault, we find it did not cause Mrs X a significant injustice.

The complaint

  1. Mrs X complained about how the Council completed its investigation into two Councillors’ conduct. She said it failed to:
      1. Consider the Councillors’ behaviour towards her before they were elected despite it previously assuring her it would.
      2. Interview two independent witnesses she identified.
      3. Provide her a copy of the Investigating Officer’s final report.
  2. Mrs X said if the Council had not provided incorrect advice, she would not have resigned when she did. In addition she said the Council’s delay in finalising the investigation had prolonged her distress unnecessarily, exacerbating her chronic health condition.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. 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)

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How I considered this complaint

  1. I discussed the complaint with Mrs X.
  2. I read the Investigating Officer’s report.
  3. I considered case records of contact between Mrs X and the Council.
  4. I referred to the Council’s policy on investigating complaints about Councillor’s conduct.
  5. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The Council’s policy for complaints about Councillor conduct

  1. The Council’s Monitoring Officer is responsible for dealing with complaints about City Council or Parish Council members. After receiving a complaint, the Monitoring Officer will acknowledge the complaint within seven days. The Monitoring Officer then considers whether the allegations require investigating. Before making this decision, they consult with an Independent Person appointed by the Council. The Council aims to make an initial assessment within 20 working days of receiving the complaint.
  2. If the Monitoring Officer decides the complaint requires formal investigation, they appoint an Investigating Officer (IO). Once instructed, they have three months to complete their investigation and produce a draft report.
  3. The IO shares the draft report with the complainant and the Councillor concerned. Both parties can provide comments on the report. The IO considers these before sending the final report to the Monitoring Officer.
  4. If the Monitoring Officer accepts the IO report they will send a final report to the complainant and the Councillor.

Background

  1. Mrs X was a clerk for a Parish Council. At the start of 2019 she contacted an officer at the Council, Officer A, about the behaviour of two people standing for Parish election. She said she was concerned that that they had a vendetta against her. She sent Officer A a chain of emails in support of her allegation. In May 2019, the two people were elected as Parish Councillors.

What happened

  1. Mrs X sent the Council a formal complaint about the Councillors at the end of June 2019. The complaint was about their conduct at a meeting the previous month and behaviour towards her that she felt constituted harassment. Officer A responded four weeks later. They said they had consulted with the Independent Person and had set aside time to consider her complaint. They asked Mrs X to provide evidence she wanted considered.
  2. Officer A emailed Mrs X mid-August. They said they had reviewed the information Mrs X had provided and spoken with the Independent Person. They said they had decided to refer the complaint for investigation and would appoint a colleague who would be in contact with Mrs X shortly.
  3. Officer A contacted Mrs X further at the end of August. They said the two Councillors had contacted the Council and indicated they wanted to submit complaints. Officer A explained that after speaking to the Independent Person they had decided it would be sensible to deal with all the matters at the same time and that they had contacted the Investigating Officer (IO) and asked them to delay the start of the investigation.
  4. The IO contacted Mrs X towards the end of November. They said that because of a snap election they would not be able to start their investigation until after 12 December. They apologised for the further delay.
  5. During December and January 2020, there were several emails between Mrs X and the IO about the scope of the investigation. Within these, Mrs X said she was concerned about the impartiality of the IO and how they were investigating the complaint. She said she had been told the investigation would consider the Councillor’s behaviour towards her before they were in post.
  6. The IO offered to meet with Mrs X to discuss her complaint and go through the investigation process. They explained they could only investigate the Councillor’s behaviour whilst they were in post as that was when the Code of Conduct applied. They asked Mrs X to provide any further evidence they would like her to consider by 29 January.
  7. Mrs X gave the details of three witnesses. On 28 January 2020, Mrs X sent a further email. She provided further information about what had happened at the Parish meeting. She said there were two residents at the meeting who were also happy to speak about what had happened.
  8. The IO sent Mrs X the draft report on 16 March 2020. They asked Mrs X to provide comments by the end of the month. The report shows that in investigating the complaint, the IO:
    • Spoke to Mrs X and the Councillors involved.
    • Spoke to the three witnesses Mrs X had identified.
    • Considered emails between the different parties.
  9. The IO investigated several instances where Mrs X alleged misconduct. The IO did not find the Councillors had breached the Code of Conduct and provided their reasoning for this.
  10. Mrs X contacted the IO on 30 March 2020. She asked if she could have more time to respond. The IO asked how much additional time Mrs X needed. Although Mrs X acknowledged this email, she did not give a timeframe.
  11. At the start of July 2020, the IO contacted Mrs X and said as they had heard nothing from her, they were sending the report to the Monitoring Officer. Mrs X asked for additional time to comment. The IO agreed.
  12. In her comments, Mrs X said there were inaccuracies in the IO draft report and that they had failed to speak to the additional witnesses she had identified. The IO responded to Mrs X’s comments within three days. They provided a detailed response to the points she raised. They said Mrs X had not provided the contact details of the additional witnesses, but that they had interviewed those who were relevant to the investigation. They said her comments had not resulted in any amendments to the report and that they were passing it to the Monitoring Officer.
  13. Mrs X contacted the Council mid-August and said she had not received a copy of the final report. The Monitoring Officer emailed Mrs X the following month. They said they had considered the draft report and were satisfied with the findings. They said the Council would not take further action.

My findings

  1. We are not an appeal body, so cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process. Our role is to review the process by which decisions are made, and, where we find fault, to determine what injustice it caused.
  2. Mrs X complained to the Council at the end ofJune 2019. The investigation did not start until after 12 December 2019. That was a period of just under six months.
  3. The Council says it acknowledges a complaint within seven days and makes an initial assessment within 20 working days of receiving a complaint. The Council did not acknowledge Mrs X’s complaint. It took the Council 40 working days to confirm it would be referring the complaint for investigation. That delay was fault. However, the Council did email Mrs X in this period to confirm it was progressing her complaint therefore there is nothing to suggest this initial delay caused Mrs X a significant injustice.
  4. There was a further delay before starting the investigation. That was because of the counter-complaints made by the Councillors. The Monitoring Officer sought advice from the IP and told Mrs X about the delay. Although I recognise this was frustrating for Mrs X, the Council had a cogent reason for delaying the investigation. The Council was not at fault.
  5. The investigation was delayed further because of a snap election. That was an unplanned event outside of the Council’s control and the IO told Mrs X about the delay. The Council was not at fault.
  6. Once the IO started the investigation after 12 December 2019, they issued the draft report on 16 March 2020. That was two days outside of the three-month timeframe. I do not consider that delay sufficient to make a formal finding of fault.
  7. Mrs X said Officer A told her the emails she received from the Councillors before they were in post, could be considered as part of an investigation. This was not confirmed in writing and there are no records of conversations between Officer A and Mrs X. Office A no-longer works for the Council therefore I cannot ask them whether this advice was given. Given the lack of evidence to corroborate what took place I cannot make a finding on this part of Mrs X’s complaint.
  8. The IO told Mrs X they could only investigate the Councillors alleged breach of the Code of Conduct after they were elected in a Councillor’s. As the Code of Conduct was not applicable to the Councillors before this date, the Council was not at fault in how it made that decision.
  9. Mrs X provided the IO with the details of several witnesses. The IO spoke to three of these. They did not interview the additional witnesses Mrs X identified. The IO said that they interviewed who they considered relevant to their investigation.
  10. It was for the IO to decide whether they needed to interview the additional witnesses about what happened. The IO spoke to witnesses who were present when the behaviours Mrs X complained about took place. It is unlikely that speaking to the additional witnesses would have had any impact on the outcome of the Council’s investigation. The Council was not at fault.
  11. After the IO issued the draft report Mrs X asked for more time to respond. The Council did not follow up Mrs X’s response for three months. That drift was fault. However, that has not caused an injustice to Mrs X as she asked for the additional time.
  12. The Council did not send Mrs X a copy of the IO final report, despite Mrs X contacting it and asking for one in August 2020. That was fault. However, I do not consider that has caused Mrs X an injustice. The IO told Mrs X that despite her comments, they had not changed the draft report and the Council confirmed it had accepted the IO’s findings.

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Final decision

  1. The Council was at fault for failing to send Mrs X a copy of the final report into its investigation and for some delay in the investigation. Those faults did not cause Mrs X a significant injustice. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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