Summary: Mr X complained the Council was not the correct authority to investigate a member conduct complaint about his behaviour. He also complained the Council did not conduct the investigation properly and the standards committee made unlawful recommendations. There was no evidence of fault in the way the Council investigated complaints about Mr X.

The complaint

1. Mr X complained the Council was not the correct authority to investigate a member conduct complaint about his behaviour. He also complained the Council did not conduct the investigation properly and the standards committee made unlawful recommendations.
2. Mr X said he suffered reputational damage, and his family were targeted following the Council’s findings.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with an organisation’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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What I have and have not investigated

5. The Ombudsman does not have jurisdiction to investigate the actions of Town or Parish Councils. I have therefore not made any findings about the role of the Town Council.
6. I have only investigated the actions of the Borough Council (The Council).

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How I considered this complaint

7. As part of the investigation, I considered the complaint and the information Mr X provided.
8. I made written enquiries of the Council and considered its response along with relevant law and guidance.
9. Mr 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

Law and guidance

10. Complaints about the conduct of parish and town councillors are dealt with by the Principal Authority which may be a county, district, unitary or borough council.
11. Under the Localism Act 2011, relevant authorities other than parish councils must have in place arrangements under which allegations can be investigated and arrangements under which decisions on allegations can be made (Localism Act 2011, section 28 (6)(a)(b))
12. In the case of R (Harvey) v Ledbury Town Council [2018], Judge Edis J held section 28 of the Localism Act placed the duty of investigation and decision of allegations against members of a parish council on the principal authority. He stated: “It would make a nonsense of that scheme if the parish council were able to take its own decision without having any of those arrangements in place. The whole point of the scheme is to remove decision-making powers and duties from very small authorities which do not have the resources to manage them effectively and who may be so small that any real independence is unattainable”.
13. Local Government Association guidance states: ‘Under Section 28 of the Localism Act 2011, local authorities (other than parish and town councils) must have in place ‘arrangements’ under which allegations that an elected or co-opted councillor of the authority or of a town or parish council within the principal authority’s area has failed to comply with the authority’s Code of Conduct can be considered and decisions made on such allegations. It is for the principal authority to decide the details of those arrangements, but they must appoint at least one Independent Person whose views are to be taken into account before making a decision on a complaint that they have decided to investigate’. (Local Government Association: Guidance on member model code of conduct complaint handling)
14. Under section 5 of the Local Government and Housing Act 1989, relevant authorities have a duty to designate an officer as Monitoring Officer to ensure the lawfulness and fairness of authority decision making. The Monitoring Officer has a specific duty to ensure that the authority, its officers and its members maintain the highest standards of conduct. Monitoring Officers therefore usually have a pivotal role in dealing with member complaints.
15. The arrangements for dealing with complaints must include the appointment of a least one Independent Person. The Independent Person has an advisory role and must be consulted before the authority takes a decision on an allegation it has investigated.
16. If an authority decides to formally investigate a complaint, the procedure may involve the Monitoring Officer or another Investigating Officer and a Standards Committee or Hearings Panel.

What happened

17. The Town Council decided to make a collective code of conduct complaint about Mr X’s behaviour when it met on 22 September 2020. The then Mayor of the Town Council sent the complaint by letter on 13 October 2020. A code of conduct complaint form was completed the same day. Two individual councillors also made complaints about Mr X around the same time.
18. The collective complaint from the Town Council was that Mr X used social medical to make allegations about other members and degraded and belittled a member on social media. They said Mr X failed to adhere to Town Council policies for raising concerns about other members, conducted a campaign intended to make the jobs of members impossible to perform, criticised the organising of LGBT awareness training, and mocked the Council’s equalities policy. They also said Mr X insulted members of the public on social media.
19. Another complainant alleged Mr X repeatedly failed to treat others with respect or value colleagues and staff by engaging with them in an inappropriate manner. They provided social media posts as evidence.
20. A third complainant alleged Mr X made unfounded derogatory allegations about them on social media, to the extent they felt harassed and bullied. They said the harassment continued after their complaint.
21. The Monitoring Officer appointed an independent investigator to look into the complaint. The investigator completed their report on 6 January 2022.
22. The Independent Person confirmed on 11 January 2022 they considered the complaints needed to progress to a hearing of the standards committee.
23. The later committee meeting was delayed while the Council selected members that did not consider themselves potentially conflicted.
24. The standards committee met on 3 November 2022 to hear the complaints.
25. The committee found all three complaints were made legitimately and were valid, including the complaint sent by the former Mayor as an individual. It said it was the Borough Council that had authority to decide the complaints under the Localism Act 2011.
26. The committee said it was the content of Mr X’s social media postings that was determinative and not how he identified his social media account. The committee found Mr X was acting in an official capacity when he made the social media posts in question as he was discussing Council business and engaging with or about councillors on Council business.
27. The committee said there were many examples of conduct by Mr X which it could have relied on as falling below the required standards. However, the committee cited 8 specific examples which showed breaches of the Town Council’s Code of Conduct.
28. The committee recommended the Town Council impose sanctions against Mr X, including:
• Removing Mr X from all committees and subcommittees he is appointed to.
• Censure Mr X.
• Removing Mr X as Deputy Mayor.
• Mr X undergoes ethics and standards training.
29. Mr X complained to the Council on 21 November 2022, telling it of his intent to complain to the Ombudsman. On the complaints against him, Mr X said:
• The Council was not the correct authority to handle code of conduct complaints when the Town Council had a code of conduct policy already in place.
• An officer at the Town Council should have known about the Code of Conduct process and that it should be handled directly by the Town Council, not the Borough Council.
30. On the investigation itself, Mr X said:
• It was not done correctly, and the investigator applied his own subjective assessments.
• He was not provided with all evidence.
• The investigator did not highlight where there were disputes about the accuracy of evidence.
• The standards committee ignored his evidence and applied its own subjective judgement.
• The standards committee made recommendations that are unlawful.
• The standards committee made irrational and illogical decisions.
• The Monitoring Officer has previously advised against accepting social media comments as code of conduct complaints.
31. The Council responded to Mr X’s complaint on 9 December 2022. It referred to an email the Monitoring Officer sent to Mr X on 22 November 2022 explaining the legal position on the role of the principal authority on investigating code of conduct complaints. The Council confirmed it had jurisdiction to investigate.
32. The Council recognised it did not send one addendum allegation to Mr X, but the investigator included it in their report which Mr X received and commented on. Nevertheless, the Council said it would amend its guidance to ensure it sends addendum complaints to the subject member in future.
33. The Council said the Monitoring Officer has never given a blanket position about social media comments. The position depends on whether the subject member is acting in an official capacity at the time. This is considered on a case-by-case basis.
34. The Council said it would not comment on the other points Mr X raised. It said they were points of appeal which the Ombudsman could not consider, and Mr X would need to take legal advice on.

My investigation

35. In response to my enquiries, the Council confirmed its stance that it was the correct authority to investigate the complaint. It referred to sections 26(6)(b), 28, and 29(9) of the Localism Act 2011.
36. The Council recognised the Monitoring Officer’s recommendation for the Town Council remove Mr X as Deputy Mayor was not legally possible. The Council said it told the Town Council and the Town Council did not impose the recommendation. The Council said it has updated its guidance on code of conduct complaints to ensure the error will not happen again.
37. On the evidence, the Council said the hearing bundle was issued to members two weeks before the hearing. It also accepted late evidence and further submissions from Mr X. The only document it rejected was a statement from Mr X’s partner which the panel felt should be a police matter.
38. The Council said Mr X made many comments on the draft report and the investigator included a full copy of his comments in their final report. The Council said Mr X decided not to attend the hearing or arrange representation. However, at the hearing the panel was directed to the section of the bundle containing Mr X’s defence.
39. The Council said Mr X is mistaken only social media comments clearly coming from a councillor are investigated. It said the issue was whether Mr X was acting in his personal capacity or in his capacity as a councillor. It is about the content and substance of his comments, which were deemed to be about Council business.
40. The Council confirmed complaints need to be in writing on a complaint form. In this case, the Town Council passed a resolution to make a complaint. This was submitted by letter. The Council recognised this was irregular, but said it was regularised when the Mayor completed a complaint form.

Analysis

41. Mr X’s view is that, because the Town Council had its own written procedure on member complaints, it should have investigated the complaints itself.
42. I found the Council is the principal authority and is therefore the correct authority to consider member complaints about the conduct of Town councillors.
43. I did not find fault by the Council in taking the member complaint and commencing an investigation by an independent investigator. This is what the Localism Act envisages and is supported by case law.
44. When Mr X complained to the Council about it not having jurisdiction to investigate, the Council took suitable action by considering the legal position. The Monitoring Officer considered the Council does have jurisdiction to investigate.
45. Mr X may disagree, but I have not seen evidence of fault in the Council’s decision-making. The Council is the relevant principal authority to investigate member conduct complaints from the Town Council. When that process was challenged, the Council checked its legal position. I therefore cannot criticise the Council for the actions it took.
46. I found no evidence of any procedural fault by the Council in terms of the investigation itself. Mr X received a copy of the investigator’s report, which detailed all allegations and evidence against him.
47. Mr X said the investigator and the standards committee ignored his evidence. I found his evidence was considered, but the reasons he gave were not deemed an excuse or mitigation for Mr X’s actions. Mr X could have attended the committee hearing himself to give evidence, but chose not to.
48. The Ombudsman cannot investigate the allegations themselves, or comment on the findings of the investigator or standards committee. We can only consider the process. I did not find evidence of fault in the way the Council investigated the complaints about Mr X’s conduct.
49. The sanctions the Town Council imposed are outside the Ombudsman’s jurisdiction. We can only look at the recommendations made by the Borough Council.
50. The Council’s Monitoring Officer accepted they mistakenly advised about a sanction against Mr X. However, they corrected this error, and the Town Council did not impose the sanction, so there was no injustice to Mr X.

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Final decision

51. I completed my investigation. There was no evidence of fault in the way the Council investigated complaints about Mr X.

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Investigator's decision on behalf of the Ombudsman