Local Government - July 2009

Ethical Standards Clinic

Q.      Are there any lessons which can be learnt from the numerous decisions made by the APE?

A.      Over the last year, since the new ethical regime was brought into force, The Adjudication Panel for England has heard and determined several cases on appeal from Standards Committee decisions.  Of the 26 cases heard between 8 May 2008 to 18 July 2009, 16 were appeal cases.  The cases determined on appeal following the adoption of the new regime in May 2008, and prior to that date, provide helpful commentary on the interpretation of the mandatory provisions of the Model Code of Conduct (although some care needs to be taken where reference is made to the 2001 Model Code), as well as analysis of evidence and procedures at hearings.  The appeal cases involve challenges to the decision that there has been a breach, the appropriateness and proportionality of the sanction imposed or both of these matters as well as challenges to the procedure and process undertaken by the Standards Committee.  There is now a collection of useful and valuable information which can assist members, officers and Standards Committees alike dealing with some of the complexities under the ethical regime.

One of the most recent cases to be heard by the APE involves the conduct of Councillor Gamble of Ellistown & Battleflat Parish Council (APE0422).  The appeal was against the decision of North West Leicestershire District Council’s Standards Committee.  Councillor Gamble appealed against the decision of the Standards Committee that he had breached the code of conduct and the sanction:

Breaches:

a)       Failure to treat others with respect; and

b)      Bringing his office or authority into disrepute

Sanction:

c)       Send a suitably worded letter of apology to a member of the public; and

d)      Undergo one to one training on the code of conduct.

The Standards Committee found as fact that during a public question and answer session at the Parish Council meeting in July 2008 an exchange took place between Councillor Gamble and a member of the public which breached the code of conduct.  The dispute of fact which the appeals tribunal needed to resolve was whether during the question which was asked by the member of the public, Councillor Gamble questioned that member of the public’s right to be present at the meeting.  The member of the public recalled that Councillor Gamble said “What are you doing here?”  Councillor Gamble denied having made this comment and a member of the public present at the meeting did not recall the comment being made.  On the other hand a fellow councillor recalled that there was an altercation between Councillor Gamble and the member of the public who asked the question, and that Councillor Gamble was rude and would not allow the member of the public to make his point and speak. 

The appeals tribunal heard evidence in relation to the dispute of fact and applied the civil burden of proof - the tribunal had to decide whether it is more likely than not that Councillor Gamble uttered the words in dispute.  The appeals tribunal decided that it was not satisfied that it is more likely than not that Councillor Gamble said to the member of the public “What are you doing here?”

There are two important points of interest in this case.  The first is that the appeals tribunal explain how it balanced the evidence heard.  This can be useful in demonstrating to Standards Committee members how such difficult judgement calls concerning evidence could be analysed.  The second is that the appeals tribunal highlighted that, although the Standards Committee found as a fact that an exchange took place which breached the code, the Committee in its decision did not:

a)       make any findings of fact as to what was said by Councillor Gamble in the exchange; and

b)      provide reasoning as to why what was said amounted to a breach of the code of conduct.

The appeals tribunal decided to re-hear the case on the basis that Councillor Gamble denied that there was an exchange which amounted to a breach of the code and, more importantly, there was no “necessary and relevant findings of fact in the Standards Committee decision”. 

This case demonstrates the importance of ensuring that Standards Committee decisions are detailed as to the matters taken into account in reaching findings of fact, that there is a clear demonstration that the evidence has been properly balanced and a view reached which is reasonable.  In addition Standards Committee decisions should also set out the reasoning adopted in deciding that there has or has not been a breach of the code.  It is particularly important that, in the case of a finding of breach of the code of conduct, the subject member has a right to understand the reasons for the decision made.  Failure to provide detailed reasons is more likely to lead to a challenge being made and leave to appeal being granted by the President of the APE.  In such cases, there is likely to be a re-hearing at which witnesses, complainant, subject member, and Standards Committee representatives would attend. 

In 2004, the APE was subject to a High Court appeal against its case tribunal’s decision in Adami (APE 0166) in which the case tribunal had simply adopted the reasons for its decision as to facts and breach of the Code of conduct which were provided by the Ethical Standards Officer.  There was an appeal of the High Court’s decision to quash the case tribunal’s finding of breach.  The Court of Appeal on 21 November 2005 made an Order requiring:

“[the Tribunal’s original decision] be remitted to the same Tribunal for reconsideration and formulation of adequate reasons for its decision, on the Tribunal’s findings of fact on the unchallenged evidence, that the Respondent had breached the Appellant’s code of conduct, and as to the appropriate sanction in the light of these findings and reasons”

A similar criticism was made in an earlier appeals tribunal case in decided by the APE in 2005 involving Councillor Hannaford of MarlboroughTownCouncil (APE 0303).  The appeal was against the decision of Kennet District Council’s Standards Sub-Committee.  Although the appeal was to be dealt with by way of written representations, it was decided that there should be a full oral hearing because of the following defects shown in the decision of the Standards Sub-Committee:

a)       there was no attempt by the Standards Sub-Committee to verify the factual basis of the complaint made even though witnesses were available, and Councillor Hannaford stated that she was not able to question witnesses at the hearing;

b)      there was no reason given by the Standards Sub-Committee as to why it considered Councillor Hannaford’s behaviour to be disreputable, and it did not appear to have addressed all aspects of the issues raised by Councillor Hannaford;

c)       there was no reason given by the Standards Sub-Committee as to why it considered that there was a personal and prejudicial interest at a Council meeting which related to a property owned by Councillor Hannaford.  The appeals tribunal noted four important issues which did not appear to have been taken into account by the Standards Sub-Committee.

The appeals tribunal also commented that the Sub-Committee appeared to have accepted the findings and opinions of the Ethical Standards Officer rather than demonstrating that it had properly considered the evidence presented and reached its own views.  Paragraph 7 of the appeals tribunal decision states:

“The burden of proof at that hearing [Standards Sub-Committee hearing concerning Councillor Hannaford’s conduct] was on the ESO but the written submissions on behalf of the Standards Sub-Committee suggest that it simply accepted his findings and opinions without question.”

Clearly these cases demonstrate the importance of Standards Committees ensuring that they give clear reasons for decisions as to findings of fact (particularly where there are disputes of fact) as well as deciding whether there is a breach of the code of conduct and the sanction imposed.  In addition, it is important that Standards Committees also demonstrate in their decisions that they have considered the evidence presented to them and balanced the evidence appropriately, rather than simply adopting the findings and opinions of the investigator or Ethical Standards Officer.

Claire Lefort
Weightmans LLP