Local Government - November 2009

Ethical Standards update

APE 0456 - Appeals Tribunal Decision
15 October 2009

Councillor Marc Cranfield-Adams of London Borough Richmond upon Thames

The Adjudication Panel for England has heard several appeals against Standards Committee decisions over recent months. One recent appeal relates to an allegation of disrespectful behaviour towards a named junior officer and a Council department. This case may indicate that the Adjudication Panel is taking a hard line to limit consideration of allegations of disrespectful behaviour. In our view, the Adjudication Panel cases appear to be moving the bar higher and higher in relation to disrespectful behaviour. It is becoming difficult to work out exactly what sort of comments would be considered disrespectful.

The recent case concerns the conduct of Councillor Marc Cranfield-Adams of the London Borough of Richmond upon Thames. Councillor Cranfield-Adams appealed against the finding of the Standards Committee that he had failed to comply with paragraph 3(1) of the Code of Conduct: “You must treat others with respect” and that he should be censured.

Facts

Two of Councillor Cranfield-Adams’ constituents had a planning application rejected. The constituents had asked for a meeting with an officer of the Planning Department and received as a reply “I do not see that a meeting with [sic] shed any further light on the matter.” Councillor Cranfield-Adams was asked to get involved and wrote an email dated 12 June 2008 to the planning officer, copied to the applicants and three senior officers at the Council, including the Chief Executive: “Telling a resident that a meeting will not be an efficient use of time, when you are employed to serve the public, is wholly unacceptable. I cannot recall such arrogance from an Officer of the Council. I must ask, therefore, ask [sic] that you agree to meet me and [the applicant] as soon after the date he has specified.”

Councillor Cranfield-Adams received a reply from a more senior officer at the Planning Department on 20 June 2008 explaining the position and that advice had been provided to the applicants of what revisions to the application were necessary.

The applicants submitted a revised application in August 2008 and awaited validation. Councillor Cranfield-Adams sent a chasing email on 12 August 2008 which was deemed by the Investigating Officer as being “encouraging” in tone and “praising” of officers. A decision was promised shortly after the consultation expired on 28 August 2008.

On 9 September 2008, Councillor Cranfield-Adams wrote to the applicants: “I am outraged and shocked that as a consequence of the inertia of our planning officers you … and your young family are having to find alternative accommodation and that this might now be in jeopardy. As you can see I have copied this e-mail into the Director of Environment and the Chief Executive, as this is a damming [sic] indictment on the appalling service our planners are providing. I can only apologise on behalf of the Council and hope that by expressing my dismay in such forthright terms some one will pull their finger out and move this problem on without further delay.”

The Standards Committee decided that the tone and some of the words used in the emails were insulting to officers and completely inappropriate; the concerns raised could have been taken up using perfectly acceptable language. Further, copying the email to a range of senior officers appeared to be calculated to undermine the officer handling the case, whilst copying the email to members of the public might have led to much more public criticism.

Councillor Cranfield-Adams raised grounds of procedural defect, prompting the Appeals Tribunal to hear the matter afresh and so cure any procedural defect. The substantive arguments put forward by Councillor Cranfield-Adams were that the Committee had not given sufficient weight to the context and circumstances surrounding the emails; the polite and proper email of 12 August had not been taken into account; and copying senior officers into emails was in line with Council policy. The Appeals Tribunal quashed the finding and the sanction imposed by the Standards Committee.

The decision does not provide any other information about the procedural flaws, butt the Appeals Tribunal decided to rehear the case so as to remedy any defects which may have occurred. A similar approach was taken in the case of Councillor Gamble (29 May 2009, APE 0423).

The Appeals Tribunal accepted that, in relation to the email of 12 June 2008 to the junior officer, the accusation of arrogance on the part of the officer was inappropriate, and that Councillor Cranfield-Adams should and could have raised concerns in a different, more temperate way not copying in the applicant, who was a member of the public. Despite this, and despite stating its concern at the terms of the email, and that it upset the officer, the Appeals Tribunal decided that it did not amount to disrespect such to give rise to a breach of the Code as, on its own, it was too insignificant. The Appeals Tribunal commented that, had it been coupled with other instances of inappropriate behaviour towards the officer or other officers, it might have amounted to disrespect.

Comment

This is a curious decision if it establishes that conduct which is inappropriate, but only happens once, will not be a breach. We would generally expect that language which is inappropriate, intemperate and upsetting for a junior member of staff would be disrespectful. There is nothing in the Code that states that disrespectful behaviour must be accompanied by a pattern of behaviour, or that there must be more than one event. We would suggest that the level of seriousness and significance would go to sanction (and action taken) rather than whether there is a breach.

The test adopted by Appeals and Case Tribunals in other cases of disrespect is that a failure to treat others with respect will occur when unfair, unreasonable or demeaning behaviour is directed by one person against another. The circumstances of the behaviour, including the place, who observed it and the character and relationship of the people involved, will all be relevant in assessing whether the behaviour was disrespectful. This test is not referred to at all in the Appeal Tribunal’s analysis of Councillor Cranfield-Adams’ conduct.

The decision also suggests that conduct which is not a breach of the Code on its own may turn into a breach if there is more than one similar event. We wonder, though, how conduct which is not a breach if it happens once can become a breach if it happens again.

Interestingly, the Appeals Tribunal commented that it did not consider the case should have been referred for investigation on the grounds that it did not amount to a breach, or that it was too minor. The first part of this is difficult to follow. An Assessment Sub Committee will not be able to tell whether or not there has been a breach. It can only decide whether or not there has been a possible breach. Applying the “unfair, unreasonable or demeaning behaviour” test, and bearing in mind the Standards Committee’s decision, it would have been very surprising if a Sub Committee felt able to decide that these facts did not indicate a possible breach. On the second part, the SfE guidance is that assessment criteria may include “Is the complaint too trivial to warrant further action?” Again, it would be difficult for an Assessment Sub Committee to decide that an email which even the Tribunal felt was a matter of concern, and which had genuinely upset an officer, was trivial. The reason why Assessment Sub Committees are rejecting significantly fewer complaints than the SBE is that, applying criteria in accordance with the guidance, they are setting a lower threshold. This does not mean that they are wrong. This is what local assessment is about. If the level of rejection is a problem, the guidance should be changed.

In relation to the email of 9 September 2008 about the Planning Department, we believe that the Appeals Tribunal got this right. The Appeals Tribunal concluded that it was expressed in generalised terms. Although the email was inappropriate, used intemperate language, lacked substance and was unpleasant in tone, it was not directed at an individual officer and therefore fell within the ambit of comment. The Appeals Tribunal considered that it was of utmost importance that Councillors should not be deterred from raising concerns with regard to Council services. This is sensible, particularly as the wording of paragraph 3(1) refers to failing to treat “others” with respect. This should be interpreted as behaviour having to be directed to a named individual. This analysis is also consistent with other earlier decisions (for example Councillor Thomson of Restormel Borough Council).

Claire Lefort, Associate
Weightmans LLP