Once these jurisdictional tests have been met the authority should have further criteria against which it assesses complaints and decides what action, if any, to take. These criteria should reflect local circumstances and priorities and be simple, clear and open. They should ensure fairness for both the complainant and the subject member.
Assessing all complaints by established criteria will also protect the authority from accusations of bias. Assessment criteria can be reviewed and amended as necessary, but this should not be done during consideration of a matter.
In drawing up assessment criteria, authorities should bear in mind the importance of ensuring that complainants are confident that complaints about councillor conduct are taken seriously and dealt with appropriately. They should also consider that deciding to investigate a complaint or to take other action will cost both public money and the officers’ and councillors’ time. This is an important consideration where the matter is relatively minor.
The following non-exclusive factors may help an authority to develop local criteria:
- Does the complaint contain sufficient evidence to demonstrate a potential breach of the Code?
- Are there alternative, more appropriate, remedies that should be explored first?
- Where the complaint is by one councillor against another, a greater allowance for robust political debate (but not personal abuse) may be given, bearing in mind the right to freedom of expression;
- Is the complaint in the view of the authority malicious, politically motivated, or ‘tit for tat’
- Whether an investigation would not be in the public interest or the matter, even if proven, would not be serious enough to warrant any sanction (see guidance on hearings);
- Whether a substantially similar complaint has previously been considered and no new material evidence has been submitted within the current administration;
- Whether a substantially similar complaint has been submitted and accepted;
- Does the complaint relate to conduct in the distant past? This would include consideration or any reason why there had been a delay in making the complaint;
- Was the behaviour that is the subject of the complaint already dealt with? For example, through an apology at the relevant meeting;
- Does the complaint actually relate to dissatisfaction with a local authority decision rather than the specific conduct of an individual? And
- Is it about someone who is no longer a councillor or who is seriously ill?
Some of these criteria are inevitably subjective. For example, who decides if a complaint is trivial? The complainant may feel they have a genuine grievance even if to a third party it seems relatively minor.
Equally even if a complaint seems to be ‘politically motivated’ it may nevertheless be highlighting a potentially significant breach of the Code which could not be ignored.
Such criteria can therefore only ever be indicative, and authorities always need to take into account the public interest in taking further action on a complaint. Assessment criteria should be adopted which take this into account so that authorities can be seen to be treating all complaints in a fair and balanced way.
In assessing any case, an authority may want to consider the following questions in the context of local knowledge and experience:
Has the complainant submitted enough information to satisfy the authority that the complaint should be referred for investigation or other action?
If the answer is no, it should be made clear to the complainant that there is insufficient evidence to make a decision so unless, or until, further information is received, the authority will take no further action on the complaint. When doing so, the complainant should be given a clear timeline to submit any further evidence or otherwise the file will be closed.
Is the complaint about someone who is no longer a councillor?
The councillor may have been a councillor at the time of the alleged misconduct but may have since ceased to be a councillor. The authority will need to consider whether it still has jurisdiction. If so, then the authority may not want to take any further action unless they believe the matter is so serious, and the councillor may return to the authority that it would still be in the public interest to pursue the matter. If they do pursue the matter the range of potential sanctions is inevitably more limited and may extend only to publication of the report and a formal censure.
If the councillor is still a member of another principal authority, the authority may wish to refer the complaint to that authority if it would also fall within their code of conduct.
If a councillor is still a member of a town or parish council within the principal authority’s area, then the principal authority can still deal with the matter if it relates to matters at the town or parish council.
Is the complaint about something that happened so long ago that there would be little benefit in taking action now?
Where a matter happened some time ago then the authority may decide that any further action would be unwarranted. For example, an investigation may be difficult as people’s recollections may have faded. The authority may therefore wish to set a time limit for receiving complaints of say six months under normal circumstances. However, it should also be borne in mind that there may be a good reason why a complaint is ‘late’ – for example, victims of bullying or harassment may have needed time and courage before coming forward or been made aware of other incidents which has prompted them to make a complaint about things in the past.
Does the complaint appear to be trivial, malicious, politically motivated or tit-for-tat?
Where a complaint is rejected on these grounds the authority should be very clear about the reasons why and discourage politically motivated or tit-for-tat complaints in particular. It will, however, need to satisfy itself that, regardless of any alleged motive of the complainant, the complaint itself is not sufficiently serious to warrant any further action regardless of the motive. A complaint may appear on the face of it to be politically motivated, for example, because of the timing of its submission, but if it raises sufficiently serious matters it would nevertheless need to be considered fully.
The assessment criteria that the authority adopts should be made publicly available on its website.
Comments on the draft
Responses to your draft may reveal the need for further investigation, or they may add nothing of relevance. Occasionally changes may be significant enough for you to consider issuing a second draft.
Once you have considered whether the responses add anything of substance to the investigation, you will be able to make your final conclusions and recommendations.
Where comments on the draft are critical of the investigation or the investigator, you may need to consider how to respond to the complaints made. You should not let such criticisms prevent a draft report being finalised, however, unless this is unavoidable. In particular, the investigation process, including writing the report, should not be suspended while a complaint about the investigation is dealt with. Complaints about the conduct of investigators should be dealt with in the same way as other service complaints.
You should keep a written record of your consideration of any comments received on the draft. It is best practice to provide a written response to the party explaining your position or referring them to the relevant paragraph of the report. This can be done when they are sent the final report. You should avoid getting drawn into lengthy correspondence with the subject member or other interested parties where they disagree with the draft. You should confine comments to matters of fact rather than personal opinions as to how the investigation was done or the opinion you have reached. However, you will need to show that you took all reasonable steps to address concerns.
If you receive further comments after the final report has been issued you should explain that the investigation is now closed and refer them to the person who is dealing with any hearing if appropriate.