Report of the Monitoring Officer (Tunbridge Wells Borough Council)

The Monitoring Officer submitted a report setting out the background to the hearing.  It was noted that the Sub-Committee, at its meeting held on 24 February 2009, considered an allegation received from Mr Suresh Khanna that Councillor Vanessa Jones may have failed to comply with Bredhurst Parish Council’s Code of Conduct.  The Sub-Committee agreed to refer the allegation to the Monitoring Officer for investigation.  The Monitoring Officer appointed an Investigating Officer to look into the matter and his report was considered by the Sub-Committee at its meeting held on 31 July 2009.  It was agreed that the report should be referred to a hearing by the Sub-Committee.

The Investigating Officer had considered whether Councillor Jones failed to comply with paragraphs 3(1), 3(2)(a), 3(2)(c), 3(2)(d), 4(a), 4(b), 5, 6(a), 6(b)(i) and 6(b)(ii) of the Code of Conduct of Bredhurst Parish Council.  He had concluded that Councillor Jones failed to comply with paragraph 4(a) which relates to the disclosure of confidential information, but did not fail to comply with the other aforementioned paragraphs of the Code of Conduct.

The Hearing

The Chairman first of all formally asked Councillor Jones if she admitted to having breached the Code of Conduct.  Councillor Jones admitted that she had breached paragraph 4(a) of the Code of Conduct but with mitigating circumstances.  Councillor Jones denied all other breaches of the Code of Conduct that were alleged.

The Investigating Officer then set out the findings of fact contained in his Investigation Report.  It was submitted by the Investigating Officer that most of the findings of fact in the Investigation Report were agreed by Councillor Jones.  The Investigating Officer highlighted the findings of fact from the Report and Councillor Jones made representations in respect of those findings where she indicated there was disagreement.  Members of the Sub-Committee commented and asked questions at intervals. 

The Investigating Officer made reference to Councillor Jones having passed details of an email from the Complainant to the Editor of the Downs Mail.  In his report, the Investigating Officer had originally said that Councillor Jones had passed an email.  He informed the Sub-Committee that he now accepted it was not an email but a letter which had contained details of the email from Mr Khanna.

It was noted by the Sub-Committee that the only findings of fact in which there were areas of concern in terms of the Code of Conduct were those findings in relation to the disclosure of the details of Mr Khanna’s email to the Editor of the Downs Mail and therefore Councillor Jones concentrated her submission on this point.

Councillor Jones submitted that the information quoting the email in the letter that was disclosed to the Editor was not confidential.  Mr Khanna had circulated the email to Parish Councillors and members of the public.

Councillor Jones called Mr Chalmers as a witness.  Mr Chalmers confirmed he and another resident had received the email from Mr Khanna.

Councillor Jones then called Mr Adley as a witness.  Mr Adley, the owner of Pickwick Garage in the village, said he had been approached by Mr Khanna to sign a petition against having the crossing.  He said he had read the Downs Mail article and he recognised it as being Mr Khanna’s voiced opinion.  He noted that the article seemed to favour Mr Khanna’s viewpoint.

The Sub-Committee then agreed to exclude the public pursuant to paragraph 7C of Part I of Schedule 12A to the Local Government Act 1972, having applied the Public Interest Test, in order that it could deliberate and reach its conclusions in private as to the findings of fact.

The Sub-Committee retired briefly and returned having made its findings of fact.

The Chairman announced that the Sub-Committee agreed with the Investigating Officer’s findings of fact as amended during the hearing.

The Investigating Officer then explained the reasons for his conclusion that Councillor Jones, through her actions, had failed to comply with paragraph 4(a) of the Code of Conduct.  He said that:-

·  The letter passed to the Editor of the Downs Mail gave Mr Khanna’s name 12 times.  It also gave the names and addresses of other members of the public.  If Councillor Jones had not realised that the letter contained a direct quote from the email, she must at least have been aware that it disclosed information about Mr Khanna and others.  The disclosure of the information resulted in the disclosure through the media of three pieces of information: 1) it identified Mr Khanna which meant that the information was personal data subject to the Data Protection Act 1998; 2) it confirmed the precise wording of his email; and 3) it communicated the content of his personal concerns about the impact of a crossing outside his home.  The precise wording of what Mr Khanna chose to communicate to KCCH was between him and the recipients of his email.  It was not in the public domain.  All organisations were subject to the requirements of the Data Protection Act, including the 7th Principle concerning the duty to keep personal data secure.  Neither KCCH nor Bredhurst Parish Council was at liberty to disclose what Mr Khanna had disclosed to them unless with his agreement or there was a statutory basis for doing so.  The information was not public information so its disclosure was a breach of confidentiality.

·  Councillor Jones had submitted that paragraph 4(a) was designed to preserve the privacy of ordinary members of the public who give information to their Councillor, not a Parish Chairman.  This appeared to imply that Councillor Jones failed to recognise that Mr Khanna was, at the time of her disclosure, a member of the public.  Councillor Jones had said that Mr Khanna could still be quoted on what he said when holding office and that there was a public interest in the current Chairman being permitted to quote her predecessor.  This caused him some concern that there could be a risk of further breaches to the detriment of all concerned.  Mr Khanna’s communication which was disclosed to the press related to representations he made as a private individual not as a Councillor.  Councillor Jones’ reference to the public interest in this context was also of concern and he respectfully suggested that this illustrated that her judgement in making this assessment of what was in the public interest had been affected by her personal feelings towards Mr Khanna. 

·  Councillor Jones had said that she did not and would not deliberately pass emails to third parties.  In response, he would comment that she had passed on one of his own emails without permission resulting in him being copied in to an email by a member of the public unknown to him making unsolicited comments about Mr Khanna and supporting Councillor Jones. 

·  Finally, in Councillor Jones’ fifth submission, she had stated that no harm was suffered by Mr Khanna.  He had no doubt that Mr Khanna was annoyed and upset not just at what the article said but at the disclosure of his email without his permission.

Councillor Jones was then given the opportunity to address the Sub-Committee.  She said that she had never disputed that she had given the information to the Editor of the Downs Mail and that it had not been a premeditated act.  She had not apologised to Mr Khanna and she would need to consider whether she would.

The Sub-Committee then agreed to exclude the public pursuant to paragraph 7C of Part I of Schedule 12A to the Local Government Act 1972, having applied the Public Interest Test, in order that it could deliberate and reach its conclusions in private as to whether Councillor Jones had failed to follow the Code of Conduct.

The Sub-Committee retired briefly and returned having considered the question as to whether there had been a breach of the Code of Conduct.

The Chairman announced that the Sub-Committee had listened to all the evidence and found that in relation to paragraph 4(a) Councillor Jones had breached the Code of Conduct.  The Sub-Committee noted Councillor Jones had admitted that she had breached paragraph 4(a) but with mitigating circumstances.  The Sub-Committee agreed with the conclusion of the Investigation Report and found that there had been no breach of the Code of Conduct in relation to the other 9 allegations.

The Sub-Committee then heard briefly from the Investigating Officer who submitted that the breach was at the lower end of the scale of seriousness.

The Sub-Committee was handed a character reference from Councillor Paul Carter.  It then heard a short submission from Councillor Jones.

Councillor Jones submitted that 9 out of 10 of the allegations against her had not been upheld.  She said that the investigation had been hanging over her for 11 months causing her a great deal of distress.  She said she was prepared to offer an apology if it would bring matters to a close.

The Sub-Committee then agreed to exclude the public pursuant to paragraph 7C of Part I of Schedule 12A to the Local Government Act 1972, having applied the Public Interest Test, in order that it could deliberate and reach its conclusions in private as to what sanction, if any, should be imposed.

The Sub-Committee retired briefly and returned having considered the sanction.

The Chairman announced that the Sub-Committee had determined that the sanction imposed for breach of paragraph 4(a) of the Code of Conduct shall be that Councillor Jones write an apology to the Complainant in a format agreed by the Sub-Committee.  The Sub-Committee considered that the breach was at the lower end of the scale of seriousness and an apology was the appropriate sanction. The Chairman also suggested that Councillor Jones attend the next Maidstone Borough Council Code of Conduct Forum although this was a recommendation and not a sanction.

The Chairman said that he was dismayed that the complaint had had to go all the way to a hearing at an estimated cost of £10,000 and expressed the hope that all parties would now put the matters behind them.

A copy of the Decision Notice is attached as an Appendix to these Minutes.