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APPENDIX 3.3
Hearing Panel Procedure
1. Pre-Hearing Procedure
1.1 In order to allow the hearing to proceed fairly and efficiently The Monitoring Officer may in appropriate cases use a pre-hearing procedure to:-
(a) Identify which facts in the investigation report are agreed and which are in dispute.
(b) Whether there is fresh evidence not mentioned in the investigation report which will be put before the hearing.
(c) Whether there is documentary evidence which a party intends to put before the hearing.
(d) Establish whether the parties intend to attend, whether the parties intend to be represented in accordance with paragraph 3 and, if so, by whom, the number and identity of witnesses to be called.
(e) Whether the Subject Member wants the whole or any part of the hearing to be held in private.
(f) Whether the Subject Member wants the whole or any part of the investigation report or other relevant documents to be withheld from the public.
1.2 The Monitoring Ofiicer will notify the parties of the date, time and place for the hearing.
2. Rules of Procedure
2.1 The Hearing Panel consists of three voting elected Members drawn from the Standards Committee, one of whom shall be elected as Chairman.
2.2 The quorum for a meeting of the Hearing Panel is three elected Members.
2.3 The Independent Person’s views must be sought and taken into consideration before the Hearing Panel takes any decision on whether the Subject Member’s conduct constitutes a failure to comply with the Code of Conduct and as to any sanction to be taken following a finding of failure to comply with the Code of Conduct. The Independent Person should normally be present throughout the hearing (but not during the deliberations of the Hearing Panel in private) but in the event that this is not possible, may instead submit their views on the complaint to the Hearing Panel in writing.
2.4 The legal requirements for publishing agendas, minutes and calling meetings, will apply to the Hearing Panel. The presumption is that the hearing will be held in public no earlier than 14 working days after the Monitoring Officer has copied the Investigating Officer’s final report to the complainant and the Subject Member. Schedule 12A Local Government Act 1972 (as amended) will be applied to exclude the public and press from meetings of the Hearing Panel where it is likely that confidential or exempt information will be disclosed.
2.5 Once a hearing has started, the District Council’s Rules of Substitution do not apply to the Hearing Panel’s proceedings.
2.6 All matters/issues before the Hearing Panel will be decided by a simple majority of votes cast, with the Chairman having a second or casting vote.
2.7 Where the Subject Member fails to attend the Hearing Panel and where the Hearing Panel is not satisfied with their explanation for their absence from the hearing, the Hearing Panel may in the first instance, have regard to any written representations submitted by the Subject Member and may resolve to proceed with the hearing in the Subject Member’s absence and make a determination or, if satisfied with the Subject Member’s reasons for not attending the hearing, adjourn the hearing to another date. The Hearing Panel may resolve in exceptional circumstances, that it will proceed with the hearing on the basis that it is in the public interest to hear the allegations expeditiously.[1]
3. Right to be Accompanied by a Representative
3.1 The Subject Member may choose to be represented by counsel, a solicitor, or by any other person they wish. This should have been agreed as part of the the pre-hearing procedure and if the panel has any concern about the person chosen to represent the Subject Member,they should have made that clear beforehand. The panel does, however, have the right to withdraw its permission to allow a representative if that representative disrupts the hearing. However, an appropriate warning will be given before permission is withdrawn.
4. Order of Busines
4.1
4.1 Subject to paragraph 4.2 below, the order of business will be as follows:-
(a) Elect a Chairman;
(b) Apologies for absence;
(c) Declarations of interests;
(d) In the absence of the Subject Member, consideration as to whether to adjourn or to proceed with the hearing (refer to paragraph 2.7above);
(e) Introduction by the Chairman, of members of the Hearing Panel, the Independent Person, Monitoring Officer, Investigating Officer, legal advisor, complainant and the Subject Member and their representative;
(f) To receive representations from the Monitoring Officer and/or Subject Member as to whether any part of the hearing should be held in private and/or whether any documents (or parts thereof) should be withheld from the public/press;
(g) To determine whether the public/press are to be excluded from any part of the meeting and/or whether any documents (or parts thereof) should be withheld from the public/press.
4.2 The Chairman may exercise their discretion and amend the order of business, where they consider that it is expedient to do so in order to secure the effective and fair consideration of any matter.
4.3 The Hearing Panel may adjourn the hearing at any time.
5. Presentation of the Complaint
5.1 The Monitoring Officer, legal advisor or chairman may may make an introductory statement outlining the nature of the complaint and the purpose of the hearing, and the procedure to be followed.
5.2 The Investigating Officer presents their report including any documentary evidence or other material and calls their witnesses. No new points will be permitted;
5.3 The Subject Member or their representative may question the Investigating Officer and any witnesses called by the Investigating Officer;
5.4 The Hearing Panel may question the Investigating Officer upon the content of their report and any witnesses called by the Investigating Officer.
6. Presentation of the Subject Member’s Case
6.1 The Subject Member or their representative presents their case and calls their witnesses;
6.2 The Investigating Officer may question the Subject Member and any witnesses called by the Subject Member;
6.3 The Hearing Panel may question the Subject Member and any witnesses called by the Subject Member.
7. Summing Up
7.1 The Investigating Officer sums up the complaint;
7.2 The Subject Member or their representative sums up their case.
8. Views/Submissions of the Independent Person
8.1 The Chairman will invite the Independent Person to express their view on whether or not they consider that on the facts presented to the Hearing Panel, there has been a breach of the Code of Conduct.
9. Deliberations of the Hearing Panel to be in Private
9.1 The Hearing Panel will adjourn the hearing and deliberate in private (assisted on matters of law by a legal advisor) to consider whether or not, on the facts found, the Subject Member has failed to comply with the Code of Conduct.
9.2 The Hearing Panel may at any time come out of private session and reconvene the hearing in public, in order to seek additional evidence from the Investigating Officer, the Subject Member or the witnesses. If further information to assist the Panel cannot be presented, then the Panel may adjourn the hearing and issue directions as to the additional evidence required and by whom.
10. Announcing Decision on Facts Found
10.1 The Hearing Panel will reconvene the hearing in public (if the public have not been excluded from the proceedings) and the Chairman will announce whether or not on the facts found, the Panel considers that there has been a breach of the Code of Conduct.
10.2 Where the Hearing Panel considers that there has been a breach of the Code of Conduct, the Chairman will invite the Independent Person, the Subject Member and the Monitoring Officer to make their representations as to whether or not any sanctions should be applied and, if so, what form they should take.
10.3 When deciding whether to apply one or more sanctions, the Hearing Panel will ensure that the application of any sanction is reasonable and proportionate to the Subject Member’s behaviour. The Hearing Panel will consider the following questions along with any other relevant circumstances or other factors specific to the local environment:-
(a) What was the Subject Member’s intention and did they know that they were failing to follow the District or Parish Council’s Code of Conduct?
(b) Did the Subject Member receive advice from officers before the incident and was that advice acted on in good faith?
(c) Has there been a breach of trust?
(d) Has there been financial impropriety, e.g. improper expense claims or procedural irregularities?
(e) What was the result/impact of failing to follow the District or Parish Council’s Code of Conduct?
(f) How serious was the incident?
(g) Does the Subject Member accept that they were at fault?
(h) Did the Subject Member apologise to the relevant persons?
(i) Has the Subject Member previously been reprimanded or warned for similar misconduct?
(j) Has the Subject Member previously breached the District or Parish Council’s Code of Conduct?
(k) Is there likely to be a repetition of the incident?
10.4 Mitigating factors may include:-
(a) An honestly held, although mistaken, view that the action concerned did not constitute a failure to follow the provisions of the Code of Conduct, particularly where such a view has been formed after taking appropriate advice;
(b) A councillor’s previous record of good service;
(c) Substantiated evidence that the councillor’s actions have been affected by ill-health;
(d) Recognition that there has been a failure to follow the Code; co-operation in rectifying the effects of that failure; an apology to affected persons where that is appropriate, self-reporting of the breach by the councillor;
(e) Compliance with the Code since the events giving rise to the complaint.
10.5 Aggravating factors may include:-
(a) Dishonesty or breaches of trust;
(b) Tying to gain an advantage or disadvantage for themselves or others;
(c) Bullying;
(d) Continuing to deny the facts despite clear contrary evidence;
(e) Seeking unfairly to blame other people;
(f) Failing to heed appropriate advice or warnings or previous findings of a failure to follow the provisions of the Code;
(g) Persisting with a pattern of behaviour which involves repeatedly failing to abide by the provisions of the Code.
10.6 Having heard the representations of the Independent Person, the Subject Member and the Monitoring Officer on the application of sanctions, the Hearing Panel will adjourn and deliberate in private.
10.5 If evidence presented to the Hearing Panel highlights other potential breaches of the District or Parish Council’s Code of Conduct, then the Chairman will outline the Hearing Panel’s concerns and recommend that the matter be referred to the Monitoring Officer as a new complaint.
11. Final Decision
11.1 Where the complaint has a number of aspects, the Hearing Panel may reach a finding, apply a sanction and/or make a recommendation on each aspect separately.
11.2 The Hearing Panel will make its decision on the balance of probabilities, based on the evidence before it during the hearing.
11.3 Having taken into account the Independent Person, the Subject Member and the Monitoring Officer’s representations on the application of sanctions, the Hearing Panel will reconvene the hearing in public and the Chairman will announce:-
(a) The Panel’s decision as to whether or not the Subject Member has failed to comply with the Code of Conduct, and the principal reasons for the decision;
(b) The sanctions (if any) to be applied;
(c) The recommendations (if any) to be made to the District or Parish Council or Monitoring Officer;
(d) That there is no right of appeal against the Panel’s decision and/or recommendations.
12. Range of Possible Sanctions or Other Actions
12.1 Where the Hearing Panel determines that the Subject Member has failed to comply with the Code of Conduct, any one or more of the following sanctions may be applied/recommended:-
(a) Report its findings in respect of the subject member’s conduct to the Council (or the relevant Parish Council);
(b) Issue (or recommend to the Parish Council to issue) a formal censure (i.e. the issue of an unfavourable opinion or judgement or reprimand);
(c) Recommend to the leader of the authority that the Subject Member be removed from positions of responsibility;
(d) Instruct the monitoring officer to (or recommend that the Parish Council) arrange training for the Subject Member;
(e) Recommend to Council (or recommend to the Parish Council) that the Subject Member be removed from all outside appointments to which they have been appointed or nominated by the authority (or by the parish Council);
(f) Recommend to Council (or recommend to the Parish Council) that it withdraws facilities provided to the Subject Member by the authority for a specified period,such as a computer, website and/or email and internet access; or
(g) Recommend to Council (or recommend that the Parish Council) that it excludes the Subject Member from the authority’s offices or other premises for a specified period, with the exception of meeting rooms as necessary for attending Council, committee and sub-committee meetings and/or restricts contact with officers to named officers only;
(h) If relevant recommend to Council that the Subject Member be removed from their role as leader of the authority;
(i) If relevant recommend to the secretary or appropriate official of a political group that the councillor be removed as group leader or other position of responsibility;
(j) Recommend that the Subject Member make an apology in respect of the conduct or take some other action to resolve the matter.
12.2 Where the Subject Member is a Parish or Town councillor, the matter is referred back to their Council to say that a breach of the Code has been found and with a recommended sanction. The Town or Parish Council must then meet to consider whether to impose that sanction or to replace it with another relevant sanction. They cannot overturn the finding that there has been a breach of the Code and if they wish to impose a different sanction they should seek advice from the clerk and/or the Monitoring Officer. The panel should also ask the Parish or Council to report back to the monitoring officer within three months to confirm that they have met to discuss the sanction, and if necessary, to write again once the sanction has been fulfilled
12.3 Note that under the Model Code of Conduct failure to comply with a sanction may of itself be a breach of the Code.
12.4 The Hearing Panel has no power to suspend or disqualify the Subject Member or to withdraw basic or special responsibility allowances.
12.4 The Hearing Panel may specify that any sanction take effect immediately or take effect at a later date and that the sanction be time limited.
13. Publicising the Findings
13.1 The panel should arrange for a decision notice to be published on the website of any authorities concerned, and anywhere else the panel considers appropriate. A template decision notice is appended which may be used for these purposes.
13.2 If the panel finds that the Subject Member did not fail to follow the authority’s Code of Conduct, the public summary must say this and give reasons for this finding.
13.3 If the panel finds that the Subject Member failed to follow the Code but that no action is needed, the public summary should:-
(a) Say that the councillor failed to follow the Code, but that no action needs to be taken;
(b) Outline what happened;
(c) Give reasons for the panel’s decision not to take any action.
13.4 If the panel finds that a councillor failed to follow the Code and it imposed a a sanction,the public summary should:-
(a) Say that the councillor failed to follow the Code;
(b) Outline what happened;
(c) Explain what sanction has been imposed;
(d) Give reasons for the decision made by the panel.
13.5 The panel’s reports and minutes should be available for public inspection in the same way as other local authority committee papers.
14. Appeals
14.1 Given that the framework and sanctions are meant to be light-touch and proportionate, there is no right of appeal against a decision on a Code of Conduct complaint.
TEMPLATE – DECISION NOTICE (of Hearing Panel)
Complaint No: xxxx
On [insert date], the Hearing Panel of xxxx District Council considered a report of an investigation into the alleged conduct of [insert name of councillor], a member of [insert authority name]. A general summary of the complaint is set out below.
Complaint summary
[Summarise complaint in numbered paragraphs as set out in the Investigating Officer’s report to the Hearing Panel]
Consultation with Independent Person
[Summarise the Independent Person’s views in numbered paragraphs]
Findings
After considering the submissions of the parties to the hearing and the views of the Independent Person, the Hearing Panel reached the following decision(s):
[Summarise the finding of facts and the Hearing Panel’s decision against each finding of fact in numbered paragraphs as set out in the Investigating Officer’s report to the Hearing Panel, but substitute the Investigating Officer for the Hearing Panel. Please note that the Hearing Panel’s findings may differ from that of the Investigating Officer]
The Hearing Panel also made the following recommendation(s)
[Detail recommendations]
Sanctions applied
The breach of the [insert authority name] Code of Conduct warrants a [detail sanctions applied].
Appeal
There is no right of appeal against the Hearing Panel’s decision.
Notification of decision
This decision notice is sent to the:
· Councillor [name of councillor]
· Complainant
· Monitoring Officer
· [Clerk to the xxxx Parish/Town Council];
· Kent County Council’s Monitoring Officer [applicable only where the Councillor is serving at both District and County level]
Additional help
If you need additional support in relation to this decision notice or future contact with the District Council, please let us know as soon as possible. If you have difficulty reading this notice, we can make reasonable adjustments to assist you, in line with the requirements of the Equality Act 2010. We can also help if English is not your first language. Please refer to the attached Community Interpreting Service leaflet or contact our Customer Services on [insert telephone number] or email [insert email address].
Signed: Date
Print name:
Chairman of the Hearing Panel
Xxxxx District Council