Procedure on receipt of complaint
1. Preliminary tests
The complaint will be assessed by the Monitoring Officer in consultation with the Independent Person against the legal jurisdiction test and, if applicable, the local assessment criteria test (both tests can be found within this section).
Legal jurisdiction criteria test
- Did the alleged conduct occur before the adoption of the Code of Conduct?
- Was the person complained of a member of the Borough or Parish Council at the time of the alleged conduct?
- Was the person complained of acting in an official capacity at the time of the alleged conduct?
- Did the alleged conduct occur when the person complained of was acting as a member of another authority?
- If the facts could be established as a matter of evidence, could the alleged conduct be capable of a breach of the Code of Conduct?
- The complaint is about dissatisfaction with the Borough or Parish Council’s decisions, policies and priorities, etc.
If the complaint fails one or more of the jurisdiction tests, no further action will be taken by the Monitoring Officer and the complaint will be rejected. The Complainant will be notified accordingly with reasons, within 10 working days of receipt of the complaint by the Monitoring Officer. There is no right of appeal against the Monitoring Officer’s decision.
Local assessment criteria test
- If the complaint satisfies the jurisdiction test, the Monitoring Officer will then apply the following local assessment criteria test:
- The complaint is a ‘repeat complaint’, unless supported by new or further evidence substantiating or indicating that the complaint is exceptionally serious or significant;
- The complaint is anonymous, unless supported by independent documentary evidence substantiating or indicating that the complaint is exceptionally serious or significant;
- No or insufficient information/evidence to substantiate the complaint has been submitted by the Complainant;
- The complaint is malicious, trivial, politically motivated or ‘tit-for-tat’;
- The Complainant is unreasonably persistent, malicious and/or vexatious;
- The complaint is relatively minor and dealing with the complaint would have a disproportionate effect on both public money and officers’ and Members’ time;
- The circumstances have changed so much that there would be little benefit arising from an investigation or other action;
- The complaint has been the subject of an investigation or other action and there is nothing more to be gained by further action being taken; or the alleged misconduct took place so long ago that the complaint should not be pursued;
- The complaint is such that it is unlikely that an investigation will be able to come to a firm conclusion on the matter, e.g. where there is no firm evidence on the matter;
- The complaint is about a deceased person;
- The complaint is about a person who is no longer a Borough or Parish Councillor or Co-opted Member.
If one or more of the local assessment criteria applies to the complaint, no further action will be taken by the Monitoring Officer and the complaint will be rejected. The Complainant will be notified accordingly with reasons, within 10 working days of receipt of the complaint by the Monitoring Officer. There is no right of appeal against the Monitoring Officer’s decision.
2. Notification of complaint to member
Subject to any representations from the Complainant on confidentiality, the Monitoring Officer will notify the Subject Member, if applicable, the Parish Clerk of the complaint.
The Monitoring Officer may invite the Subject Member, if applicable, the Parish Clerk to submit initial views on the complaint within 10 working days, which will be taken into account by the Monitoring Officer when they decide how to deal with the complaint. Views received from the Subject Member and/or Parish Clerk after the 10-working day time limit may be taken into account at the discretion of the Monitoring Officer, providing the views are received before the Monitoring Officer issues their written decision on how the complaint will be dealt with.
3. Asking for additional information
The Monitoring Officer may ask the Complainant and the Subject Member and, if applicable, the Parish Clerk for additional information before deciding how to deal with the complaint.
4. Informal resolution or investigation an/or no action
The Monitoring Officer may at any stage seek to resolve the complaint informally in accordance with section 6. Where the Subject Member or the Monitoring Officer or the Borough or Parish Councillor make a reasonable offer of informal resolution, but the Complainant is not willing to accept this offer, the Monitoring Officer will take account of this in deciding whether the complaint merits formal investigation.
The Monitoring Officer in consultation with the Independent Person may refer the complaint for investigation when:
- It is serious enough, if proven, to justify the range of sanctions available to the Audit, Governance and Standards Committee (see paragraph 4 of Annex 4 to these Arrangements);
- The Subject Member’s behaviour is part of a continuing pattern of less serious misconduct that is unreasonably disrupting the business of the Borough or Parish Council and there is no other avenue left to deal with it short of investigation. In considering this, the Monitoring Officer may take into account the time that has passed since the alleged conduct occurred.
Where the complaint is referred for investigation, the Monitoring Officer will appoint an Investigating Officer who will conduct the investigation in accordance with the procedure at Annex 3 to these Arrangements.
If the complaint identifies potential criminal conduct or a potential breach of other regulations by the Subject Member or any other person, the Complainant will be advised by the Monitoring Officer to report the complaint to the police or other prosecuting or regulatory authority. In such cases, the complaints process under these Arrangements will be suspended, pending a decision/action by the police or other prosecuting or regulatory authority. Where the police or other prosecuting or regulatory authority decide to take no action on the complaint, the Monitoring Officer will lift the suspension and, in consultation with the Independent Person, will apply the local assessment criteria test.
The Monitoring Officer in consultation with the Independent Person, will take no action on the complaint when one or more of the following apply:
- On-going criminal proceedings or a police investigation into the Subject Member’s conduct or where the complaint is suspended in accordance with the paragraph above within this section;
- Investigation cannot be proceeded with, without investigating similar alleged conduct or needing to come to conclusions of fact about events which are also the subject of some other investigation or court proceedings;
- The investigation might prejudice another investigation or court proceedings;
- On-going investigation by another prosecuting or regulatory authority;
- Genuine long term (3 months or more) unavailability of a key party;
- Serious illness of a key party.
Within 20 working days of receipt of the complaint, the Monitoring Officer will notify the Complainant, Subject Member and, if applicable, the Parish Clerk of their decision and reasons for applying one of the following processes in the format of the Decision Notice template:
- Not to refer the complaint for investigation; or
- To refer the complaint for investigation; or
- To apply the informal resolution process either before or after an investigation; or
- Following investigation, to refer the complaint to the Hearing Panel; or
- To take no action and close the matter; or
- To refer the complaint to the relevant political group leader for action.
The decision notice will be published on our website. There is no right of appeal against the Monitoring Officer’s decision. However, in the event that the Complainant submits additional relevant information, the Monitoring Officer will consider and decide if the matter warrants further consideration under these Arrangements, in which case it shall be treated as a fresh complaint.
If the Complainant has asked for their identity to be withheld, this request will be considered by the Monitoring Officer in consultation with the Independent Person when they initially assess the complaint.
As a matter of fairness and natural justice, the Subject Member will usually be told who the Complainant is and will also receive details of the complaint. However, in exceptional circumstances, it may be appropriate to keep the Complainant’s identity confidential or not disclose details of the complaint to the Subject Member during the early stages of an investigation. The Monitoring Officer may withhold the Complainant’s identity and/or details of the complaint if they are satisfied that there are reasonable grounds for believing that the Complainant or any other person (e.g. a witness):
- Is either vulnerable or at risk of threat, harm or reprisal;
- May suffer intimidation or be victimised or harassed;
- Works closely with the Subject Member and is afraid of the consequences, e.g. fear of losing their job;
- Suffers from a serious health condition and there are medical risks associated with their identity being disclosed (medical evidence will need to be provided to substantiate this);
- May receive less favourable treatment because of the seniority of the person they are complaining about in terms of any existing Borough or Parish Council service provision or any tender/contract they may have with or are about to submit to the Borough or Parish Council.
OR where early disclosure of the complaint:
- May lead to evidence being compromised or destroyed; or
- May impede or prejudice the investigation; or
- Would not be in the public interest.
Relevant public interest factors favouring disclosure (not an exhaustive list) include:
- To facilitate transparency and ethical governance accountability: recognising that decision-making may be improved by constructive contributions from others;
- To raise public awareness: disclosing the complaint or part of it may inform the community about matters of general concern;
- Justice to an individual: the balance of the public interest may favour disclosure of the complaint to the Subject Member when it may not be in the public interest to disclose it to the world at large;
- Bringing out in the open serious concerns about the behaviour/conduct of an individual.
The Monitoring Officer, in consultation with the Independent Person, will balance whether the public interest in accepting the complaint outweighs the Complainant’s wish to have their identity (or that of another person) withheld from the Subject Member. If the Monitoring Officer decides to refuse the Complainant’s request for confidentiality, they will offer the Complainant the option to withdraw their complaint. The Complainant will be notified of the Monitoring Officer’s decision, with reasons, within 15 working days of receipt of the complaint by the Monitoring Officer. There is no right of appeal against the Monitoring Officer’s decision to refuse the Complainant’s request for confidentiality.
6. Informal resolution
These arrangements enable the Monitoring Officer, in consultation with the Independent Person, to resolve complaints informally, either before or after investigation. In so doing, the Monitoring Officer will consult with the Complainant and the Subject Member to agree what they consider to be a fair resolution, which will help to ensure higher standards of conduct for the future.
- Informal resolution may be the simplest and most cost-effective way of resolving the complaint and may be appropriate where:
- The Subject Member appears to have a poor understanding of the Code of Conduct and/or related Borough or Parish Council procedures; or
- There appears to be a breakdown in the relationship between the Complainant and the Subject Member; or
- The conduct complained of appears to be a symptom of wider underlying conflicts which, if unresolved, are likely to lead to further misconduct or allegations of misconduct; or
- The conduct complained of appears common to a number of members of the Borough or Parish Council, demonstrating a lack of awareness, experience or recognition of the particular provisions of the Code of Conduct and/or other Borough or Parish Council procedures etc;
- The conduct complained of appears to the Monitoring Officer not to require a formal sanction; or
- The complaint appears to reveal a lack of guidance, protocols and procedures within the Borough or Parish Council; or
- The complainant and the Subject Member are amenable to engaging in an informal resolution; or
- The complaint consists of allegations and retaliatory allegations between Members; or
- The complaint consists of allegations about how formal meetings are conducted; or
- The conduct complained of may be due to misleading, unclear or misunderstood advice from officers.
Informal resolution may consist of one or more of the following actions, which do not have to be limited to the Subject Member, but may extend to other Members including the whole Borough or Parish Council where it may be useful to address systemic behaviour:
- Instituting changes to the Borough or Parish Council’s procedures;
- Conflict management;
- Development of the Borough or Parish Council’s protocols;
- Other remedial action by the Borough or Parish Council;
- Other steps (other than investigation) if it appears appropriate to the Monitoring Officer in consultation with the Independent Person.
If the Subject Member is agreeable to and complies with the informal resolution process, the Monitoring Officer will report the matter to the Audit, Governance and Standards Committee and, if applicable, the Parish Council for information, but will take no further action.
Where the Subject Member will not participate in the informal resolution process or if, having agreed to one or more actions under the informal resolution process, the Subject Member refuses or fails to carry out any agreed action, the Monitoring Officer will report the matter to the Audit, Governance and Standards Committee.
[To be completed]
Example template - Decision notice (of the Monitoring Officer): e.g. Referral for investigation
Parties should take care when passing on information that is in the notice or about the notice. For example, some details such as names and addresses may be confidential or private in nature, or may be personal information.
Complaint: On [insert date], the Monitoring Officer considered a complaint from [insert name of complainant] concerning the alleged conduct of [insert name of Member], a member of [insert authority name]. A general summary of the complaint is set out below.
[Summarise complaint in numbered paragraphs]
Consultation with Independent Person
[Summarise the Independent Person’s views in numbered paragraphs]
Having consulted and taken into account the views of the Independent Person, the Monitoring Officer decided to refer the complaint for investigation.
- Potential breaches of the Code of Conduct identified At this stage, the Monitoring Officer is not required to decide if the Code of Conduct has been breached. They are only considering if there is enough information which shows a potential breach of the Code of Conduct that warrants referral for investigation. The Monitoring Officer considers that the alleged conduct, if proven, may amount to a breach of the following paragraphs of the Code of Conduct. The Monitoring Officer has appointed [insert name] as the Investigating Officer.
- Please note that it will be for the Investigating Officer to determine which paragraphs are relevant, during the course of the investigation.
- [detail relevant Code of Conduct paragraphs]
- Notification of decision: This decision notice is sent to the:
- Member against whom the complaint was made
- [Clerk to the relevant Parish or Town Council]
- Kent County Council’s Monitoring Officer (applicable only where the Subject Member is serving at both Borough and County level)
- What happens now: The complaint will now be investigated under the Borough Council’s Arrangements for Dealing with Code of Conduct Complaints under the Localism Act 2011.
- Appeal: There is no right of appeal against the Monitoring Officer’s decision.
If you need additional support in relation to this decision notice or future contact with us, 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].
Monitoring Officer Address xxx