Members behaving badly

Adam Carey considers the issues facing those tasked with investigating councillor conduct.

Poorly behaving politicians can be incredibly disruptive to the efficient operation of a local authority. Hurling insults across the council chamber, bullying officers or fellow members, or even intimidating members of the public are among the infractions that may lead to complaints under a council's code of conduct.

The job of evaluating a complaint usually falls to the authority's monitoring officer, sparking a frequently complex and sometimes awkward investigation procedure. Embarking on a Code of Conduct investigation can be an intimidating prospect for the inexperienced or first-time investigator. So, how do veteran investigators approach the process and what are the knotty problems they may encounter?

Unpopularity contest
The process of conducting an investigation is outlined in guidance published by the Local Government Association (LGA). An investigation is made up of a number of stages, starting with the assessment stage, moving to the information gathering stage, then on to interviews, and concluding with a report and, in some cases, a hearing. However, the reality of conducting an investigation is far less straightforward and predictable than the guidance might suggest.

Simon Goacher, who has spent more than a decade investigating complaints, having been Head of Legal Services and Monitoring Officer at Wirral Council and Cheshire West and Chester Council before moving to Weightmans to head up its local government team, says launching an investigation at a council will not make you a popular person.

"I always say at the start of an investigation I know one thing for sure, which is I'm going to upset somebody and quite frequently upset everybody," he jokes.

"But what I hope people will say – not always, as you can't please all the people all the time – but I hope they'll feel that I've listened to them, considered it fairly and reached a view based on the evidence," he adds.

Much of what might make an investigation awkward is managing the personalities involved, especially those who are sceptical of the process. As a result, at the outset of an investigation, an investigator should be thinking about how their approach can remain - and be seen to remain - as fair as possible.

To achieve this, Quentin Baker, Director of Law & Governance at Hertfordshire County Council, says it is important the initial assessment is undertaken quickly, "partly to respond to the complainant to ensure that they feel as though their complaint is being treated seriously and also for the subject member because it's often quite a gruelling process for them".

Jonathan Goolden, a Partner at Wilkin Chapman who has investigated Boris Johnson twice in his three-decade-long career in local government, also emphasises the importance of the initial assessment stage.

"I think that there's sometimes a failure to appreciate the assessment stage is really, really important and should follow full reasoning and should involve the independent person," he notes.

Goolden, who has more than 400 code of conduct investigations under his belt, says that even if the complaint is not investigated, the assessment should explain why the complaint will not be subject to investigation. This requires "careful analysis and regard to the council's assessment criteria and the public interest," he says.

Baker adds that at this stage the investigator should be mindful that not all complaints are valid, and some are "very vindictive while others are politically motivated".

Another consideration here is whether the councillor who is the subject of the complaint was acting in their capacity as an elected member at the time.

Baker recalls the complaint brought against Ken Livingstone in 2006 over comments the then-London Mayor made to a reporter outside County Hall, likening them to a concentration camp guard.

The case worked its way up to the High Court, where Mr Justice Collins found Livingstone had not been acting in his official capacity or performing his functions as Mayor at the time, meaning he could not breach the code.

"The High Court said no, he'd actually knocked off for the evening," Baker says, "he no longer had his councillor's hat on, and I personally think that was absolutely the right balance to strike".

Oftentimes, the complaint will be stopped in its tracks if the councillor is found to have not been acting in their capacity as a member.

Goolden recollects a similar complaint he was called into consider involving a councillor who had been riled up about vandalism in his local park.

"He was in the park walking his dog one morning, and he saw a group of young people spraying graffiti on a wall of this building, and he lost it," he recalls.

"He goes up there and gives them what for – a bit of effing and blinding – and they give it back.

"But round the corner comes a social worker who says, 'Oh, councillor x, I didn't realise you'd be here! I just wanted to introduce our youth engagement team, this is part of a public arts project'.

"The councillor at that point goes 'oh'," Goolden laughs.

He continues: "A complaint was made against the councillor for the argy-bargy between him and the young people, and I said, well actually, at that point, he was just a member of the public.

"It's only when the youth worker comes around the corner and they recognise each other as both working for the council that he was actually being a councillor – and from that stage onwards, he was completely civil."

As a result, the case was dropped, and no breach of the code was found.

Interrogation techniques
In cases that go to a full investigation, the second stage is interviewing those involved. A recurring tip from the experts is to make your interviewee feel at ease, be it through pleasantries or detailing the process of the investigation and interview for them.

To start an interview off on the right foot, Goacher says it is important to explain the process and let the interviewee ask any questions.

This not only makes them feel more comfortable but also helps ease any suspicions they may have about the process, he says.

Goolden meanwhile recommends that investigators be prepared to explain to an interviewee who they are and what they are doing "because people really don't understand what it is you're trying to do".

"I think it's also helpful to be very upfront that anything that is said to you may well become public, he says, "you should assume that the investigation reports are going to be published, and if they've got an issue with being named, then try and think about that from the word go."

Claire Ward, who recently joined Anthony Collins as a partner and external investigator after two decades in local government, emphasises that it is also important to empathise with the people you interview.

"Always remembering to be independent but having some empathy about the situation that they're in is important," she explains.

"Usually, people are a bit worked up, and they're a bit nervous about meeting an investigator. So, to begin with, I just let them talk. I let them tell the story first, and then I hook what I need out of it from there."

Ward recommends starting the conversation with an open question.

"I say, 'So, can you tell me what's this all about?' and I find that kind of question lets people feel more relaxed. They start to tell their story, and then it all comes out."

Striking a balance between being non-confrontational but still probing during an interview is also crucial, Ward says.

Describing her method, she says: "You can say 'Can I just check something?', but you have to put the case to them to say 'well it says this, but you're saying something different,' and then they might say 'well that's lying', and you then have to say well 'why would they lie?' You do have to push it.

"Think about how you'd like to be asked that question as well. If you were put on the spot and it makes you squirm, how would you like to be asked that question?

"What doesn't help is being rushed, not being prepared or showing a closed mind in any way in those first conversations," she adds.

But it is not just how you ask questions where an interviewer can trip up, interviewers must also make sure they ask enough of the right questions in the time they have.

Goolden, who has spent much of his career working alongside former detectives, recommends interviewers adopt the 'box' approach to asking questions.

Describing the technique, he says: "You have a number of 'boxes' that you want to ask about.

"So, for example, one of my boxes might be your commute to work this morning, and in our conversation, I might ask you questions about that. But you'll then go off and talk about other things, but I'll go back to your commute, just gently asking those questions until I feel that I've filled that box.

"It might then encourage me to ask a few more searching questions about the detail. So it puts you in your mind of rich recall. What happened to you this morning? What was the rain like during your commute? What did it look like? Did you get wet? How did you get wet? Where did you get wet?

"And already you're starting to think back to how you felt about it, and then you'll start volunteering information which I might not have thought to ask you about."

Goolden also warns that sometimes subject members could seek to avoid an interview entirely, which can impede progress.

He says: "In terms of keeping up momentum, one of the biggest things that holds things up is when a subject member councillor delays the interview – says they're on holiday, says they're ill and keeps delaying the date.

"My tip for an investigator is to find out whether the councillor is attending council meetings because if they are, then they can attend your meeting, and if they don't, then that's something which we would take up with the monitoring officer or chief executive or even group leader."

He adds that if they are legitimately unable or unwilling to attend the interview, the investigator should send them written questions. And if they do not respond to written questions, then the investigator should complete the draft report and send it to the councillor.

"They pretty much always comment on a draft report," he says.

Fallout shelter
Having made it through the interviews, written up a report and come to a conclusion, an investigator may breathe a sigh of relief. But for those who are in-house, the challenges do not end there. The intensely personal nature of most complaints makes managing your post-investigation working relationship with the councillors involved very tough.

Suki Binjal, ex-director of Law at Hackney Council, former interim monitoring officer at Northumberland County Council and a former President of Lawyers in Local Government, recalls one investigation that made for a tricky working environment.

"It was a strained atmosphere and as the monitoring officer, you need to try and remain resilient, which can be difficult. Such a working environment could affect your health and well-being, so look to your colleagues, peers and networking community for support as I did," she says

In the circumstances, Suki was able to resolve the dispute, which had involved a breach of the code, by organising an informal approach, which achieved the same outcome had the matter proceeded to the next stage whilst maintaining the public interest.

In line with the local authority's policy, the monitoring officer could pursue a 'local resolution' if they considered that the matter could be reasonably resolved without the need, in this instance, for a hearing.

However, before the local resolution was recommended, Binjal invited the parties to a meeting.

“Introducing an informal ‘mediation’ approach in the investigation process meant that each party was able to discuss others views and consider the reasons, provided by the monitoring officer, for recommending the outcome (in this instance, an apology) without the need of entering protracted correspondence.”

Binjal explains: “The matter wasn’t buried, as part of the outcome was also to agree that the local resolution would be reported at the next available Standards Committee and in the public domain”.

In or out?

As a monitoring officer, the prospect of avoiding an awkward working relationship with a councillor might be enough to refer the matter to an external investigator. But there are a number of other scenarios in which going external is recommended.

External investigator Goacher says: "I do think if it's a particularly senior member, it makes it extremely difficult even for very strong, resilient senior internal officers to investigate them because there's inevitably going to be some sort of consequence that is going to be quite difficult and it's going to impact relationships in the long term whatever the outcome."

He adds that councils typically externalise investigations involving complaints against the council leader, leader of the opposition, or a senior cabinet member, "and then it's mostly around whether they've got the capacity to do it".

It also frees them up from potential allegations of bias, he says.

Comparing her work as an in-house investigator with her external work, Ward says there is a "big difference".

"The ones I did in local government were more low-level ones, which I had the time and capacity to do – basically, quick jobs that involved talking to a couple of people," she says.

"The investigations I do now are the bigger ones where there's no capacity to do it in-house, or it's potentially more toxic."

Binjal also recommends considering appointing an external investigator, when facing potentially hostile and politically motivated challenges, that could involve accusations of being biased against an in-house investigator. But she also warns that managing your external investigator is very important.

"I inherited some independent investigations at a local authority that had been on- going for 18 months and understandably, the delay in the process was causing distress and affecting all parties involved” she recalls.

She also suggests adopting “a pro-active approach to managing complaints and investigations which have been outsourced”.

“For example, ensure that where any investigation or other action in respect of complaints is outsourced, clear deadlines are agreed at the outset, that there is a person in the MO’s team responsible for monitoring progress; monthly updates are requested from the external provider; any delay beyond 6 months in completion of an investigation from the time of instruction is reported to the Standards Committee, together with reasons – Don't let it drift”

Sanctions
Twelve years ago, Eric Pickles, the then Secretary of State for Communities and Local Government delivered a speech to the 2012 LGA Conference in Birmingham hailing the end of the Standards Board Regime for England – the non-departmental body once tasked with investigating councillor code of conduct complaints.

The regime, which the coalition government viewed as being inconsistent with the principles of localism, was scrapped in England by provisions in the Localism Act 2011 with the expectation that councils conduct their own investigations and judge the behaviour of their councillors against their own codes.

The reforms also saw the abolition of sanctions, including the ability to disqualify or suspend councillors who had breached the code of conduct.

Looking back, Goacher, Goolden, Baker and Binjal all complain of a lack of sanctions available.

Meanwhile, Paul Hoey, who was Head of Strategic Relations at Standards for England, claims the reforms have led to a rise in serious misconduct.

"My instinct is that the number of complaints is about the same, but the issues that are complained about and the more serious misconduct is more significant," he notes.

Hoey was "employee number one" at the now-defunct body after having helped shepherd the legislation for its creation through Parliament, and he recalls being the "last out the door" on the final day.

"I remember describing very early on when the Standards Board was abolished, and the new regime came in that the change was essentially a 'bully's charter'," he notes, "because now you can get away with bullying, and I do see councillors now recognising there is very little that can be done about them and that their behaviour can't be checked."

Hoey would like to see councillors be subject to the same sanctions that MPs face, like suspension and, ultimately, disqualification.

"You can say okay, we've found that you've behaved badly, but what's underlying all that? How do you resolve those issues moving forward? And that's where the lack of support and the lack of aftercare is a real problem, particularly because you can't remove the councillor from the issue," he says.

"Suspension or disqualification is not the golden bullet that's going to make everything better," he admits, "but previously, you could remove them from the problem, and yes, they might then be turning up at the public gallery and still writing the letters and emails, but at least it was a different outside problem.

"Whereas now you can find a councillor who is guilty of bullying the clerk or the monitoring officer, and they're still there, they turn up at the next meeting, and they've not moderated their behaviour."

Speaking more broadly on why some councillors are disruptive, Hoey notes that sometimes personalities can be to blame.

On this point, he says: "One of my frustrations with local government is that if you have officers who've got health issues, they get all the support in the world - there's occupational health, they'll be given time off, etc.

"There's none of that for politicians at all, and I think there's a massive duty of care owed to politicians."

Who looks after them if they are being bullied or if they have an obsessive personality and are sending a volley of emails every day he asks.

"A lot of the cases we deal with, we get so frustrated as we just know they're going to act exactly the same way again because the case is finished and you move on, but the behavioural issue is still there," he adds.

For those councillors, being the subject of a complaint or issuing one will not resolve the problem – regardless of how well-conducted an investigation is.

Adam Carey is a reporter at Local Government Lawyer