Guide: Making a Complaint about a Devon County Councillor

Part 12

Assessment Criteria

Overriding criteria

These three tests will be applied during the initial assessment of a complaint:

  • is the complaint about one or more named members of the County Council?
  • was the subject member in office at the time of the alleged conduct?
  • did the incident complained of  happen before the Council adopted the Code of Conduct?
  • if proven, would the complaint disclose a breach of the Code of Conduct?

No finding of whether there is a breach of the Code

If on the facts it is not possible to determine whether there has been or may have been a breach of the Code and the alleged conduct does not merit an investigation, having regard to the public interest, this is the appropriate finding to make.

No finding of whether there is a breach of the Code but action other than investigation is appropriate

If on the facts it is not possible to determine whether there has been or may have been a breach of the Code, the alleged conduct does not merit an investigation, having regard to the public interest, but the allegation and any response from the subject member disclose an underlying issue that action such as mediation or training on the Code or council procedures might assist with, this is the appropriate finding to make.  The other action information below needs to be considered in these circumstances.

Finding of no breach of the Code

If the facts available demonstrate on the balance of probabilities that there has been no breach of the Code, this is the appropriate finding to make.  If there is no breach of the Code a sanction cannot be imposed but other action such as mediation, conciliation, training or some other form of local settlement might still be considered.

Finding of a breach of the Code without an investigation

A finding that the Code of Conduct has been breached without the need for an investigation will usually be appropriate in the following circumstances:

  • it can clearly be shown that from the information that has been provided by the subject member and the complainant that a breach of the Code has occurred without the need for an investigation
  • the subject member has admitted to the breach of the Code, whether or not they have offered to remedy the breach
  • it can be shown that an investigation is unlikely to be able to establish any further independent relevant evidence regarding the complaint or that the cost of obtaining any further evidence would not be justified having regard to the public interest and that on the evidence supplied a breach of the Code can be shown

A breach of the Code without investigation can only be found if the complaint satisfies the first three initial tests and that it can be clearly shown, on the balance of probabilities, that a breach of the Code of Conduct has occurred.

No Further Action

If a breach of the Code is found but it is trivial, a technical breach or otherwise of limited effect it may be appropriate to take no further action.

Referral for other action

A complaint may be referred for other action in the circumstances listed below.  Other action may be appropriate whether a breach is found or not.  However, in general, other action may be used where the complaint discloses a widespread problem rather than a specific one concerning the members conduct.

Referring a matter for other action effectively closes the door on a review of the decision as the matter cannot subsequently be referred for investigation if the complainant is dissatisfied with the outcome of the other action.  As such, other action should be exercised only where appropriate.  If necessary the assessment of a complaint can be deferred while further information is obtained and other action is being considered.  In addition, the subject member and the complainant can be contacted to see if they will accept other action as a way of resolving the complaint, such as by way of an apology.

The following should be considered in determining whether it is appropriate to refer a complaint for other action:

  • does taking further action provide an opportunity to resolve the issue and to prevent any similar issues arising in the future and promote good governance?
  • does the complaint present a potentially less serious breach of the Code than would require the matter to be referred for investigation and is any benefit to be gained from referring the matter for investigation?
  • is the subject member a member of an authority which appears to have a poor understanding of the Code and relevant procedures?
  • is the council of which the subject member is a member suffering from a widespread breakdown in internal relationships and trust where a course of action other than an investigation of a complaint may be more appropriate and beneficial to that council?

Referral for Investigation

A complaint should usually be referred for investigation in the following circumstances:

  • the complaint has passed the initial tests
  • the subject member has denied the allegations but the information presented indicates that there may be a breach of the Code
  • on the information provided the potential breach of the Code of Conduct is sufficiently serious that an investigation should be undertaken to be discount or substantiate the complaint and to determine what action, if any, is appropriate

Potential offences under the Localism Act 2011

If it is considered that the allegation concerned may disclose an offence under the Localism Act it should be referred to the police or other appropriate person(s) for further consideration as to whether there should be an investigation with a view to prosecution.  No prosecution can be brought without the consent of the Director of Public Prosecutions.

If it transpires that no offence was committed, whether following trial or otherwise, the complaint ought to be reintroduced to this procedure for determination of any breach of the code and appropriate sanction, if any.