Jurisdiction and Local Assessment Criteria

Jurisdiction

Before assessment of a complaint begins, the Monitoring Officer, in consultation with the Independent Person, should be satisfied that the complaint meets the following tests:

  1. it is a complaint against one or more named Members/voting co-opted Members (“Members”) of the authority or of a parish or town council within the council’s area;
  2. the named Member was in office at the time of the alleged conduct and the relevant Code of Conduct was in force at the time.    
  3. the complaint, if proven, would be a breach of the Code under which the Member was operating at the time of the alleged misconduct.

If the complaint fails one or more of these tests it cannot be investigated as a breach of the Code, and the complainant must be informed that no further action will be taken in respect of the complaint.

Assessment Criteria

All complaints falling within the jurisdiction of the standards regime will be assessed by the Monitoring Officer, in consultation with the Independent Person, in accordance with the criteria below. 

More than one criteria may be applicable to a complaint.

1. Capacity

Was the Member acting in their official capacity at the time of the alleged conduct?

If the answer is no, then unless there is some direct link between the activity and the Member’s office, the Code did not apply to the Member at the time of the alleged conduct and therefore there can be no breach of the Code. The response should therefore be: “The Member concerned was not acting in their official capacity at the time of the alleged conduct and therefore the Code of Conduct for Members did not apply to the Member at that time.  Consequently, no potential breach of the Code has been disclosed and no action may be taken in respect of the complaint.”

The Code does not currently apply to Members’ conduct outside of the performance of their functions as Members.  Only if they have engaged in private conduct/activity which has a link with the functions of the office of member, might the conduct in question be covered by the Code.

2. Triviality

Is the complaint too trivial to warrant further action?

If the answer is yes: “The matter is not considered to be sufficiently serious to warrant further action.”

3. Sufficient Information

Has the complainant submitted enough information to satisfy the Monitoring Officer assessing the complaint that the complaint should be referred for investigation or other action?

If the answer is no, the response should be: “The information provided was insufficient to make a decision as to whether the complaint should be referred for investigation or other action. So unless, or until, further information is received, the Monitoring Officer is taking no further action on this complaint.”

4. Current Membership

Is the complaint about someone who is no longer a Member of the authority, but is a member of another authority? If so, does the Monitoring Officer wish to refer the complaint to the monitoring officer of that other authority?

If the answer is yes: “Where the member is no longer a member of our authority but is a member of another authority, the complaint will be referred to the Monitoring Officer of that authority for consideration.”

5. Prior Investigation/Action

Has the complaint already been the subject of an investigation or other action relating to the Code of Conduct? Similarly, has the complaint been the subject of an investigation by other regulatory authorities?

If the answer is yes: “The matter of complaint has already been subject to a previous investigation or other action and there is nothing more to be gained by further action being taken.”

6. Passage of Time

Is the complaint about something that happened so long ago that there would be little benefit in taking action now?

If the answer is yes: “The period of time that has passed since the alleged conduct occurred was taken into account when deciding whether this matter should be referred for investigation or further action. It was decided under the circumstances that further action was not warranted.”

7. Underlying Motivation

Does the complaint appear to be simply malicious, vexatious, politically motivated or tit-for-tat?

If the answer is yes: “The matter appears to be simply malicious, vexatious, politically motivated or tit-for-tat, and not sufficiently serious, and it was decided that further action was not warranted”.

8. Anonymous Complaints

Is the complaint under consideration anonymous?

If the answer is yes, the Monitoring Officer will only refer such a complaint for investigation or some other action if it includes documentary or photographic evidence indicating an exceptionally serious or significant matter and/or if there is a significant public interest in doing so.

9. Requests for Confidentiality

Has the complainant asked for his/her identity to be withheld?

If the answer is yes, the Monitoring Officer will need to consider the request by the complainant for confidentiality alongside the substance of the complaint itself. 

As a matter of fairness and natural justice, Members will usually be told who has complained about them. Requests for confidentiality should only be granted in exceptional circumstances and at the discretion of the Monitoring Officer, in consultation with the Independent Person. 

The following considerations may assist the Monitoring Officer’s deliberations in this respect:

  1. Whether the complainant has reasonable grounds for believing that they will be at risk of physical harm if their identity is disclosed;
  2. Whether the complainant is an officer who works closely with the subject Member and they are afraid of the consequences to their employment or of losing their job if their identity is disclosed (this should be covered by the council’s Whistle-Blowing Policy);
  3. Whether the complainant suffers from a serious health condition and there are medical risks associated with their identity being disclosed. In such circumstances, the Monitoring Officer may wish to request medical evidence of the complainant’s condition. In such cases, the Monitoring Officer may give the complainant the option of requesting a withdrawal of their complaint;
  4. Whether the disclosure of the complainant’s identity is necessary for the investigation of the complaint; for example, this may be relevant in a bullying allegation.  In such cases, the Monitoring Officer may give the complainant the option of requesting a withdrawal of their complaint;
  5. Whether it is possible to investigate the complaint without making the complainant’s identity known;
  6. Whether the public interest in proceeding with an investigation outweighs the complainant’s wish to have their identity withheld from the subject Member.

Where the Monitoring Officer decides to refuse a request by a complainant for confidentiality, the Monitoring Officer may, in the particular circumstances, decide to offer the complainant the option to withdraw the complaint, rather than proceed with their identity being disclosed.

10. Withdrawal of Complaints

Has the complainant indicated that s/he wishes to withdraw his/her complaint?

If the answer is yes, the Monitoring Officer will need to decide whether to grant the request. The following considerations may assist the deliberations in this respect:

  1. Does the public interest in taking some action on the complaint outweigh the complainant’s desire to withdraw it?
  2. Is the complaint such that action can be taken on it, for example, an investigation, without the complainant’s participation?
  3. Is there an identifiable underlying reason for the request to withdraw the complaint? For example, is there information to suggest that the complainant may have been pressured to withdraw the complaint?

Possible decisions

The Monitoring Officer assessing a complaint may decide to refer the complaint for investigation or other action (for example, training, conciliation); or may decide that no action should be taken in respect of the complaint.