Ombudsman finds fault with ‘number of aspects’ of council investigation into member conduct

The Local Government and Social Care Ombudsman has found that Teignbridge District Council’s investigation into a member’s conduct was flawed.

Teignbridge investigated the actions of a councillor, Cllr Daws, after it alleged he had acted ‘contrary to its Code of Conduct’.

Cllr Daws complained to the Ombudsman that the council failed to follow due process when investigating him, leading to him being “unfairly sanctioned” with damage to his “personal and professional reputation”.

He complained that the council:

• initiated an investigation without receiving any complaint about his conduct which is contrary to the law and its own policy;
• misled him into believing such a complaint had been made;
• did not disclose details of any such complaint as might have been made; and
• did not carry out due diligence of an independent investigator appointed to investigate the complaint.

The Ombudsman found fault with a “number of aspects” of the council’s investigation. It concluded that the investigation was not prompted by a formal written complaint, contrary to the law.

The Ombudsman considered the Localism Act 2011, which says: “to trigger any investigation of an alleged breach, the Council must receive details of that allegation in writing”.

The Ombudsman revealed that during its investigation, the council said that “it is apparent that no formal complaint was received with regards to the conduct of Councillor Daws”. But that its monitoring officer did receive “written complaints/concerns/ allegations” about Cllr Daws which they “considered were written allegations”.

The council suggested it would be “perverse” if its monitoring officer had to require a “written complaint” if aware of inappropriate conduct.

It suggested to the Ombudsman that “the full records of the complaints received by the monitoring officer may have been lost due to the passage of time”, the report revealed.

The council also did not give the councillor enough information about his alleged breaches of its Code, the Ombudsman suggested.

Teignbridge introduced new allegations during the process, but the independent investigator appointed to look at the case did not make it clear to Cllr Daws whether these were part of the investigation, the report noted.

The Ombudsman also found that the inquiry into Cllr Daws’ conduct was conflated with accusations levelled at another councillor who was also being investigated at the same time.

The report revealed that the council failed to reflect on the investigation and consider whether due process had been followed after Cllr Daws raised legitimate concerns about the way the investigation was being carried out.

Lastly, the council failed to consider Cllr Daws’ enhanced right to free speech as an elected representative, which was relevant when the council considered his justification for certain comments he acknowledged making or posted on social media, the Ombudsman said.

The Ombudsman made a number of recommendations to improve the council’s processes following the investigation, but it has revealed the council has “not yet agreed to accept these”.

To remedy the injustice caused, the Ombudsman recommended the council:

• apologise to Cllr Daws, accepting the findings of this investigation;
• rescind its decision notice of 22 July 2020 upholding the complaint Cllr Daws breached the Code and ensure this is no longer available on its website. In its place it should provide a statement saying the notice has been withdrawn following this investigation and provide a link to this report.

The Ombudsman also recommended that the council should ensure it has a written procedure for officers and independent investigators asked to consider standards complaints.

Michael King, Local Government and Social Care Ombudsman, said: “Local councillors have a key role in scrutinising their authorities’ actions, and have an enhanced right of free speech to ask what might at times appear to be uncomfortable questions. Councils need to bear this in mind when deciding what constitutes a breach of their Code of Conduct.

“While both officers and members have a right to be treated with dignity and respect at work, and councils’ desire to do more to protect them from poor treatment is to be encouraged, they still need to carry out investigations into councillor standards fairly and properly.

“I look forward to the council considering my report at a senior decision-making level and hope it accepts the recommendations I have made to improve its processes and procedures.”

A Teignbridge District Council spokesperson said: “We are disappointed that the Ombudsman concluded that contrary to what they believed at the time, our staff did not follow the correct procedures in relation to complaints against Cllr Daws.

“We are already in the process of reviewing the constitution, including members’ conduct, our processes and record keeping and in the coming weeks we will review our current approach in the light of the Ombudsman’s findings and recommendations.

“We apologise to Cllr Daws for the failure in our procedures and the impact that had on him.

“We must continue to ensure that officers are respected and supported to offer a professional, impartial and valuable service and that members conduct themselves in accordance with the Nolan Principles enshrined in the Council’s Code of Conduct which all members have signed.”

Lottie Winson