Part 5 - Protocol for Councillor - Officer Relations
1 INTRODUCTION
1.1 The purpose of this protocol is to guide Members and employees of the Council in their relations with one another.
1.2 Given the variety and complexity of such relations this protocol does not seek to be either prescriptive or comprehensive. It seeks simply to offer guidance on some of the issues which most commonly arise.
1.3 This protocol also seeks to reflect the principles set out for or underlying the respective codes of conduct which apply to Members and employees. The shared object of these codes is to enhance and maintain the integrity (real and perceived) of local government and they, therefore, demand very high standards of personal conduct.
1.4 The protocol reflects good practice. It aims to provide an open and honest working relationship between Members and employees which ensures the delivery of the Council’s statutory and other proper functions in a transparent and accountable way.
2 PRINCIPLES
2.1 That the mandatory provisions of the Model Code of Conduct apply to all Members. Breach of those provisions can be the basis for a complaint to the Standards for England, The employees Code of Conduct is part of the terms of conditions of their employment. Employees are accountable to their Senior Manager and while employees will seek to assist any Member they must not be asked by Members to go beyond the bounds of whatever authority they have been given by their Senior Manager.
2.2 Any dispute over any provision of this protocol in relation to employees should be referred in the first instance to the responsible service manager or the Chief Executive. If agreement cannot be reached the Chief Executive will seek to resolve the issue in conjunction with the Leader of the Council and/or the Leader of the appropriate party group. Issues relating to employee conduct will be dealt with under disciplinary procedures. Any unresolved dispute relating to Member conduct under this protocol will be determined by the Ethical Standards Committee in accordance with Article 7 of the Council’s Constitution.
2.3 This protocol is also read in conjunction with the Planning Code and the Protocol on Hospitality and any other policies of the Council, for example the Whistle-Blowing Policy (Public Interest Disclosure) and the Harassment and Bullying Policy.
3 MEMBERS CODE OF CONDUCT
3.1 The relevant Authority’s (General Principles) Order 2001 specified the principles which were to govern the conduct of Members. These are set out in the schedule to this protocol. However, particular attention is drawn to principle No. 7:
“7. Respect for Others – Members should promote equality by not discriminating unlawfully against any person and by treating people with respect regardless of their race, age, religion, gender, sexual orientation or disability they should respect the impartiality and integrity of the Authority's statutory officers and its other employees.”
The Model Code of Conduct provides:-
“General Obligations
2. A member must:
(a) promote equality by not discriminating unlawfully against any person;
(b) treat others with respect; and
(c) not do anything which compromises or which is likely to compromise the impartiality of those who work for or on behalf of the Authority.
6.(1) A member must, when reaching decisions:
(a) Have regard to any relevant advice provided to him by –
(1) The Authority’s Chief Finance Officer acting in pursuance of his duties under Section 114 of the Local Government Finance Act 1988; and(2) The Authority’s Monitoring Officer acting in pursuance of his duties under Section 5(2) of the Local Government and Housing Act 1989.
(b) Give the reasons for those decisions in accordance with the Authority’s and any statutory requirements in relation to the taking of an Executive decision.”
4 EMPLOYEE CODE OF CONDUCT
4.1 The Employee Code of Conduct was drawn up broadly in line with the Local Government Management’s Board Code of Conduct for local government employees with variations to reflect North East Derbyshire’s conditions and circumstances.
“(1) Standards
Employees are expected to give the highest possible standard of service to the public and where it is part of their duties to provide appropriate advice to other employees and Members with impartiality and courtesy.”
(2) Disclosure of Information
(i) The law requires that certain types of information must be made available to Members, Auditors, Government Departments, Service Users and the public.
(ii) Under the Local Government Act 1972 the public have a right to see certain information. In most circumstances these rights are related to Committee Reports and background documents.
(iii) Employees must not use any confidential information obtained in the course of their employment for personal gain or benefit nor shall they use it to pass onto others who might use it in such a way.
(iv) Only employees authorised by a Senior Officer or Senior Manager to do so may talk to the press or otherwise make public statements on behalf of their Service or Directorate. Generally an employee contacted by the press should refer the matter to the Communications Unit who will deal with it as appropriate.”
(v) The Local Authorities Executive Arrangements (Access to Information) (England) Regulations 2000 provide additional rights of access to documents for Members of Overview and Scrutiny Committees.
“(3) Political Neutrality/Activities
(i) Employees serve the Council as a whole. It follows, therefore, that they must serve all Members, not just the Members of any controlling group and must ensure that the individual rights of all Members are respected.
(ii) Some senior employees will be expected within the Council’s guidelines to advise political groups. These employees have a duty to advise minority groups as well as the majority group.
(iii) Some employees who are normally those in more senior positions are in politically restricted posts and by law are prevented from taking part in certain political activities outside their work. Employees who are in this position should have been told of this in writing and of the rules about claiming exemption but any employee who is in doubt about their position should contact a Senior Officer.
(4) Relationships
Some employees are required to give advice to Members as part of their job. Mutual respect between employees and Members is essential to good local government but close personal familiarity between employees and individual Members can damage the relationship and prove embarrassing to other employees and should, therefore, be avoided.”
5 ADVICE TO PARTY GROUPS
5.1 Party group meetings form part of the preliminaries to Council decision making and are not empowered to make decisions on behalf of the Council. Conclusions reached at such meetings do not, therefore, rank as Council decisions. Members must not ask employees to implement a party group decision unless and until that decision has been properly taken in accordance with the Council’s Constitution:-
“2.6 Where officers provide information and advice to a party group meeting in relation to a matter of Council business this cannot act as a substitute for providing all necessary information and advice to the relevant meeting of Cabinet or a committee when the matter in question is considered.”
Any particular cases of difficulty or uncertainty in this area of employee advice to party groups should be raised with the Chief Executive who will discuss them with the relevant group Leaders.
6 SUPPORT SERVICES TO MEMBERS AND PARTY GROUPS
6.1 The only basis on which the Council can lawfully provide support services (e.g. stationery, typing, printing, photocopying, transport etc) to Members is to assist them in discharging their role of Members of the Council. Such support services must, therefore, only be used on Council business. They should never be used in connection with party political or campaigning activities or for private purposes.
7 MEMBERS’ ACCESS TO INFORMATION, COUNCIL DOCUMENTS AND EMPLOYEE ADVICE
7.1 Members will need in the discharge of their duties to access information from employees, this will usually be most efficiently achieved through the Senior Managers who are able to provide an overview or direct the Member to the most appropriate employee. For individual cases Members may approach case officers, but junior staff are entitled to refer the Member to the responsible Senior Manager.
7.2 Members who wished to obtain information from employees should request it as early as possible recognising that employees may require reasonable time to collate or research the information. Members will state any deadline for the provision of this information. This also applies where a Member wishes to obtain information to supplement a report after the agenda for a meeting has been issued.
7.3 Employees will make every reasonable effort to provide Members with accurate factual information and professional advice in a timely manner, unless this would exceed the officer’s authority or there are lawful reasons to prevent disclosure of the information.
7.4 Members have the same statutory right as any member of the public to inspect any Council document which contains material relating to any business which is to be transacted at a Council or Committee meeting or a meeting of Cabinet and any relevant background papers. This right applies irrespective of whether or not the Member is a Member of the committee concerned or acting as a substitute. This right does not, however, apply to documents relating to items containing information which is exempt from publication. Correspondence held by the Monitoring Officer in relation to his/her duties is similarly exempt unless released by him/her in the interest of furthering any enquiry.
7.5 The common law right of Members is much broader and based on the principle that any Member has a prima facie right to inspect Council documents so far as his/her access to the documents is reasonably necessary to enable the Member to perform properly his/her duties as Member of the Council. This principle is commonly referred to as the ‘need to know’ principle and will be determined in the first instance by the particular Senior Manager whose service holds the document in question. Any disputes may be referred to the Monitoring Officer whose decision shall be final. Written reasons will be provided on requests.
7.6 A Member who requests to inspect documents which contain personal information about third parties will normally be expected to justify their request in specific terms.
7.7 A Member of one party group will not have a ‘need to know’ and, therefore, does not have a right to inspect any document which forms part of the internal workings of another party group and is in the possession of the Council or of an individual employee.
7.8 A Member of an Overview and Scrutiny Committee of a Local Authority shall be entitled to a copy of any document which:
(a) is in the possession or under the control of the Cabinet of that Authority; and
(b) contains material relating to:-
(i) any business that has been transacted at a private meeting or a public meeting of a decision making body of that Authority;
(ii) any decision that has been made by an individual Member of that Cabinet in accordance with Cabinet arrangements; or(iii) any key decision that has been made by an officer of the Authority in accordance with Executive arrangements.
7.9 No Member of an Overview and Scrutiny Committee shall be entitled to a copy:-
(a) of such document or part of a document as contains exempt information or confidential information unless that information is relevant to:
(i) an action or decision that he/she is reviewing or scrutinising; or which is relevant to any review contained in any programme of work of such a committee or sub-committee of the committee; or(ii) of a document or part of a document containing advice provided by a political adviser or assistant.
7.10 More detailed advice regarding Members’ rights to inspect Council documents may be obtained from the Monitoring Officer.
7.11 Any Council information is provided to a Member on the basis that it must only be used by the Member in connection with the proper performance of the Member’s duties as a Member of the Council. This forms part of the Council’s data protection requirements. This obligation for confidentiality is part of the Model Code of Conduct and is set out at paragraph 3 in it.
8 RELATIONSHIPS BETWEEN OFFICERS AND CABINET MEMBERS/ CHAIRS OF COMMITTEES/LEADER
8.1 It is important to the efficient discharge of the Council’s functions that there should be a good working relationship between Members of the Cabinet , Senior Officers and Senior Managers and between the Chair of a committee and the lead officer and other senior officers who deal with matters within the terms of reference of that body. However, such relationships should never be allowed to become so close, or appear to be so close, as to bring into question the employee’s ability to deal impartially with other Members and other party groups.
8.2.1 Senior Officers and Senior Managers frequently write reports having undertaken background research and professional and technical appraisals of proposals.
8.2.2 These reports are then presented by the Cabinet Member with Portfolio.
8.2.3 Members must accept that in some situations officers will be under a duty to submit an opinion or advice in a report on a particular matter. In those situations the officer will always be fully responsible for those elements of report submitted in the Member's name.
8.2.4 The principles set out in paragraph 8.3 and 8.4 below will apply to such elements of the report.
8.3 Where an officer wishes to consult a Cabinet Member or Chair as part of the preparation of a report to a decision making body within the Council’s Constitution, the following principles will apply. The Cabinet Member or Chair may ask the report author:
(1) To include particular options;(2) To clarify the report by expanding, simplifying or re-phrasing any part of the report or including other particular information;(3) To check or correct any error or omission of any matter or fact including statements of summaries of policy or budget;(4) To check or correct any typing errors, omissions or duplications;(5) To check any estimate of costs or savings.
8.4 The Cabinet Member or Chair may not ask officers:
(1) To exclude any option contained in the draft report ;(2) To exclude or alter the substance of any statement in the draft report of any officers’ professional opinion.(3) To alter the substance of any recommendations that compromises the officer’s integrity or would result in illegality;(4) To exclude any statement that a course of action would be a “key decision” or would be contrary to a policy or budget or to exclude any statement regarding legality, fairness or financial prudence, made by officers exercising their designated functions under Article 10 of the Council’s Constitution;(5) To exclude any report, comments or representations arising from consultations, publicity or supply of information to the community.
8.5 Certain statutory functions are undertaken by officers. Their reports on such matters are then their own full responsibility.
9 SCRUTINY ARRANGEMENTS
9.1 The principles of the Employee’s Code of Conduct remain in place under the Cabinet arrangements. However, these new arrangements raised particular issues for local authority employees because:-
(a) The advice which officers have given to the Cabinet, its Members or to any group may now be subject to scrutiny and examined by an Overview and Scrutiny Committee.(b) Officers may have written reports for presentation by a Cabinet Member with Portfolio or provided advice to the Cabinet. Where such a decision is subject to Scrutiny by an Overview and Scrutiny Committee in their overview and scrutiny roles, or when a decision is called-in, an officer may provide information or advice to an Overview and Scrutiny Committee. Members must recognise that there is an inherent tension between these two roles. As circumstances change or more information comes to light, advice may reflect the difference.(c) Overview and Scrutiny Committees or their members will need active assistance from officers if they are to perform their role of scrutinising the Cabinet effectively.
These factors will require understanding by Members of the role that officers have to perform.
10 OVERVIEW AND SCRUTINY
10.1 The scrutiny role of the Council is performed by Overview and Scrutiny Committees and the Ethical Standards Committee. Employees may need to attend an Overview and Scrutiny Committee to give evidence and assist it in its scrutiny.
10.2 Where an employee is required to attend before an Overview and Scrutiny Committee, to report to it or provide evidence for it, it shall be his/her duty to do so, or to provide an explanation as to why he or she is unable or unwilling to do so. If after considering his/her report the Overview and Scrutiny Committee insist on him/her providing the information requested he/she must do so or appeal to the Ethical Standards Committee.
10.3 Where an Overview and Scrutiny Committee or the Ethical Standards Committee has resolved to undertake a review it is the duty of the Senior Officers and Senior Managers to co‑operate fully with the review or to arrange for a senior member of his/her staff to act in their place. This duty extends beyond merely answering the Committee’s questions and involves a requirement to assist the Committee in addressing the right questions and seeking the information which may be required to help them in their work.
11 PUBLICITY
11.1 The Council abides by the provisions of the DETR Local Authority Publicity Code (April 2001).
11.2 Information on Council services will be produced in collaboration with the Communications Unit and will be impartial reflecting Council approved policy.
11.3 All news releases will be written and issued by the Communications Unit following consultation with the Senior Officers and Portfolio Member concerned.
11.4 Publicity will not be party political and will report on and reflect Council policy.
11.5 Media requesting political comments will be referred to the political group Leaders.
11.6 It is the intention of the Council to make public information available on the web site accessible to Members and residents as resources allow.
12 THE ROLE OF THE HEAD OF THE PAID SERVICE (CHIEF EXECUTIVE)
12.1 The Chief Executive has a specific statutory function in relation to employees, appointment, discipline, terms and conditions of employment and collective bargaining. Members will recognise and respect those responsibilities and duties.
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