Agenda item

As the parties had previously been advised, the first part of the meeting was set aside to deal with preliminary procedural issues.

 

Mr Keith-Lucas submitted that he and the subject member had received late notification on the previous day that the complainant would be a party to the proceedings and would be legally represented by counsel.  He objected strongly on both points on the grounds that this was unfair to Cllr Humphries and a gross breach of natural justice as he would be facing challenge on two fronts - by the council and by the complainant. He submitted further that if the sub-committee decided to proceed on that basis he and Cllr Humphries would withdraw and take no further part in the proceedings. 

 

After hearing representations from Mr Cain and Mr Harris the sub-committee left the meeting at 10.30am to consider these matters.

 

The sub-committee returned to the meeting at 11.10am and the Chairman announced the sub-committee’s decision as follows:

1. The sub-committee is a sub-committee of the Council and as such were following the procedure adopted by the Council on 26 June 2012, which came into effect on 1 July 2012.The sub-committee were satisfied that the procedure was fair and lawful.

 

2. In that procedure, at paragraph 2.10, the complainant is included as a party and the procedure sets out their right of participation.  This procedure had been available to the subject member since its adoption.

 

3. No decision had been made on the question of legal representation for Ms Densham in advance of the hearing, but it was made clear in an e-mail to Mr Keith-Lucas and his client on 2 October that it would be considered as a preliminary issue at the hearing.

 

4. The complainant was entitled to legal representation to ensure fairness, bearing in mind the other parties were legally represented.

 

5. The sub-committee had examined the e-mail correspondence referred to by Mr Keith-Lucas and could find nothing to contradict the conclusion reached by the sub-committee. .

 

At this point Mr Keith-Lucas reiterated that he and his client would take no further part in the proceedings. They were invited to reconsider their position but did not wish to do so. They were also given the opportunity to address the sub-committee on how the hearing should proceed in their absence.

At 11.15am the sub-committee withdrew to consider the position reached.

During this recess informal discussions took place between all three parties’ legal representatives and the Monitoring Officer about how the hearing should proceed in the absence of the subject member.  Mr Keith-Lucas indicated that he would still expect the sub-committee to consider the three preliminary points that had been raised in Cllr Humphries e-mail dated 24 May 2012.  He was given the opportunity to make oral or written submissions to the sub-committee on the future conduct of the hearing but declined to take this up and then left with Cllr Humphries.

The sub-committee were advised of the position. They consulted the Independent Person, Caroline Baynes, who confirmed her view that it was reasonable in the circumstances to proceed with the hearing in the absence of the subject member.

The sub-committee, therefore, determined that the hearing should proceed in the absence of Cllr Humphries and his legal representative, and that it should first of all deal with the three preliminary points that had been raised.

The meeting resumed at 12.15pm.

The Monitoring Officer summarised the position reached, as set out above, for the record.

The Chairman then read out the three issues raised in the e-mail dated 24 May 2012 from Cllr Humphries and the sub-committee then heard submissions from Mr Cain and Mr Harris on behalf of the investigating officer and complainant respectively on these issues.

After hearing these submissions the Chairman advised the meeting that the sub-committee would withdraw to consider the preliminary issues and would announce their decision on them when the meeting resumed at 9.30am the following day.

 

Before withdrawing, the sub-committee considered an earlier request from Mr Keith-Lucas that Mr Steve Milton, should attend as a witness to give evidence.  After hearing representations on this point the sub-committee decided that his written statement in the agenda agenda was sufficient for their purposes and that it was not necessary for Mr Milton to attend the following day.

 

 

Meeting closed at 12.45pm

 

 

The meeting resumed at 9.30am on Thursday 4 October 2012. Cllr Humphries and his legal adviser were not present.

 

The Chairman opened the meeting by announcing the decision arrived at by the sub-committee regarding the points raised in the e-mail of 24 May 2012.

 

Having taken into account Cllr Humphries’ submissions in support of those points, as set out in the e-mail, the oral submissions made by Mr Cain on behalf of the Investigating Officer and Mr Lance Harris on behalf of the complainant, and on advice from the Monitoring Officer, the sub-committee decided:

1.     Not to agree the subject member’s request that all complaints relating to matters which were more than 12 months old at the date of the complaint  should be  dismissed as individual complaints and admissible merely as ‘similar fact’ evidence.

 

Reasons:

 

a)    There was only one allegation older than 12 months – allegation 1 (e-mail dated 10 December 2009 referring to ‘bovine effluent’.

 

b)    There is no set time limit for bringing a complaint under the previous standards legislation.  The Standards Board guidance recognises that an assessment sub-committee may decide to take no further action due to the historical nature of the complaint but no time limits are specified.

 

c)     Both the Assessment sub-committee and the Consideration sub-committee determined that this allegation should go forward.

 

d)    The sub-committee did not wish to limit its consideration of all the relevant circumstances, including whether a pattern of conduct was  established, by the removal of any of the allegations at this stage.

 

2.     Not to agree the request that all findings under paragraph 3(2)(a) of the Code of Conduct (relating to breach of equality enactments) should be dismissed on the grounds contended by Cllr Humphries.

 

Reasons:

 

a)    Paragraph 3(2)(a) of the Code of Conduct requires that the conduct may cause the authority to breach any of the equality enactments; it does not require that the conduct caused the authority to breach them, as Cllr Humphries suggests.

 

b)    Section 149 of the Equality Act 2010 imposes a positive duty on all public authorities, in the exercise of their functions, to have due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct prohibited by the Act and to advance equality of opportunity and foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

 

c)     A councillor acting in their official capacity, or in particular, chairing or participating in an area board meeting, is carrying out a public function on behalf of the Council.  Therefore, if they act in a discriminatory way in breach of equality legislation they may prevent the Council from fulfilling its public law duty under Section 149.

 

d)    The Council may be liable for any discriminatory acts committed by a councillor acting in their official capacity.

 

e)    The nature of the allegations and findings of the Investigating Officer are such that they should be tested as part of the substantive hearing; it would be premature to dismiss them at this stage.

 

3. Not to agree the request to dismiss allegation 2 (relating to information disappearing down a ‘black hole’) on the grounds submitted – that it was not part of the original complaint and is, therefore, outside the jurisdiction of the Standards Committee.

 

           Reasons:

 

a)    It was open to the Investigating Officer to include further allegations arising in the course of the investigation of the complaint.

 

b)    This is supported by the decision of the Adjudication Panel for England Case APE 0401 in respect of an appeal from Milton Keynes Council’s Standards Committee.  The Panel held:

 

The Original complaint did not fix the scope of the investigation. Rather it was, as with any such investigation, simply the initiating act.  It was therefore perfectly legitimate for the investigating officer ultimately to allege a breach of the Code not identified by Mrs G… in her original complaint.

 

 

Having, therefore, concluded the determination of the preliminary issues the Chairman explained that the substantive part of the hearing would proceed in accordance with the procedure previously circulated.  He then invited Mr Cain, on behalf of the Investigation Officer, to present the investigation report.

 

Mr Cain introduced the case and presented the investigating officer’s report, highlighting the relevant law and matters to be determined, including the weight to be given to Cllr Humphries’ evidence in the light of his decision to withdraw. He submitted, and it was agreed, that he should proceed by formal proof in these circumstances. Mr Cain emphasised the need for the sub-committee to formally receive and consider Cllr Humphries’ statement (at paragraph 103 of the agenda).  The sub-committee agreed that this should be read out by Mr Cain at the relevant stage of the procedure.

 

Mr Harris made an opening statement on behalf of the complainant which included submissions on the following:

 

·       The impact that this had had on the complainant’s professional and personal life. 

·       The daunting prospect of complaining against a member of the council and the fact that this was the first time Ms Densham had ever raised a complaint.  She was not a overly sensitive person and this had been borne out of necessity.  

·        The investigating officer’s report was fully reasoned, impartial and
 justifiable.

·       Having chosen to leave the hearing Cllr Humphries  had deprived the sub-committee of the opportunity of testing his evidence.  Ms Densham was present and was prepared to be questioned.  Her evidence should be given greater weight than hearsay statements from Cllr Humphries that could not be tested.

·       If Cllr Humphries saw fit to use the language in his e-mail dated 24 September 2010 ‘who is the good looking bird at the bottom? ...’ (at page 96 of the agenda) when referring to the complainant it was likely that he did the other things referred to in the complaint.

 

 

Ms Densham was called to give her evidence.  She read out her complaint (pages 54 -58 of the agenda) in full and was referred to various documents in support. She also read out her statement (from pages 82 – 87 of the agenda).The remaining pages (up to page 92 of the agenda) were taken as read. Ms Densham confirmed the truth of her evidence.

Members of the sub-committee questioned Ms Densham on her evidence.

 

Cllr Jemima Milton, Mr Martin Cook and Mr Dave Roberts each read out and confirmed their statements and were asked questions by the members of the sub-committee.

Mr Cain drew attention to the other 8 witness statements in the investigation report and the sub-committee asked for clarification on some points within these.

Mr Cain read out Cllr Humphries’ statement.

 

Ms Densham was asked some further questions by members of the sub-committee on matters arising from Cllr Humphries’ statement.

 

Mr Harris and Mr Cain made concluding submissions.

 

At 2.45 pm the sub-committee adjourned to consider the case. During this time the views of the Independent Person were obtained.

 

The meeting resumed at 5.35pm

 

 

The views of the Independent Person, Caroline Baynes, were summarised as follows:

 

 

a.     Given that Cllr Humphries had withdrawn from the process at an early stage, the process was fair in that;

·       due regard was given by the sub-committee to his position and members had fairly put to the complainant challenges which he had made to her evidence;

·       the report prepared by the Investigating Officer was comprehensive and exhaustive;

·       witnesses were available to Cllr Humphries, albeit that in the event he chose not to partake of the opportunity to question them.

 

b.     The difficulty for the complainant, given the nature of the complaint, was appreciated. The sub-committee should not underestimate the effect of the behaviour complained of and of participating in the process of hearing the complaint.

c.     A number of witnesses were available, some of whom corroborated the complainant’s evidence and some who supported Cllr Humphries, and the sub-committee was taken through each allegation of breach and the evidence in respect of each in a full and fair way.

d.     No inference should be taken from the failure by Cllr Humphries to join in the process per se. He is legally advised and it was perfectly reasonable for him to follow such advice as he has been given. His failure to participate, however, did mean that his evidence was prevented from carrying the same weight as that of the complainant which had been able to be tested.  That was of course his choice.

e.     Although the reasons why this matter had taken so long to be heard were understood it was disappointing that this was the case.

f.       It was also disappointing that the behaviour was not dealt with earlier, particularly as the sub-committee heard Cllr Humphries’  behaviour and general demeanour was well known,  but apparently not challenged formally prior to the complainant doing so. It was also a matter of regret that the complainant’s line manager was not able to take the matter forward once it was brought to their attention.

g.     It was clear from the proceedings that a more appropriate forum is needed for early and sensitive resolution of employee / councillor complaints and whilst this may be beyond the remit of the role of both the Independent Person, and the sub- committee, it is hoped that this will be noted and taken forward by the Council.

 

 

 

DECISION

Having considered carefully all the evidence before them, the submissions made on behalf of the parties, and the views of the Independent Person, the sub-committee decided as follows:

 

These matters were to be determined under Wiltshire Council’s previous Code of Conduct (as set out at paragraphs 67 -75 of the agenda) as this was the code of conduct in force at all material times and was the basis on which the allegations were investigated.

Cllr Humphries was at all material times acting in his official capacity as a member of Wiltshire Council and, therefore, the above Code of Conduct applied – paragraph 2(1).

 

All uncontested findings of fact set out in the schedule in Appendix A of the Investigating Officer’s report, as appended to these minutes, were accepted.

 

The sub-committee had regard to the relevant law and Standards for England guidance, as set out at pages 173-178 of the agenda.

They were mindful of the fact that Cllr Humphries had chosen to withdraw from the hearing, which meant that it had not been possible to test his evidence in the same way as the evidence given by Ms Densham and the other witnesses, all of whom had presented their evidence and answered questions from members of the sub-committee. In these circumstances the sub-committee considered that they should necessarily give less weight to Cllr Humphries’ evidence in determining the allegations.  

 

 

In relation to the 7 allegations before them the sub-committee found:

Allegation 1             10 December 2009 – e-mail from Cllr Humphries to Ms                    

                                    Densham in which Cllr Humphries states: ‘Well done, I
                                   could not have thought of such bovine effluent as this!!’ 

 

 

The comments in Cllr Humphries’ e-mail related to the e-mail Ms Densham had sent to an applicant for grant from the area board. These comments were unwise, given particularly the fact that Ms Densham had only just taken on the role of temporary Marlborough Community Area Manager,  but the sub-committee did not consider that they amounted to a failure to treat Ms Densham with respect at that stage, nor a breach of any other provisions of the Code.

 

 

No breach.

 

 

Allegation 2             Late 2009 or early 2010 – Marlborough Area Board
briefing meeting – Alleged Cllr Humphries made

reference to information provided to a particular

individual as  having disappeared down a black hole

 

 

In making this remark Cllr Humphries intended to refer to matters not being dealt with and was not directing this to the individual. Whilst it was an unwise choice of language it did not give rise to any breach of the Code.

 

 

No Breach

 

 

 

Allegation 3             24 September 2010– e-mail from Cllr Humphries to Ms Densham which states ‘Also, who is the good looking bird at the bottom? I did not realise that colour photography had been around so long.’

The sub-committee felt that this use of language towards a female officer was

unacceptable and inappropriate. They concluded that this conduct amounted to a failure to treat Ms Densham with respect and further was such as may cause the Council to breach the equality enactments, for the reasons set out in the investigating officer’s report, in particular at paragraphs 8.19 – 8.21 and 8.47.

 

 

Breach: paragraphs 3(1) – failure to treat with respect and 3(2)(a)-

conduct which may cause the authority to breach any of the equality

enactments.

 

 

Allegation 4             28 September 2010 – Marlborough and Villages Community Area Partnership briefing meeting – Following the meeting Cllr Humphries and Ms Densham continued a discussion in Cllr Humphries’ car, during which it is alleged he used offensive language, stroked Ms Densham’s arm and enquired about her daughters.

The sub-committee concluded on a balance of probabilities that Cllr Humphries did on this occasion use the expression ‘ rod-ing’ in the context described in the complaint and that a conversation took place about Ms Densham’s children.

The sub-committee were unable to make any finding in relation to the allegation that he stroked Ms Densham’s arm as the evidence on this aspect was inconclusive.

 

Use of the expression ‘rod-ing’ in this context was, in the sub-committee’s view, offensive and highly inappropriate. It was disrespectful and degrading to women and was regarded as conduct that could cause the authority to breach its statutory equality obligations.  

 

 

Breach: paragraphs 3(1) – failure to treat with  respect and 3(2)(a) –

conduct that may cause the authority to breach the equality enactments

 

 

Allegation 5                      7 October 2010 – Marlborough Community Area Transport Group meeting – Alleged that at the meeting Cllr Humphries made comments about the fact that Ms Densham had been to his house and he also stated ‘ Julia enjoys a nibble’. Additionally that he used sexual innuendo to explain how the telescopic poles of the projector fit together.

 

 

The sub-committee were satisfied that during the introductions at the start of the meeting on 7 October 2010 Cllr Humphries did make a comment about the fact that Ms Densham had been to his house.  At the end of the meeting, after thanking Ms Densham for providing the biscuits for the meeting, Cllr Humphries added that ‘Julia enjoys a nibble’. The fact that this comment was made with reference to a specific individual, namely Ms Densham, led the sub-committee to conclude that it was accompanied by sexual innuendo. The sub-committee further concluded that Cllr Humphries had used inappropriate actions and sexual innuendo to explain how the telescopic poles of the projection screen fit together. 

This conduct had the effect of violating the complainant’s dignity and created a humiliating and offensive environment, having regard particularly to the fact that Ms Densham was new in her role and that other persons were present. The sub-committee, therefore, determined that these actions showed a lack of respect, that they were such as may cause the authority to breach the equality enactments, and they were of a nature that amounted to bullying.

 

 

Breach: paragraphs 3(1) – failure to treat with respect; 3(2)(a) – conduct that may cause the authority to breach the equality enactments; 3(2)(b)- bullying

 

 

Allegation 6                                – 25 January 2011 - Marlborough Community Area Transport Group – Alleged that prior to the start of the meeting Cllr Humphries grabbed Ms Densham’s scarf and made a playful gesture as if to strangle her with it.

The sub-committee were satisfied on a balance of probabilities that the incident with the scarf did take place, as summarised at paragraph 40 of the

investigating officer’s findings of fact at Appendix A.  This was inappropriate

behaviour, especially when viewed in the light of the previous challenge Ms

Densham had made against Cllr Humphries  on 7 October 2010. It was

disrespectful and such as may cause the authority to breach the equality

enactments.   

 

 

Breach: paragraphs 3(1) – failure to treat with respect and 3(2) (a)

conduct that may cause the authority to breach the equality enactments

 

 

Allegation 7                      7 June 2011 – Marlborough Area Board briefing meeting – Alleged that during the meeting Cllr Humphries stated that ‘Steve Milton can go to hell’. He also commented that Ms Densham was rubbish at her job and was overly harsh to Mr D Roberts, using a dismissive hand gesture.

The sub-committee found that Cllr Humphries did speak to Mr Roberts

using words to the effect that Ms Densham was rubbish at her job. This

was inappropriate, undermining and showed a lack of respect.  Having

regard to the cumulative effect of Cllr Humphries’ behaviour towards Ms

Densham the sub-committee felt that it also amounted to bullying.

 

 

Breach: paragraphs 3(1) – failure to treat with respect and 3(2)(b) bullying.

 

 

Taking into account all the circumstances the sub-committee further concluded that the actions of Cllr Humphries over the period in question established a pattern of inappropriate and unacceptable conduct, the cumulative effect of which supported the findings of bullying in relations to allegations 5 and 7 above, and impacted adversely on the complainant.

Having determined the above breaches of the Code the sub-committee heard submissions from Mr Cain on the question of sanctions and then withdrew to consider this part of the case.

Upon returning the Chairman reported that the sub-committee had decided to impose the following sanctions in accordance with paragraph 9 and Annex 1 of the Procedure:

 

1. To censure Cllr Humphries in respect of his conduct, such censure to be communicated by letter from the Monitoring Officer.
2. To publish the minutes of the sub-committee’s meeting recording the decision on the Council’s web-site noting that the minutes will be  reported to the Standards Committee on 24 October 2011 and full Council on 15 November 2011.
3. To recommend the Leader to request the Marlborough Area Board to consider the appropriateness of Cllr Humphries continuing as chairman of the Area Board in the light of these findings.