Minutes:
Alternative Resolution
The Chairman opened this part of the meeting by inviting the
parties to indicate whether there was any possibility of a
resolution being reached that would avoid the need for a full
hearing. A short adjournment followed
to enable the parties to explore, on a without prejudice basis, the
possibility of reaching a compromise, facilitated by the Monitoring
Officer.
The meeting resumed at 11.45 am when the Sub-Committee were advised that there was no prospect of a compromise being reached between the parties.
Documents
The Chairman confirmed that, in addition to the papers
circulated with the agenda,the Sub-Committee had received Mr
Morland’s e-mails to the
Monitoring Officer dated 27 February 2013; 1 March 2013; 2 March
2013; 6 March 2013 (2); and 18 March 2013.
Independent Person (Subject Member)
Mr
Morland sought an adjournment on the
basis of the objection he had raised in his e-mail to the
Monitoring Officer dated 18 March 2013 regarding the hearing
proceeding in the absence of Caroline Baynes, the independent person allocated for
consultation by the subject member.
Caroline Baynes had advised that she
would be unable to attend the meeting before 1.00 pm due to a prior
unavoidable commitment. Mr Morland
contended that it would be unlawful for the Sub-Committee to
proceed in her absence.
Following representations in response from Mr Cain and advice from
the Monitoring Officer, the Sub-Committee determined:
1. Whilst it was clearly desirable that both independent persons
were present
throughout the preliminary
hearing the Sub-Committee did not accept that
this was required as a
matter of law.
2. In
order to avoid the delay that would result from an adjournment the
Sub-
Committee were minded to
proceed to hear submissions from the parties on
the preliminary matters
before them, but to reserve making any
decision on them until the
subject member had had the opportunity to consult
with the independent
person (subject member) following her arrival at the
meeting.
3. The subject member was
represented and there was no material prejudice to
him in proceeding on
this basis.
Mr
Morland asked for his objection to this
ruling to be recorded.
Jurisdiction
The Sub-Committee heard submissions from Mr Morland and Mr Cain on the question of jurisdiction and, in particular, the effect of the transitional provisions set out in the Localism Act 2011 (Commencement No. 6 and Transitional, Savings and Transitory Provisions) Order 2012 (the ‘transitional regulations’).
The meeting was then adjourned from 12.30 pm until 1.40 pm for lunch.
Upon resuming the meeting the Sub-Committee noted Mr Morland’s continuing objection to the preliminary hearing proceeding in the absence of the independent person (subject member) who had not yet arrived.
Investigating Officer’s Report
The
Sub-Committee went on to hear submissions from Mr Morland and Mr Cain on the content of the
investigation report and the nature and extent of the evidence that
should be considered at any substantive hearing. The following
points were covered:
·
The inclusion of material submitted by Cllr Hawker
in his Updated Response to the Investigation Report dated 14
November 2012 notwithstanding that this referred to matters which
preceded the period covered by the investigation;
·
Whether the investigating officer had exceeded the
scope of his authority by including matters in his report which
were not specified in the complaint, and, if so, whether the report
was legally unsound in part or as a whole;
·
Bias / prejudice on the part of the investigator, as
alleged in the Updated Response of the subject member; the subject
member indicated that he was not relying on bias at this
stage.
·
The relevant law and proper treatment of evidence in
relation to the subject member seeking to demonstrate that he was
justified in making the comments he is alleged to have made, and,
in particular, the effect of Article 10 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms;
·
Witnesses required for any substantive hearing; Mr
Morland confirmed that he wished to
cross examine all of the witnesses who had been interviewed as part
of the investigation and they should therefore be required to
attend any hearing. Mr Cain confirmed
he would arrange for the attendance of the witnesses over and above
those he intended to call, but he pointed out there may be adverse
criticism if their attendance is found to be unwarranted.
In view of the arrival of the independent person (subject member) at approximately 3.00 pm the Sub-Committee adjourned the meeting to give Cllr Hawker (and Mr Morland) the opportunity to consult Caroline Baynes. The meeting then resumed at 3.20 pm.
Independent Persons
The
independent persons were invited to give their views on any matters
they wished the Sub-Committee to take into account. Caroline Baynes
indicated that whilst she was now present and available to the
subject member she felt unable to make any substantial comment on
the earlier proceedings. Colin Malcolm
made observations on the question of jurisdiction and which code of
conduct should apply.
Further
discussions took place regarding witnesses, documentation and the
identification of agreed and disputed facts.
Decision
Having
considered all matters before them and after receiving advice from
the Monitoring Officer the Sub-Committee RESOLVED as
follows:
1.
The issue of jurisdiction and which code of
conduct should apply in respect of the investigation and
determination of this complaint turned on the interpretation of the
transitional regulations, and, in particular, article 7 and the
wording .... the allegation or case
shall be treated as having been made under .... [the new legislation].
2.
On the basis of the
reasoning submitted by Mr Cain, which was accepted, the correct
approach according to the law was to determine the complaint on the
basis of the former code of conduct adopted by Westbury Town
Council but under the new procedure adopted by Wiltshire Council
from 1 July 2012. This was consistent
with the approach taken by the Council in previous
matters.
3.
The material submitted by the subject member in
his Updated Response of 14 November 2013 would be included as part
of the evidence to ensure that the subject member is able to put
his defence to the complaint and the Sub-Committee have all the
relevant facts and background on which to reach a
decision.
4.
The matter should proceed to a substantive
hearing. The subject member’s
challenges regarding the fairness and legitimacy of the
investigating officer’s report will be considered in the
light of all the relevant law and evidence at the substantive
hearing.
5.
The following witnesses will be called to give
evidence at the hearing:
· Mr Taylor - complainant
· Councillor Andrews
· Mr Harvey - Westbury Town Clerk
· Mrs Mantle - Assistant to the Town Clerk
· Councillor Windess
·
Mr Eatwell
In addition to himself Cllr Hawker wished to call:
· John Parker
· Michael Hawkins
·
Charles Finbow
Having regard to Mr Taylor’s
representations the investigating officer should also consider
calling the following as witnesses:
· Mrs Pam Cox-Maidment – Mayor
· Mr H. Prickett
· Mr G. King
6.
The Investigating Officer, in consultation with
the other parties, should prepare the following for circulation to
the Sub-Committee and all parties:
· A table setting out relevant details in summary form, including agreed and disputed facts;
· Agreed documentation taking account of Mr Morland’s e-mail correspondence, in particular, his e-mail of 2 March 2013.
·
Agreed witness list.
7. The substantive hearing to take place on 10 and 11 April 2013 at a venue to be confirmed.