Issue - meetings

(LGA 1972, Sch 12A Paragraph 1 and 2 – Information relating to an individual and information which is likely to reveal the identity of an individual)

Members are asked to consider a report in respect of a complaint that a Borough Councillor had breached the Members Code of Conduct.

On 8 December 2023, the Hearing Panel of the Tonbridge and Malling Borough Council considered a report of an investigation into the alleged conduct of Tonbridge & Malling Borough Councillor Mark Hood (the “Subject Member”). The investigation was conducted by Mr Richard Lingard LLB, an investigator appointed by the Monitoring Officer.

A general summary of the complaint is set out below.

1.         Complaint Summary

1.1       On 6 June 2023 the Monitoring Officer received a complaint from Cllr Matt Boughton, Leader of Tonbridge & Malling Borough Council about the conduct of Cllr Mark Hood, Leader of the Green group.

1.2       The allegations within the complaint relate to posts made in the name of the Tonbridge & Malling Green Party and the Judd Ward Green Party on 1 April and 5 April 2023 respectively. The latter of these posts took the form of a ‘Personal Statement by Cllr Mark Hood’.

1.3       The complaint alleges that these posts included details of a private and confidential workshop held at Tonbridge & Malling Borough Council offices on 13 March 2023.

1.4       It was alleged that Cllr Hood had breached paragraph 3(2)(d) of the Code of Conduct, which provides that Members must not disclose information given to them in confidence. The full text of paragraph 3(2)(d) is set out below:-

(2) you must not

…(d) disclose information given to you in confidence by anyone, or information acquired by you which you believe, or ought reasonably to be aware, is of a confidential nature, except where:

(i)         you have the written consent of a person authorised to give it; or

(ii)        you are required by law to do so; or

(iii)       the disclosure is made to a third party for the purpose of obtaining professional advice provided that the third party agrees not to disclose the information to any other person; or

(iv)       the disclosure is:

• reasonable and in the public interest; and

• made in good faith and in compliance with the reasonable requirements of the Authority

2.         Application of Schedule 12A Local Government Act 1972

2.1       The complaint and Investigating Officer’s Report were presented to the Panel in private papers, as the information presented consisted of information relating to an individual / information which is likely to reveal the identity of an individual (paragraphs 1 and 2 of Schedule 12A).

2.2       The Panel was invited to consider whether the public interest in maintaining the exemption – and therefore holding the hearing in private - outweighed the public interest in having the matter heard in public.

2.3       The Monitoring Officer submitted that in most cases the public interest in transparent decision making by the Hearing Panel will outweigh the subject member’s interest in limiting publication of an unproven allegation that has yet to be determined. There is a legitimate public interest in ensuring that elected members uphold the highest standards of conduct expected under their Codes of Conduct.

2.4       The Monitoring Officer did acknowledge there was risk of further confidential information contained in the report being released  ...  view the full decision text for item 6

The Hearing Panel of the Joint Standards Committee gave consideration to an allegation that a borough councillor had breached the Tonbridge & Malling Borough Council Code of Conduct.  The Panel was asked to consider whether Councillor M Hood (the ‘Subject Member’) had breached the provisions of the Code of Conduct in relation to the following Member Obligation:

Paragraph 3 General obligations

(2)        you must not:

…(d)    disclose information given to you in confidence by anyone, or information acquired by you which you believe, or ought reasonably to be aware, is of a confidential nature, except where:

(i)         you have the written consent of a person authorised to give it; or

(ii)        you are required by law to do so; or

(iii)       the disclosure is made to a third party for the purpose of obtaining professional advice provided that the third party agrees not to disclose the information to any other person; or

(iv)       the disclosure is:

•           reasonable and in the public interest; and

•           made in good faith and in compliance with the reasonable requirements of the Authority

The Panel received the report of the external independent investigator (Investigating Officer), Mr R Lingard of Richard Lingard LLB, who had been appointed to carry out the investigation into the allegation.  The report, dated 7 September 2023, contained details of the relevant legislation and protocols, evidence gathered and witness statements and was presented by Mr R Lingard.  The Investigating Officer’s report found that, on the balance of probabilities, the Subject Member had breached paragraph 3 (2) (d) of the Tonbridge & Malling Borough Council Code of Conduct.

In addition to the Investigating Officer’s report, the Panel received and had regard to a written statement submitted by the Independent Person, Mr D Mercier, who concurred with paragraph 8.10 of the Investigating Officer's report, in particular his finding that the timing of a direction of confidentiality was irrelevant if it still occurred within a relevant meeting or event.  In the view of the Independent Person, it was clear that, at least on some level, and by all accounts, Councillor M Boughton (the ‘Complainant’) provided such a direction or request during the workshop.  Coupled with the wording of the briefing note, which the Subject Member received prior to the meeting, the Independent Person agreed that, on the balance of probabilities, the Subject Member had breached the Code by virtue of disclosing information that he was either aware or ought to have been reasonably aware was confidential.

The Panel had regard to all the evidence, including the Investigating Officer’s report and the evidence given by the Subject Member, and having taken into account the views of the Independent Person, concluded, on the balance of probabilities on the evidence presented to it, that in relation to paragraph 3 (2) (d):

(1)        the nature of the consultant workshop in question was confidential; and

(2)        the Subject Member had disclosed information acquired from the confidential workshop to the public on social media.

The Panel therefore found that the  ...  view the full minutes text for item 6