ASSESSMENT DECISION NOTICE
NO BREACH OF THE CODE
Reference:
CCN011/14
Complainant:
Mr Kevin Johnson MBE
Subject Member:
Councillor Jeremy Tucker, Menheniot Parish Council
Person conducting
the Assessment:
Simon Mansell, Principal Legal Officer, Corporate
Governance
Date of Assessment:
7 August 2014
Complaint
On 7 August 2014 the Monitoring Officer considered a complaint from Mr Kevin
Johnson MBE concerning the alleged conduct of Councillor Jeremy Tucker of
Menheniot Parish Council. A general summary of the complaint is set out below:
The Complainant has alleged that the Subject Member had an interest in a matter
relating to tree works which was discussed by the Parish Council. The Complainant
has further alleged that the Subject Member intended to use the wood from the tree
works for his own personal use and was influential in persuading his fellow Parish
Councillors to vote a certain way.
Potential breaches of the Code of Conduct raised by the Complainant are;
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conducting yourself in a manner that it contrary to the Council’s duty to
promote and maintain high standards of conduct;
has accepted gifts or hospitality that could be seen by the public as likely to
influence the members judgement in relation to any matter they deal with in
their official capacity;
compromising the impartiality of anyone who works for the Council;
bringing your office or authority into disrepute;
using your position to gain an advantage or disadvantage; and
improperly used the resources of the Council.
Decision
No breach of the Code of Conduct
Reasons for the Decision
In assessing this complaint I have had regard to the following information;
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The complaint as made by the Complainant;
The response to the complaint made by the Subject Member; and
The views of the Independent Person
In assessing this complaint it is noted that the Complainant has concerns regarding
the way in which the Council, and in particular the Chairman, have failed to act on his
advice concerning the trees and this may result in legal action being brought against
the Council. The Complainant has also raised concerns about the way in which the
tender process was managed.
While the Complainant’s concerns are noted a Code of Conduct complaint cannot look
at the actions of a Council as a body. It has no general power to intervene in internal
Parish Council procedures and any finding made at assessment or review will not
affect a decision that has been made by a Council.
This process can only consider potential breaches of the Code by individual members.
If the Complainant has concerns about the way in which the Parish Council has
conducted itself in relation to his advice, or the tender process; he should make a
complaint direct to the Parish Council.
All assessments and reviews of potential breaches of the Code are undertaken on an
objective basis using the reasonable man approach that is; would a reasonable man in
possession of all the facts, consider that the member’s actions amount to a breach of
the Code. The final determination is then made on the balance of probabilities; is it
more likely than not that a breach has occurred.
As is set out above the Complainant has submitted a number of matters that concern
him regarding the actions of the Subject Member in relation to the tender process for
tree works run by the Parish Council and these fall outside of this assessment process.
However, it has also been stated by the Complainant that the Subject Member has an
interest in the tendering process as he works for one of the companies providing the
quotes.
The Code of Conduct sets at paragraph 5A that a member’s employment is a
disclosable pecuniary interest and this should be registered. Once this is done the
member concerned is then required to act in accordance with the Code should the
matter under discussion have the potential to affect that employment.
The Subject Member has registered his employment as an instructor/assessor for
CORMAC Solutions and the Subject Member has further advised in his response to the
complaint that his role is as a health and safety instructor and assessor.
For a disclosable pecuniary interest to arise the matter under discussion has to affect
the Subject Member’s employment. While it is noted that one of the bodies that were
asked to supply a tender for the tree works was CORMAC this is not something which
relates directly to the Subject Member’s employment. Whether the contract for the
works was awarded to CORMAC or not this would not affect the Subject Member’s role
within CORMAC as a health and safety instructor and assessor.
Give this I do not consider that the Subject Member has a disclosable pecuniary
interest when matters relating to the works which CORMAC tendered for were
discussed.
However, it still has to be considered if the Subject Member has a non-registerable
interest, under paragraph 5B of the Code.
This sets out that the member has a non-registerable interest in a matter under
discussion if the matter might reasonably be regarded as affecting the financial
position or well being of the member or any body or group of which they are a
member and the interest is such that a reasonable person with knowledge of all the
relevant facts would consider the interest so significant that it is likely to prejudice the
member’s judgement of the public interest.
In assessing this complaint it is considered that the first part of the criteria for finding
a non-registerable interest is satisfied as the Subject Member is a member of a body,
CORMAC, and their financial position may be affected by the decision to tender.
However, the value of the contract to CORMAC as tendered was of such a small sum
that it is considered that CORMAC has such a turnover that a reasonable person would
not consider that the interest was so significant that it would prejudice the judgement
of the Subject Member.
As a result of this I do not consider that the Subject Member had a non-registerable
interest when matters relating to the tender were discussed.
It is noted that the Subject Member himself elected to declare an interest in any vote
on the award of the tender at the meeting of the Parish Council on 15 May 2014.
That the Subject Member opted to take this action does not prejudice his involvement
in the matter and does not mean that, when a complaint is assessed, that an interest
existed. That the Subject Member opted to take this action is his own preference and
does not affect the determination of the complaint.
Other points raised by the Complainant;
The Subject Member is alleged to have required the wood from the resulting works to
be transported to the Notter Bridge Training Centre where he would process this for
his personal firewood.
I can find nothing in the information that has been supplied by the Complainant or the
Subject Member to suggest that there was collusion between the Subject Member and
his employer. While it is an ‘assumption’ on the part of the Complainant that this
occurred, with no supporting facts it is not considered further.
The Subject Member was influential in persuading the vote towards CORMAC. The
Complainant has supplied no information to support this part of his complaint and as
such this part of the complaint is not considered further.
As a result of the above I do not consider that the Subject Member has breached the
Code of Conduct for Menheniot Parish Council.
What happens now?
This decision notice is sent to the complainant, the member against whom the
allegation has been made and the Clerk to Menheniot Parish Council.
Right of review
At the written request of the complainant, the Monitoring Officer can review and is
able to change a decision not to refer an allegation for investigation or other action.
To ensure impartiality in the conduct of the review different officers to those involved
in the original decision will undertake the review.
We must receive a written request from the complainant to review this decision within
15 working days from the date of this notice, explaining in detail on what grounds the
decision should be reviewed.
If we receive a request for a review, we will write to all the parties mentioned above,
notifying them of the request to review the decision.
Additional help
If you need additional support in relation to this or future contact with us, please let
us know as soon as possible. If you have difficulty reading this notice we can make
reasonable adjustments to assist you, in line with the requirements of the Disability
Discrimination Act 2000.
We can also help if English is not your first language.
Simon Mansell, Principal Legal Officer, Corporate Governance
On behalf of the Monitoring Officer
Date: 8 August 2014