Agenda item
Referral From the Ombudsman
- Meeting of Special, Standards Committee, Friday, 26th July, 2019 9.30 am (Item 8.)
- View the declarations of interest for item 8.
- View the reasons why item 8. is restricted
Private Report of the Head
of Legal Services and Monitoring Officer
(Exempt under Paragraph
18c)
Minutes:
RESOLVED: That Councillor S.M. failed to comply with the Authority’s Code
of Conduct under Paragraph 6(1)(a) (in an official
capacity or otherwise, bringing the office of Member or the Authority into
disrepute) and should be subject to a four month suspension.
Decision Notice:
Introduction
1.
This is the
report of the Neath Port Talbot County Borough Council Standards Committee on
the outcome of an investigation into the conduct of Town Councillor Sheila
Marston, a Town Councillor of Neath Town Council (“Councillor Marston”).
2.
This report has been produced in accordance with Regulation 13 of the
Local Government Investigations (Functions of Monitoring Officers and Standards
Committees) (Wales) Regulations 2001.
The investigation follows from a referral by the Public Services
Ombudsman for Wales (“the Ombudsman”) which alleged that Councillor Marston had
acted in breach of the Neath Town Council Members Code of Conduct (“the Code of
Conduct”).
Allegations
3.
In his referral the Ombudsman indicated that his investigations had
found that there was evidence to suggest that Councillor Marston had breached
the following provisions of the Code of Conduct–
Paragraph 6(1)(a) Members must not
conduct themselves in a manner which could reasonably be regarded as bring
their office or authority into disrepute
Process
4.
Both the Ombudsman and Councillor Marston agreed that this matter was
capable of being dealt with by way of written representations and consideration
into the matter took place on 9th July 2019 by virtue of
consideration of the papers at Civic Centre Port Talbot before the Standards
Committee of Neath Port Talbot County Borough Council.
Findings of Fact
5.
Councillor Marston is a long standing member of Neath Town Council who
was last elected in May 2017, having first been elected in 2004.
6.
Councillor Marston and her neighbour, the late Ms Jones lived in the
same street. There was an acrimonious relationship between both parties which
is believed to have stemmed from an argument between Ms Jones and Councillor
Marston over a garden hedge.
7.
Sadly in January 2018, Ms Jones, a victim of domestic violence was
murdered in her home.
8.
During the period after the murder, Councillor Marston was reported to
have expressed her opinion to members of the public, including a number of taxi
drivers that Ms Jones had “deserved to be murdered”. This caused significant
distress to Ms Jones’ familiar and friends.
9.
During this period, a complaint was made to the Neath Town Council about
Councillor Marston’s comments, upon which the Neath Town Council referred the
matter to the Ombudsman.
10. In view of the reactions
by the public, the Neath Town Council invited Councillor Marston to a meeting
to discuss the comments on the 14th February 2018. Councillor
Marston believed that this meeting was to offer her guidance and support and to
ensure she was safe and she believed she attended in good faith. During the
meeting, Councillor Marston immediately admitted to make comments to the effect
that Ms Jones had “deserved to die”. The members and officer present were
surprised and distressed to note that Councillor Marston’s only reaction was to
express surprise at the manner of Ms Jones death but Councillor Marston refused
to withdraw or apologise for her comments. Councillor Marston later added by
way that the comments were made because there was uncertainty as to how Ms
Jones had sadly passed away.
11. Councillor Marston was
of the view that these comments were not made in any Council related meetings.
However, in respect of both matters (the discussions with taxi drivers and at
the aforementioned meeting), the principles of the Code of Conduct (namely
paragraph 6(1)(a)) will still have applied.[1]
Article 10
12. Article 10 of the
European Convention on Human Rights (“ECHR”) was fully considered by the
Standards Committee during its deliberations both in relation to the breach and
sanction. The Standards Committee adopted the three stage approach used by Wilkie J in the case of Sanders v Kingston No (1) [2005]
EWHC 1145 in its deliberations as follows:
(a) Could the Standards
Committee as a matter of act conclude that Councillor Marston’s conduct
amounted to a relevant breach of the Code of Conduct?
(b) If so, was the finding
of a breach and imposition of a sanction prima face a breach of Article 10?
(c) If so, is the
restriction involved one which is justified by reason of the requirement of
Article 10(2)?
13. The Standards Committee
had determined each allegation against part (a) in the first instance. It was
then concluded the nature and content of the questions raised by Councillor
Marston did not consist of political expression which attracts enhanced
protection under Article 10 ECHR. The content was so egregious and caused such
significant upset and disruption that Police involvement was necessary and
therefore an interference with Article 10 rights is justified.
Decision of the
Standards Committee
14. The Standards Committee
determined that Councillor Marston did conduct herself in a manner which could
reasonably be regarded as bringing her office or authority into disrepute.
15. In finding against
Councillor Marston, the Standards Committee concluded that in light of the
particular circumstances of this case (which should evidence from this Report),
that it is justified in interfering with Councillor Marston’s Article 10(1)
rights of freedom of expression, by making a finding of breach and by imposing
a sanction.
Reasons for Decision
16. The reason for making
these conclusions were as follows (adopting the structure set out above):
(a) Councillor Marston’s
comments were disrespectful and distasteful and there was no reason for such
comments to be made public.
(b) Councillor Marston made
these comments to members of the public outside of the Town Council setting but
the principles of the Code of Conduct still applied on this occasion. Paragraph
6(1)(a) must be complied with at all times and the behaviour of Councillor
Marston fell short of the appropriate standards required of elected members.
(c) Although acknowledging
Councillor Marston’s representations, respectfully it was felt that they did
not amount to a defence of any actions but more mitigation and therefore were
appropriate for consideration of sanction only.
(d) The Standards Committee
concluded that Neath Town Council was brought into disrepute as a result of the
comments made but also concluded that Councillor Marston’s comments and her
position as Town Councillor brought her office into disrepute. The evidence
highlighted that several constituents feel that such comments were not expected
from an elected member and therefore Councillor Marston’s suitability as an
elected member was called into question. The disapproving comments from the
general public appear to be directed towards Councillor Marston and not the
Neath Town Council but nevertheless given that Neath Town Council came under
undue criticism because of their inability to take action directly, Neath Town
Council were brought into disrepute as a result of the actions of Councillor
Marston.
Sanction
17. The Standards Committee
were guided by decisions of the Ombudsman in their Code of Conduct Casebook and
had due regard to the principles identified in the Adjudication Panel for Wales
Sanctions Guidance as part of their determination. The Standards Committee
acknowledged that in line with the Local Government Investigations (Functions
of Monitoring Officers and Standards Committees) (Wales) Regulations 2001 the
maximum sanction they can impose is a six month suspension.
18. In considering the
determination of any sanction which might be applied the Standards Committee
determined that due to the seriousness of the incident and the level of public
condemnation associated with the comments made by Town Councillor Sheila
Marston, no action or informal action was not feasible.
19. The Standards Committee
concluded that a public censure would not be appropriate as it would be
important to send a message to Councillors that such behaviour is not
appropriate for an elected official and it would be necessary to ensure that
the public had confidence in local democracy and the only way to achieve this
would be via a stronger sanction.
20. The Standards Committee
concluded that a suspension of some duration was the appropriate course of
action here.
21. The Standards Committee,
considered that the following were aggravating factors:
(a) Town Councillor Marston
was a long standing member of Neath Town Council
(b) Town Councillor Marston
had a lack of acceptance of the misconduct and any consequences and failed to
engage with the Ombudsman investigation.
(c) The express of views
were not worthy in a democratic society and were incompatible with dignity and
in conflict with the rights of others
(d) The behaviour not only
brought herself into disrepute but also the Town Council (as elaborated above).
22. The Standards Committee
though, considered by way of mitigation the representations put forward by
Councillor Marston, those being:
(a) Councillor Marston had
now admitted the statements made, though it was acknowledged that there was no
involvement with the Ombudsman during the course of their investigation.
(b) Councillor Marston now
acknowledged that her personal reputation had been sullied.
(c) The commentary was made
at the time when Councillor Marston was recovering from serious personal
injuries sustained in a road traffic accident.
(d) Councillor Marston
acknowledged that she had been in a defensive mode during the aforementioned
meetings as she felt she had been under personal attack but is now prepared to
apologise to Ms Jones’ family and the community. Though the Standards Committee
noted though that no apology had appeared to have been made only an indication
that an apology would be given. The Standards Committee recognised that this is
something that Councillor Marston would have to pursue by herself as the Standards
Committee could not legally insist on it.
(e) Councillor Marston has
undertaken public service for a number of years leading up to this matter and
during this period there had been no previous referrals to the Standards
Committee.
and accordingly were prepared to
reduce the sanction that would be made accordingly in line with the
guidance from the Adjudication Panel for Wales.
23. Pursuant to Regulation 9
of the 2001 Regulations, the Standards Committee made a determination that Town
Councillor Sheila Marston should be suspended as a Town Councillor for a period
of four (4) calendar months from the date that this notice takes effect. This
Decision Notice is dated the 26th July 2019 and Town Councillor
Sheila Marston has 21 calendar days in which to make an appeal. In the event
that no appeal is made, the suspension will take effect following 21 day
period.
[1]
Paragraph 2 (1)(d) of the Neath Town Council Member
Code of Conduct provides that “save where paragraph 3(a) applies, you [a
member] must observe the code of conduct - … …. (d) at all times and in any
capacity, in respect of conduct identified in paragraphs 6(1)(a) and 7”