Posted by: westlancashirerecord | November 16, 2016

Two Hatting Is “Pecuniarily” Interesting

Sitting as a member of two councils is normally known as “two-hatting” for those who occupy borough and county seats. Seldom does it refer to those who occupy two seats at the same, ie borough level, in two different boroughs. And in that instance, does the two-hatter serve two councils for dedication to the public or for money, also known, to me at least, as pecuniarily interesting?

On 23 October 2016 in writing to the West Lancashire wlbclogo Borough Solicitor I made a formal application for information relating to the declarations of disclosable interests by elected members of the council. I referred specifically to the case of an elected member of WLBC who is also an elected member of another local authority.

I quoted “the provisions of Section 30 of the Localism Act 2011 which provides that a member or co-opted member of a relevant authority as defined in section 27(6) of the Localism Act 2011, on taking office and in the circumstances set out in section 31, must notify the authority’s monitoring officer of any disclosable pecuniary interest which that person has at the time of notification.

“The pecuniary interests which are specified for the purposes of Chapter 7 of Part 1 of the Act are the interests specified in the second column of the Schedule to these Regulations. Any employment, office, trade, profession or vocation carried on for profit or gain. Any payment or provision of any other financial benefit (other than from the relevant authority) made or provided within the relevant period in respect of any expenses incurred by M in carrying out duties as a member, or towards the election expenses of the member.

As the WLBC Constitution explains in Code of Conduct 10.1 Registering Interests, applies to Councillors who sit in two different Councils. (1) You must, within 28 days of your election or appointment to office as a member or co-opted member notify the Monitoring Officer in writing of your non-pecuniary interests where they fall within the following descriptions, for inclusion in the register of interests: (i) Any body of which you are a member or in a position of general control or management and to which you are appointed or nominated by your authority; (ii) Any body (a) exercising functions of a public nature; (b) directed to charitable purposes; or (c) one of whose principal purposes includes the influence of public opinion or policy (including any political party or trade union), of which you are a member or in a position of general control or management.

“In view of the above information I asked “What steps will WLBC take to investigate the case I referred to…in respect of the evidence based on public documents available to you, of him possibly having breached the above detailed act, codes, and or regulations, and what sanctions are available to the electorate of West Lancashire Borough in such matters?”

On 28 October 2016 I received this reply “The Council has in place comprehensive arrangements for maintaining standards which accord fully with the statutory regime and detail how the Council deals with matters in relation to member conduct, including the matters you raise. The arrangements as you have noted include the Members Code of Conduct, together with other detailed requirements, e.g. for declaration of interests including, most particularly, where these affect the role of members, for items on the agenda of a Council meeting, training, provision for the making and handling of complaints, relevant sanctions and management of the updating and publication of relevant records. These are suitably set out on the Council’s website, to which I understand you have access.

As part of the routine updating of records I am pleased to note that a reminder is already set in the work programme and is to be issued to all councillors. This provides an opportunity for review, confirmation or refinement of members’ current declarations, and this would include the matter you have raised”.

Well that was good to know, and I replied on the same day that “In simple terms, and after considering your reply, I’m concerned to know if an updating of…current declarations would absolve him from the consequences of his perceived breach of the Members Code of Conduct and his obvious breach of the Regulations I quoted. It seems that…will have “an opportunity for review, confirmation or refinement of his current declaration”. Will that be before or after any censure, disqualification, or suspension of…after your local determination of how serious this matter is?”

I went on to ask extended questions relating to standards and offences. And I suggested that “To a member of the public this case indicates disdain for the standards expected of an elected Councillor for a borough such as ours. The standard is stated, will it be upheld in favour of the public or the councillor?”

On 2 November 2016 I received this reply “Thank you for your further emails (2) in relation to this matter. As has been highlighted the Council is very conscious of its responsibilities in regard to standards and has an excellent record in that regard. I am concerned that there appears to be a degree of misunderstanding of our respective positions here. I have offered to discuss the matter with you to assist understanding of the position here and the offer remains open.

“I have directed you to the Council’s detailed arrangements with regard to Standards matters. The Council’s arrangements complement the Act and Regulations to which you refer, and fully in accord with them. The arrangements include those for making a complaint in regard to activity you feel is a breach of the Code of Conduct and the way to do so. I understand you are familiar with the process in any event. You have referred to information about a particular councillor related to registration of interests. The relevant detail on such declarations is within the public domain (on the Council’s website) for consideration in regard to any complaint, should you consider a complaint to be necessary. Before doing so however you should consider the following.

“From what you have presented in your emails and the interpretation you have applied it appears to me there is a misunderstanding of the interest alleged to be present here. In summary you describe membership of another local authority (and possibly allowances received for this) as a “disclosable pecuniary interest”. That does not align with my understanding. Such membership is in the terms of the Council’s arrangements a non-pecuniary interest. The interest is not one that has the sanctions of disqualification and fine to which you refer. I have indicated that an updating exercise is to be carried out and that on the face of it would seem to be appropriate, given the apparent lack of any consideration of business related to the non-pecuniary interest. The Council must be proportionate in its handling of such matters.

“In terms of the involvement of the Independent Person this is again set down in the Act and Regulations to which you refer and complemented in the detail of the Council procedure which builds on this (as the legislation permits). It would not be in line with the procedure to have the involvement of the Independent Person at this stage”.

I replied on the same day 2 November 2016 “Thank you for this reply. I prefer discussion by email so as to study with a great deal of care what the issues from each side are. Accepting your views as outlined below, at this stage I have two questions. You wrote “I have indicated that an updating exercise is to be carried out and that on the face of it would seem to be appropriate, given the apparent lack of any consideration of business related to the non-pecuniary interest” and I do not understand that part in bold script. Perhaps you might be able to explain it? And does an updating exercise imply there is a moral duty towards the electorate rather than the personal choice of a councillor not to disclose other council memberships?”

And on 3 November 2016 a reply to me stated “I acknowledge receipt of your latest email. I have read over the totality of our recent correspondence and am satisfied that in context the position is suitably clear. I am not able to add anything further to assist your latest enquiry”.

Practical Law declares “The basic allowance is an amount paid to all councillors of main authorities, paid at an equal flat rate. The level of the basic allowance is set by each main authority, and can be paid either in a lump sum or in instalments throughout the year. The allowance is intended to reflect some of the time required for official duties, and to cover some incidental expenses such as use of the home and private telephones for official business. Note that, in particular, the basic allowance is not paid to parish, community and town councillors, as the time commitment expected of these councillors is not as significant as that of councillors on main authorities. The basic allowance is subject to income tax and national insurance as earnings from the office held.

“The special responsibility allowance is paid to councillors on main authorities only (not parish, community or town councillors) with significant responsibilities (for example, the council leader, or committee chairs). The authority is not required to make such payments but, in practice, most will do so. There is no requirement for the allowance to be the same for each councillor receiving it. The special responsibility allowance is subject to income tax and national insurance as earnings from the office held”.

So while WLBC declares “In summary you describe membership of another local authority (and possibly allowances received for this) as a “disclosable pecuniary interest”. That does not align with my understanding” yet pecuniary means monetary, relating to money, consisting of money, or service that can be valued in money, and if it’s taxable it’s disclosable to the Inland Revenue!

The “routine updating exercise” has been carried out. All members of all local, that is West Lancashire, councils have received official letters dated 14 November 2016. I have copied its two pages here legal1-001 legal2-001 [click to read] and for good measure I also show the Wyre Borough wyretax-001 Constitution statement for allowances and taxation.

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