Constitution for Governance of Thanet District Council
In the discussion tha followed Thanet Locals on Thanet District Council - The Basic Idea James Maskell and Cllr Mike Harrison identified that Thanet District Council (TDC) have a constitution that governs all aspects of the council. Cllr Mike Harrison indicated that he helped to write it but that it was not written in the plainest English.
Having had a little time with it I can fully agree with that sentiment. That fact notwithstanding I've been reading it any way. In this post I will attempt to identify parts of the constitution that might apply to current stories covered by local bloggers. Specifically the controversy surrounding Simon Day and the Behaviour of Sandy Ezekiel and friends.
Before you read this article I would like you to answer a few questions to yourself and one question (anonymously) in a poll.
1. Of the council members discussed recently in blogs would you say any could on reasonable and sober reflection be said to be associated with any of the following: bullying, intimidation, disgracing their office, caused or allowed to cause gender based discrimination?
2. Have any of the councillors written about of late excelled, gone beyond the call of duty in an issue, impressed, clearly worked hard to be fair and even; or in some other way been excellent.
I would like you to hold your answers in mind as we look at the nature of parts of the constitution of Thanet District Council (2007). Some of the things listed above are expressly forbidden by the constitution others are not addressed. When we are done I hope that you will have formed an opinion of your own as regarding the constitution, the councillors and what, if anything needs to be changed.
Before I start however I feel that the "leader" of the council requires greater examination than any other and so I would like to nag those that have yet to vote to vote in this poll. Thanks.
Now read on to find out what the constitution of Thanet District Council has to say...
This lengthy document that runs to a mere 283 numbered pages (285 sides of A4 according to Open Office) makes references to other legislation. To save you needing to find and read it I will try to summarise it for you with a link.
Most of the blogging and commenting about councillors appears to me, on the whole, to boil down to matters of conduct. I have been quite clear in the past that I am deeply offended by the conduct of a number of council members and I am pretty sure Cllr Iris Johnson is none too impressed with one two fellow councillors herself.
Therefore I shall focus on the subject of conduct and the council member. For illustrative purposes only I will consider recently in-the-grass-roots-news councillors to illustrate each point. Section 2.04 of the constitution has the title "Conduct" - the full text is below.
Councillors must at all times observe the Members’ Code of Conduct and the Protocol on Member/Officer Relations set out in Part 5 of this Constitution.
This is a woolly way of saying that the code of conduct has been written in another section and that it still applies. You or I might write
See Section 5... It also has the effect that if a person breaches the constitution with regard to section 5 they have breach at least two sections of the constitution. (...guilty of two counts of breaching the constitution...).
So skipping forward to the section entitled "Members Code of Conduct" we finally get to the point. It applies to anyone representing the council or some group directly under the council and it only applies when they are "doing their job" or when "you"
[...] act, claim to act or give the impression you are acting as a representative of your authority.
To put it into simple English whenever the person in question "has their Council Member hat on".
Right now that is sorted out lets address some issues. If you have not yet voted in the poll you may wish to do so before you read this section.
The first topic I am going to look at is that Of councillors Sandy Ezekiel and Roger Latchford and the way they treated Cllr Iris Johnson while she was collecting a petition that she had been invited to receive. For those that do not know the two boys in question showed up, tried to take the petition away and cause a scene. Eastcliff Richard also covered this story.
The question is did the two boys do anything wrong?
There is a sub section entitled "General obligations" numbered 3(2)(a) which says
You must not do anything which may cause your authority to breach any of the equality enactments (as defined in section 33 of the Equality Act 2006);
Don't worry if that flew over you head - I've looked it up.
The Equality Act 2006, Chapter 3 has a number of "provisions" the last of which is
create a duty on public authorities to promote equality of opportunity between women and men ('the gender duty'), and prohibit sex discrimination and harassment in the exercise of public functions. Which is another way of saying TDC are forbidden to discriminate at all based on gender but further more must act to
promote equality of opportunity.
It could be argued that Sandy Ezekiel and Roger Latchford gave every appearance of attempting to intimidate Cllr Johnson because she was "just a girl". If you successfully presented this case to someone able to act on it (say a court) then councillors Sandy Ezekiel and Roger Latchford are not only in breach of two points of the constitution but additionally in breach of an Act of The Parliament of The United Kingdom of Great Britain specifically the Equality Act 2006.
There is not sufficient public information to build a strong case for this but a good barrister assisted by an able investigator might be able to build a case nevertheless. Sandy Ezekiel and Roger Latchford should probably keep their collective heads down for a while.
Let us consider Simon Day and also the two boys as we look at 3(2)(b)
You must not bully any person.
Cllr Day is currently the hot topic as he finally achieved an unlikely planning consent in what appears to be an irregular way. It has been alleged to me via a number of emails from a number of email addresses (only some of which I recognise) that Cllr Day has been intimidating towards the locals that surround the property. The emails I have been sent indicate that a number of households have been subject to gloating and mildly anti-social behaviour that if proven would cause a case to be answered under other laws entirely.
This however is not the point - given that one could prove Simon Day had behaved as suggested what would be the outcome?
If the papers pick up on it he might not get elected again but this article focuses on the constitution. I am not a solicitor but I think you would have a hard time making a breach of the constitution apply in this case even if you proved bullying. This is because he would have been bullying with his "Simon Day - property developer" hat on.
That's right the letter of the law let's him do that.
One gentleman suggests in his email to me that Mr Day has said to locals
I can do what I like, I'm a councillor. which, while untrue would also have him wear his councillor's hat and so 3(2)(b) would apply and he would be in breach of the constitution.
Even so you would have to prove that he bullied and not just intimidated.
3(2)(b) says that a councillor may not bully but 3(2)(c) defines 3 conditions under which a councillor may not intimidate (or even attempt to intimidate). Under 3(2)(c) a complainant, a witness or someone associated with (or likely to be) an investigation into a breach of the code of conduct. By omission the constitution allows a member to intimidate anyone else so long as they do not bully which a clever spin doctor could use to allow members to get away with all sort of unpleasant things.
However the constitution states that
The overriding duty of Councillors is to the whole community, but they have a special duty to their constituents, including those who did not vote for them. (Summary and Explanation, pp 10). One could ask if Simon Day's interest in the land and the application is at odds with his duty towards the people that voted him into office.
Of course all these accusations against Mr Day are hearsay and inadmissible but I urge the email writers to consider the complaints procedure outlined in the constitution.
In the case of Simon Day he did follow he letter of the law when stepped from the room during the planning consideration meeting. The rules state quite unreadablely:
10. (1) Subject to sub-paragraph (2), where you have a personal interest in any business of your authority you also have a prejudicial interest in that business where the interest is one which a member of the public with knowledge of the relevant facts would reasonably regard as so significant that it is likely to prejudice your judgement of the public interest.
Which is another way of saying that the man on the street test applies. If Joe Public would think that you have a personal interest that is likely to impact your judgement against the public interest. It is this rule (and variants thereof) that is often used to remove those with a background in a given subject or who stood for election on the issue in question from the debate. However it is a vital test of interest and unless any ultra smart readers care to make a suggestion probably the best choice.
I do not know if the rest of Simon Day's party left the room but if they did not then I would suggest as a "man on the street" that they were
likely to prejudice your judgement of the public interest. One for "Bertie Biggles" to consider.
The question that many of us have been wondering is did Simon Day brief, instruct or influence the Planning Officer or indeed does Mr Day have a personal influence over the department due to charm, skill, malice or sheer luck? If so then Mr Day would be in breach of 3(2)(d)
You must not do anything which compromises or is likely to compromise the impartiality of those who work for, or on behalf of, your authority.
Furthermore who is the Planning Officer that wrote the report and did he have any interest in the outcome? If he did the man on the street test is going to identify that he was prejudice. Given the history of the applications on the subject it would seem highly likely that (a) hidden things impacted the outcome or (b) the Planning Officer failed to do his job correctly.
So here we have an instance where it is highly likely that there has been a failure at some stage of the process and the significant question is did Simon Day, his party, his department or the Planning Officer have anything to do with this failure or is the system self broken?
It is important because there is the appearance of a potential breach of the code of conduct. This is a serious issue and one I urge the council to investigate quite quickly and openly as many jobs and the life of a significant number of people hang on the result of this result.
Let us leave Simon Day there for the time being and move on to Sandy Ezekiel for a further illustration. Remembering that 3(2)(b) says
You must not bully any person let us consider the actions of Sandy Ezekiel and Roger Latchford with regard their behaviour towards Cllr Johnson. They clearly "had on their councillor hats" and so this rule might apply.
I would suggest that using the man on the street test that the two councillors have shown a personal interest in the subject of the poll and in their actions have prejudiced the public interest. What is more I would suggest that the man on the street test would hold that they had engaged in an act of bullying.
This is a subject for the Standards Board and might further be subject to the laws regarding work place bullying. If this is the case then this would enable Cllr Johnson to sue the council for damages over the actions of it's "leader" and as such cause it much embarrassment. A successful case in a civil court might pave the way for an action to bar Sandy Ezekiel over.
Don't expect an employee of the council to comment on this (and keep their job) as the rules regarding employees is much bigger but 4.1(a) says
Employees are forbidden to [...] Speaking or writing publicly on matters of party political controversy where there is an apparent intention to effect political support. Frankly to speak on such an issue would be risky.
Now let us call forth Simon Day, Sandy Ezekiel and Roger Latchford. Having seen them escape pretty much every one of the prior potential breaches of the code of conduct there is one left that the alleged (in Simon Day's case) and reported actions of the three that they will find it hard not to have breached.
If you have not voted in that poll you might want to do so now.
General obligations also says:
5. You must not conduct yourself in a manner which could reasonably be regarded as bringing your office or authority into disrepute.
Please note the wrds
reasonably be regarded which is similar to the man on the street test of prejudice. I ask you am I unreasonable in regarding the ongoing behaviour of Sandy Ezekiel to have brought the roll of "Council Leader" into disrepute. I can not bring myself to call him "leader" without first quoting the word to distance myself from any endorsement of the term.
He's not my leader!
Many readers will remember what is now known as the "f***ing w***er" incident where the so-called leader
[...] adopted a threatening attitude towards the town sergeant.
Reading Cllr Green's account of the election of Cllr Ezekiel as leader of the council and the behaviour of Cllr Kirby (who I likewise feel has, along with other councillors raising their voices, broken the constitution with regards to disrepute in this instance) caused me to have an opinion of the council members such that it is impossible to hold a lower opinion of the council and it's process.
There is every suggestion that due process is being subverted and needlessly politicalised by Sandy Ezekiel who has repeatedly breached the code of conduct of the council he is supposed to lead.
Given that Cllr Ezekiel and others have breach multiple parts of the "Constitution for Governance of Thanet District Council" without apparent penalty I put it to you dear reader that the constitution is a worthless document.
I have no faith that other parts of the Constitution will be upheld when those governing the behaviour of the so called "leader" of the council and his associates is clearly not upheld. Cllr Mike Harrison clearly would have better spent his time writing short amusing poems rather then investing effort into the formation of a constitution that is totally ignored.
The Council has people working for it (called ‘officers’) to give advice, implement decisions and manage the day-to-day delivery of its services. Some officers have a specific duty to ensure that the Council acts within the law and uses its resources wisely (Summary and Explanation, pp 11-12). You will have a hard time getting an agreement from even a small number of the grass-roots reporters and other local pundits that the council has been "wise" with it's resources. Councillors from other councils point to us and say how badly Thanet District Council is run.
I'd question the legality of many of the actions oft he council. For example I assert that in many cases when it summons people for non-payment of council ax it does not do sufficient to ensure that the people summoned have been given any written notice or request for the debt prior tot he court orders being issued. This is against the law but nothing is done about it.
For example: 1.03 "Purpose of the Constitution" point 5 says the purpose he Constitution is to
create a powerful and effective means of holding decision-makers to public account. If only this were the case. The bloggers of Thanet having been working ever harder to even hold the decision-makers still long enough to question them.
For example: 2.03 "Roles and functions of all Councillors"
(a)(i) All Councillors will:
collectively be the ultimate policy-makers and carry out a number of strategic and corporate management functions but with the cabinet that the selfsame constitution creates this is an impossibility.
(a)(iv) All Councillors will:
respond to constituents’ enquiries and representations, fairly and impartially but the truth is that it is a nice change when a councillor replies at all even a rude "dear sir - screw you buddy" would in many case of my personal experience be an improvement.
(a)(vi) All Councillors will:
maintain the highest standards of conduct and ethics. As I have already outlines and as the "leader" has demonstrated so often this is simply not the case.
Until the value of the "Constitution for Governance of Thanet District Council" is restored to some level of meaning I have no faith in any person claiming to be part of the council. In my opinion I live under a secretive and corrupt regime. All councillors are, in my view, tainted by their unwillingness to stand up for the basic constitution that supposedly is so important.
Without a constitution to which regard is given you get chaos, anarchy and dictatorship. The people suffer, economy slumps and the rich have their own way regardless of justice or rule of law (Mr Day, Mr Godden and Mr Ezekiel). Having red the constitution I can only conclude that:
The depth of feeling with which I despise those responsible is infinite. I am angry at those that have abused Thanet's once functional mode of self governance and reduced it to a joke whereby the word "council job" is used to describe anything done very badly. Cllr Perkins of Canterbury Council recently described TDC as "run absolutely disastrously" and it is to our shame that he understated the truth.
Where does that leave us, the people of Thanet with regards to "Thanet Locals on Thanet District Council - The Basic Idea"? Can we document such things as due process and the rules that govern the way the council works when the council so blatantly ignore these rules?
While the constitution says
The Council also appoints other Committees such as the Standards Committee which helps promote high standards of conduct in public life. (Summary and Explanation, pp 11) this is clearly, to my mind, something it fails to do. The allegations and reports of the behaviour of event he small number of councillors I have examined makes a mockery of the existence of such a committee and shows it to be a thin and cynical farce.
Many bloggers will be interested to note that on page 19 you can find 3.01(a)
Citizens on the electoral roll for the area have the right to vote and sign a petition to request a referendum for an elected Mayor form of Constitution. While I hope that this element of the constitution is upheld I am filled with a sinking despair that there is no point fighting, no point even hoping let alone attempting to document how the council works because, when it comes right down to it, Thanet District Council appears to do whatever the hell it wants.
Is it that we have become so accustomed to the bad behaviour of our councillors that we don't even think to report them to the Standards Board or is it that the Board appears weak and ineffectual concluding in the only three cases they show that
The ethical standards officer found that in the circumstances of this case, no further action needs to be taken (the Standards Board report on Cllr Doug Clark's involvement in the "f***ing w***er" incident).
Page 24 contains 5.01(1) which says that the duty of the chair is
to uphold and promote the purposes of the Constitution, and to interpret the Constitution when necessary. Herein lies the problem I feel. There is no constitutional way to separate the party loyalty of the annually elected chair and the power that the chair wields when the selection of the leader occurs most likely from the same party as the chair. This goes a long way to explaining the shouting match that was reported during the last election of a "leader".
It seems to me that the constitution is flawed in that as an emergent result the dominant party is able to protect it's members from all but the most public breaches of the constitution while able to use the same rules to silence and marginalise other councillors. Does anyone recall that on no less than two occasions fellow blogger and labour councillor David Green's blog went silent?
I'd go so ar as to say the current constitution fosters corruption.
It seems to me that when the constitution is clearly breached there is no resultant correction (for the dominant party at any rate) beyond a very mild telling off which only a few pundits will ever read. Therefore please will someone tell me what value the "Constitution for Governance of Thanet District Council" has at all. Was it worth witting (I do not currently think so)?
Do you see value in the constitution?
What is you opinion of how the rules are treated?
Does the constitution even go far enough - is all this shouting and swearing something that should be forbidden for councillors to do? Should things be taken further?
Should the rules be "beefed up" to a three strikes and you're out?
Where do we the people stand?
What, as they say, next?