Brent Standards Committee will receive a report at its September 28th meeting on a complaint made by Brent Council's CEO, Carolyn Downs, and Cllr Liz Dixon against Cllr John Duffy (Labour, Kilburn ward)
The agenda item states:
Members’
Code of Conduct Complaint about Councillor John Duffy
In June and July 2017, the Council’s Chief Executive and Councillor Liz
Dixon made a Members’ Code of Conduct complaint about Councillor John Duffy.
The background to the complaint is recorded in the attached Decision Notice as
is Councillor Duffy’s response, a discussion of the issues arising and the
reasons for the Deputy Monitoring Officer’s decision.
The complaint about Councillor Duffy was upheld and by way of sanction
it was recommended that:
Councillor Duffy apologises to the Chief Executive;
- the decision
notice be published on the Council’s website for 6 months; and - the decision
be reported to this Committee.
Councillor Duffy did not exercise his right to request a review of the
decision which is now final.
To date, Councillor Duffy has not apologised to the Chief Executive. The
decision notice has been published on the Council’s website and this is the
reporting of the complaint and the decision to this Committee.
MONITORING
OFFICER DECISION NOTICE
Brent Members’ Code of Conduct Complaints about the
conduct of Councillor John Duffy
The
complaints
On 26
June 2017, the Council’s Chief Executive, Carolyn Downs, made a Members’ Code
of Conduct complaint about Cllr John Duffy, Kilburn Ward. The complaint alleged
that Cllr Duffy had breached the general principles of conduct, in particular,
integrity and leadership and breached the following general obligations:
· 4(1): You must treat others with
respect.
· 4(2)(b): You must not bully any
person.
· 4(2)(e): You must not make
frivolous, vexatious or repeated complaints against
another member or an officer of the
Council.
· 5: You must not conduct yourself in
a manner which could reasonably be regarded
as bringing your office or the
Council into disrepute.
The Code of Conduct amplifies the general principles of integrity and
leadership in the following terms:
· Integrity: You should not place
yourself in situations where your integrity may be questioned, should not
behave improperly and should on all occasions avoid the appearance of such
behaviour.
· Leadership: You should promote and
support these principles by leadership, and by example, and should act in a way
that secures or preserves public confidence.
The factual and evidential bases of
the complaint is an email sent by Cllr Duffy on 26 June 2017 to the Chief
Executive and all councillors criticising the Chief Executive. The broader
context is as follows.
On 26 June 2017 at 15:01, the Chief Executive sent an email to the Mayor
giving her advice regarding a request for an extraordinary meeting of the Full
Council in response to the Grenfell Tower tragedy. The Chief Executive advised
on the legal and constitutional rules, explained the procedure for calling an
extraordinary/special meeting and set out the options and possible
permutations. The Chief Executive also mentioned the member drop in session
which had been arranged and suggested that the discussion of this very
important topic could take place at a scheduled meeting of Full Council on 10
July 2017 - which had been in all members’ diaries for some time - and that
normal rules could be suspended to enable a fuller and longer discussion. The
email stated that “Clearly the decision to have the meeting before the
10/07/17 is your decision but I thought it transparent to share with all
Councillors my advice to you.”. Accordingly, when sending her email to the Mayor, the Chief Executive
copied in all other councillors.
Shortly afterwards at 15:36, in his email reply (also copying in all
councillors), the Mayor thanked the Chief Executive for her helpful advice and
expressed his agreement. The Mayor, however, confirmed that: “If 5
councillors sign a requisition asking me to call an extraordinary meeting I
will consider their request very carefully before making my decision.”
Cllr
Duffy initially replied by email at 16:21 (also copying in all councillors) and
then re-sent his email at 16:29. In substance, the emails are virtually
identical: the second email inserted a few more words which are immaterial to
my decision. For ease of reference, I have re- produced below the actual
content of Cllr Duffy’s second email with the additions underlined.
“The CEO
behaviour is disgraceful and out of touch with reality.She says it’s not her
decision but clearly she is trying to manipulated the Mayor and the situation.
She is
well aware there was more than enough members support for a special meeting but
she has decided to ignore that.
The
Labour group should not stand by while she swans off to “gold”
(Personally I do
not think they are doing a good job , the evacuation in Camden was a
shambles)telling everybody else what to do , while she neglects Brent residents
and thinks a bosses bulletin will suffice for our residents and local
councillors Her first loyalty should be to Brent .
Disgraceful
behaviour and what I have come to expect from this CEO who is out of touch with
Brent residents and seeks to enhance her own reputation instead allowing Brent
residents information”.
The
reference to “gold” in Cllr Duffy’s email is to the Chief Executive
participating in the London-wide emergency support provided to Kensington and
Chelsea Council following the Grenfell Tower fire.
Given
that these email exchanges lie at the heart of this complaint, they are
appended to this decision in full.
On 1 July
Cllr Liz Dixon also made a complaint about Cllr Duffy email. Cllr Dixon
complained that:
“In an
apparent attempt to make representations on behalf of his residents Cllr John
Duffy has made a number of widely distributed disparaging remarks about the
personal and professional integrity of Brent’s Chief Executive, Carolyn Downs.
In doing so, Cllr Duffy also publicly belittled the importance and effectiveness
of London’s Gold Command structure and process. While Cllr Duffy has every
right to make representations, and is free to speak critically in holding Brent
Council to account, on this occasion his disreputable behaviour has fallen
below the expected standard and as such Labour Group Executive is taking this
action. This complaint is made on the basis of comments made in the attached
emails which we believe to be entirely unwarranted, defamatory, malicious and
vexatious.”
On 3 July
2017, the Chief Executive also complained about a further chain of emails
between Cllr Duffy and officers (and copied to all councillors) which she felt
demonstrates vexatiousness. The email exchanges concern an additional briefing
session arranged for Members on fire safety in Brent. In his exchanges on 29
June 2017, Cllr Duffy, amongst other things, made further critical remarks
about the Chief Executive’s advice to the Mayor. For example, “...it
proves her strategy of kicking everything to the 11th was flawed...”; “Why did she change her mind, was it because
before the ink was dry on her email stopping a special meeting the facts were
becoming clear that her decision was wrong and was unravelling in front of her”
and “The CEO
had decided not to have a special meeting and the Mayor and some other
councillors support it and now we are in a mess and we look like we have
something to hide”.
Cllr Duffy copied all other councillors as well as other members of the
Corporate Management Team into his email.
The
response
In his initial response to the Monitoring Officer,
Cllr Duffy reaffirmed his criticisms of “Gold”. For example, “I do not think Gold are doing a
good job, you cannot make me say they are. They are useless and need to get
their act together and start relating to the victims in K +C.”.
Cllr Duffy also repeated his criticisms of the Chief
Executive. For example, “The
CEO made no attempt to contact me before she cancel the meeting....”, and “She mislead Councillors saying I
had not enough Councillors knowing that I had”.
Cllr
Duffy also claimed that the Monitoring Officer was not impartial.
In a subsequent response to the Monitoring Officer,
Cllr Duffy said “I
honestly do not care, what you do as I think the CEO behaviour is out of
control and she believes because she wares a gold badge at meetings she is
above dealing with local Councillors and residents
It is
clearly is no use complaining about her, as it will be you who will deal with
complaint. You and the CEO have sought to misuse your powers to curtail debate.”.
The
issues
Under
section 27(1) of the Localism Act 2011, the Council has a duty to promote and
maintain high standards of conduct by members and co-opted members of the
Council. Enforcing the general principles and obligations set out in the Code
of Conduct is key to discharging this important statutory duty.
In
accordance with the Council’s complaints procedure, the Monitoring Officer
carried out an initial assessment of the complaints and found that they fall
within the scope of the Code of Conduct. Cllr Duffy’s emails clearly relate to
Council business and ward matters and it is equally clear that he was acting in
his capacity as a councillor.
My
determination of the complaints are set against the following legal and
political background.
Councillors
are entitled to criticise officers and their decisions and, depending on the
circumstances, do so publicly and robustly. Criticism does not in itself amount
to bullying or failing to treat someone with respect. Councillors are also
entitled to challenge officers as to why they hold their views and officers can
reasonably expect to be held accountable for their views, decisions and
actions. However, if criticism is a personal attack or of an offensive nature,
it is likely to cross the line of what is acceptable behaviour. Similarly,
unwarranted comments which undermine public confidence in the administration of
local government affairs and/or impair the mutual trust and confidence between
members and officers are unlikely to be acceptable.
Bullying
may be characterised as offensive, intimidating, malicious, insulting or
humiliating behaviour. Such behaviour may happen once or be part of a pattern
of behaviour. Amongst other things, bullying behaviour attempts to undermine an
individual.
When a
Code of Conduct complaint concerns something a member is alleged to have said
or written (as in this case), a finding of breach will only be lawful if it
fully respects the important right to freedom of expression enjoyed by members
of local authorities in the interests of effective local democracy.
My
decision has accorded due respect to Cllr Duffy’s fundamental right to freedom
of expression.
This right has a long tradition in our common law and was
embedded in domestic statute law by the Human Rights Act 1998. Article 10 of the
European Convention on Human Rights provides that:
“1.
Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas
without interference by public authority and regardless of frontiers. This
Article shall not prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The
exercise of these freedoms, since it carries with it
duties and
responsibilities, may be subject to such formalities, conditions, restrictions
or penalties as are prescribed by law and are necessary in a democratic
society, in the interests of national security, territorial integrity or public
safety, for the prevention
of disorder or crime, for the protection of health
or morals, for
the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary.”
This
includes a right to express views which others may find objectionable or even
offensive. Further, comments which constitute political expression attract an
enhanced level of protection under Article 10. There are limits however. And
the right itself is limited and not absolute which means it has to be balanced
against the duty to promote and maintain high standards of conduct by members.
Further, the right has to be balanced against competing rights such as the
Article 8 right to private life etc. which includes the protection of the
reputation of others.
The
decision
In
accordance with the Members’ Code of Conduct Complaints Procedure, before
deciding the outcome of this complaint, I consulted the Council’s Independent
Person and have taken her views into account.
Cllr
Duffy’s reaction to the Chief Executive’s advice was entirely without
justification. The Chief Executive had stated the legal and constitutional
rules accurately. And the rules had been applied correctly: at the time of
writing, a request for an extraordinary meeting of Full Council had been
received from 4 members only (i.e. not 5); in any event, the request had not
been signed by the members and was not accompanied by a notice of the motion to
be debated at the meeting as required by the constitution. The advice was
balanced, set out the options and stated in clear terms that the decision had
to be made by the Mayor. The advice was also given transparently.
Against
that background, the allegation (which was stated twice) that the Chief
Executive’s behaviour was “disgraceful” and that she was trying to manipulate
the Mayor and the situation was unacceptable. As was the suggestion that “The
Labour group should not stand by while she [the Chief Executive] swans off to
“gold”” and the accusation that the Chief Executive “seeks to enhance her own
reputation”.
Cllr
Duffy’s response was an unreasonable and excessive personal attack. These
comments are unequivocally and deliberately offensive, disparaging and
defamatory. Although I acknowledge that the Grenfell Tower fire is an emotive
issue and feelings were running high at the time, the comments I have referred
to amount to an unjustified attack of a personal nature and do not concern fire
safety issues.
In my
view, those aspects of Cllr Duffy’s email crossed the line and failed to treat
the Chief Executive with respect and brought his office and the Council into
disrepute. This is especially so because Cllr Duffy copied all other
councillors into his email. This amounts to breach of obligations 4(1) and 5 of
the Code of Conduct as well as the obligation to maintain a high standard of
conduct and, in particular, the principles of integrity and leadership (see
para. 3).
I am also
satisfied that the email Cllr Duffy sent on 26 June 2017 in overall terms
either by itself, or when read in conjunction with his email exchanges on 29
June 2017, is vexatious and unjustifiably offensive and bullying in nature. The
persistent and targeted criticisms of the Chief Executive in emails which were
sent to all other councillors and senior officers have no reasonable
foundation, were intended to undermine the Chief Executive and have a harassing
effect.
This
amounts to breach of obligations 4(2)(b) and 4(2)(e) of the Code of Conduct as
well as the obligation to maintain a high standard of conduct and, in
particular, the principles of integrity and leadership (see para. 3).
For these
reasons, I am satisfied that my findings of breach are a necessary and
proportionate interference with Cllr Duffy’s right to freedom of expression.
The Council has an important statutory duty to promote and maintain high
standards of conduct by members and the serious, deliberate and unfounded
accusations of wrongdoing which Cllr Duffy repeated and disseminated to others
crossed the line and amount to an unreasonable and excessive personal attack.
In addition, such an attack on the Chief Executive, without consequence, could
expose other officers to similar treatment.
Further,
the unfounded accusations of manipulating and misleading others and acting out
of self-interest and other such personal attacks do not attract the higher
level of protection that political expression does. Alternatively, even if they
did, the findings of breach would still be necessary and proportionate in all
the circumstances.
For completeness,
I note that Cllr Duffy was also disparaging about “gold” and made other
criticisms of the Chief Executive being “out of touch” and neglecting Brent
residents. As set out above, Cllr Duffy has a fundamental right to hold
opinions on these matters and to express those opinions. As a matter of law, I
do not have to agree with or approve of Cllr Duffy’s comments in order to
respect his fundamental right to make such comments.
Cllr
Duffy has not disputed that he sent the emails the subject of the complaints
under consideration. In any event, I am satisfied that there are no factual
issues which need investigating before a decision can be made because the
meaning of the emails which has caused offence and the context is clear. For
these reasons, I have been able to conclude that there has been a clear breach
of the Code of Conduct without an investigation.
The
sanction
I
recommend that Cllr Duffy apologises to the Chief Executive within 5 working
days of the end of the period for requesting a review of my decision.
This
decision notice will also be published on the Council’s website for 6 months
and will be formally reported to the Standards Committee.
I am
satisfied that these measures are proportionate to the clear and serious
breaches of the Code of Conduct by Cllr Duffy.
In
accordance with the Members’ Code of Conduct Complaints Procedure, as far as
the complainants are concerned my decision is final and there is no right of
appeal or right of internal review against my decision.
As far as
Cllr Duffy is concerned, he may request in writing within 10 working days of
receiving this decision notice that the Monitoring Officer review my decision
that he breached the Code of Conduct and/or the sanction imposed. The reasons
for requesting a review must be given and any new supporting documentation
provided.
LOOQMAN
DESAI
DEPUTY MONITORING OFFICER, BRENT COUNCIL
