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Monitoring Officer Protocol

Monitoring Officer Protocol

General Introduction to Statutory Responsibilities

The Monitoring Officer is a statutory appointment under Section 5 of the Local Government and Housing Act 1989. This Protocol provides some general information on how those statutory requirements will be discharged at Tameside Metropolitan Borough Council.

The current responsibilities of the Monitoring Officer role rest with the Borough Solicitor who undertakes to discharge his/her statutory responsibilities with a positive determination and in a manner that enhances the overall reputation of the Council. In doing so s/he will also safeguard, so far as is possible, Members and Officers whilst acting in their official capacities, from legal difficulties and/or criminal sanctions.

The main functions of the Monitoring Officer at Tameside Council are:

  1. To report to the Council and to the Executive in any case where s/he is of the opinion that any proposal or decision of the authority has given rise to or is likely to or would give rise to any illegality, maladministration or breach of statutory code under Sections 5 and 5A of the Local Government and Housing Act 1989; (LGHA 89)
  2. To investigate any matter, which s/he has reason to believe may constitute, or where s/he has received an allegation that a matter may constitute, a reportable incident under Sections 5 and 5A of the LGHA 89;
  3. To act as the principal adviser to the authority's Standards Committee;
  4. To act as the principal adviser to the authority's Standards Panel;
  5. To maintain the register of members' interests;
  6. To act as the Proper Officer for the preparation, publication and retention of records of decisions taken by or on behalf of the Council and the Executive;
  7. To have responsibility for responding to complaints to the Local Government Ombudsman
  8. To undertake, with others, investigations in accordance with the Council's Whistleblowing procedures
  9. To act as Proper Officer for the Data Protection Act 1998 and the Freedom of Information Act 2000

In general terms, the Monitoring Officer's ability to discharge these duties and responsibilities will depend, to a large extent, on Members and Officers:

  1. complying with the law (including any relevant Codes of Conduct);
  2. complying with any General Guidance issued, from time to time, by the Standards Committee and the Monitoring Officer;
  3. making lawful and proportionate decisions; and
  4. complying with the Council's Constitution and standing orders
  5. generally, not taking action that would bring the Council, their offices or professions into disrepute
  6. communicating effectively with the Monitoring Officer and seeking advice on any issues relating to constitutional or ethical matters

The main statutory references for the Monitoring Officer's functions are set out in Appendix 1.

Working Arrangements

It is important that Members and Officers work together to promote the corporate health of the Council. The Monitoring Officer plays a key role in this and it is vital therefore, that Members and Officers work with the Monitoring Officer (and his/her staff) to enable him/her to discharge his/her statutory responsibilities and other duties.

The following arrangements and understandings between the Monitoring Officer, Members and Chief Officers (Senior Management Team) are designed to ensure the effective discharge of the Council's business and functions. The Monitoring Officer will:

  1. be alerted by Members and Officers to any issue(s) that may become of concern to the Council, including, in particular issues around legal powers to do something or not, ethical standards, probity, propriety, procedural or other constitutional issues that are likely to (or do) arise;

  2. have advance notice (including receiving agendas, minutes, reports and related papers) of all relevant meetings of the Council at which a binding decision of the Council may be made (including a failure to take a decision where one should have been taken) at or before the Council, Cabinet, Committee meetings and/or Strategic Directorate (or equivalent arrangements);

  3. have the right to attend any meeting of the Council (including the right to be heard) before any binding decision is taken by the Council (including a failure to take a decision where one should have been taken) at or before the Council, Cabinet, Committee meetings and/or Strategic Directorate (or equivalent arrangements);

  4. in carrying out any investigation(s) have unqualified access to any information held by the Council and to any member or officer who can assist in the discharge of his/her functions;

  5. ensure the other statutory officers (Head of Paid Service and the Chief Finance Officer otherwise known as Section 151 Officer and/or Borough Treasurer) are kept up-to-date with relevant information regarding any legal, ethical standards, probity, propriety, procedural or other constitutional issues that are likely to (or do) arise;

  6. meet regularly with the Head of Paid Service and the Chief Finance Officer to consider and recommend action in connection with Corporate Governance issues and other matters of concern regarding any legal, ethical standards, probity, propriety, procedural or other constitutional issues that are likely to (or do) arise;

  7. report to the Council, from time to time, on the Constitution and any necessary or desirable changes following consultation, in particular, with the Executive Leader, the Head of Paid Service and Chief Finance Officer;

  8. in accordance with statutory requirements, make a report to the Council, as necessary on the staff, accommodation and resources s/he requires to discharge his/her statutory functions;

  9. have an appropriate relationship with the Executive Leader, Deputy Leader and the Chair of Council Business, Standards Committee and Scrutiny Committees with a view to ensuring the effective and efficient discharge of Council business;

  10. develop effective working liaison and relationship with the Standards Board for England, the District Auditor and the Local Government Ombudsman (including having the authority, on behalf of the Council, to complain to them, refer any breaches to them or give and receive any relevant information, whether confidential or otherwise, through appropriate protocols, if necessary) and settle any compensation payments for alleged or actual maladministration found against the Council in consultation with the Chief Executive and the appropriate Head of Service;

  11. maintain and keep up-to-date relevant statutory registers for the declaration of members' interests, gifts and hospitality;

  12. give informal advice and undertake relevant enquiries into allegations of misconduct (in the absence of a written complaint being received by the Standards Board for England) and, if appropriate, make a written report to the Standards Committee (unless the Chair of the Standards Committee agrees a report is not necessary) or to the Standards Board for England if, in the opinion of the Monitoring Officer, there is a serious breach of Tameside Council's Code of Conduct for Members;

  13. in consultation, as necessary, with the Executive Leader of the Council, Cabinet, Standards Committee and the Standards Board for England, defer the making of a formal report under Section 5 Local Government and Housing Act 1989 where another investigative body is involved;

  14. undertake all statutory Monitoring Officer functions in respect of Mossley Town Council and make arrangements to ensure effective communication between his/her office and the Clerk to Mossley Town Council on Monitoring Officer and Standards Committee issues;

  15. subject to the approval of the Standards Committee, be responsible for preparing any training programme for members on ethical standards and Code of Conduct issues;

  16. oversee the implementation and monitor the operation of the Code of Corporate Governance and report annually to the Joint Overview Panel on compliance with the Code;

  17. advise on all applications from Council employees (or prospective employees) for exemption from political restriction in respect of their posts and where appropriate sign the certificate of opinion required by the independent adjudicator;

  18. appoint a deputy and keep him/her briefed on any relevant issues that s/he may be required to deal with in the absence of the Monitoring Officer. The Deputy will only act in the absence of the Monitoring Officer if urgent action is required which cannot await the return of the Monitoring Officer.

To ensure the effective and efficient discharge of the arrangements set out in paragraph 5 above, Members and Officers will report any breaches of statutory duty or Council policies or procedures and other vires or constitutional concerns to the Monitoring Officer, as soon as practicable.

The Monitoring Officer will seek to resolve potential reportable incidents by avoiding the illegality etc., or by identifying alternative and legitimate means of achieving the objective of the proposal.

Where the Monitoring Officer receives a complaint of a potential reportable incident, s/he shall in appropriate cases seek to resolve the matter amicably, by securing that any illegality, failure of process or breach of code is rectified, that the complainant is informed of the rectification, with or without a compensation payment and/or apology. However, it is recognised that the Monitoring Officer may determine that the matter is of such importance that a statutory report is the only appropriate response.

In appropriate cases, the Monitoring Officer may rely upon existing processes within the authority (such as internal appeals procedures or insurance arrangements) to resolve any potential reportable incident, but may intervene in such processes to identify that the particular matter is a potential reportable incident and to ensure the satisfactory resolution of the issue.

In appropriate cases, and to secure the rapid resolution of a potential reportable incident or avoid a separate statutory report, the Monitoring Officer shall be entitled to add his/her written advice to the report of any other officer of the authority.

Notwithstanding the above, the Monitoring Officer retains the right in all cases to make a statutory report where, after consultation with the Chief Executive and the Chief Finance Officer, s/he is of the opinion that this is necessary in order to respond properly to a reportable incident. In addition, in appropriate cases, the Monitoring Officer may refer matters to the Police for investigation.

The Monitoring Officer is available for Members and Officers to consult on any issues of the Council's legal powers, possible maladministration, impropriety and probity issues, or general advice on the constitutional arrangements (eg Standing Orders, policy framework, terms of reference, scheme of delegations etc).

To ensure the effective and efficient discharge of this Protocol, the Chief Finance Officer will ensure adequate insurance and indemnity arrangements are in place to protect and safeguard the interests of the Council and the proper discharge of the Monitoring Officer role.

Sanctions for Breach of Tameside Council's Code of Conduct for Members and this Protocol 

Complaints about any breach of Tameside Council's Code of Conduct for Members must be referred to the Standards Board for England, which could lead, ultimately, to the disqualification of a Member. Complaints about any breach of this Protocol by a Member will be referred to the Standards Committee and to the relevant Leader and/or Chief Whip of the Political Party Group. Complaints about any breach of this Protocol by an Officer may be referred to the relevant Chief Officer and/or the Chief Executive.

Appendix 1


Monitoring Officer Protocol


Summary of Main Monitoring Officer Functions


Description

Source

1

Report on contraventions or likely contraventions of any enactment or rule of law

Section 5 Local Government and Housing Act 1989

2

Report on any maladministration or injustice where Ombudsman has carried out an investigation

Section 5 Local Government and Housing Act 1989

3

Appointment of Deputy

Section 5 Local Government and Housing Act 1989

4

Report on resources

Section 5 Local Government and Housing Act 1989

5

Receive copies of whistleblowing and allegations of misconduct

Code of Conduct for Members and Co-opted Members of Tameside Council

6

Investigate misconduct in compliance with Regulations (when made) and directions of Ethical Standards Officers

Regulations when made. Directions when made in individual cases. LGA 2000 Section 66(1)+66(6)

7

Establish and maintain registers of members interests and gifts and hospitality

Section 81 LGA 2000 and Code of Conduct for Members and Co-opted Members of Tameside Council

8

Advice to members on interpretation of Code

Code of Conduct for Members and Co-opted Members and regulations when made

9

Key role in promoting and maintaining high standards of conduct through support to the Standards Committee

DETR Guidance

10

Liaison with Standards Board and Ethical Standards Officers

New ethical framework, practical implications

11

New ethical framework functions in relation to Parish Councils

Section 83(12) LGA 2000

12

Compensation for maladministration

Section 92 LGA 2000

13

Advice on vires issues, maladministration, financial impropriety, probity and policy framework and budget issues to all Members

DETR guidance

Page last updated: 24 April 2013