THE POWER OF THE CLERK?

Question

Last night I attended a PC meeting as a resident i.e. before my re-election is actioned which is a few weeks away. I spoke under public participation but was instructed at the meeting that I had to formally agree with the clerk before the meeting what I wanted to discuss.  I responded that I had agreed with the clerk that I wished to speak but I believed it was the role of the Chairman alone on the night to intervene and direct me . Am I right?. However   I have this morning rec'd this E mail from the Chairman about his recent attendance at a NALC Good Councillors course . In part it  reads

One of the new councillors, a very experienced person made the following comment after understanding the rules of a PC, which I hope may inform you as to our hierarchy:

 

 

There is partial inversion of some of the powers and responsibilities. In charities and commerce, the secretary is the servant of the committee. In Parish Councils the Clerk has far more power. For instance the Clerk sets the agenda with Councillors requesting items be added. Compare that with a Charity where a trustee can demand an item be added as a right. The Church of England goes even further in that a PCC member can ask for an item to go on and it has to go on the next agenda; there is no permitted discretion by the secretary or chair, though that would obviously not preclude some negotiation. Also compared with companies and charities, the powers and influence of the Chair are watered down, whereas those of the Clerk are beefed up. 

Could readers please discuss .  This to me is NALC/SLCC chipping away at the PC system.   I understand  that the clerk sets the agenda but can she say countermand the Chairman's wishes and is public participation formally regarded as part of the meeting under the clerks control. Oh what tangled webs. 

Answer 1

The clerk is an employee of the council and there to advise on matters when requested ( usually via the chair. The clerk has no right to intervene in any meeting and must make advisements on matters via the chair . The chair is in charge of the meeting and their decisions on matters arising are final. That is not to say that if their decision is incorrect it cannot be challenged at a later date.

If public participation is on the agenda then it will take place. It is contrary to the councils code of conduct to attempt to edit or control what the public say and should a member of the public "get out of order" then it is the chair's job to control the meeting up to removal of the person or closing of the meeting.

It would appear your clerk wishes to act as some sort of censor on what people say ( wonder why?). It is always good to give a written question before hand for councillors so that you can get a quick response as opposed to " we will get back to you on that!"

Your comments regarding NALC may be very close to the truth.

Comments

This to me is a fundamental discussion. So a couple more questions. Is it a legal requirement/right  that the Clerk actually constructs the agenda? I understand that she/he issues the summons but where is it defined that she has the final say on agenda construction ?  Secondly is public participation an actual  public right and is it strictly part of the meeting proper. Or is it a privilege extended by the PC under its standing orders?

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In the "old days" pre box ticking and conformity to regulations for bureaucracy's sake the production of the agenda was a team effort between councillors, chair and clerk with the clerk advising on procedure and legal requirement and the chair presenting the practicalities of passing the business required for operation of the councils programmes.
Unfortunately somewhere along the line we have lost the desire to serve and now worship at the alter of "the system" and too many "organisations see kudos in their interference rather than support
The only right for public to be heard is at a Parish meeting of which the PC must call a minimum of one per year. Of course many see this as an inconvenience having to associate with the great unwashed but of course the public can call as many Parish meetings as they wish which is why PC's pay lip service to allowing a controlled "public" section in the agenda.

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There is a legal right for the  public to attend parish council meetings but no legal right to speak although it is considered good practice to allow this.  The public "rights" come through questioning actions via the auditors when the accounts are audited each year and those "rights" associated with things like subject access requests (under Data Protection legislation) or the Freedom of Information Act which confers the right to request information but not necessarily demand action on the part of the parish council.

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Unfortunately D is used to override A, B and C so the whole thing is meaningless
Why are Councils so afraid of the people who’s interests they are supposed to serving speaking at a meeting?

Answer 2

Well, NALC/SLCC do suggest putting the Proper Officer in charge of the agenda, but these requirements cane be altered if the Council adopts alternative Standing Orders:

"a The Proper Officer may, before including a motion on the agenda received in accordance with standing order 9(b), correct obvious grammatical or typographical errors in the wording of the motion.

b  If the Proper Officer considers the wording of a motion received in accordance with standing order 9(b) is not clear in meaning, the motion shall be rejected until the mover of the motion resubmits it, so that it can be understood, in writing, to the Proper Officer at least (   ) clear days before the meeting.

c  If the wording or subject of a proposed motion is considered improper, the Proper Officer shall consult with the chairman of the forthcoming meeting or, as the case may be, the councillors who have convened the meeting, to consider whether the motion shall be included in the agenda or rejected.

d The decision of the Proper Officer as to whether or not to include the motion on the agenda shall be final."

Public contributions are not formally part of the meeting (not under Standing Orders) so care must be taken to limit debate to a brief discussion of the issue raised and a direct answer if this is possible. The Chair, not the Clerk, is in control.

Comments

Just to add to this that CottenhamFrank is absolutely right and to say that whilst public participation might be on the agenda, only subjects specifically identified on the agenda can be discussed and decisions taken.  The rather general "public participation" as a heading isn't sufficient if you're looking for a decision or commitment from the parish council.  One of the reasons some councils require prior notice of an intention to raise a question is that the question can be added specifically to the agenda so you get a quicker response.

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Clarification please . Cottenham Frank mentions the ability to challenge badly worded motions but that is only one aspect of an agenda . Delboy's wife mentions all comments being restricted to items on the Agenda, Where does it say that ? Just to give you an example we have an Environment Committee to whom I have written about blocked gullies, possible action under PSPO process  and various PROW issues.  Not only wont they reply it certainly never reaches any agenda. What can I legally do to bring the discussion into the public domain ? It seems to me the format of any public participation should be as defined in any standing orders or the only other avenue is to call a Parish meeting which of course requires 10 electors.  Apart form this we still need the question answering ie who has the ultimate say so when constructing agendas.  It seems to me that such gaps providing the feeding ground for the likes of NALC and SLCC to come along and say this is how it must be done.  I believe that Councillors must take back control but I am not sure how or whether in some cases the will exists.

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First, I'll repeat:
d The decision of the Proper Officer as to whether or not to include the motion on the agenda shall be final.
The Clerk/Proper Officer is in charge of the agenda-setting process and normally works with one or other of the Parish Councillors on the wording of any item being suggested to ensure it is legal and the wording clear enough to be understandable by the public. It is simplest if a Parish Councillor proposes the item as they can also prepare some supporting info for a debate within the meeting. a question raised during the public speaking part does not have to be answered "one the spot" and some Councils do reject questions unrelated to any agenda item - but they should be noted and, if appropriate, taken up by the Clerk or a Councillor at later date. Of course, too many Clerks and Councillors have been doing the job for far too long and get set in their ways and become quite defensive in the face of any implied criticism. A formal complaint may be in order or, if you have a substantial number of supporters, get elected. BTW a Parish Meeting has no power over the Parish Council, other than possible public embarrassment.

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My point is that whilst Parish Council Meetings should be about making decisions they are often not i.e. not every item on the agenda will have am attendant motion.  Now if your statement that the Proper officer is  "in charge" of all of the agenda setting process where does it stipulate that ?  I agree it makes sense that the Proper Officer has an input to Agenda Construction but do they (and should they) have the ultimate sanction  The more I learn about the Parish Council system the more I realise how inadequate it can be when it comes to the public rights . Community engagement should be at fore front of this process but it seems that a state of "only if we say so" exists with many Councils

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I couldn't agree more

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I agree that the bulk of legislation that dictates what and how a parish council operates is practically older than me and not fit for purpose.

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The beauty of being a certain age (77 next year) is that you have been there and done it and have experience. Also you don't have to take crap off of anyone !!

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Hi

Some things may not be as we want but Standing Orders are what keep Parish Councils within the law - mostly from 1972. That said, areas like this can be changed if the Parish Council chooses to adopt variations but, until then, that SO stands and the Clerk / Proper Officer does have the last word.

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I know I’d sooner live in a community like Frome where they’ve thrown a lot of these ridiculous rules out than live in a community where one unelected and apparently untouchable individual basically runs the show

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Ditto... our Council has an untouchable pied piper running the show too.

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To throw my pennyworth in -- Too many PC's slavishly follow whatever piece of suggested policy from those self appointed "advice groups" loosing sight of one fact that it is they decide what policies they should adopt. My first employer always said don't be afraid to copy a good idea, improve it or add to it but never copy a bad one.
 As with the clerk they are there to "advise the council" not dictate to the council.
Even if the council ignore that advice they are free to do so, but of course sometimes, they must also face the other side of the coin, responsibility.
So yes, PC's are a law unto themselves but also, fully responsible for their actions and negligence.
Unfortunately we have generations now who refuse to do the most basic of thinking or analysis and seek the easiest solution to problems ( normally throwing taxpayers money at it) rather than solving those problems. The rise of bodies such as NALC and their generally incompetent local offices ( all unelected) takes full advantage of such behaviour until the only rules will be NALC rules.
PC's should constantly be looking for creative solutions to their communities needs utilising the best the parish has to offer.
 I have always  said that if one did an inventory of the skills and talents held within even the smallest Parish or village you would have the manpower to run a multi million pound business- So come on PC's get on with facilitating that talent for your communities benefit.

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Great debate so far,  What is clear to me is that certain influences which have been allowed to evolve which are affecting badly the perceived best of way of working ie Councillors alone debating issues vigorously and arriving at a collective decisions. Such scenarios are creating elites within Councils which is in turn put off Councillor applications and as a result 80% of all PC elections are now uncontested.  Something  has to be wrong.
This thread deals with the single issue is the power of the clerk and to me the legal position is still unclear. The clerk is the Proper officer who essentially advises (and monitors) Councillors to keep on a legal path. It therefore seems appropriate that with all motions that the clerk should have oversight as to whether they are legally correct . I don’t have a problem with that.   But I can’t see how that means the Clerk has total control over the whole of the  Agenda. That to me is a leap of faith too far.   It has to be a joint effort between the Council and its adviser?  My particular is issue is a bit complex in that I was a Councillor for about 14 days . During that period I submitted a case to bid for a Civic Pride post to carry out much of the hands on work required by residents . The chairman said “sounds fine to me” and told the clerk to put it on the next agenda. When the next meeting happened, the item was not there (I attended as a resident) .  I then wrote and asked the Chairman why the item was not included on the Agenda and asked who made the decision and why ?.   To date the Council has simply refused to reply but in this latest incident has indicated/implied  that the clerk has total control over the agenda.    My question is simply if that was the case, was she legally entitled to alone remove my motion  providing everything within the motion was legal?
My argument is that if such an absolute  power exists it can and is so easily used to facilitate strong Councillors to deploy their own agendas.  This is what helps create the so called “inner sanctums” which in turn destroys the Council. The precise nature and extent of this power needs to be defined one way or the other.  Another interesting part of this thread is  that the public actually has very few rights to comment/participate  . I find that staggering . The public needs to take back control . The question is how

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The residents can readily "take back control" by becoming Parish Councillors - the employer of the Clerk, with power to set employment conditions for the Clerk and censure, even dismiss any wayward Clerks.

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Not always  so easy to achieve  though,  as you need to have a majority.  The issues are to me more fundamental i.e. how can the "process" allow us to get in such a mess. Reform is needed. In the meantime its  a trial of strength

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They did that in my Parish but it now resembles the book 'animal farm'

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Over the years I've been both clerk and councillor (not for the same council!) and there could be a whole host of reasons why an item doesn't immediately appear on an agenda on demand.  Ignoring the fact that it might have been suggested too late to be included on the next meeting agenda, if it were me I'd want to be able to be clear about what was being proposed and the budget and practical implications of any suggestion.  Did you prepare this or was this just a first attempt at a discussion?  My initial reaction is that I'm not clear what you mean by Civic Pride post?  Is this a handyman post so presumably requiring a recruitment process and how would residents or others request work to be carried out and how would whoever deal with requests that are outside of the remit of the parish council to undertake?  Is there a budget for this work and if no, how would the cost be covered?  Not  trying to be difficult here but trying to make the point that it helps to make a very clear firm proposal, properly worked out rather than a bit of a vague request which might be rejected on the grounds of lack of clarity.  Of course you may have done this in which case I'd suggest you ask the Clerk why the item wasn't included

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Process reform is not really the issue - resident apathy is the problem and, sometimes, people assume that their pet subject is supported by more residents than it is. Key is to get one or more Councillors "on-side" so a legitimate subject will be aired, especially during the period when budgets are discussed.

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We have two local fora on which local issues are often brought which could require PC action.  For example  a) ASBs and the use of PSPOs (mainly dog poo related) b) storm gullies (about 10% blocked) c) litter d) fly tipping  e) PROW maintenance f)T junction line of sight problems  g) over hanging vegetation S154 g) weeds on roadsides (lengths man )  h) replacing footpath furniture .   Now many of these are covered by District Council powers which they cannot afford to exercise  with but are prepared to devolve .   The current situation is that nothing gets done .   I therefore put together a case to discuss what we could do about it and listed a motion which read The Environment Committee resolves to prepare a case for the appointment of a “Civic pride” post  to carry out many of the practical tasks needed to enhance the well being of XXXX residents.
I am fully aware of budgetary procedures and how the precept bidding situation works but the problem is getting any change initiatives past the initial “but we decide everything hurdle”.  You have to understand that on some Councils a few strong Councillors accompanied by a compliant Clerk control everything .  Changing that is difficult .  Of course you may I am not necessarily right .  Fair enough but to be denied even the debate is wrong . And yes I agree public apathy is rife
I have incidentally asked the Chairman and the clerk but they wont even reply

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Always difficult but you will have elections  next May - get the gang together and kick them out .

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We use our lengthsman for similar activities but admit that the whole process took a degree of organising and debate but we seem to be there now.
Going back to the subject in hand, I'd suggest this is less an issue about what the Clerk can and can't do but how to get a good idea into practice although I accept this starts with getting the subject on the agenda in the first place.  Without a doubt this is easier to do from inside rather than out and my advice (for what its worth!) would be to work with fellow councillors to "sell" the idea first and get a group to present it as a proposal.  This is not predetermination (if that idea is thrown at you) but an exchange of ideas to explore possibilities before bringing it to council to consider.

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It seems to me that if the clerk has the title of proper officer , then Agenda setting is the responsibility of the that post. However, what does “responsibility” mean? Does it mean being responsible for bringing it together with input from others or does it mean the clerk has total control over its contents ? Most standing orders seem to define a specific responsibility as it relates to motions but not other agenda content. It seems to me that if the proper officer has total control this can be counter productive and open to abuse i.e. not in the best interests of the public.
Clearly the view of many Councillors is that the Council itself should have the ultimate control over what it debates whereas custom and practice in many PCs allows the Clerk to lead.

In my opinion the role of clerk is such matters needs updating and I have written to the relevant Government Dept for comment.  All IMHO

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Open spaces 100% in agreement with your summation. The clerk is there to facilitate the wishes of the council not run the council. This includes bringing well versed advice and guidance to the table. By definition the agenda must be a joint production by the clerk and the chair as the chair has overall responsibility for the meeting and cannot do their job if they are presented with an agenda produced  by someone else without insight of the objectives to be met by the meeting.

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As usual I agree with Mentorman
It’s my experience that a lot of Clerks filter out requests from Parishioner’s and initiatives from third parties
I’ve seen cases where Clerks have made arbitrarily decisions about quite important matters without “bothering” the Councillors who are blissfully unaware of what’s happened

Also binding contracts and agreements are being entered into without Councillors being given the chance to see them
At the end of the day Councillors are elected to represent the residents interests, the Clerk is there to support that aim

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Words fail me I have just read the forthcoming meeting agenda and I do not recognise if I am in the same town.

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Keep chipping away at it.  Its a long process.