WELL ITS HAPPENED

Question

I have over the last year raised several issues which relate to NALC in the form of our clerk imposing her view of how things should be done on our Council.  The problem is that most Councillors don't give two hoots let alone understand the issues and simply follow the Clerk's lead. I was recently charged through a resolution to audit our PROWs and produce an ongoing maintenance and improvement plan.  This a subject I am an expert in and I have found a right mess.  Now in order to produce a plan I had to contact both the Highways authority and a local landowner both of whom I know.  Both of these enquiries were made, by E mail and I was challenged by the clerk that such correspondence must go through and be approved by her.  I have quoted para 25 of the SOs and said no I am perfectly entitled to make such enquiries.  I have also checked with HA and they say their officers cannot refuse enquiries from individual Councillors.  .   I have written to the officers on the local affiliated NALC association, but they don't reply.   Never have I been so disillusioned .  The clerk has now put forward the following motion .  The key seems to be what is a decision.  To me it is something which requires a resolution to enact not every single thing you may do as a part of your task

Limitations on Councillors’ Authority LGA 1972 s101 To note that Councillors are not to act independently and cannot make a decision or write official correspondence on behalf of the Parish Council, unless authorized to do so by this Committee. To agree that this Committee does not support individual Councillor communication with NSC on behalf of the Parish Council, either as Councillor or resident, unless authorized to do so by this Committee.

Answer 1

Ask your clerk on what authority they are presenting a motion? Who is the proposer and the seconder?  They must be Cllrs not employees
You may find your SOs only allows for a Cllr to bring a motion.
That would be funny….

Whilst I was observing rather than involved with the current PC the clerk used to intervene with a point of order.
Weak and I’ll informed chair didn’t have the knowledge nor minerals to point out that a point of order could only be raised by a Cllr according to the extant SOs

Comments

So can I be clear the text as above is what is written on the agenda.  Is it therefore not possible to discuss the item and then for a Councillor to propose a motion to be voted upon?  Or should any motion on the agenda be accompanied with the name of a proposer?   I must say that the latter seldom happens on our Council.  It is ironic that the clerk refused one of my motions on the grounds of time management

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As is almost invariably the case, it depends on what yr SOs says.
Ours, which are based on the model, states:

 - A motion shall not be progressed unless it has been moved and seconded
- A motion not moved by the proposer May be treated by the chairman of the meeting as withdrawn.
- No motion may be moved at a meeting unless it is on the agenda and the mover has given written notice of its wording to the proper officer at least 7 days before a meeting.
To read into those 3 elements - nowhere does it say that a clerk may enter a motion on the agenda, nowhere does it say that a clerk may propose a motion but it DOES say a motion not moved by the proposer May be treated as withdrawn.
You are unlikely to find a specific reference that says a clerk CAN or CANNOT propose a motion but the obvious absence of such a regulation and a proper read of what DOES have to happen makes it pretty obvious that a clerk, or a horse, or a turnip, cannot present a motion UNLESS a Cllr is prepared to sponsor / adopt it as the proposer / mover.
I can’t give you a reference which says a clerk cannot enter a motion on the agenda but I’d wager it would be even MORE unlikely that anybody could find a reference that says they can….

I think the answer to your specific question is no - you can’t have a Cllr propose a motion after a discussion if that motion is not on the agenda. You can have an amendment to a motion but you can’t have discussion and then propose a motion at the meeting

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This is interesting. I have no problem with the fact that the clerk can provide a report to a committee recommending a particular form of action.  Equally I am aware that a committee is under no obligation to accept that recommendation.   The question therefore is what is the process for getting it debated i.e. does it need to be in the form of a motion?  And if so does that motion need to have a proposer?  It does however seem wrong that the clerk has the power to refuse Councillors applications for motions to be included on any Agenda, yet the Clerk has no equivalent hurdle to jump.  Hmm

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It’s just my approach, others may differ, I take the view that a written motion is necessary for any proposal that has financial implications.
If a topic requires consideration / discussion / debate then those are the descriptors which might appear on the agenda.
For example - council to “consider” report presented by….

Which could result in a resolution to accept / reject the report.
Practically then, you could have an agenda which shows “consider” XYZ, followed by a motion which adopts the content of the report.
If the “consider” does not lead to a resolution to adopt then the following motion could be withdrawn or amended.
It’s only difficult when there are people in the process that set out to make difficult.

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A clerk cannot refuse a properly formatted, sensible, reasonable, legible and legally enactable motion.

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Round Again Coxn Oh yes they can read para 9 of SOs

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Bit early for panto season );0)

It may well say the PO has the final authority for an agenda but, as we all recognise, that choice (and it obviously is a conscious choice) of words is part of an inexorable creeping course of action by NALC, and readily embraced by empire building / power crazy clerks (others may differ, only applies if cap fits) which, as we so frequently see on these pages, as a consistent source of frustration.
I love it when people cling desperately to a portly or intentionally misinterpreted’regulation’ because it absolutely binds them to abide by ALL regs rather than just the ones they choose.
It may not immediately help if you have a clerk / chair combo that are making a combined fist of it. What you’ll need to do is understand exactly what the regs require, how your council wishes the clerk to perform their duties and then seek to propose suitable amendments - as resolution of the relevant committee or council.
There is plenty of open source guidance on agenda - I seem to recall a NALC document which recommends “consider” “discuss” “resolve” as specific agenda openers.
There is nothing in what NALC or a clerk ‘recommends’ which binds a council to adopt that course of action. The majority of recommendations are pretty logical and un controversial, that line about clerk having final say on agenda is not.
But of course a sensible chair would simply remove ridiculous items from an agenda at the meeting, which they are empowered to do and which pretty much makes a contradiction and a mockery of the misinterpretation that the clerk ‘owns’ the agenda. They don’t.

Answer 2

I believe a councillor cannot make a decision on behalf of the council, unless he/she has been given delegated authority by a resolution, but they are allowed to communicate with other bodies on its behalf of whatever role they might have or authority they have been given  - eg. Chair of a committee, nominated rep., etc. There is no obligation to copy the clerk in.

The proposed motion seems to restrict a cllr communicating 'on behalf of the council' even as a resident - which seems nonsensical as some acting as a resident could never claim to do so.

Comments

Question Learner.  What do you define as a decision?   I believe it is a recommendation (or whatever word you choose) which would in the normal course of events be adopted by means of a resolution.

Answer 3

Not sure if I'm missing something here but I'm reading the original post as specifically relating to the proposed agenda item rather than necessarily whether the clerk has authority to put forward the resolution.
Surely the agenda item is an absolute nonsense.  I fully accept and understand what s101 states so why put it on the agenda?  The council has no authority/jurisdiction to vote on it as it is a statement of fact that cannot be changed.  A councillor cannot, alone, make a decision.  No one is disputing that fact but in this case there is a resolution to authorise Yorkieman to undertake the audit the PROWs and produce an ongoing maintenance and improvement plan.   That's not making a decision, surely?  It's producing a report for council to consider and agree (or otherwise).  Something that's not possible without contact with the outside world.  If the councillor can't carry out the task agreed by resolution, why assign it to a councillor in the first place?
The resolution sounds like an attempt at a public reprimand which, following Ledbury, is not the way forward.  If anyone feels a councillor has acted outside the terms of his or her office, the correct procedure is a complaint to the monitoring officer, not a resolution in a council meeting.

Comments

I think Delboy's wife has well and truly hit the nail on the head.  As a clerk, I would not have dreamt of promoting such an agenda item.

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I think you are missing something, which I’ll explain, but aside from that, we’re closer to an agreement than possibly ever before which is noteworthy.
What I think you are missing is attention to detail.
The OP states:

“…The clerk has now put forward the following motion…”

Hence the slightly tangential point that a clerk cannot put a motion on the agenda which actually solves the problem before it even starts.
You seem to be focussing upon a clerks authority to arrive at a resolution.
Well of course they can’t do that because they don’t have a vote but the resolution is consequential to the motion rather than the other way around.
So a clerk can NEITHER propose a motion nor arrive at a resolution - they may of course RECORD the resolution of a council.
Since the clerk cannot propose a motion, but they are required to ensure any motion submitted is appropriately formatted, expressed and legal, it’s pretty obvious they shouldn’t be marking their own homework. But since they shouldn’t be submitting motions it shouldn’t happen anyway.

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I take your point RAC but this brings in another issue I have which relates to Agenda Construction/format. Now our Agenda I have to say does not specifically say that it is a motion ie it is just a form of words on the agenda. So that begs the question if it is a motion should it say so and also who the proposer is?  It seems to me in most cases an item appears on an agenda then we discuss it, and the Chairman decides whether we need to make a resolution and if so, the Chairman decides a form of words and looks for a proposer and seconder

Answer 4

Challenge, challenge and challenge again.  Each Councillor is an elected member to represent their area and work for their community.  The Clerk is an EMPLOYEE of the whole council.  Only when the whole council acknowledge that this is the correct order of things will any improvements be made.   When the Clerk is stating or advising that this or that cannot be achieved ask about the relevant legislation or standing order, this way any differences of opinion can be ironed out and knowledge gained on both sides.