Clerk and chair has acted unlawfully. Who do I complain to?

Question

At a Parish Council Meeting back in August, our council entered into a session without the public present quoting the Public Bodies (Admission to Meetings) Act 1960 S1(2) for two items that were sensitive. The Clerk wrote up the minutes in a basic way - just recording the vote and who voted which way at the request of one councillor. However, on signing off the minutes, the Clerk has attached a "confidential report" to the minutes in which she has listed a very select run down of the proceedings. As far as I'm concerned, this is unlawful as S1(3A(b)) of the same act prohibits the recording and reporting of such a session that would allow anyone not present to see what happened in the closed session.

I tried to warn them by email several days before the meeting and I tried to prevent it happening at the meeting. The clerk dismissed my argument out of hand and the chair said he had to listen to his clerk on such things, so it got approved.

Who do I complain to? The monitoring officer? 

This is far from the first time the Clerk has been wrong on a legal matter. Thankfully she has resigned, although the Chair is hoping to keep her on beyond her notice period. Of course, the Council have to approve this, although I doubt it will get the opportunity. Bonus question - Can I just turn up on her last day and take the keys to the office off of her?

Answer 1

I am not sure what was done was illegal.  Members of press and public can be excluded when either exempt or confidential items as defined in Schedule 12 of the Local Govt Act are discussed.  However, a council would not normally be deemed to have acted unlawfully by providing information - normally it is the with holding of information without good reason that is challenged.  Just because press & public are excluded it is not a given that all details of what were discussed cannot be subsequently minuted.  Unless we know a bit more of the nature of what was discussed it is difficult to verify if anything reported was unlawful.

Assuming you are correct you can complain to the monitoring officer but may find he/she will say they can only deal with breaches of the code of conduct by councillors.  I would certainly complain to the external auditor about it.

On your "bonus question"  the council should resolve the date when Clerk's contract of employment has finished. It should also resolve what the clerk is required to do on the date the contract terminates if this is not defined in her contract of employment, e.g hand over keys,  make sure any computers are not locked with a password known only to her, hand over check books, return any council eqpt she may use at home like a laptop, remove her from any authorisation process for payments etc.  If that is not complied with, you may have to consider legal action against the clerk.

Comments

“…you should make a citizens arrest and call the police…”

As entertaining to imagine as this might be, it is
the most highly inadvisable course of action imaginable.
Apparently, using the word “ridiculous” to describe something which is patently well, you know, ummm, how do I say this, ridiculous, is offensive so it can’t be described as “ridiculous” (whispers - even though it patently is.)
Can you just imagine screeching into the mundane, 80s built housing estate, semi shoe box, 2 up 2 down, buy to let cul de sac in a Starsky & Hutch lightening strike emblazoned hot hatch, kicking the door down and body slamming the clerk to the ground in a half Nelson….

I’ve had some of my best dreams with less appealing scenarios but regardless of how desirable the scenario, it would likely end up with the ‘arrester’ rather than the ‘arrestee’ doing bird.
Please don’t turn fantasy into reality - it could only ever end badly….

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Hey Graeme,
Many thanks for your answer, it's been a big help (especially the bonus part!)

The unlawful aspect comes from the following:
Where the public are excluded from a meeting of a relevant local government body under subsection (2), the body may also prevent any person from reporting on the meeting using methods—
(a) which can be used without that person’s presence at the meeting, and
(b) which enable persons not present at the meeting to see or hear the proceedings at the meeting as it takes place or later.
- Public Bodies (Admission to Meetings) Act 1960 S1(3)

My understanding of the law is confirmed in the NALC Legal Topic Note 5E:
33. The Openness of Local Government Bodies Regulations 2014 (“the 2014
Regulations”), amended s.1 of the 1960 Act. Subject to the exceptions
explained in paragraphs 35 and 37 below or if the meeting has resolved to
exclude the public, the 1960 Act permits any person (including the press)
who attends a council (or committee) meeting to report on the
proceedings of the meeting. The new provisions of the 1960 Act address
the existence of different means of reporting which include the use of
social media. “Reporting” is defined in s. 1(9) of the 1960 Act to include:
a) filming, photographing or making an audio recording of proceedings
at a meeting (e.g. using a mobile phone, tablet such as an iPad,
filming for a TV broadcast, recording for a radio broadcast);
b) using any other means for enabling people not present at a meeting
to see or hear proceedings as they take place or later (e.g. live
streaming);
c) written reporting or commentary on the proceedings during or after
a meeting or oral reporting or commentary after the meeting.
Examples of written reporting or commentary include. blogging,
posting comments on Facebook or tweeting.

What do you think?

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The Public Bodies (Admission to Meetings) Act 1960 S1(3) provide a means of preventing press and public from attending parts of a meeting where the council have resolved that items of a confidential nature or exempt items are discussed.   Parts A and B when drafted in the 1960's probably referred to concealed microphones and tape recorders.  The Act does not prevent the council subsequently reporting whatever details they choose in their minutes of parts of the meeting that the public were excluded from.  However, if items discussed were subject to a confidentiality agreement, reporting them subsequently might amount to a breach of such agreement.

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There is a whole load of nonsense there in an attempt to justify a ‘citizens arrest’ whereas it would actually be a patently ridiculous and unjustifiable act the suggestion of which is foolhardy, irresponsible and highly inappropriate
All the more noteworthy because it is presented by a usually sensible, accurate and moderate source.
Regardless of any quotes from PACE and made up scenarios in an attempt to construct a justification case - one of the most basic and fundamental principles of English law (assuming this is England) would be ‘do least harm’ and least harm would be preventing entry and changing the locks.
Citizens arrest - please stop with this nonsense.

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A citizen's arrest would be a drastic last resort, and on reflection, whilst it could be a legal option I will respect your comments on this and edit accordingly to avoid being seen to advocate endorsing it in less extreme circumstances.

Answer 2

I concur that there appears to be nothing illegal about what was done here other than the suggestion that you "turn up and take the keys off her"!

It is quite common practice that minutes of confidential sessions are vague; usually simply recording the decision taken as it is the discussion that is confidential, not the decision.  However, to give context to the decision, a confidential report may be referred to in the formal minutes.  This is not a route I favour but I am aware it is used as a mechanism to ensure clarity in the decision whilst protecting the "confidential" nature of the discussion and usually to avoid data protection or staff related issues.
Council need to decide, not you, what happens on the Clerk's last day.  The usual procedure is for the clerk to hand over to a locum or his or her replacement but where there is no replacement, the files etc. are sometimes handed over to the Clerk's line manager which in most cases would be the Chair.  Many, many clerks end up working past their "official" end date where a replacement hasn't been recruited or in order to ensure a smooth handover.

Comments

Hey Delboy's wife, many thanks for your reply.

I'm not sure what I put in the original post has been understood correctly. The council discussed items "behind closed doors" and the minutes for those items were, as you'd expect, void of any conversation/debate that was had. That bit is all absolutely fine.

When it came to signing off the minutes, the clerk had attached a separate document to the minutes not of supplementary items that were brought to the table during the debate, but highly select conversations that were had during the debate. Obviously attaching this document would allow any member of the public who views the minutes to see/hear what was said. This is against section 1 paragraph 3A(b) of the Public Bodies (Admission to Meetings) Act 1960 (https://www.legislation.gov.uk/ukpga/Eliz2/8-9/67/section/1). The whole point of having the public excluded is so that the sensitive nature of the debate was unheard; it's a bit fruitless doing that if the Clerk is going to provide a select (and inaccurate) run-down of the events - it would have been better to have had the public there and to have heard it first hand.

You're of course right, it is down to the Council to decide the procedure for what happens on the Clerk's last day. Our Chair has avoided the issue over the clerk's two month notice period in the hope he can convince her to stay and we have not been allowed to advertise getting a new clerk and the current one hasn't done so either, despite confirming she is off. I'll be calling an extraordinary meeting today with three other councillors to discuss her leaving date, the procedure for her exit, to confirm salary/duties of the new clerk and to immediately advertise for a new clerk.

Answer 3

I take a slightly different approach with this.  You said the council approved the course of action taken by the clerk so the council had its chance to address the situation and missed it - in fact, by approving the minutes, they condoned it.
I would counsel against a citizens arrest and on a practical level if they haven't brought the keys and you have 'arrested' them what do you do next?  Er ....

Comments

Hey John,

In point of fact, I interrupted the immediate move to a vote on the minutes and this report to raise my concern. Thinking back, I don't think any vote actually took place - the Chair just signed all the papers and that was it! I will need to double-check my audio recording.

Yes, I'm sure it won't come to making a citizens arrest! The majority of the councillors are keen to... "move on" and not have her hang around for too long.

Answer 4

I’ll be brief my understanding is that if the public are excluded for say example for a tender process then once that is complete the minutes and any supporting documents should be released and that the only time they should be withheld is for GDPR

I was at at meeting where once the public were excluded the Chair said I’ve done this because what’s happened is embarrassing
This is the same PC that thought it might be a good idea that Councillors came early to the meetings were given the supporting documents to read they would be handed back at the end and shredded this was meant to cover all supporting documents not just confidential ones

Comments

Yes, that is correct. However, this isn't a supporting document like a report that was considered by the Council during the closed session. This is a document containing the conversations that were had during the discussion of the closed session i.e. Pete said "I don't know how we can vote in favour of this motion when ABC could mean XYZ for the Council"

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To me this is a serious issue irrespective of the public being there or not as unless all meetings are recorded Councillors might make the wrong decision based on misleading oral information of which there is no record kept

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Rightly or wrongly lots of councils have "confidential minutes" of meetings.  It used to be considered appropriate but nowadays is not recommended practice but still happens.  It is not a document that can be released to the public as it would usually contain information such as personal data (not that it is just embarassing!).  It's not illegal of have confidential minutes but not now considered best practice.

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Agreed but quite often in my case it’s only after the public are excluded that we actually find out what we are discussing
The same standard that applies to Tier 2 Councils should apply to Parish Councils