CO-OPTION MEETING

Question

Co-option again. We are holding an extraordinary  Full Council meeting before a Committee meeting next Monday to consider co-opting some "latecomers" .  There will be  less applicants than vacancies so we all know the process i.e. automatic acceptance.  However ,  I fully intended to ask some questions of the applicants given their  notes despite knowing what the outcome will be .   The problem is that it seems  these details might  not be handed out until the night of the meeting .  If the three clear days notice  to "background papers"  is not provided is the  agenda item valid and can Councillors decline to vote?

Answer 1

A councillor has the right to vote either for or against any matter which requires a decision; or may abstain from voting.

Answer 2

What does it say in your co-option policy? Very handy when faced with such a quandary.

Comments

I am perfectly aware of what our co-option policy says but I am wondering what weight Agenda policy carries.  As a new Council we had a training session recently from the local CALC which had not unexpectedly  a clear message of "you must  do what the clerk tells you" .  There was some debate around agendas and of course mention of the 3 day rule.  My question is how sacrosanct is this rule and how enforceable should it be.

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As I said above "A councillor has the right to a) vote for, b) b) vote against, or c) abstain on any matter.  Nobody has the right tell you which option to choose.

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With respect that does not answer the question.  I appreciate that I could refuse to vote on the grounds of insufficient notice but I suspect many would vote and that just perpetuates the non conformity with our SOs.  So John !706 you are the Chairman I asked on a point of order " Chairman , As Councillors have not been given the required notice to consider item X on the agenda , could I ask that it be deferred until the next meeting " what would your answer be ? I would add we get a lot of stuff handed out on the night

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Well therein lies your problem. Incorrect training by your local office. The clerk is not there to be "obeyed" despite the agenda of bodies like NALC would promote. The clerk is there to advise the council on matters they request advice on, and to facilitate the wishes and instructions of their employers,-the council. The clerk does not make decisions but supports the council in their decision making. Providing back up information to councillors on matters for discussion in the agenda, in sufficient time for councillors to absorb, understand or question that information is a basic function of the clerk not a choice by them.

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I agree absolutely but until a Chairman enforces standing orders nothing will change  and a Chairman is a Councillor of course .  Still like to know what the "common wisdom" is though on validity or otherwise i.e. is there discretion ?

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Some of the discussion is going a little off the subject.  I'm not clear if you have had three clear days notice of the meeting or not?  Without that notice period, the meeting is invalid so decisions taken at the meeting are unenforceable.
The notice of meeting must include details of the business to be transacted at that meeting, aka an agenda.  There is a requirement that the agenda must be sufficiently clear for both members and members of the public to understand the business to be transacted but no specific requirement for supporting papers to be issued at the same time.  Of course, supporting papers, if available, should be published (note the term "should") with the agenda but the implications of GDPR on publishing personal information about applicants does mean that some councils wouldn't release such information other than on the day of the meeting.  I'm not saying that's correct but I am aware that co-option policies do sometimes indicate this.
Now turning to the question of whether you must co-opt a candidate if there is no "competition" for the role.  Frankly the advice is muddled at best with NALC and other bodies giving conflicting advice.  The Local Government Act states that to be co-opted there must be a vote which is a nonsense if the candidate must be co-opted.  I've seem comment on other forums that in an election a council has no choice who stands as a candidate so anyone coming forward for a vacancy should be co-opted but as I've said, that makes the requirement for a vote a total nonsense.  My own council takes the line that candidates need to be proposed and seconded by existing members and if there's no proposal or seconder for the proposal, there is no vote and the candidate isn't co-opted.  This hasn't been challenged but who knows in the future.
Finally of course you have the right to decide whether to vote on anything.
Your Clerk is there to advise but difficult for him or her to do that when there's no definitive answer out there.

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Thank you always DW for your courteous reply. This thread is not really about co-option which I know is "less than clear". Its about agenda setting et al.  This causes a lot of angst with me as we often get the Clerk's agenda rather than the one Cllrs want.  All I ask if the clerk insists we must follow the rules then so must they.  My understanding is that the ICO consider background papers as part of the agenda yet your comments appear to indicate that they don't have to be made publicly available.  Why not? You equally say if the summons i.e. the Agenda itself  does not arrive by Wed night the the meeting is invalid . Yet its seems OK for the background papers to arrive late.  Why when they are part of the Agenda ? The relationship between the two needs clarifying. As it relates to background papers  Under ‘The Openness of Local Government Bodies Regulations 2014’ they (excluding information that is in the opinion of the proper officer confidential or exempt)  must be available as soon as reasonably practicable for inspection at the offices of the council and also published on the web site. What does that mean ?

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First of all, the ICO is concerned with data protection which does not in itself overrule other requirements of local government legislation.  As I said, where supporting papers are available, Transparency requires that those papers be published but note "where available" so no absolute legal requirement for a supporting paper to be available just that where one is, it should be published.  As I've said, some councils have a co-option policy which specifically indicates that personal information about co-option candidates will be published with the agenda in which case any candidate would presumably be aware of (or be alerted to) the fact that their information is public knowledge and therefore they can chose not to put themselves forward for co-option or at least withdraw their assumed consent to this.  
I should also add that the agenda/notice of meeting must be issued/published three clear days before a meeting but "three clear days" excludes the day the notice of meeting is published/posted and the day of the meeting (also excludes Sundays and the jury's out on whether Saturday can be included) so it's not the day it is received that is relevant, it is the day it is issued/posted.  There is case law (can't remember the name of the case) that establishes that failure to receive a notice of meeting (e.g. when the postal system fails to deliver it, if it is posted)  does not invalidate a meeting.
The Regulations you've quoted actually refer to decisions rather than to agendas which of course is issued prior to a decision being taken.   
Frankly the easiest way to resolve this where co-options are concerned is to ensure a comprehensive co-option policy is adopted by the council so that everyone knows exactly where they stand.
In my council it is an agreed policy that when proposing any agenda item, councillors must prepare a paper on the subject which is published with the agenda but in reality occasionally information is lacking so that the paper is either late or tabled at the meeting.  More often than not, unless the matter is of a very routine nature, a decision is deferred if members feel they've not had sufficient information or information provided on time.  Ultimately, it is councillors and only councillors who make decisions.