Hart Council Verdict: Nothing to see here

The monitoring officer of the council has been in touch in response to my complaint about the Councillor Angela Delaney’s declarations of interest.

In summary, the complaint is rejected because “a valid complaint not been made out but more importantly the matter subject to the complaint falls outside the proper arrangements for dealing with complaints”.

This is not satisfactory, and a detailed rebuttal has been sent to the monitoring officer that:

• More precisely details the matters in the complaint and the paragraphs in the Code of Conduct that have allegedly been breached.
• Rebuts each main point made by the monitoring officer
• Points out that the Monitoring Officer’s position is constitutionally and practically unsound, and so he must pass the matter to the Standards Committee for adjudication.

What follows is the Monitoring Officer’s response to my original complaint and my detailed rebuttal.

Hart Council’s Monitoring Officer Response to the Complaint

I do not intend to action this matter as not only has a valid complaint not been made out but more importantly the matter subject to the complaint falls outside the proper arrangements for dealing with complaints.

It is for the individual Councillor to make a judgement as to whether a declared interest prevents them from taking part in any discussions or voting. They are in the best position to assess their personal circumstances and to judge how these circumstances affect their role as a councillor in regard to a particular matter. If you consider that they should not have participated and that their actions unfairly influenced any decision then that goes to the heart of the lawfulness of the decision made by the Overview & Scrutiny Committee – it is not a Code of Conduct matter.

In any event, other than through innuendo, you have not made out a complaint. The key question that you have not addressed is what makes you believe that Cllr Delaney could reasonably have known from the paper that was presented to the Overview & Scrutiny paper there was a direct link to an interest that she had declared?

The matter under consideration by Overview & Scrutiny Committee was solely about discussion on potential draft governance arrangements that the Council could put in place to deliver the first stage of the new settlement project. It was a very high level discussion. It included reference to a possible landowner forum which could comprise landowners and respective developers. There was no reference to a particular land owner or developer and there was certainly no intention to prejudge who in the future would comprise that forum. Therefore, your identification of a particular potential member of the forum is totally premature, speculative, and without foundation. It creates a speculative scenario in abstract from the matter that was under discussion.

Looking at this objectively Cllr Delaney had absolutely no reason to delve deeper into the Overview & Scrutiny Committee paper’s background. She had no reason to believe that her declared shareholding had any relevance to the matter under consideration – any link could only be described as so remote and insignificant that it need not be declared.

I will send a copy of this reply to Cllr Delaney.

Daryl Phillips

We Heart Hart Reply

Thank you for your prompt reply to my complaint. I note that you have not challenged any of the facts raised in my complaint.

You say that I have not made a valid complaint and that the subject matter complained about is not the proper subject of a complaint. However, you have only addressed one of the three matters raised in my complaint.

Detailed Matters in the Complaint

You say that I have not provided a proper complaint, other than innuendo. Quite the contrary, I have provided detailed evidence, sourced from Hart’s own website, Companies House and the website of councillor Delaney’s own company. I thought the nature of the complaint was self-explanatory. However, here is each matter in clear and unambiguous language.

• Matter 1. Councillor Delaney has not properly declared her, or her husband’s joint ownership of St Swithins Construction Limited. They each own 50% of the company, the place of business is within Hart District and the net assets are over £50K, so each the value of each holding is over £25K.  These holdings should be properly declared on section 7 of the Declaration of Interests form. I believe this omission is contrary to paras 16 and 17 of the Code of Conduct which place an obligation on councillors to properly declare their interests and keep them up to date.
• Matter 2. Councillor Delaney has not declared the client relationships of St Swithins Construction Ltd. Companies House defines the company as a micro-company. As such, the relationship between the directors of St Swithins and the clients is a quasi-employment relationship. I believe these relationships should be declared in section 1 of the Declaration of Interest form, especially as their work is in the sensitive area of construction and they have relationships with several large building companies. I believe failure to do this is contrary to section 7 of the Code of Conduct which says, “You must not place yourself in situations where your honesty and integrity may be questioned, must not behave improperly and must on all occasions avoid the appearance of such behaviour” and sections 16 and 17. If, as is now claimed by the chairman of the council, St Swithins construction has never had a client relationship with Barratts, then I believe this is also a breach of para 7 of the code, in that she has apparently misrepresented her company’s clients and has thus created a situation where her honesty and integrity is under question.

• Matter 3. The O&S meeting in October. Councillor Delaney did not declare either her husband’s shareholding in Barratts, nor the client relationship of St Swithins Construction with Barratts at that meeting. The meeting did the following:

1. Agreed in principle the governance arrangements for the new settlement project. This included the developer’s role as key stakeholders and their role in the various governance bodies. All developers in the project will benefit from this decision. It is well known that Barratts is one of the key players in this development as they have previously circulated a “vision document” and have made representations on the Local Plan, including Policy SS3.
2. Discussed funding of nearly £1.5m over three years to be allocated to prepare for the new town. Clearly developers, including Barratts will benefit from this.
3. Agreed that HDC would work with all the developers to secure funding under the Garden Communities Programme

I believe this failure to declare her interests and failure to recuse herself from the discussion is in contravention of sections 18 and 19 of the Code of Conduct which say:

Further, I believe this is also in contravention of section 20 of the code of conduct which says “If you attend a meeting at which any item of business is to be considered and you are aware that you have a[sic] “other interest” in that item, you must make verbal declaration of the existence and nature of that interest at or before the consideration of the item of business or as soon as the interest becomes apparent”. Footnote 6 then goes on to say “However, you should not ignore the existence of interests which, from the point of view of a reasonable and objective observer, you should have been aware of.” Any reasonable and objective observer would expect a councillor who is an active advocate of the new settlement to be aware that Barratts is a key player. Even in the unlikely event that she was not aware, then given the shareholding in Barratts, it is reasonable to expect a councillor to make enquiries about the identity of the developers. The existence of the Barratts shareholding and client relationship is clearly a relevant interest.

I have updated the summary section of the Complaint and reattach it for your consideration.

Validity of the Complaint

You say “a valid complaint not been made out but more importantly the matter subject to the complaint falls outside the proper arrangements for dealing with complaints”. I have demonstrated above how each matter discussed in the complaint relates to specific sections of the Code of Conduct, so I reject your assertion. I believe this is a prima facie case of misconduct that should be investigated. If you still disagree, please explain to me how these matters can be addressed if not through the Complaints Procedure.

You then go on to say “The key question that you have not addressed is what makes you believe that Cllr Delaney could reasonably have known from the paper that was presented to the Overview & Scrutiny paper there was a direct link to an interest that she had declared?”.

It is common knowledge that Barratts are a key player in the new town project. Councillor Delaney is active on social media opposing the Pale Lane development and advocating the new settlement. It is inconceivable that she did not know that Barratts are involved in that project. Even in the unlikely event that she was not aware, then given the shareholding in Barratts, it is reasonable to expect a councillor to make enquiries about the identity of the developers. The paper states that HDC is working with all the developers to secure funding under the Garden Communities Programme. Indeed, the council has produced a joint Statement of Common Ground with Barratts, Gallaghers and Lightwood. It is clear that Barratts and the other developers would benefit from the decisions taken. Therefore, there is a direct link between the subject matter and her declared and undeclared interests. Even if you don’t agree that this is a direct link, I don’t think it necessary to demonstrate a direct link to an interest:

• First, section 7 of the code places an obligation on councillors not to put themselves in a position where their honesty or integrity can be questioned. Clearly, the existence of this complaint demonstrates this is not the case.
• Second, the whole point is that her interests were apparently not properly declared on the Declaration of Interest form, nor at the meeting. The main issue is that it appears there were links to interests that she had not declared.
• Third, the definition of pecuniary interest is “A pecuniary interest in a matter is one where there is a reasonable likelihood or expectation of appreciable financial loss or gain to the person”.  A reasonable likelihood or expectation does not require a direct link. I believe it is obvious that there is a reasonable likelihood or expectation that Councillor Delaney and her husband will benefit financially from their shareholding in Barratts if the new settlement is approved and/or from work arising from their client relationship. This should preclude participating in any matter relating to the new settlement.

You then suggest that my assertion that Barratts would be a member of those governance arrangements is “premature, speculative, and without foundation”.  This is a totally untenable claim. Indeed, the Statement of Common Ground between HDC, Barratts, Gallaghers and Lightwood says “All parties are also supportive of joint working through the governance arrangements associated with the New Settlement”. So, all parties, including Barratts, are going to be involved in the governance, contrary to your assertion.

Finally, you say “Cllr Delaney had absolutely no reason to delve deeper into the Overview & Scrutiny Committee paper’s background. She had no reason to believe that her declared shareholding had any relevance to the matter under consideration – any link could only be described as so remote and insignificant that it need not be declared”. This is frankly ridiculous. Given the shareholding in Barratts, it is reasonable to expect a councillor to make enquiries about the identity of the developers. People on Overview and Scrutiny are supposed to delve deeper. That is their role. Both her declared and undeclared shareholdings and undeclared client relationships to Barratts are clearly relevant. Discussing anything to do with the new settlement is going to be an issue where Barratts is a well-known key player, especially when the council’s own documents show a close working relationship between HDC and all the developers.

In this situation, I think it is reasonable to think “what would I do in such a situation” or what would a reasonable person on the street expect to have happened. I think the answer is clear in both cases:

• Fully and properly declare shareholdings and client relationships on the Declaration of Interests form
• Disclose those interests at council meetings and recuse oneself from the meeting where those items are being discussed

Legal Issues

It was only after I submitted the complaint that I realised failure to properly disclose interests might be unlawful under the Localism Act as well as breaching the Code of Conduct.

I am not seeking the involvement of the police or courts in this matter. However, if you fail to properly address this complaint, you might leave me with no other choice. Please advise on the most appropriate way of raising these matters should you continue to maintain that it is not a matter for the Code of Conduct.

You have also raised the point that upholding this complaint “goes to the heart of the lawfulness of the decision made by the Overview & Scrutiny Committee”. I have made a prima facie case for breaches of the Code of Conduct. The potential further legal implications of the complaint should not be a criterion by which the validity of the complaint is judged. If you have any inkling at all that the decision made by O&S was unlawful, then you should separately seek legal advice and report the matter to the Standards Committee.

Objectivity of the Complaint Process

It has not escaped my attention that you wear many hats in the council. You are one of the joint Chief Executives, de facto head of Planning Policy and Monitoring Officer. In terms of the Constitution, you are fulfilling the posts of both the (joint) Head of Paid Service and Monitoring Officer. The constitution says that the post of Head of Paid Service and Monitoring Officer should not be the same person.  Constitutionally, you should not be Monitoring Officer and therefore you should not be assessing this complaint.

Moreover, Policy SS3 in the Local Plan is a flagship policy of the council and so you as de facto head of planning and joint CEO, have a vested interest in it proceeding smoothly. Moreover, you participated in the meeting that is the subject of one of the matters in the complaint. Practically speaking, you are therefore tainted by the process, and should take no part in deciding the merits of the complaint.

Moreover, the chairman of the council is from the same party as Councillor Delaney and has gone on social media, referring to her as a colleague and a friend, so cannot be objective either.

As you are constitutionally and practically conflicted and hamstrung on this complaint, I insist this matter is passed to the Standards Committee. They can look at this with fresh eyes and be seen to be objective. The Standards Committee should decide on whether this matter goes beyond the Code of Conduct and whether to involve the legal authorities.

Outcomes

The outcomes I suggested in the original complaint were perhaps not properly thought through. I would now like to suggest the following, if the complaint is upheld:

• Overall: Councillor Delaney makes a full, public apology for misleading Hart residents on the true extent of her shareholdings and relationships with Barratts and for not declaring her interests properly at O&S.
• For Matter 1: Failure to declare the St Swithins Construction Limited shareholding. Section 7 of the Declaration of Interest form should be brought up to date.
• For Matter 2: Failure to declare the client relationships of St Swithins Construction. Bring the Declaration of Interest form up to date with these client relationships. I believe the Council should also give guidance on the extent to which it is appropriate for Cllr Delaney to hold private meetings with developers, where those companies have a land-holding or are seeking planning permission or a contract within Hart District. I understand that a councillor was removed from office for inappropriate meetings with developers a few years ago, and it would be unfortunate if Councillor Delaney got herself into the same position.
• For Matter 3: Failure to declare her interests at O&S. I think the remedy here would be temporary suspension from the committee for a period of 3-6 months. It should also be made clear that it is not appropriate for Councillor Delaney to participate in any matter related to the new settlement (or indeed any other proposal that may involve any other of her company’s client list). She should declare her interests at any meeting she attends and recuse herself from the discussion, decisions and votes on these matters.

I have updated the outcome section of the complaint accordingly.

I look forward to your response. I have been asked by the Chairman of the Council on social media to publish your reply to me. I will do so, together with this response. If I do not receive a satisfactory response from you, I will send details of the complaint direct to the Chairman of the Standards Committee.